The opinion of the court was delivered by
Johnston, J.:
[426]*4261. Lien for fines. [425]*425This was an action brought by the county attorney of Washington county, in the name of the state of Kansas, to enforce the lien created by §18 of the prohibitory liquor law. From the petition, it appears that one George E. Ross was convicted of violating that law, and sentenced to pay a fine of $800 and the costs of prosecution, and to stand committed until such fine and costs were paid. The fine and costs were not paid, and the plaintiff brought the action to enforce the lien against the premises upon which the intoxicating liquors were unlawfully sold, alleging that the owner of the premises, who had leased the same to Ross, had full knowledge that the premises were being used for such unlawful purpose, and that he leased them to be used and knowing that they would be used for such purpose. The ■ defendants joined [426]*426issue with the plaintiff, and at the November term, 1884, the case was called for trial. The plaintiff produced its witnesses, and offered testimony to sustain the issues upon its part, but the defendants objected to the introduction of any evidence, on the ground that the plaintiff’s petition did not state facts sufficient to constitute a cause of action, claiming that the statute under which the action was brought was unconstitutional and void. One ground of invalidity asserted against the statute, and the one upon which the court below appears to have rested its decision, is that it violates §16 of article 2 of the state constitution. This question was presented to the court in the case of _r_ _L __ .. » .. Hardten v. The State, 32 Kas. 637, and after due consideration the validity of the statute was upheld. We see no reason to disturb that decision.
2. Valid statute. Another objection urged against the statute under which the action was brought is, that it contravenes §12 of the bill of rights, where it is provided that no conviction shall work a forfeiture of estate. This objection is without -ri _ - -i • i ^ i« force. It lias already been determined by tills court that the liability created by this statute is not in the nature of a forfeiture. (The State v. Pfefferle, 33 Kas. 718.) “The fine and costs are not imposed upon the owner of the premises, but are imposed upon the person who violates the law; and the owner of the premises is simply made a surety for their payment.” (Hardten v. The State, supra.)
A final objection to the statute is, that it conflicts with that provision of the constitution providing that a homestead cannot be alienated without the joint consent of husband and wife. This question, however, is not in the record, and cannot be determined in this case. It is not stated in the petition, nor does it appear from any source, that the premises against which the lien is sought to be enforced have ever been occupied as a homestead by any of the defendants.
The court erred in excluding the evidence offered, and the judgment must therefore be reverted, and the cause remanded for a new trial. <
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