The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-12-19

chapter 165 of the laws of 1887. and
that neither the title nor the body OF
the act shows that it is an amendment
of any prior statute and therefore it is
claimed that it is within the decision
OF our supreme court in the case of tn
State VS.. Quincy, IS Kan .532, wherein
the court, in speaking of section 16.
article of the constitution, says:
zone purpose of this clause was to dis
continue the practice of amendments
by striking out and inserting. and an
other was to call specific attention to
the old statute, although when the new
is properly enacted with reference to
the old the latter is repealed by the
very force of the constitutional pro-
vision without any legislative declara-
ton to that effect
This statute, however, has been be-
fore our supreme court some two or
three times on various questions and
the law has been sustained. 1t may
be that the exact question now urged
against this law has never been pre-
sented, but under the circumstances
this court would hardly be justified in
holding the law of 1901 unconstitu-
tional; and yet if the above quoted de-
cision is followed the principle there
announced would apply to this case
and the court would be justified in
holding 1t unconstitutional; for the
law of 1901 in effect amends certain
sections of chapter 165 of the laws of
1887, and amends and enlarges the
nuisance part of the prohibitory liquor
laws of 1887.
Where statute in effect amends
part of a prior statute and thereby
changes the prior statute in part, with
out any reference in the new to the old
statute, sucn legislation seems to be
v1olative of the constitution and such
legislation can only be sustained when
it can be said that it is intended as a
continuation or substitution for the old
No one can tell from the title or the
body of chapter 232 of the laws of 1901
that it is amendatory of any prior sta
tute.
The ordinance under which the de-
fendant juStifies in this case processes
to give both the city and the person ag
gr1eVed by the decision of the police
court upon property rights the right of
appeal to the district court. Doubtless
the authors of this ordinance believed
that to make such an ordinance valid
the right of appeal should be given and
therefore provided for it in the ordi-
nance. The right of appeal is jurisdic-
tiOnal, and it is not within the power
of the city to confer jurisdiction upon
any court The right of appeal from
the police court can only be conferred
by statute and not by ordinance. If
the city by ordinance can grant the
right of appeal, then by doing so the
city council of the city confers juris-
dictiOn upon the district court the court
to which the appeal is taken. This can
not be done. All that part of the ordI-
nance then pertaining to an appeal,
where the right of property seized in
the police court has been tried, is a
nullity.
Sections 10S and 10S B, chapter 122 of
the laws of 1903, being the new city
charter act, provide for appeals on be-
half of defendants and also on the part
of the city in certain cases, but it is
only necessary to examine these two
sections to see that neither of them
applies to a. case where property has
been seized and tried in the police court.
"a ri nf
less expressly authorized In the case
of the people VS.. the police justice,
Mich. 46O, the court says:
Nor can appellate jurisdiction be
acquired by implication, or anything
short of positive enactment; and l am
aware of no instance where courts have
presumed to exercise it except upon ex-
press grants of power
A foot note to page 432 of 1St Dillon
Nun. Corp says:
IAN appeal from inferior tribunals
does not exist unless plainly given"
The law of 1901 which processes to
confer upon cities of the first class
authority to enact ordinances to seize
and destroy property does not pretend
to give the right of appeal. The right
of appeal does not lie from the decision
of the police court confiScating property.
It makes no difference how valuable the
property ordered destroyed may be, the
decision of the police court is final and
the owner of the property without REM
edy.
Our supreme court has held that in
toxicating liquor is property and may
be owned and used for any and all pur-
poses except those which are prohibited.
Our present city charter act as well as
pricr ones show clearly that it never
was the intention of the legislature 70
confer civil jurisdiction upon police
courts, and our supreme court has de-
cided that a police court has civil
jurisdiction. Can property be taken
from the owner by process issued from
the police court, the property there tried
and confiscated by the decision of a
court without civil jurisdiction and not
recognized by the constitution? This
question is very concisely and pointedly
settled by the decision in the case of
Jackson vs.. The People, Mich. Ill,
wherein the court says:
There are certain classes of ques-
tionS which by common understanding
from time immemorial belong to the
courts of judicial inquiry under the laws
of the land. The common law and the
various charters and bills of rights rec
ognize and assure the right to such an
inquiry, and the constitution, in appor-
tioning the judicial power, as well as in
affirming the immunity of life, liberty
and property, has always been under
stood to guarantee to each citizen the
right to have his title to property and
other legal privileges determined by the
general tribunals of the state. These
courts, so far as they act un-
der city bylaws, are not designed to
decide between man and man or to ad-
minister general laws. They are ordain
ed to prevent disorder in matters of To-
cal convenience and to regulate the use
of public and quasi-public easements so
as to prevent confusion. If, in exercising
this power, they can incidentally decide
upon the rights of private property SO
as to determine its enjoyment without
review, there would seem to be a practi-
cal annihilation of the right to resort to
the general tribunals and the common
law"
According to the principle announced
in this case, the police court is without
jurisdiction to try and determine pro-
perty rights. 1t makes no difference
that the property proceed against is in
toxicating liquor, for the liquor itself
is moi contraband goods and can only