R. W. HUNTER, HUBERT M. MANN аnd RUBY D. MANN, Appellees, V. HAROLD HAUN, Appellant.
No. 46,361
Supreme Court of Kansas
July 19, 1972
210 Kan. 11 | 499 P. 2d 1087
Harold L. Haun, County Attorney, and Lance Burr, Assistant Attorney General, argued the cause, and Vern Miller, Attorney General, was with them on the brief for the appellant.
No appearance by appellees.
The opinion of the court was delivered by
KAUL, J.: Plaintiffs-appellees brought this action to enjoin defendant-apрellant, the county attorney of Morris County, from proceeding against them under the provisions of the Kansas Buyer Protection Act,
On May 27, 1970, the trial court granted a temporary restraining order which was attacked by a motion to dismiss and vacate. After a hearing on defendant‘s motion, the trial court entered a judgment permanently restraining defendant from proceeding further against the plaintiffs under the “Consumer Protection Act” (Buyer Protection Act). Thereafter, the defendant perfected this appeal.
The proceedings stemmed from a verified complaint filed with the county attоrney by Arthur Davis, a resident of Morris County.
“I listed the following described real estate, to-wit:
“The Northwest Quarter (NW %) of Block One (1) Mackinzie Addition in the City of White City, Kansas.
for sale with R. W. Hunter as the real estate broker, Mr. Hunter did not sell the proрerty for more than a year after I had listed it with him. He came to me one day and indicated that he had a buyer and wondered if I would take less than $1,000.00 for it. I said no. He then asked if I would take $1,500.00 for it and I said yes. It was sold to his daughter, Ruby Mann of Skiddy, Kansas.
“Within just a few days after the deal was made I find that Mrs. Mann sold the property to Leon D. Williamson and his wife for $2,500.00 which would mean $1,000.00 profit for them.
“On a later date Mr. Hunter offered to return his broker‘s fee for selling the property for me to his daughter.”
Following the filing of the complaint the county attоrney caused subpoenas to be served on R. W. Hunter and Mr. and Mrs. (Ruby) Hubert M. Mann, directing them to appear before the county attorney to answer questions propoundеd to them concerning the sale of the Davis real estate and that they bring with them all records and papers relevant to the transaction. At this point plaintiffs filed their аction seeking to restrain the county attorney. Plaintiffs claimed the subpoenas were not authorized by
The trial court found that the county attorney was authorized to issue subpoenas under the act (State v. McPherson, 208 Kan. 511, 493 P. 2d 228), but held that a transaction involving thе sale of real estate situated in Kansas was not within the purview of the act, and, for that reason, permanently enjoined the county attorney from proceеding pursuant to the subpoenas.
Plaintiffs did not appear or file a brief with this court on appeal. Defendant presents one narrow issue on appeal. It is statеd in his brief in this fashion:
“Whether the word ‘merchandise’ as defined in
The statute referred to reads as follows:
“(b) The term ‘merchandise’ includes any objects, wares, goods, commodities, intangibles, real estate situated outside the state of Kansas or services;”
After hеaring the arguments of counsel, the trial court ruled:
“All right, gentlemen. I happened to have had this very question on here on the merchandising, and I must be consistent, and I think real estаte within
“I think further that the County Attorney, and so rule, does have a right to bring the action if he had a proper subject matter, and that it‘s not limited or restricted to the County Attorney—or, Attorney General, excuse me, but, of course, the Court has found that he doesn‘t have а proper subject matter.”
We are constrained to agree with the trial court.
Defendant makes several arguments on appeal, including an assertion that Kansas real estate could be included within the definition оf the words “objects” or “commodities” as they are used in the statutory definition of “merchandise.” If the statute was silent concerning real estate his argument might be persuasive; however, the statute specifically mentions real estate and if the legislature had intended the term “merchandise” to include real estate wherever situated it сould have said so rather than specifically referring only to real estate situated outside the state. The specific reference to real estate must сontrol over the general terms “objects” or “commodities.”
Defendant says that it seems unreasonable that the legislature intended that the act apply to fraudulent transactions involving real estate located outside Kansas and yet did not intend application to the same fraud in a similar situation involving Kansas real estate. As thе trial court pointed out, defendant overlooks the fact that there are other Kansas statutes affording remedies for fraud arising from transactions concerning Kansas real estate.
Defendant further argues that since the purpose of the act is the elimination of fraudulent practices in sales that it should be liberally construеd to include sales of Kansas real estate to accomplish the policy of eliminating all fraudulent practices in connection with sales. While this may be the brоad policy of the act we are precluded, by well-established rules governing the interpretation of statutes, from searching for another meaning to give a statutе when the language used is plain and unambiguous.
In the case of Alter v. Johnson, 127 Kan. 443, 273 Pac. 474, Chief Justice Johnston stated the applicable rule in these terms:
“. . . In interpreting a statute the safer rule for us to follow is to ascertain the true intent of the legislature. That intent is to be derived in the first place from the words used, and when that intent is apparent and is appropriate to the obvious purpose of the act we should give that intent effect
rather than to search for another meaning, although we might think some other policy would be more effeсtual. . . .” (p. 447.)
See, also, City of Overland Park v. Nikias, 209 Kan. 643, 498 P. 2d 56, Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124.
The language of the statute under consideration is plain and its purpose to reach nonresident sellers or agents who engage in fraudulent practices in attempting to sell out-of-state real estate to Kansas buyers is obvious.
We hold that Kansas real estate does not fall within any of the items specifically enumerаted as being included in the term “merchandise” by the provisions of
It should be noted that in arriving at the conclusion announced herein, we are not unmindful of the rule announced in State, ex rel., v. Rohleder, 208 Kan. 193, 490 P. 2d 374, thаt the district courts of this state cannot prevent the attorney general or a county attorney from performing the duties required of them by statute. In the instant case the restraint was directed only at subpoena proceedings under
The judgment is affirmed.
FROMME, J., concurring: Under the narrow issue рresented to this court I agree that the county attorney was properly restrained from proceeding under the “Consumer Protection Act“. The definition in
The statute
“Unlawful practices. The act, use or employment by any person of any deсeption, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact with intent that оthers rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice: . . .”
The opinion of the court should not be construed to extend bеyond the narrow confines of the issue decided. In a future case which encompasses an unlawful practice set forth in