Ferguson v. Josey

• Decision Date: 11 January 1902
• Citation: 66 S.W. 345,70 Ark. 94
• Parties: FERGUSON v. JOSEY
• Court: Arkansas Supreme Court

66 S.W. 345

70 Ark. 94

FERGUSON v. JOSEY

Supreme Court of Arkansas

January 11, 1902

Appeal from Hempstead Circuit Court JOEL D. CONWAY, Judge.

Reversed.

The appellees, Josey & Ward, filed a complaint alleging that on June 9, 1899, they were owners and in possession of a lot of intoxicating spirits, and that appellants, Ferguson and Spraggins, unlawfully took possession of the same and converted it to their own use, to appellees' damage in the sum of $ 196.50.

Appellant's answer, in substance, alleged that appellant Ferguson was sheriff of Hempstead county, that he had taken possession of said property by virtue of a warrant issued by appellant Spraggins, mayor of the town of Hope, in a matter of which he had jurisdiction upon his own personal knowledge and upon information given him by the marshal of Hope. That after the appellees had been arrested for unlawful sale of intoxicating liquors in Hope, and while appellees were in custody, the property was seized. That the property was in custody of the law, and the mayor's court had jurisdiction. That the town of Hope was a prohibition district, and that the liquors in question were being held for the purpose of being unlawfully sold.

The appellees demurred to the answer as not setting forth facts sufficient to constitute a defense. The court sustained the demurrer. Appellants stood upon their answer; judgment for the value of the property was rendered against them; and they have appealed.

Judgment reversed and cause remanded.

J. H McCollum and W. V. Tompkins, for appellant.

The act of February 13, 1899, is not violative of the constitutional prohibition against issuing of a search warrant "except upon probable cause, supported by oath or affirmation." No written information is required in a justice's court. Sand. & H. Dig., § 2329. As to meaning of "information," see 41 Ark. 403. The courts will not presume that the legislature intended to pass an invalid statute, and, if possible, will so construe a statute as to give it effect. Cooley, Const. Lim. *185; 59 Ark. 513; 56 Ark. 495; 58 Ark. 414. If the warrant was lawful, the mayor's court had jurisdiction, and appellees should have gone there to litigate the question involved. 13 L. R. A 408; 6 Gray. 491. In cases of concurrent jurisdiction, the forum first acquiring jurisdiction will hold it to the exclusion of the others. 34 Ark. 188.

J. P Hervey and T. E. Webber, for appellees.

The act of 1899, in so far as it provides for a search, is unconstitutional and void. 4 Mich. 125; 21 Am. & Eng. Enc. Law, 961, note 6; 46 Ark. 325; 24 Ark. 161; 1 Gray, 1; Black, Intox. Liq. §§ 351, 355, 356, 364, 521. There being no oath or affirmation to support the warrant, the mayor's court had no jurisdiction. 41 Me. 419. A search warrant must not issue except upon probable cause, supported by oath. 8 Gray, 539; 6 Gray, 491; 11 Clarke (Ia.) 165; Black, Intox. Liq. § 355. Issuing a search warrant without an oath as a basis is proceeding without due process of law. 68 Mich. 549. As to liability in damages for executing or issuing process on a void statute, see: 46 Ark. 325; 34 Ark. 176; 36 Ark. 268; 61 Am. Dec. 410; 1 Gray 1.

BATTLE J. HUGHES and RIDDICK, JJ. absent.

OPINION

BATTLE, J.

The defense of the appellants is based upon an act entitled "An act to suppress the illegal sale of liquors and to destroy the same when found in prohibited districts," approved February 13, 1899. Section 1 of that act is as follows: "It is hereby made and declared to be the duty of the chancellors, circuit judges, justices of the peace, mayors and police judges, on information given or on their own knowledge, or when they have reasonable grounds to believe that alcohol, spirituous, ardent, vinous, malt or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors of any kind, are kept in any prohibited district to be sold contrary to law, or have been shipped into any prohibited district to be sold contrary to law, that they issue a warrant, directed to some peace officer, directing in such warrant a search for such intoxicating liquors, specifying in such warrant the place to be searched, and directing such officer on finding any such liquors in any prohibited district to publicly destroy the same, together with the vessels, bottles, barrels, jugs or kegs containing such liquors; provided, that this act shall not apply to the giving away or selling of native wines where the sale is authorized by law; * * * provided, that any persons on whose premises or in whose custody any such liquor may be found under warrant of this act shall be entitled to his day in court before said property shall be destroyed." And section 3 is as follows: "That if any suit shall be brought against any officer or his bondsmen, or any other person, to recover for any liquors, vessels, barrels, bottles, jugs or kegs destroyed under the provisions of this act, it shall be a complete defense to such suit for such officer, bondsmen or other person to show to the satisfaction of the court or jury that such liquors so destroyed were being sold contrary to law, or were kept to be sold contrary to law, or had been shipped into any prohibited district to be sold contrary to law, or that any portion of the liquors so destroyed had been a part of any liquor so sold contrary to law, or kept to be sold contrary to law, and, upon such showing being made, such officer, bondsmen or other person shall not be liable for the value of the liquor, vessels, barrels, bottles, jugs or kegs so destroyed."

Appellees insist that so much of this act as authorizes a search is in violation of the constitution and is void. Assuming that to be true, it does not follow that the whole of the act is void. For it is evident that the act, when construed as a whole, does not intend that the search provided for shall be a condition precedent to the right to seize and destroy the liquors described.

The act makes it the duty of certain officers, on conditions...