The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-12-30
POLICE HAVE NOTHING.
Left With No Authority For
Raids on Joints.
Judge Holds That City Charter
Isn't Broad Enough.
No Provision For Seizure and
Destruction of Property.


has no right to pass an ordinance for
the search of places where liquor is il
legally sold and for the seizure of Ii
quors found there The court held that
unless the legislature gave express and
nGt implied authority for a search and
seizure ordinance or unless provision
was made in the city charter Eer the
destruction of property that the council
could not pass such ordinance and that
the present ordinance is invalid This
leaves the city practically without an
ordinance under which the police can
successfully prosecute the illegal liquor
sellers.
In delivering his opinion Judge Hazen
said:
If the city has authority to pass an
ordinance authorizing the seizure and
destruction of property it is by virtue
of express authority granted by the leg
islature. The authority to seize and de-
stroy property has been recognized and
held to be the exercise of a high judicial
power and cannot exist by inference or
implication. In discussing this question
Judge Dillon. in his work municipal
corporations, says: "A corporation, un
der a general power to make bylaws,
cannot make bylaw ordaining the
forfeiture of property. To warrant the
exercise of such an extraordinary auth
ority by local and limited jurisdiction,
the rule is reasonably adopted that such
authority must be expressly conferred
by the legislature This proposition, as
laid down by Judge Dillon is well sup
ported by numerous decisions
In the case of Henlxe VS.. McCord, the
supreme court of Iowa says: 1t has
been quite uniformly held that a muni-
cipal corporation has no authority TO
pass an ordinance creating a forfeiture
of goods and chattels as a penalty for
violating it's bylaws or ordinances, un-
less such powers are expressly granted
by its charter
In the argument of the question
whether the legislature of this state has
expressly conferred upon cities the
power to seize and destroy property, it
was contended by counsel for the city
that such power is granted by sub
division 2S of section IL, chapter Is of
Dassler's statutes and it was also ad-
mitted that no such authority exists
unless it is conferred by that sub-diviS-
ion of section IL.
Sub division 2S provides that the
mayor and council of cities of the first
class shall have power To prohibit and
suppress the. tippling shops, saloons,
dram shops, club rooms. to restrain.
prohibit and suppress slaughter houses,
houses of prostitution, diSreputabie
houses, games and gambling houses,
dance houses, keno rooms, Dissertation
of the Sabbath day, and all kinds of in
decency and other disorderly practices,
disturbance of the peace, assault and
battery, and petit larceny, and to pro-
vide for the punishment thereof
that, in suppressing saloons, tippling
shops, etc, enumerated in this sub
division %, the city has authority to
seize and destroy the liquors and para
phernalia of such places. But if this
construction is placed upon the statute
then the power to seize and destroy
property is not by reason of its being
expressly conferred but arises solely by
inference, as an incident to the exer-
else of an express power The word
suppress as used in this statute does
not mean the destruction of property
DuC II contemplateS the suppression of
the place by Furnishing the keeper there
of or the offending person, and means
the same when applied to tipping shops
and saloons as when applied to slaugh-
ter houses. houses of prostitution, desc
crations of the Sabbath, etc 1t cannot
be reasonably claimed that in the exer-
oise OF the power conferred by this stat
ute the city would be authorized to pass
an ordinance providing for the seizure
and destruction of personal property
used in running a slaughter house or
house OF prostitution or to seize and
destroy property used by person en-
gagged in a dissertation of the Sabbath
by keeping his place of business open
on Sunday in violation of law.
II the contention of the CITY is we'll
founded that the suppression of an un-
lawful place, as enumerated in subdivi-
sion %, includes the right of seizing and
destroying property, the logical conclu-
sion would necessarily be that the citv
building in which such unlawful place
was maintained, if that was necessary
to the suppression of the place.
Section IL of the city charter act is
divided into A subdivisions, and in each
one of these subdivisions power to do
the things therein enumerated is ex-
pressly conferred, but in the entire sec
Ilon there is no place where authority
IS granted to ordain the seizure and de-
Struction of property, except in subdivi-
SION 70, where the power is expressly
conferred to destroy dogs running at
large contrary to ordinance
II seems clear that it was never in
tended by the legislature to confer this
e1traordinary power upon cities as con-
senoed on behalf of the city in this ease
Tor If such intention had existed the
power would have been expressly con-
ferred.
The court holds that since there is no
express authority granted to city to
pass ordinances for the seizure and de-
suucIlon of property, it necessarily fol-
lows that any seizure and destruction
u property under such an ordinance
would be unlawful
CITY HAS NO APPEAL
4, city Attorney Spencer, in discussing |
the search and seizure decision by |
Juoge Hazen this morning, said: s.The |
clty mas got to work on what is left of |
oruinance 2192. That was passed last |
NoFemDer- This decision knocks out the |
search and seizure clause of that ordi- |
nance nance and in addition means that the |
city can not pass any search and seiz-
ure ordinance AS q matter of course |
tne Gray habeas corpus case appealed |
from the police court to the supreme |
s0aTe WlA bring decision upon the |