99 P. 273 | Kan. | 1908
The opinion of the court was delivered by
Charles M. Hines brought an action against Frank M. Stahl to recover the possession of a quantity of intoxicating liquors. An order of delivery was procured, upon which the property was taken from the defendant and delivered to the plaintiff. Thereupon the plaintiff dismissed his action. A trial was then had in accordance with the statute (Civ. Code, § 184) to determine the defendant’s right of possession. He testified that when the action was begun he 'was the city marshal and chief of police of the city of Topeka and held the liquor under a warrant against Hines issued by the police court, and that his term of office had since expired. This was substantially all the evidence. Judgment was rendered for the return of the property, and for its value, as fixed in the replevin affidavit, in case a return could not be had. The plaintiff prosecutes error.
The principal attack is made upon that part of the judgment allowing the defendant to recover the full value of the property in case a return could not be had. The argument is this: Even conceding that under the authority of Karr v. Stahl, 75 Kan. 887, 98 Pac. 669, the defendant was entitled to an order for a return of the goods, the measure of his recovery in case a return could not be had was the value, not of the property itself, but of his interest in it; he had the burden of proving the extent of his interest; his only evidence was that he held it under an ordinance; he did not introduce the ordinance, and the court can not take judicial notice of its character; therefore he failed to show that his interest, whatever it might .have been, was of any value, and the judgment should have been limited to a return of the property.
“The better rule seems to be that laws prohibiting The'sale of spirituous liquors'in a state, or local option laws prohibiting such sale in counties in which they are in force, do not, in the absence of special statutory provisions, apply to sales under judicial process; and that spirituous liquors are property, and as such under the protection of the law, and may be taken on mesne .process or execution.”
Whether the cases cited in support of this statement
“After thus prohibiting our citizens . . . from all general traffic in intoxicating liquors, it would be an absurdity to say that the officers of the law, under its forms and by its protection, may becoiqe the vendors of those inhibited articles, restrained only by the obligation to sell to the highest bidder.” (Page 325.)
Assuming, then, that the marshal held the liquors under an ordinance passed in aid of the prohibitory law, with the purpose of destroying them if found to be kept or used in violation of the statute, the measure of his interest was manifestly either their full value or nothing at all—no other test is possible. There is no way of compensating in dollars and cents the loss of the right to destroy contraband goods, unless it be by restoring their full value. The question is one of statutory construction, and we can not suppose that the legislature intended that the ■ elaborate provisions of the statute for the seizure and destruction of property used for forbidden purposes could be nullified by the device of regaining possession by replevin and then dismissing the action, making away with the goods, and leaving the public officers remediless. True, the situation presented by the substitution of a sum of money for property that is held only for destruction is anomalous, but any difficulty as to the proper disposition of the fund need not give present concern. However much anxiety and embarrassment the problem may cause those charged with the interpretation and execution of the law, it need occasion none to the plain
The plaintiff mentions that in the answer the defendant designates the ordinance upon which his warrant was based as that numbered 2211, and that in In re Van Tuyl, 71 Kan. 659, 81 Pac. 181, this court held an ordinance of the city of Topeka bearing that number to be in conflict with the statute. We can not, however, take notice here of the proceedings in that case, or presume the identity of the ordinance there held void with the one referred to in the pleadings in this case.
The defendant’s right of recovery is also questioned upon the ground that at the time of the trial his term of office had expired. Where a public officer is involved in litigation in his official capacity the expiration of his term does not require a substitution of his successor. The public is conceived as being the real litigant. {The P., Ft. W. & C. Ry. Co. v. Martin, Treasurer, 53 Ohio St. 386, 41 N. E. 690; Bridge Co. v. Mayer, 31 Ohio St. 317; Shull v. Comm’rs of Gray Co., 54 Kan. 101, 37 Pac. 994.) Moreover, there is express authority for permitting a recovery in the name of Stahl, notwithstanding he is no longer in office, for the statute provides that “in case of any other transfer of interest [than by death or other disability] the action may be
The judgment is affirmed.