The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-12-19
.HAzEN STOPS 1T.
Puts an End to Search and Sci
Zure Ordinance.
Police Have No Right to Destroy
C0nfiscated Liquor.
COUNCIL HAS NO RIGHT
Exceeded Authority in Confer.
ring Power on Police.
Police Court Has No Power to
Try Property Rights.

Judge Hazen decided that the police
court has no power to issue a search
and seizure warrant and that the po-
lice, acting under such warrant from
the police judge, have no right to search
a building and seize liquors or any other
property.
| This decision will affect more than 100
of the joint and drug store cases COM
menced in the police court by Chief
Stah1 and his officers. Many of these
cases have been appealed to the dis
trict court for trial at the January term
but this decision of Judge Hazen's stops
proceedings in them all.
Since Chief of Police Stahl has been
at the head of the police force during
| his present term he has proceeded
against the joints and drug stores un-
! der the new city charter act passed by
the legislature in 1903. Under this act
the city council passed an ordinance
comforting the power upon the police
| court to issue search and seizure war
rants and to appeal to the district court.
Judge Hazen's decision is that the city
| council has no right to confer such
| power.
City Attorney Spencer excepted to the
decision and the case will probably go
| to the supreme court on the demurrer
! Judge Hazens decision was given on a
demurrer in the replevin suit of E. S.
!
police rafded Lees drug store under
search and seizure warrant issued in the
police court and took a stock of liquors.
Lee brought replevin suit in the dis
! trict court to recover the liquors and
/ it was in the replevin suit that the de-
cision was made.
Judge Hazen's decision invalidating
the right of search and seizure is as
follows:
I'm this case plaintiff filed the usual
| petition in replevin alleging in sub
stance that he was the owner of and
| entitled to the lmm mediate possession OF
certain personal property consisting
| of Intoxicating liquor, etc, and that
the defendant wrongfully took and
unlawfully detainS possession thereof
Defendant filed an answer admitting
| the taking and detention of the prop
| erty and justified the same by virtue of
| a search and seizure writ issued to
him as chief of police by the police
court of the city of Topeka. Plaintiff
demurred to this answer upon the
ground that such justification does
not constitute a good answer to
plaintiffs petition and this presents
the legal question now before the
court for decision.
"It is contended on behalf of de-
fendant that replevin will not lie in an
action of this kind, that the owner of
the property can not replevin the
same from an officer who has seized it
by virtue of a writ issued to him by
any court. Plaintiff contends that re-
DlGVln Will lie, InaC CnG ponce court
has no authority to isue a search and
seizure writ and that therefore any
taking and detention of property un-
der such a writ is wrongful. Defend
ants attorneys contend that it makes
no difference whether the court is
suing the writ had jurisdiction to is
sue it or not, that replevin will not
lie to recover possession of property
held by an officer under a writ al
though issued without authority. This
contention of defendant cannot be sus-
tanned either in reason or by authority.
There is an unbroken chain of de-
cisions against defendants contention
on this question. 1t is we'll settled that
if a court issuing a writ under which
property is seized has no auth ority to
issue it then the officer to whom it is
directed has no authority to execute it,
and the taking of property under such
a writ is wrongful and unlawful. In
justice to the city attorney it is prop
er to say that he does not share in
this contention on behalf of the de-
fendant If the court issuing the writ
has no authority to issue it, then the
writ has no vitality and any taking of
property under such writ would be
wrongful. 1t would serve no greater
purpose than if such writ was issued
by a person not possessing judicial
authority. Rep1evin, therefore, is a
proper remedy in a case of this kind.
''The important question in this case
is whether city, under the law and
its ordinances, may seize and con-
demurrer to defendants answer must
be overruled, but if it cannot then
the demurrer must be sustained.
On March 4, 1901, the city council
of the city of Topeka passed an ordi-
nance authorizing the seizure and de-
struction of certain property in the po-
lice court and this ordinance upon it's
face authorizes the police judge to is
sue a search and seizure warrant, with
authority in the officer to whom it is
issued to seize property, bring it into
court and then under proceedings in
rem, by the serving and posting of
notices, ETC., have the property de-
stroyed under an order of the police
court Has the city charter conferred
such power upon the city? Prior tol
the passage of chapter 232 of the laws
of 1901 no such power existed. and if
the city has such power it is by virtue
of that statute. Doubtless the legisla-
ture did not believe that cities had
that power, for if they had
have been conferred by that act. I'm
less the power of the city to seize and
destroy property is found in this stat
ute no such power exists.
The legislature of 1908 by chapter
1872 passed what is known as the new
city charter act, and while that act
purports to be complete within itself
yet that part of the law of 1901 per-
tanning to search and seizure bv cities
has not been carried into the new city
charter act and there seems to be
some ground for the contention that
If the legislature had intended to con-
tinue the power to search and seize
as enacted in the law of 1901, it would
have been re-enacted in the new city
charter act But it is not necessary for
the court to pass upon this particular
paragraph.
1t is further contended on behalf of
plaintiff that chapter 232 of the laws
of 1901 is unconstitutional in this: thatl