27 Kan. 614 | Kan. | 1882
The opinion of the court was delivered by
This is an original proceeding in habeas corpus, in which the plaintiff, Willis Franklin, charges the defendant, Thomas F. Westfall, with illegally restraining the plaintiff of his liberty, and asking that' he may be released by this court.
From the meager statement of the facts of the case in the pleadings, and the few additional facts as shown by the evidence, the facts of the case, with the questions of law involved, seem to be substantially as follows: On June 8, 1877, the city of Ottawa, a city of the second class, passed an ordinance regulating and restraining the sale of intoxicating liquors. This ordinance provided for the issuing of licenses, under certain conditions, to persons to sell intoxicating liquors, and also provided for the punishment of all persons who should sell intoxicating liquors without a license, or in violation of the ordinance. This ordinance, we think,- was valid at the time it was adopted. We do not perceive any good reason for
On December 24, 1881, Willis Franklin, the petitioner in this case, sold and retailed intoxicating liquors in a certain building in Ottawa, Kansas, known as '“Franklin’s barber shop,” without having any license ór permit therefor, and in violation of law, and of the said city ordinance. Afterward, he was arrested and prosecuted before the police judge of said city, for the violation of said ordinance; and on February 21, 1882, after a trial had been duly had, was found guilty and sentenced by the police judge to pay a fine of $100, and to pay the costs of the suit, taxed at $24.70, and to stand
Of course we pass over all irregularities in the proceedings of the police judge, and of the city marshal and the sheriff, as mere irregularities cannot’ be inquired into in proceedings in habeas corpus. (Civil Code, § 671.) The only question for us to consider is, whether the police judge had jurisdiction to render a judgment similar to the one which he did render. Or, as this judgment seems to be authorized by the said city ordinance, the real question seems to be: Is the city ordinance authorizing such a judgment valid? This question would certainly have to be answered in the affirmative, if it were not for the prohibitory amendment of 1880 and the prohibition act of 1881; so that, going still further back, the substantial question appears to be: Do the prohibitory amendment and the prohibition act so far repeal the city ordinance as to make it illegal to prosecute and punish persons, under the city ordinance and before the police judge, for selling intoxicating liquors in violation of law and in violation of the city ordinance, and without having any license or permit therefor? .
Now neither the prohibitory amendment nor the prohibition act in terms repeals this ordinance or any part thereof, and if either repeals it at all, it repeals it only by implication, and repeals by implication are never favored in law. Before any provision of law, (whether it be part of the constitution of the state, or a part of some statute, or a part of a city or
We therefore think that the said ordinance of the city of Ottawa, so far as it provides for the issue of licenses for the sale of intoxicating liquors, has been repealed; but so far as ' it provides for the punishment of persons for illegally selling intoxicating liquors, we think it has not been repealed, and is still in force. Entertaining these views, it follows that the prosecution of the petitioner, Willis Franklin, under the ordinance, was not illegal, and that his prayer for release in the present case must be denied; and it is ordered accordingly.