State v. Estep

71 P. 857 | Kan. | 1903

The opinion of the court was delivered by

Smith, J.:

Section 4 of chapter 165, Laws of 1887,. contains both a criminal and civil remedy for the suppression and abatement of nuisances. The first part-of the section defines a common nuisance, and applies the term to places where intoxicating liquors are manufactured, sold or given away in violation of “any of the provisions of this act,” and to places-where persons are permitted to resort for the purpose-of drinking intoxicating liquors as a beverage, and to places where such liquors are kept for sale in violation of “this act,” and makes it the duty of all sheriffs and constables to shut up and abate such places by seizing the liquors and accessories found therein. The owner or keeper of such nuisance, upon conviction, is amenable to a fine and imprisonment, in the county jail. Following immediately in the same section of the act comes the civil remedy for the suppression and abatement of such common nuisances by injúnetion, in a suit to be prosecuted by the attorney-general or any citizen of the county.

It is clear that the first section of chapter 232, Laws of 1901, set out in the statement, repeals that part of section 4 of the law of 1887 which makes it a criminal act to keep and maintain a nuisance. This is apparent from the fact that the two statutes are directed against criminal acts not widely different, with an increase of punishment in the later law.

The law of 1887 fixes the punishment at a fine of not less than $100 nor more than $500 and imprisonment in the county jail not less than thirty nor more than ninety days. In the law of 1901 the fine which may be imposed is the same, but the imprisonment provided is “not less than thirty days nor more than six months.”

In The State v. Menke, 56 Kan. 77, 80, 42 Pac. 350, it was held that a law passed in 1891, making it an offense for officers of a bank knowingly to receive deposits when the bank was insolvent, repealed a former law covering the same subject. The court said : '

“A comparison of the two sections leaves no doubt that the later covers the whole subject of the former one, and as the later act omits some parts of the first, changes others, and embraces new provisions, thereby increasing the penalty, it is obvious that it was intended as a substitute for the first act, and under the rule frequently declared it will operate as a repeal of that act.” (See, also, The State, ex rel., v. Studt, 31 Kan. 245, 1 Pac. 635.)

In United States v. Claflin, 97 U. S. 546, 552, 24 L. Ed. 1082, 1085, the case of Norris v. Crocker et al., 13 How. (U. S.) 429, 14 L. Ed. 210, is quoted from approvingly, as follows:

‘“As a general rule, it is not open to controversy, that, where a new statute covers the whole subject-matter of an old one, adds offenses, and prescribes different penalties for those enumerated in the old law, the former is repealed by implication, as the provisions of both cannot stand together.’”

Again, under the first law it is made a criminal offense to own or keep a common nuisance “in violation of this act” ; that is, a nuisance as therein defined. In the last enactment it is made criminal to maintain such a nuisance “in violation of law.” In the first the crime is confined to a violation of. those things made unlawful in that act itself. The later law covers, and embraces all new and future restrictions which may be created within the scope of legislative power, and operates prospectively.

As stated, that part of the law of 1887 which is repealed precedes the injunction clause in the same section. The remedy by injunction is authorized ..to prohibit and suppress the maintenance of a nuisance created and defined by a preceding clause which has been, so to speak, lifted out of the section by repeal. The first sentence of the injuction clause reads :

“The attorney-general, county attorney, or any citizen of the county where such nuisance exists, . . ' may maintain an action in the name of the state to abate and perpetually enjoin the same.”

Eliminating that part of the section defining a nui-. sanee, the clause following immediately thereafter in the same section providing for the abatement by injunction of such nuisance can have nothing to operate on. The second, or injunction, clause is dependent on the first, which defines the nuisance to be abated. As suggested in the brief of counsel for defendants in error, the extent of the power given by the first sentence of the injunction clause of the law of 1887 may be expressed in slightly different language from that of the statute, as follows :

The attorney-general, county attorney, or any citizen of the county where any nuisance created and defined by the provision of this section exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same.

The legislative use of the word “such,” in referring to the kind of nuisance which may be abated by injunction, is significant. It is defined by Webster : “Having the particular quality or character specified.” “Certain; — representing the object as already particularized in terras which are not mentioned.”

The remedy by injunction being restricted and confined to such nuisance as is mentioned in the clause preceding, it is plain that, when that part of the section defining the nuisance goes out, the remedy by injunction against the nuisance has nothing to move against.

In The State v. Stark, 63 Kan. 529, 66 Pac. 243, 54 L. R. A. 910, 88 Am. St. Rep. 251, cited by counsel for plaintiff in error, there was mention made of the right to maintain an injunction suit to abate a nuisance under the prohibitory law. The expression used was, however, not necessary to. a decision of the case. The case then before the court was a criminal prosecution for trespass.

The judgment of the court below will be affirmed.

All the Justices concurring.