Koester v. State

36 Kan. 27 | Kan. | 1886

The opinion of the court was delivered by

Horton, C. J.:

The facts in this case are substantially as follows: Frederick Koester sr. is the OAvner of a two-story brick building, situated on lots 13 and 14, in block 15, in Atchison city. On June 13, 1883, he rented the premises to Heber S. Taylor for the period of one year, at the rate of one hundred and thirty-five dollars per month, payable in advance, Taylor having the option to continue the lease for four years from its termination, upon the same terms. Afterward Taylor sublet the first floor of the building to William T. Temme, Avho opened a saloon, and, without having any permit, sold intoxicating liquors therein in violation of law. On June 22,1886, this action was brought against Koester and Temme to shut up and abate the place. On June 28, 1886, a temporary injunction Avas granted, restraining them from opening or keeping any saloon in the building for the sale of intoxicating liquors. On August 9, 1886, a motion was filed on the part of the plaintiff asking that Frederick Koester sr. be punished for contempt for violating the injunction granted against him. On the hearing of the motion, it was proved that after the granting of the temporary injunction a party from St. J oseph, Missouri, reopened a saloon in the room formerly occupied by Temme, and continued to sell intoxicating liquors in violation of the law; that Koester lived within a few blocks of this saloon; that the saloon was open to the public so that any person could enter and see that intoxicating liquors were sold in violation of law. It was also proved that at.the time Koester was a subscriber for two Atchison newspapers in which a notice appeared that a St. J oseph man had gone into the saloon business in the Koester building, formerly kept by W. T. Temme. It was admitted upon the hearing by the plaintiff, that the lease of the premises from Koéster to Taylor during all said time was in full force and effect, and that Taylor, the lessee, was in possession of the premises under the lease.

I. It is insisted upon the part of the appellant, that the legislature has no right to place any restrictions or limitations upon the sale of intoxicating liquors, if offered for medicinal, scientific or mechanical purposes only, and therefore that the legislature has no right to confine the sale of intoxicating liquors for these purposes to a class of men called druggists. This point was commented upon and disposed of in the Intoxicating-Liquor Cases, 25 Kas. 751. In those cases Mr. Justice Brewer, in speaking for the court, said :

“ We pass then to the second objection, and that is, that this portion of the statute must be pronounced unconstitutional and void because it is class legislation; because it. restricts the privilege of dealing in liquor to one class, the druggists, and thus debars many from engaging in a business which is profitable, and by some desired. This objection is not very strenuously urged, and cannot be sustained. It will not be doubted that the police power of the state is broad enough and strong enough to uphold any reasonable restrictions and limitations on the keeping, use or sale of any substance whose keeping, use or sale involves danger to the general public. The storage of powder or explosive and highly inflammable oils may be forbidden within city limits. The legislature may require railroads to fence their tracks, dangerous machinery to be everywhere inclosed, poisons to be labeled when sold, the practice of any profession requiring skill and knowledge to be confined to those who have passed a certain examination or pursued a prescribed course of study. By virtue of the same power it may commit the sale of liquor to any particular class of persons which by reason of its special training and habits it may deem peculiarly fit for such duty.”

II. We do not think the evidence presented upon the hearing justified the district judge in punishing Koester for contempt. The lease of the premises to Taylor was in full force and effect, and it is conceded that Taylor, as the tenant of Koester, had full possession of the premises. Temme was an occupant under Taylor, and so also was the party from St. Joseph, who reopened the saloon after Temme left. There is no evidence in the record tending to show that Koester leased the premises to Taylor with any knowledge that they would be unlawfully used by the lessee. There is no connection shown between Koester and Temme, or Koester and the person who opened the saloon, after the same was closed by the temporary injunction. By the lease, Koester parted with all control over the premises for the term granted to Taylor. It is true that the sub-lessees, during a part of the term, used the premises in violation of law, but there is no evidence that Koester assented in fact to such use, or in any way advised or participated in the operation of the saloon. There is no evidence that he had any personal control of the saloon, or was in any way interested therein. His rent was neither greater nor less on account of the saloon. (Crofton v. The State, 25 Ohio St. 249; The State v. Pearsall, 43 Iowa, 630.) The most which the evidence establishes is that after Koester leased his building to Taylor, he had knowledge that from June, 1886, to August of the same year, the lower room thereof was used as a place for the sale of intoxicating liquors, in violation of law, and that he omitted taking any steps to close the saloon or to oust his tenant. He might have taken steps to avoid the lease and reenter the premises. This, perhaps, was his moral duty, but his sanction and consent to the operation of the saloon in the building, which he had leased, ought not to be inferred from the mere fact of his non-interference with his tenant. Any stranger, having knowledge that a saloon was operated in the building, could have taken steps to close the same. ( The State v. Williams, 30 N. J. L. 102.)

If Koester had knowingly rented his building as a saloon, or if he had some interest in the operation of the same, or had advised or participated in its operation, a very different case would be before us for our determination. (The State v. Abrahams, 6 Iowa, 117; Abrahams v. The State, 4 id. 541.)

The order of the district judge will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.

All the Justices concurring.