Houston v. Walton

Cunningham, Judge,

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 *299my consideration to one, expressing no opinion as to all other matters discussed and settled by the majority opinion. The error committed by the trial court in sustaining the demurrer of plaintiff to the second defense set up in the answer, ought, in my judgment, to reverse the judgment, and it is to this error I shall confine myself.

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 *300studying 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*301signee were maintaining and operating an institution that was not only malum prohibitum, but malum in se. In Spalding v. Preston, supra, the supreme court of Vermont further says:

“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.”

*303The procedure of the city marshal, I freely concede, was unlawful, and being such, I unreservedly condemn it. Public officers, of all men, must be held to a scrupulous observance of the law. But I entertain too high an •opinion of our la'w's to believe that there is no method whereby the offending city marshal can be adequately punished without rewarding a malefactor whose lawlessness the city official was striving to curb.

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 *304not 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.

*305' I apprehend that where a plaintiff is barred by this rule from recovering on a contract, or gw<m-contract,.he will likewise be barred in an action sounding in tort, where the defendant pleads and proves that the property damaged by him was purchased and kept with the design and purpose on the part of plaintiff of violating the law, especially where the defendant is a public officer charged with the duty of enforcing the law and in the discharge of that duty exceeds his authority.

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.”

*306In Young v. Thompson, 14 Colo. App., 294, at 314, Bissell, P. J., quotes with approval from Lord Mansfield the following:

“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 *307case by the fact that nowhere in the very able and exhaustive majority opinion is there any attempt to defend the conclusions arrived at, save by the citation of authorities. It may, therefore, be not amiss to briefly consider the doctrine of stare decisis. It has been said by our own supreme court in Colorado Seminary v. Arapahoe Co., 30 Colo., 509:

“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*308dents 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 *309declare 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.