State v. The City of Topeka

• Decision Date: 26 June 1883
• Citation: 2 P. 587,30 Kan. 653
• Parties: THE STATE OF KANSAS, ex rel. the County Attorney of Shawnee County, v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

2 P. 587

30 Kan. 653

THE STATE OF KANSAS, ex rel. the County Attorney of Shawnee County, v. THE CITY OF TOPEKA

Supreme Court of Kansas

June 26, 1883

Decided July, 1883.

Original Proceedings in Quo Warranto.

THE petition in this case, filed June 26, 1883, is as follows:

"A H. Vance, county attorney of the county of Shawnee, in the state of Kansas, who prosecutes for said state, comes now here unto the supreme court of the state of Kansas, and in behalf of said state gives, the said court here to understand and be informed that:

"1. The said city of Topeka is and for more than two years last past has been a city of the first class, which previously had been a city of the second class, and having no other corporate rights, privileges or powers than those granted by the general laws of said state concerning cities of the first class, and said city is situated within said county of Shawnee; that for the space of more than two years past said city has exercised and still does exercise a certain corporate power not conferred upon it by law, to wit: the corporate power of licensing and authorizing the keeping and maintaining of tippling houses and places within said city for the purpose of selling and keeping for sale habitually and as a business, of brandy, whisky, rum, gin, ale, lager beer, porter and other intoxicating liquors as beverages, and not for medical, mechanical nor scientific purposes, and without any permit to sell intoxicating liquors at said places, nor by the owners or keepers thereof, having been issued by the probate judge of Shawnee county.

"2. The county attorney aforesaid, on behalf of said state, gives the court here further to understand and be informed, that the said city of Topeka, being a city of the first class as aforesaid, for the space of more than two years last past has exercised and still does exercise a certain corporate power not conferred upon it by law, to wit: the corporate power of imposing and collecting a license tax upon the business of selling and keeping for sale intoxicating liquors within said city to be used as beverages, and not for medical, mechanical nor scientific purposes, and without any permit for the sale of intoxicating liquors having been issued by the probate judge of said Shawnee county to the person so licensed and taxed.

"3. And the county attorney aforesaid, on behalf of said state gives the court here to further understand and be informed, that said city of Topeka, being a city of the first class as aforesaid, for the space of more than two years last past has exercised and still does exercise a certain corporate power not conferred upon it by law, to wit: the corporate power of making, entering into and carrying out agreements and contracts with such persons as the officers of said city may choose, by which the said persons have been and are granted the privilege of selling and keeping for sale within said city, and of keeping and maintaining within said city tippling houses and places for said selling and keeping for sale habitually and as a business, intoxicating beverages, to be at said places drunk as beverages, and not to be used for medical, mechanical nor scientific purposes, and without any permit from the probate judge of the said Shawnee county, in consideration that such persons would and will, at stated intervals, pay to said city a stipulated fine, to be imposed by the police court of said city on each of said persons at said stated times, in simulated prosecutions to be brought against each of them by said city at said stated times; said fines so imposed and paid, to be paid to and received by said city as a license tax for the privilege of carrying on said business, in full consideration of all violations of the ordinances of said city involved in making such sales, and in keeping and maintaining said places, and in carrying on said business, and of all penalties incurred thereunder.

"4. And the said county attorney, on behalf of said state, gives the court here to further understand and be informed, that said city of Topeka, being a city of the first class as aforesaid, for the space of more than two years last past has exercised and still does exercise a certain corporate power not conferred upon it by law, to wit: the corporate power of entering into and carrying on an agreement with any and all persons desiring to keep and maintain in said city places for the sale of intoxicating liquors as beverages, and for other than medical, mechanical and scientific purposes, in violation of the act of the legislature of the state of Kansas, entitled 'An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,' approved February 19, 1881; that for certain sums, to be paid to said city by such persons in fines, as forfeited bail, or otherwise as said city might prescribe, said city would and will not cause nor permit said act of the legislature to be enforced nor regarded as against such persons by any officer or policeman of said city; nor permit any prosecution, arrest nor complaint to be instituted or made under said act, nor any information which might cause, induce or aid any such prosecution by the state, to be given by any officer or policeman of said city.

"Wherefore said county attorney, on behalf of said state, prays that the said city may be required to answer to said matters; that it may be ousted forever from the exercise of said usurped corporate power; and that such other and further relief may be given to said state against said unlawful acts as may be proper."

To this petition the defendant filed a demurrer, embracing every statutory ground. The opinion herein was filed at the November, 1883, session of the court.

Petition overruled.

G. C. Clemens, for The State.

A. B. Quinton, and J. D. McFarland, for the defendant.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an information in the nature of quo warranto, brought by the county attorney of Shawnee county in the name of the state, to oust the city of Topeka from exercising the power of licensing and imposing taxes or charges on persons for selling intoxicating liquors within the limits of the city, contrary to the constitution and statute of the state. To the petition the city demurs, and by so doing raises the question whether this proceeding can be maintained for the purpose of granting the relief prayed for. No claim is set up that the city is authorized by its charter, or otherwise, to exercise the powers assumed by it; nor is any attempt made to justify the city in its illegal action; nor is any suggestion made that the matters set forth in the petition are not the acts of the corporation. On the other hand, it is conceded by counsel representing the city, that the state has the right to maintain this action, provided the alleged corporate right, which it complains has been usurped, is in reality a corporate right or franchise within the meaning of the law. (Code, § 653.)

The contention however...