23 Colo. App. 282 | Colo. Ct. App. | 1912
Lead Opinion
delivered the opinion of the court.
Appellee brought his action in trespass against the City of Canon City, David J. Houston and eight others, appellants herein, to recover damages for entering certain rooms in said city and taking therefrom and destroying, personal property consisting chiefly of intoxicating liquors, but including other drinks and cigars. Appellee suéd as assignee of The Canon City Labor Club, a corporation, which he alleged was the occupant of the premises, and the owner and in possession of the goods at the time of their destruction, and charged that the goods were destroyed by said Houston and others, at the instigation and request of the defendant city, made by and through its duly qualified and acting officials. The damage claimed was the alleged value of the goods.
The first defense was a general denial. For a second defense it was alleged that, at and prior to the time of the destruction of said goods, an ordinance of said city was in full force and effect prohibiting the sale of intoxicating liquors within the limits of the city, and making it unlawful to keep such liquors for the purpose of sale within any building in said city, and further providing that the sale, or keeping for the purpose of sale, of any of such liquors, constituted a nuisance, to be abated as any other nuisance, and that it should be unlawful to use any means or device, as the organization
“Be it resolved by the city council of the city of Cañón City, Colorado, that the so-called ‘social clubs’ known as The Cañón Jockey Club and The Cañón City Labor Club, and each of them, be and hereby are, declared by said council to be. public nuisances, and that the city marshal be, and hereby is, directed to proceed immediately without any delay whatever, to abate entirely and put an end to said ‘clubs’ as such public nuisances, and to arrest and bring before the police magistrate of said city all proprietors, officers, bartenders, clerks and employes of said ‘clubs,’ and confiscate and bring before the police magistrate of said city, all intoxicating, spirituous, malt, vinous, fermented and mixed liquors that are within the room or rooms, basement or basements and storage or warehouses of said ‘clubs,’*286 all of which liquors shall be disposed of as directed by said city council, and further, to take the names of all persons in said room or rooms or who are in or upon any of said premises at time of said arrests and confiscation”;
that the defendant, Houston, at all times mentioned in the complaint, was the marshal of said city; that acting as such and in the performance of his duties under said ordinance and resolution, he called to his aid his co-defendants, entered the premises in which said alleged nuisance was being carried on, and did then and there abate the same, and arrest the plaintiff as the keeper of the premises, and maintainer of the nuisance, and that all that was done by the defendants, or any of them, was done under said ordinance and resolution.
A general'demurrer to the second defense was sustained by the court, after which plaintiff voluntarily dismissed his cause of action as to the city. The cause was tried to a jury upon the issues joined by the complaint and the first- defense, and submitted on an instruction by the court that if the jury found for the plaintiff it should assess his damages in the full amount alleged in the complaint as the value of the goods.
The principal grounds upon which appellants attack the judgment are that the court erred in sustaining plaintiff’s demurrer to the second defense, and in overruling defendants’ motion for a new trial. Other minor objections are urged but will require little consideration. ‘
1. The sufficiency of the allegations of the special defense to constitute justification for defendants’ acts, is the most serious and important question involved in the case, not only to the litigants here, but as a matter of general interest and concern. Appellants contend that because appellee’s assignor was engaged in the unlawful
“The proper construction of this language is, that the city is clothed with authority to declare,.by general ordinance, what shall constitute a nuisance. That is to say, the city may, by such ordinance, define, classify and enact what things or classes of things, and under what conditions and circumstances, such specified things are to constitute and be deemed nuisances; * * * not that-the city council may, by a mere resolution or motion, declare any particular .thing a nuisance which has not theretofore been pronounced to be such by law, or so adjudged by judicial determination.”
The facts in the case cited differ from those in the case at bar in this, that no ordinance was before the court defining nuisances; while in pleading the second defense in this case an ordinance is presented which declares The Canon City Labor Club and its business a nuisance, but provides no manner of abatement, except by the words “as any other nuisance.” The cases are similar, however, in that the city in each case, without judicial determination, and by resolution, declared the particular thing under consideration a nuisance, and or
“It is only certain kinds of nuisances that may be removed or abated summarily by the acts of individuals or by the public, such as those which affect the health, or interfere with the safety of property or person, or are tangible obstructions to streets and highways, under circumstances presenting an emergency; such clear cases of nuisances per se are well understood and need not be further noticed here to distinguish them from the case before us.”
There have been no decisions by a court of last resort in this state as to the power of a municipality to declare that the selling of intoxicating liquors, or the keeping of the same for sale, or keeping a place in which they are sold in violation of the law or ordinance, if passed, will be conclusive upon that question. But the matter lias been decided by the highest courts of other states, including the supreme court -of Hlinois, under a general statute conferring such power in language almost identical with that of our own statute, and such power has been upheld and sustained. — Goddard v. President and Trustees of Jacksonville, 15 Ill., 588; Laugel v. City of Bushnell, 197 Ill., 20; City of Topeka v. Raynor, 8 Kan App., 279, 58 Pac., 557. In Laugel v. City of Bushnell, supra, decided in 1902, the court in sustaining such an ordinance, classified nuisances as follows: (1) those which in their nature are nuisances per se or are so denounced by the common law or by statute; (2) those which in their nature are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be conducted, managed, etc.; (3) those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds; and with reference thereto said:
*290 “The power granted by the statute to the governing bodies of municipal corporations to declare what shall be nuisances and abate the same, etc., authorizes such bodies to conclusively denounce those things falling within the first and third of these classes to be nuisances; but as to those things falling within the second class, the power possessed is only to declare such of them to be nuisances as are in fact so”;
and in that case held that an ordinance which declared that any place in the city where hop ale, cider and other like drinks were kept for sale, sold or given away, constitutes a nuisance, was within the power of the city council, and that such determination was conclusive.
Under these authorities the city of Oañon City had the power to pass the ordinance set forth in the special defense, declaring such a place as that alleged to have been kept by-the plaintiff in this case, and the business and the goods so kept, a nuisance, and such declaration and determination was conclusive. The ordinance made no provision for summary abatement by destruction of the property, or otherwise, and it was not self-executing. The language of the ordinance to the effect that such nuisance should be abated as any other nuisance, can only be held to mean, as any other nuisance can lawfully be abated. Appellants contend that the statute conferring power upon municipalities to declare what shall be a nuisance and to abate the same, means that the city is not required to ask some court to make or aid the abatement, but has the same right to summarily abate the nuisance that a private person has to remove an obstruction on a highway which impedes his passage. That may be true as to nuisances which may at common law be so abated; but in the absence of statute or ordinance so providing, it is not true as to other nuisances, nor where the existence of the nuisances depends upon
“Persons, even though they be officials of a municipality, may not take the law into their own hands, however justifiable they may think such a course may be to prevent infringement of the law. * * * A man’s property cannot be seized, nor can he be punished, except for a violation of the law, and whether he has been guilty of such violation as justifies the seizure of his property, or the infliction of punishment, can only be determined by a court of competent jurisdiction where he is afforded ah opportunity to be heard before judgment is pronounced against him.” (Citing Darst v. People, 51 Ill., 286; Earp v. Lee, 71 Ill., 193; Baldwin v. Smith, 82 Ill., 162.)
This case and the cases therein' cited seem to be- ' conclusive against the defendants of their right to abate the. alleged nuisance at the time and in the manner set
It being conceded for the purpose of the demurrer that plaintiff and his assignor were carrying on the business of selling intoxicating liquors in defiance of law, counsel, in support of their contention that the civil courts will not aid plaintiff in securing damages for the destruction of such property, cite many and respectable authorities: Oviatt v. Pond, 29 Conn., 479; Nichol v. Valentine, 36 Me., 322; Plummer v. Harbut et al., 5 Ia., 308; Sommer v. Cate, 22 Ia., 585; Dolan v. Buzzell, 41 Me., 473; Walker v. Shook et al., 49 Ia., 264; Blunk v. Waugh, 122 Pac. (Okla.), 722; O. F. Haley Co. v. State, 125 Pac. (Okla.), 736, 738. Under these authorities and others it is clear that a suit upon a contract for the price, or in quantum meruit for the value, of liquors may not be enforced where such liquors were sold in violation of the law. But no decision has been cited by appellants, nor have we found any, which holds either that such
Under the laws of this state spirituous liquors are regarded as property, are taxed, may be lawfully purchased, possessed and used for many purposes. In Brown v. Perkins, 78 Mass., 89, and Earp v. Lee and Baldwin v. Smith, the Illinois cases cited with approval by our supreme court in Canon City v. Manning, supra, it is held that under laws similar to ours, intoxicating liquors are not per se a nuisance, are property, and that in a civil action such as this for unlawful conversion or destruction, compensation in damages may be awarded, and that the measure of the damage is the value of the property destroyed.
Appellants claim the benefit of the maxim that no man shall be allowed to found any claim upon his own iniquity; ex turpi causa non oritur actio; that because the claim is for. the value of liquors which were pur
“No court will lend its aid to a man who founds his 'cause of action upon an immoral or an illegal act. If, from the plaintiff’s own. stating or otherwise, the cause of action appear to arise ex turpi causa, or from the transgression of a positive law of this country, there the court says he has no right to be assisted.” — Wharton’s Legal Maxims, p. 81; Martin v. Hodge, 47 Ark., 378, 384.
“The test to determine whether an action arises ex turpi causa is the plaintiff’s ability to establish his case without any aid from an illegal transaction. If his claim or right to recover depends upon a transaction which is malum in se, or prohibited by law, and which he must prove in order to make out his case, he cannot recover.”—Martin v. Hodge, supra.
The foregoing test, although decisive on demurrer to the sufficiency of the complaint, does not preclude an illegal transaction as a bar to the suit, nor evidence in support thereof. The plaintiff herein, in order to state and prove his cause of action, was not required to state or’prove, and did not state, anything except ownership and possession of the property at the time of the alleged trespass and its destruction by defendants; and this, as against a naked trespasser or wrongdoer, was sufficient. His claim or cause of action did not directly arise from and was not based upon, his own illegal transaction, but upon the illegal acts of appellants, in which he did not participate. In Hall v. Corcoran, 107 Mass., 251, 253, it is said:
“The fact that the owner of property has acted or is acting unlawfully with regard to it is no bar to a suit by him against a wrongdoer, to whose wrongful act*295 the plaintiff’s own illegal conduct has not contributed. Thus, an action lies against one who takes and appropriates to his own use property kept by the plaintiff in • violation of a statute and therefore liable to be destroyed. ’ ’
The mere fact, if fact it be, that the illegal acts of appellants were provoked by other illegal acts of plaintiff and his assignor, does not place the parties in pari delicto. The case of Haley v. State, 125 Pac. (Okla.), 736, relied on by appellants, apparently takes a different view from that expressed in Hall v. Corcoran, supra, and in the tests mentioned. The apparent difference arises from its sweeping declaration that “if the courts will not open their doors to enforce an illegal contract, they certainly will not to enforce a demand inseparably connected with a violation of the criminal laws.” This declaration, however, is inseparably connected with the statute of Oklahoma which declares that there are no property rights whatever in liquor kept or used in violation of its laws.
The overwhelming preponderance' of authority supports the ruling of the trial judge upon the demurrer. Among the cases are the following: Coppedge et al. v. Goetz, etc., Co., 67 Kan., 851; State v. Stark, 63 Kan., 529; Carry Nation v. District of Columbia, 34 App. D. C., 453, 26 L. R. A., N. S. 996; Baldwin v. Smith, 82 Ill., 162; Earp v. Lee et al., 71 Ill., 193; Preston v. Drew, 33 Me., 558; Booraem v. Crane, 103 Mass., 522; Monty v. Arneson, 25 Ia., 383; Lowry v. Rainwater, 70 Mo., 152; Dolan v. Buzzell, 41 Mo., 473; Ridgway v. West et al., 60 Ind., 371; Brown v. Perkins, 78 Mass. (12 Gray), 89; Hall v. Corcoran, 107 Mass., 251; City of Chicago v. Union Stockyards, 164 Ill., 224; Fuller v. Bean, 30 N. H., 181.
The evidence shows that the arrest of plaintiff by the defendants was effected, by unnecessary force and
2. Defendants based their motion for a new trial chiefly upon the following matters: (a) The evidence does not show a legal assignment of the claim to plaintiff; (b) the evidence showed that part of the liquors alleged to have been destroyed were held by plaintiff’s assignor under bond in replevin, and not absolutely, and that its claim thereunder could not be assigned; (c) improper language used by the court tending to prejudice the jury; (d) newly discovered evidence.
It appeared upon cross-examination that part of the liquors, in value amounting to about one-half the damage asked, had been confiscated by the city, retaken by the club under its bond in replevin, and by it held in storage. The rights of the plaintiff’s assignor in this respect were the same or similar to those of a bailee. Its contract of bailment was contained in the bond-which required it to return the property to the city in case the city’s right to the same should be adjudged. The club’s possession was therefore lawful. Under the well recognized law of bailments, the bailee can maintain an action for recovery of the goods, or, if destroyed, for their value; and even though the city should eventually prevail in the replevin suit, the right of the bailee to have.his property, or its value, to return to the city under bond, cannot be denied, and the measure of damage, being the value of the goods, would not differ although the bailee’s right was not absolute.
The showing made on the ground of newly discovered evidence is wholly insufficient. The defendant may have had the right to show the illegal purpose for which the liquors were kept, for the purpose of affecting the value thereof. If they could not be lawfully sold, that fact might materially affect their market value, and evidence tending to show it would be both material and competent. But the defendants did not offer such testimony, perhaps upon the theory that the same was excluded by the court’s ruling upon the demurrer to the special defense. If admissible at all, it was, we think, admissible under the general denial, as any other fact affecting values. But by reason of their failure to offer such proof, its exclusion cannot avail the. defendants.
No error appearing in the record, the judgment is affirmed.
Judges'Cunningham and Morgan dissent.
Dissenting Opinion
dissenting:
Finding myself unable to concur in the conclusions reached by the majority of the court, I have reluctantly determined that it is my. duty to state the grounds upon which I base my dissent. There are several propositions of law covered by the majority opinion, but I shall limit
1. It will be observed by reading the second defense in the action, set out in full in the majority opinion, that it charges, inter alia, that at the time of the destruction of the liquors, an ordinance of the city was in full force and effect prohibiting the sale, or keeping for sale, of liquors within the limits of the city; that the assigned club was organized with the intention and for the purpose of violating .this ordinance; that the-goods destroyed ivere purchased and kept by plaintiff and said club in furtherance of a common design or purpose to defy the lato. By demurring, instead of denying, plaintiff admits these allegations of the defendant’s answer are true. It is my firm conviction that defendant should have been given an opportunity to prove these serious, and, I think, material, allegations. And if the defendant had succeeded in establishing the truth of these allegations, it would have become the duty of the court to dismiss the case. Proper self-respect requires, as it seems to me, that courts of justice should not sustain actions in regard to property which is admittedly bought and kept for the sole purpose of defying the law, whether that property be the implements of a burglar, the spurious coin of a counterfeiter, the grog of a bootlegger, or the paraphernalia of a gambler. It has been well said by a strong court, speaking through a distinguished jurist, that:
“One who sets himself deliberately at work to contravene the fundamental laws * * * forfeits his own right to protection, in those respects, wherein he was*300 studying to infringe the rights of others. * * * So, too, if any member of the body politic, instead of putting his property to honest uses, converts it into an engine to injure the life, liberty, health, morals, peace, or property of others, he thereby forfeits all right to the protection of his bona fide interest in such property, before it was put to that use. And he can, I apprehend, sustain no action against anyone who destroys his property with.the bona fide intention of preventing injury to himself or others.” —Spalding v. Preston, 21 Vermont, 9.
It may be contended that a saloon is not “an engine to injure the life, liberty, health, morals, peace or property of others,” but, if such argument be advanced, that is, if it shall be contended that the saloon is not per se just such an institution, and calculated to injure the life, liberty, health, peace and morals of any community in which it may be operated, then I submit as my authority for holding a contrary view the following language from Crowley v. Christensen, 137 U. S., 86:
“By the general concurrence of opinion of every civilized and Christian community there are few sources of crime and misery to society equal to the dram shop where intoxicating liquors in small quantities to be drunk at the time are sold indiscriminately to all parties applying. The statistics of every state show a greater amount of crime and misery. attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source.”.
The above language will 'be found quoted with approval in Schwartz v. People, 46 Colo., 249. I submit that under this authority, which has the sanction of our own supreme court, that according to the allegations of the second defense of defendant’s answer to which the trial court sustained a demurrer, plaintiff and his as
“If such plaintiff got out of court without getting into Newgate * * * he might esteem himself fortunate.”
Joseph Walton is to be congratulated, since he not only gets out of court without getting into* Newgate, but he ■ walks triumphantly out of the courts of Colorado, with a judgment for the full value he places upon the grog which he bought and kept for the express purpose of defying the law, if the allegations of defendant’s answer, to which the demurrer was sustained, were true. Doubtless Joseph will cherish for the balance of his days a profound regret that he did not ask for punitive damages in this case. It is a neat turning of the tables that makes of a chronic law-breaker the instrumentality for law enforcement. When Satan receives a consideration for rebuking sin, the anomaly of his conduct disappears. Walton could not have recovered judgment against the city marshal had he sold his liquors to that officer on credit — this much is conceded by the majority opinion. If the officer violated the law in'destroying the liquors, then he should answer to the law, rather than to a lawbreaker. It is' a strange perversion of the doctrine of The Atonement which permits the washing away of sin with sin; an unusual application, to say the least, of the maxim similia similibus curantur.
The rule established by the majority opinion in this case, if the same be permitted to stand, violates the maxim of the law that no man should be allowed to found any claims upon his own iniquity: nullus commodum capere potest de injuria sua propria.
*302 “To enforce an obligation to virtue by refusing encouragement to wrong, the law leaves the parties to such transactions where it finds them, allowing no action or suit by either, even though defendant has acquired an advantage over plaintiff which he is thereby enabled to retain.” — 1 Cyc., 674. .
As was said in Carrington v. Caller, 2 Stew. (Ala.), 197:
“If the defendant in such case be deprived of this answer to the action, unless he would restore to the plaintiff what he had received, the rule would be inefficient and the defense afforded by it valueless.”
In Funk v. Gallivan, 49 Conn., 128; 44 Am. Dec., 210, it is said:
“The law could not take any other position than that it will not lend its aid to either of the parties in an immoral or illegal transaction, but will leave them as it finds them; and to be consistent with this principle, it is necessary to give to either party the right to plead or prove the true nature of the transaction in bar to an action founded upon it.”
I am aware that the facts involved in the Alabama and Connecticut cases are not parallel, but the doctrine laid down by these cases is applicable to the matter here under consideration.
As has been well said by the supreme court of Connecticut in Treat v. Jones, 28 Conn., 235:
“The object of the law is to repress vice, preserve the peace and promote the general welfare of the state and of society, and no individual has any right to its assistance in enforcing a demand originating in a violation on his part of its principles or enactments.”
In addition to the Vermont case, from which I have already quoted, I cite the following cases from Oklahoma, which I believe sustain my position: Blunk v. Waugh, 122 Pac., 717; Haley v. State, 125 Pac., 736.
It is true that Oklahoma has a statute which provides that there shall be no property right of any kind whatsoever in any liquors kept for the purpose of violating the law. In view of the position taken by the majority of this court in the instant case, it is to be hoped that our legislature may, at its next session, enact a similar salutary statute. But a casual reading of the Oklahoma cases cited must convince anyone, I think, that the court did not rest its conclusion upon the statute alone, but upon the broad general principle announced in the Blunh case, without reference to the statute, in this language:
“If the courts will not open their doors to enforce an illegal or fraudulent contract, they certainly will not to enforce a demand inseparably connected with a violation of the criminal law.”
Adopting the language of an abler writer than myself, who had under consideration at the time these Oklahoma cases and their application to this case:
“It is certainly refreshing to consider this clean declaration of principle, that is as old as the law itself, and its application to the facts in that cáse, which are*304 not substantially different from, those in the case now under consideration. The declaration was upon the common law, and not upon the statute. I understand the common law to be the result and embodiment in the unwritten law of the centuries-long efforts of the courts to make practical application of the principles of the moral law to the affairs of men. And so the common law has become well adapted to enforce and apply these principles to the facts in the individual cases. I regard the statutes of the several states mentioned but declarations of the common law, or perhaps an extension by statute of the principles of the common law to cover such instances. And I believe the courts would not only have the right, but that it is their duty, to make such application of this principle or rule of law in the absence of statute,' when the facts in the case justify it. In view of the facts pleaded and not denied [in the second defense of the instant case], or admitted by thé demurrer, I regard it as brazen effrontery on the part of the plaintiff in this case, and indeed an open insult to the law and the courts, to come into a court of justice charged with the administration and enforcement of law, and demand the'exercise of its powers to collect for him the value of his outlawed goods, employed in the prosecution of his outlawed business, carried on in defiance and contempt of the laws whose protection he now craves, and that there is here presented a situation pre-eminently permitting and demanding the application of the rule.”
The authorities are legion holding void a contract which conflicts with the morals of the times and contravenes the established interests of society, on the ground that such contracts are against public policy. This rule, which is but the adoption of the ancient maxim, potior est conditio defendentis — better is the condition of the defendant than that of the plaintiff — is ably discussed in Pueblo & Ark Valley R. R. Co. v. Taylor, 6 Colo., 1.
Other cases supporting this rule are, Solinger v. Erle, 82 N. Y., 393, wherein it is stated that Lord Mansfield, in Smith v. Bromley, 2 Doug., 696, concedes that, “when both parties are equally criminal against the general laws of public policy, the rule is potior est conditio defendentis”; Branham v. Stalling, 21 Colo., 211, where Justice Hayt, speaking for the court, follows the maxim, “in equal guilt, the stronger is the situation of the defendant,” or, “where misconduct is mutual, the law will not lend its aid to either party.” Commenting on these maxims, Judge Hayt says, page 215 :
“This rule was not adopted for the benefit of defendants, but simply upon the ground of public policy.”
Norris v. Norris, Admr., 9 Dana’s Ky. Reps., 317, is cited with approval by Justice Hayt in the Branham case, and the following language is quoted therefrom:
“When the parties to an illegal or fraudulent contract are in pari delicto, neither a court of equity nor a court of law will aid either of them in enforcing the execution of that which may be executory, or in revoking or rescinding that which may have been executed. In such a case, the law will not be the instrument of its own subversion, and to every invocation of its assistance, replies, in pari delicto potior est conditio defendentis.”
“No claim founded in bad faith, in moral turpitude, in deception upon the public or a third person, or in fraud practiced by one contracting party on the other, can constitute a good cause of action; and that whenever such a claim makes its appearance in a court of justice, the law, ever watchful of the public morals and right, is sure to defeat the dishonest scheme, either by exerting its powers or withholding its aid.”
Commenting on the quotation, Judge Bissell says:
“This is a strong, sound, terse and satisfactory expression of the principle which is determinative of the plaintiff’s rights. The claim is founded in bad faith.”
Certainly there can be no doubt that plaintiff’s claim in this case is not only founded in bad faith, but in absolute violation of the law, assuming, of course, that the allegations in the second defense, to which the demurrer was sustained, state the truth.
2. It may be that the weight of authority, if the same be arrived at by counting eases, supports the view expressed by the majority opinion, but I am persuaded, were the matter res nova, I would be spared the embarrassing task of writing a minority or dissenting opinion in this case. It is said in the majority opinion that:
“The overwhelming preponderance of authorities supports the ruling of the trial judge upon the demurrer. ’ ’
From this I assume that the writer of the opinion, and the members of the court who concur in his conclusions, have been influenced, largely, by the doctrine of stare decisis. I am the more persuaded that such is the
“This court has gone possibly as far as any appellate tribunal concerning the maxim stare decisis. The rule, however, is not inflexible, and the maxim should not be allowed to stand as an absolute bar in the way of a re-examination of legal questions previously decided by the same court, if improperly determined, and particularly where the decision reviewed has not passed into a settled rule of property. This is well illustrated in Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo., 1, wherein tills court overruled one of its former decisions upon an important question of mining law announced fourteen years before and repeatedly reaffirmed.”
In the opinion in the Calhoun case, supra, our supreme court said:
“Courts are not bound to perpetuate errors merely on the ground that a previous erroneous decision has been rendered on a given question-.”
This opinion is of particular interest, in view of the fact that it ignored the doctrine of stare decisis, notwithstanding the .fact that by so doing the supreme court reviewed and reversed earlier decisions which affected real property, and which had passed into a settled rule of property.
Lord Mansfield has said:
“The law of England would be a strange science, indeed, if it were decided upon precedents only. Prece*308 dents only serve to illustrate principles, and to give them a fixed authority. But the law of England depends upon principles.”
And again, the same authority uses this language:
“General rules are wisely established for attaining justice with ease, certainty and dispatch. But, the great end of them being to do justice, the courts are to see that it is really attained.”
Lord Bacon is authority for the statement that:
“A fro ward retention of custom is as turbulent a . thing as an innovation; and they that reverence too much old things are but a scorn to the new.”
In Ellison v. Georgia R. R. Co., 87 Ga., 696, Chief Justice Bleckley, who long graced the supreme bench of Georgia, referring to the doctrine of stare decisis, uses this language:
“Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to and repeated indefinitely; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for'a supreme court, supreme in the majesty of duty, as well as the majesty ofjoower, is, not stare decisis, but fiat' justitia ruat coelum.”
On the same subject the supreme court of Indiana, in Hines v. Driver, 89 Ind., 342, observes:
“When a court comes to the deliberate conclusion that it has made a mistake upon some former occasion, it is generally better, looking to future permanency and repose, that it shall frankly acknowledge its mistake and*309 declare the true doctrine as it should have been at the time announced.”
In Mason v. Nelson, 148 N. C., 495; 62 S. E., 625; 18 L. R. A. (N. S.), 1229, appears the following language:
“The foundation of the rule of stare decisis was promulgated on the ground of public policy, and it'would be an egregious mistake to allow more harm than good to accrue from it.” — 26 Am. & Eng. Enc. of Law (2nd Ed.), 184.
Peeling that my associates have been too much influenced by the doctrine of stare decisis, I have devoted perhaps more space to a consideration of that subject than the facts and the situation which confronts ns in this case warrant, for we are not, in this cáse', controlled by any' opinion of either of the courts of review of this state, and we have, as I have already pointed out, respectable authority to support the views that I have hereinabove expressed.
But no matter what the opinions of other states may be, or how their number may predominate against the views I have here stated, I would rather see this court establish correct principles, which satisfy its own notions of justice, than to have it trailing unwillingly after lioary precedents that do violence to every sense of justice and common sense.
I do not intend that anything that I have said herein shall militate against the right of the plaintiff to recover for such property as may have been destroyed by the officer of the law, which the plaintiff had a right, under the ordinances, to keep and sell.
Peeling that the trial court committed grievous error in sustaining the plaintiff’s demurrer to the defendant’s second defense (and I am not considering any other matter whatever) I am profoundly convinced that the judgment of the lower court ought to be reversed.
Concurrence Opinion
specially concurring.
• It lias occurred to me that the facts in this case should have been stated more fully in the opinion of the majority of the court, which so admirably states the law controlling the- case, in order that the exact question decided may be relieved from possible uncertainty.
The Canon City Labor Club was, at the times mentioned, a corporation organized under the laws of this state. It is charged in that part of defendants’ answer, to which the demurrer was sustained, that this corporation was a club consisting of several hundred members, and organized and existing for the purpose of evading the liquor laws of the state and the ordinances of the city of Canon City in relation thereto, and that the only purpose of such club, aside from its profit, was to furnish the members a place to secure intoxicating liquors in violation of the law.
For the purposes of this case, these must be accepted as the facts, and in addition thereto this court had before it its own - judgment rendered since the institution of this action, affirming the judgment of the district court, cancelling the corporate charter of this club for the very reasons assigned in the answer in this case.
The second defense set up in the answer alleged a resolution of the city council, which, in substance, declared the said club to be a nuisance and ordered the city marshal to abate the same by arresting the officers and agents of the club; by confiscating and bringing before the police magistrate all intoxicating liquors found on the premises of the club, together with the arrested officers and agents, there 'to be dealt with by the city council. But the acts of the defendants complained of in this case cannot be brought within the purview of this resolution.
What the defendants did, and in violation of this resolution, which commanded at least peaceful, if not
“Mr. Worrell, I think, spoke first. He says, ‘Ah, ha, we’ve got you now, Joe.’ I didn’t make any remark. He says, ‘I have a warrant for your arrest,’ I says ‘all right, will you read it to me or let me see it, ’ and Mr. Houston made an attempt, I thought, to let me see the paper and read it, and then Taylor spoke up and says ‘beef him,’ ‘kill him,’ ‘damn him,.’ and I was struck from behind with a blunt instrument of some kind right in the ear and fell forward to the floor, and in getting up I was knocked down again, and I was knocked while down, and after I» got up the second time. I was then approaching the front door, I was then struck from behind again and knocked down and fell into the little hallway. Before going outside, I got up again and was then struck with an instrument on the cheek bone, the scar is there now,' and I fell to the pavement and that is all that I can remember. I fell senseless to the pavement.”
It is clear that the resolution of the city council did not order or suggest such conduct and is therefore no defense.
The mere fact that plaintiff had violated the law by the unlawful sale of intoxicating liquors was clearly not
The defendants, upon the basis of their belief that the club had violated the liquor laws in the past, or might do so in the future, and without intimation or suggestion that such had or would be the case on the particular day, voluntarily left the privacy of their homes, assembled together, entered a closed and locked building, and there deliberately engaged in the trespass and destruction complained of. This constitutes wilful trespass.
I know of no case where private punishment for public wrong has been sanctioned by the law, or where public wrong has been held as an excuse for a wilful private trespass. If the doctrine of the dissenting opinion in this case is to be approved, it must apply not only to those who violate the liquor laws, but all laws as well, and thus due process of law is a constitutional guarantee in name only.
The supreme court of this state has fully determined this question in the case of Canon City v. Manning, 43 Colo., 144, and the rule there announced is sustained by an unbroken line of authority. The perpetuity of the government rests upon the principle therein stated, that neither municipalities nor persons may take the law into their own hands. Wrongs may be prevented and punishment inflicted only through courts of competent jurisdiction. That no person shall be deprived of life, liberty or property without due process of law is a guaranty to the guilty and innocent alike. Popular government, if it is to continue, must be a government of law and not of force. Individuals cannot prevent or punish one wrong by means of the commission of another, for such would be incipient anarchy. If the law is not sufficient, the remedy is with the legislature,
The law of this state has provided a means for the destruction of gambling paraphernalia, but even in such
However deplorable the situation, as presented in this and other -cases from the same locality, as regards the violation of the liquor-laws, I still believe the law sufficient to provide both punishment and prevention, and I cannot lend my sanction to the unlawful acts of some of the citizens, upon the theory that these are to prevent the unlawful acts of others.
The final appeal of every American must be to the supremacy of the law. The principle involved in this case is different from that wherein recovery is sought for the value of goods in case of sale, where the sale of such goods is prohibited by law. There can be no question, however, but that these goods are property and have value, even though sale is prohibited by law.