Houston v. Walton , 23 Colo. App. 282 ( 1912 )

King, J.,

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 of a dub, incorporated or’ not, for tbe purpose of evading any of the provisions of the ordinance, violation of any of which provisions subjected the person offending to a penalty of fine and imprisonment; that after the adoption of said ordinance The Cañón City Labor Club was organized with intent and purpose of carrying on a saloon under the guise of a social club, for the purpose of evading the provisions of said ordinance; that the goods alleged to have been destroyed-were purchased by plaintiff, and said club, and kept for the purpose of sale, upon the premises and within the building mentioned in the complaint and answer, and were, by plaintiff and said club, being sold by the drink, over the bar, as at any saloon, and that such was the principal business of plaintiff and said club; that the city council had investigated the conduct of plaintiff and the club, and determined that the organization and carrying on of said club by plaintiff and his associates constituted a public nuisance, under the provisions of said ordinance, and thereupon adopted the following resolution:

“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,’ 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 selling of intoxicating liquors in violation of an ordinance of the city, that fact of itself made its place of business, and its business, a nuisance; which the city might lawfully and summarily abate by the destruction of such liquors; and that the ordinance pleaded in the second defense, supplemented by the action of the city council resulting in the -resolution set forth herein, was sufficient to conclusively fix and determine the character of the-place, and the business of plaintiff, and the club, as a public nuisance, and authorize its abatement by destruction of the goods. But they further insist that if the acts of appellants were illegal, still the business of plaintiff and his assignor was also illegal, and therefore the law will refuse them redress in civil damages — • that both plaintiff and defendants being law-breakers with respect.to the matters in litigation, the law and the courts will leave them where they find them; and further, that inasmuch as the goods were not such as could be lawfully sold within the city, they had no market value, and therefore were not property for the destruction of which civil damages could be awarded. If the second defense is sufficient it is because of one or more of the following reasons: (1) the goods and business, and place of business, of plaintiff’s assignor, were nuisances per se, or nuisances by virtue of the ordinance pleaded; (2) defendants had the right, at common law, or because so authorized by ordinance and resolution, to abate the nuisance in the manner shown, to-wit, by destroying the goods; (3) the action being for the value of the goods bought, kept and used in violation of the ordinance of the city, the courts will not lend their aid for their recovery; (I) the parties were in pari delicto; (5) sale of the goods being prohibited, they had no value in law, and were not property for which substantial damages could be awarded.

' The general statutes (paragraph 45 of section 6525) confer upon towns and cities the power “to declare what shall be a nuisance and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist.” This grant of power does not, by its terms, provide for the abatement of nuisances, and is not self-executing for such purpose. It requires an ordinance to make it effective.—Ridgway v. West et al., 60 Ind., 371; City of Denver v. Mullen et al., 7 Colo., 345. The power of a municipality, under the foregoing statutes, to declare and abate an alleged nuisance is discussed in City of Denver v. Mullen et al., supra, in which the court said:

“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 ordered its summary abatement by destruction of tbe property. In this respect the court said:

“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:

“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 proof that the law has been violated. That is not an open question in this state. Since this canse was tried in the court below, and under an ordinance similar to the one pleaded in the special defense herein (but containing a provision for abatement, permitting’ and requiring the city marshal and other police officers to abate a nuisance by closing up the place declared to be such and preventing any person from entering the same except for the lawful removal of such liquor), the defendant city attempted and threatened to carry out the summary abatement of an alleged nuisance such as is' here under consideration, but was enjoined from so doing. On appeal to the supreme court_such action of the trial court was sustained, the court holding that the 'violation of the ordinances, .if any there was, consisted in dispensing liquors to members of the club, and that whether there was such violation could not be determined by the city officers. —Canon City v. Manning, 43 Colo., 144. The court said:

“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 forth in their special defense. Conceding the truth of all the allegations of the special defense, it does not appear that the acts of plaintiff and his assignor might not have been prevented, and the business entirely stopped in due time, by the usual and ordinary processes and writs available to the city or the citizens thereof. It must be presumed that the laws relative to the sale of intoxicating liquors can be effectively enforced if proper effort be made. The records and reports of the supreme court and of this court abundantly show the efficacy of the laws, and of the courts, to prevent and abate the acts and business unlawfully carried on by the plaintiff and his assignor in this case. He and his associates were repeatedly convicted and their convictions sustained by the supreme court (Lloyd et al. v. Canon City, 46 Colo., 195). The Canon City Labor Club as a corporation was dissolved (Canon City Labor Club v. People, 121 Pac., 120).

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 liquors have no value in law, or that the value thereof cannot be recovered when wrongfully destroyed or converted, except under a statute which provides in substance that no action shall be maintained for the recovery or possession of spirituous liquors, or the value thereof, except in cases where the person owning or possessing such liquors, with lawful intent, may have been illegally deprived of the same; or which provides that there shall be no property • rights in such liquors. Such statutes were shown to be in force in Oviatt v. Pond, Dolan v. Buzzell, Sommer v. Cate, Walker v. Shook, and Blunk v. Waugh, supra. Under the several statutes referred to it has been held, either upon the statutory inhibition against such action, or for the reason that the liquors were not to be regarded as property, that an action in trespass or trover for the value of such liquors cannot be maintained, and that even if unlawfully converted or destroyed, nominal damages only can be recovered.

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 purchased, kept and intended for an illegal purpose, plaintiff cannot recover.

“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 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 violence, amounting to assault and battery; and the destruction of the.property, which, besides the intoxicating liquors, included much legitimate merchandise, was accompanied by acts which attracted such attention as to disturb the peace of an otherwise orderly community on a Sabbath morning. The final appeal of every citizen of this state for redress of grievances must be to the law. There is no grievance that is a fit object of redress by violence and riot. “In no case is the interposition of mob law either necessary, justifiable, or excusable.” Safeguarding every citizen, without regard to occupation or station in life, is the constitutional guaranty, that no person shall be deprived of life, liberty or property, without due process of law. _ Punishment may be inflicted or property confiscated, only through courts of competent jurisdiction and after due inquiry. If the law is not sufficient, the remedy is through legislation. The courts of last resort have steadfastly adhered to these elementary and fundamental principles of our constitutions and laws, and refused to relieve individuals from pecuniary liability for damage caused by them in attempting to enforce the criminal laws, while themselves violating the law. Upon these principles, as well as upon preponderance of authority, we hold that the matters alleged in the second defense constituted neither justification or excuse for defendants’ acts, nor a defense to the cause of action.

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.

The clnb, plaintiff’s assignor, was in possession of the goods, and the defendants had no right thereto; and, as to them, whether with or without consideration, the club had the right to make the assignment. Moreover, an apparently good assignment was established by authority of an order of the board of directors, made at a meeting duly called and held. It was contended in argument that the corporation had been dissolved, and therefore could not make the assignment. That matter was not in evidence but appears upon the records of this court (Canon City Labor Club v. People, 121 Pac., 120); but it also appears that after the order of dissolution made by the district court, an appeal was taken which operated as a supersedeas. Therefore, pending the appeal, the corporation might lawfully act, and the final order of dissolution made by this court would not retro-act so as to make ineffective an assignment good at the time it was made.

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 judge upon the trial made remarks that would have a natural tendency to prejudice the jury against the defendants. But we think they could not have affected the verdict, for the reason that the instruction of the court practically directed a verdict for the plaintiff upon testimony that was undisputed. The court fixed the damages at the value alleged in the complaint and supported by plaintiff’s testimony, the only exception being that the jury were not bound by plaintiff’s testimony if they believed it to be false. Defendants offered no evidence. The jury could not well find otherwise than for plaintiff in the absence of any testimony against him.

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.