The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-03-07
JOINTS WIN POINT
They Can Not Be Suppressed by
Injunction.
Supreme Court Puts Stop to
the Plan.
MISTAKE IN THE LAW.
Nuisance Clause Has Been Re-
peaIed Says the Court.
Since That Is the Case Injunc-
tiOn Won't Stand.
IN THE LAW.

The supreme court today knocked out
that provision Of the prohibitory law
under which joints have been suppressed
as nuisances by the injunction process.
1t is declared that the legislature of two
years ago repealed the section defining
nuisances.
The decision is rendered in an appeal
from Wyandotte county in the case OF
William Estep. whose Joint was closed
by the injunction method. The syllabus
in the case is as follows:
That clause of section 4, chapter 163,
Of the Laws of 1887 (section 246S, General
Statutes. 190l). which created and de-
! fined common nuisance under the pro-
hibitory liquor law and fixed a punish
ment ON the owner or keeper thereon.
was repealed by section 1, chapter 232,
Laws of 1901 (section 2493. General Stat
utes. 19O1). This repeal destroyed the
force of the clause Immediately foliolv~
/ ing, providing a remedy by injunction
TO abate d nuisance of the kind men,
toned in the first law, for the reason
that that part of the section authoriz-
ing injunction proceedings operates
against such nuisances only as are de-
fined in the preceding portion of tbs
same section OF the law of 1887, which
was repealed"
The opinion is written by Justice
Smith, and is as follows:
SECTION four of chapter 165, laws of
4 1887, contains both criminal and civil
| remedy for the suppression and abate-
/ ment of nuisances. The first part of
/ the section defines a common nuisance
and applies the terms to places where
/ Intoxicating liquors are manufactured,
sold or given away in viola ton of any
/ places where. persons are permitted to
resort for the purpose of drinking in
4 tONicaung liquors as q beverage, and to
/ places where such liquors are kept for
makes It the duty of all sheriffs and
/ cOnsta bles to shut up and abate such
places by 1sizing the liquors and ae-
I ceSSOI1eS found tnerein The owner or
/ keeper of such nuisance, on conviction.
I is amenable to a fine and Imprisonment
4 in the county Jail
Following Immediately in the same
section of the act comes the civil rem
edy for the suppression and abatement
of such common nuisance by injunc-
ton, in suit to be prosecuted by the
attorney general or any citizen of the
Z county.
1t is clear that the first section of
! chapter 232 of the laws of 1901 set out
in the statement, repeals that part of
section four Of the law of 1887 which
( makes it a criminal act to keep and
maintain a nuisance This is apparent
from the fact that the two statutes are
( directed against criminal acts not
/ widely different. with an increase of
4 punishment in the later law
/ The law of 1887 fixes the punishment
at fine of not less than one hundred
| dollars nor more than five hundred
/ dollars, and Imprisonment in the cOun-
/ ty Jail not less than thirty nor more
/ than ninety days In the law of 1901
/ the fine which may be imposed is the
same, but the imprisonment provided
is mot less than thirty days nor more
| than six months
T~7 he tot &c
/ it was held that a law passed in 1901,
/ making it an offense for officers of a
bank to knowingly receive deposits
when the bank was insolvent repealed
| a former law covering the same sub
/ iect. The court said:
"A comparison of the two sections
/ leaves no doubt that the latter covers
the whole subject of the former one, and
as the latter act omits some parts of the
first, changes others, and embraces new
! provisions, thereby increasing the pemal-
ty, it is obvious that it was intended as
a substitute for the first act, and under
the rule frequently declared it will OPP
crate as a repeal of that act"
See also the state ex rel vs.. Studt. 81
Kan. 245.
In United States VS.. Clahin. 81 Il. S.
546-552. the case of Norris VS.. Croker ct
al Is Howard 429 is quoted from ap-
provingly, as follows:
AS a general rule. 1t is not open TO
controversy, that, where new statute
old one, adds offences. and prescribes
different penalties for those enumerated
in the old law the former is repealed by
implication, as the provisions of both
cannot stand together.
Again, under the first law it is made
a criminal Offense to own or keep a
common nuisance in violation of this
act" that is, a nuisance as therein de-
fined. In the last enactment it is made
criminal to maintain such a nuisance
lin violation of law" In the first the
crime is confined to 2 violation of those
things made unlawful in that act itself
The later law covers and embraces all
new and future restrictions which may
be created within the scope of legisla-
tive power. and operates prospectively.
As stated. that part of the law of 1887
which is repealed precedes the injunction
clause in the same section The remedy
by injunction is authorized to prohibit
and suppress the maintenance of a nuis-
ance created and defined by a preceding
clause which has been, so to speak, lift
ed out of the section byrepeal. The first
section of the injunction clause reads:
The attorney general, county attOr-
ney, or any citizen of the county where
such nuisance exists. may main
tain an action in the name of the state
to abate and perDetually enjoin the
same"
Eliminating that part of the section
defining a nuisance, the clause following
Immediately thereafter in the same sec
Iion providing for the abatement by in
junction of such nuisance. can have
nothing to operate on. The second OF
injunction clause is dependent on the
first which defines the nuisance to be
abated As stated in the brief of ceun-
sci for defendant in error, the extent Of
the power given by the first sentence
r of the injunction clause OF the law OF
1887 may be expressed in slightly differ
ent language from that of the statute
as follows.
The attorney general. county attor-
any nuisance created and defined by the