The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-12-16
Holds That Search and Seizure
Clause is Unconstitutional.
WOULD END CITY CASES
Numberless Joint Cases Will
Await an Appeal.
LII Supreme Court Affirms They
Must Be Dismissed.
Judge Hazen Hands Down Care
fully Written Opinion.

Judge Hazen in the district court this
| morning decided the motion to quash
the complaint in the Malinda Parrish
liquor case, brought by the city, Sus-
tanning the motion and deciding that the
city search and seizure ordinance passed
under the Hurrel law, and under which
this case was brought in police court,
March 19, 1901, and appealed from the
police court to the district court, was
void, for the reason that the clause of
the Hurrell law under which the ordi-
nance was passed is unconstitutional,
for the reason that the Hurrel law has
two subjects which are not clearly de-
fined in the title of the law. The law
provides for the suppression and reg
ulation of the sale of liquor, and also
gives cities power under section of the
law to pass ordinances, and the power
conferred by section is not mentioned
in the title of the Hurrel law. The title
of the act not being broad enough to
cover the power conferred upon the city
to pass ordinances is in violation of the
constitution, which provides that no
bill shall contain more than one sub
ject that shall be clearly expressed In
the title" The title of the Hurrel law
provides only for the prohibition of the
sale of liquors and the suppression of
places where liquor is sold as a common
nuisance, and says nothing about the
subject of the act comforting power on
the city to pass ordinances regulating
procedure against violators of the law
The Malinda Parrish case was the first
made by the police under the Aurrel
law ordinance Since then 46 cases have
been brought under that ordinance and
appealed to the district court There
are many more not yet appealed, among
them the recent drug store cases. II
Judge HaZen'S decision is affirmed by
the supreme court all the cases Will be
dropped. The following is Judge Ha-
zens decision in full. Harvey & Har-
vey and G. G. Clemens appeared for the
defendant and City Attorney Spencer
and Carver & Larimer for the city.
The motion to quash the complaint in
this case and other similar cases pend
ing challenges the validity of ordinance
No. 2211 of the city of Topeka, which
took effect March 6. 1901.
1t is contended on behalf of defend
ant that this ordinance is void and
therefore no conviction can be had un
der it. The validity of this ordinance
depends upon the constitutionality of
section of chapter 232 of the session
laws of 1901, commonly known as the
Hurrel law. Section of this law au-
thorizes cities of the first, second and
third classes to pass ordinances prohibit
ing the sale of intoxicating liquors. to
suppress places where intoxicating
liquors are sold used in violation of
law, to search the premises and seize
the liquors together with the parapher-
MALTA used in the sale use of such
liquors, and authorizes the imposing OF
a fine of not less than one hundred nor
more than five hundred dollars and inn
nor more than six months for each
offense.
The ordinance in question was enact
ed by virtue of the power conferred by
said section seven. and if that section
of the law is invalid then the ordinance
enacted under it is also invalid
Section IS of article 2 of the con-
stitution provides that bill shall
contain more than one subject which
shall be clearly expressed in its title.
Does the Hurrel law violate this con-
p 7tr,i,,
but one subject. and is that subject
clearly expressed in the title?
Sections /, 2, g. 4, 5, and of this act
relate to the suppressing of places
where intoxicating liquors are sold or
used or kept for sale or use in violation
of law. The subject of those sections
is places where intoxicating liquors
are sold used in violation of law"
The subject of those sections declare
certain places to be common nuiSanceS
and provide the procedure for suppress
ing them. This subject has received
special attention from almost every leg
islature since 1881 and even prior there
to-
Section of the Hurrel law confers
power upon cities of the first, second
and third classes to pass ordinances for
the suppression of places where intoxi-
eating liquors are sold or used in VIOLA
ton of law. Is the comforting of power
upon cities to pass ordinances a sub
ject unto itself? If it is, then the Hur-
rel law contains more than one sub
iect and is ViOlat1Ve OF Sect1On 10 OF
article 2 of the constitution.
In determining this question we N ust
not confuse the subject or subjects of
the act with it's object. The subject of
section seven is the comforting of power
upon cities to pass ordinances and this
is a different subject from that of the
other sections of the act. The confer
ring of power upon cities to pass Or
dinances is a subject that has been
recognized by legislatures from the
earliest history of our state. In this
state cities have only such powers as
are expressly conferred upon them by
legislation and such implied powers as
may be necessary to carry into effect
only comparatively recent years that
city charters were granted by general
laws Originally special charters were
granted by the legislature to cities and
the grant only applied to the particular
city named; but of recent years
the granting of power to cities has been
only by general laws, and this is espe-
cially true in this state by reason of the
constitutional provision which prohibits
the comforting of corporate powers ex-
cept by certain kind of legislation. In
constituting the words corporate pow
erss' as used in the constitution, our
supreme court has held that the con-
ferring of corporate powers includes
the comforting of powers upon cities or
municipal corporations. The fact that
the makers of our constitution saw fit
to incorporate therein this provision,
having the meaning which our supreme
court has given to it. concerning the
comforting of corporate power, goes far
comforting of corporate powers is a
s11hieet l1ntO itself and that it must be