Section 3327 of Pope's Digest authorizes issuance of search warrants. If formal information is given a judge of the supreme court, a circuit judge, or a justice of the peace that a gambling house is being conducted, it is the "duty," and it is "required" of such judge or justice that he direct a warrant to some peace officer commanding a search and seizure, and ordering that the unlawful devices be publicly burned by the officer executing the warrant.
Constitutionality of the statute was upheld in Furth v. State, 72 Ark. 161, 78 S.W. 759. In that case, upon affidavit before the judge of the Sixth judicial circuit stating that certain gambling devices were kept at 109 South Main street, Little Rock, the sheriff seized two tables.
It was contended (a) that the tables were not gambling paraphernalia, and (b) that incompetent evidence had been admitted at a hearing conducted in response to citation commanding the defendant to appear and show cause why the fruits of seizure should not be destroyed.
The second paragraph of the opinion is: "The appellant contends that the Act providing for this procedure is void, because 1618 and 1619 of the statute are unconstitutional, because they are uncertain and ambiguous. We do not consider this objection sound." Section 1618 of Sandels Hill's Digest was then copied in full, with the comment: "Though the meaning of this *Page 669 section might have been made plainer by particularity in the use of language, it is easily understood by anyone who does not want to misunderstand." It was them said: "The objection that the Act in question does not provide for a jury is a serious one. But this is a proceeding in rem of a civil nature. It is a summary proceeding in the exercise of the police power of the state, under a statute passed to suppress the nuisance of gambling. Gambling was a nuisance at common law. It is only in cases where a jury could be demanded as a matter of right at common law that the refusal of a jury under our constitution is ground for reversal.
"The contention is made here that the legislature has no right or power to enact this statute. We understand that it is competent for the legislature to provide by statute for the suppression of nuisances by a summary proceeding, and to authorize the destruction of gambling devices the use of which constitutes a nuisance. The principle is settled in case of the Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257, which case counsel for appellant asked this court to reconsider and modify, so as to confine its ruling to the cases where not only the devices seized are nuisances per se, but where the facts are confessedly that such property is used for gambling purposes only, and cannot be used for any other. This we cannot do. This case stands on its own facts, and announces correct principles of law."
After copying the section of the statute in question, including, of course, that portion conferring upon judges of the supreme court the right to issue search warrants, requiring them to do so, and imposing it as a duty, attention was called to the contention that the legislature was without power to enact this statute, the court very emphatically held it was competent for the legislature to provide for the suppression of gambling, and by every intendment short of saying "this statute is constitutional," held it to be valid.
It is true that in the Furth case the warrant had been issued by a circuit judge. But, quoting again from the opinion, there is this declaration; "To maintain the constitutionality of the state under consideration, the doctrine *Page 670 of what is known as the Fish Net Case, Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385, is justly invoked."
In the appeal involving the Garland Novelty Company Mr. Justice RIDDICK was very careful to say it was necessary for warrants to be supported by oath or affirmation showing probable cause for belief that the thing to be searched for was on the premises or in the building. While the statute by its terms conferred upon judges authority to issue warrants on belief, it was shown that the Act was passed before 1874, when the present constitution was adopted.
The exact question involved in petitioner's complaint has not heretofore been raised, but the Act as a whole (except as circumscribed by Mr. Justice RIDDICK) has been held valid.
Why, then, must society be controlled by judicial gossamer, the effect of which is to satisfy, pacify, and fortify commercial gambling?, although, of course, this radial consequence is not intended.
Informed citizens are not strangers to the interests of the lawless minority in Hot Springs, nor are they insensible to the practice of gamblers elsewhere who course the subways of crime.
Sharp practices, confidence games, robbery, theft — these and other kindred pursuits are propagated with unrelenting zeal by that galaxy of the "shifty" who subsist by what is mistakenly referred to as their wits, but which in fact is wantonness aggravated by acute decay. It would be futile — an endless task — to enumerate the efforts good people have continuously exerted to enforce laws enacted to suppress the practices engaged in by overlords of corruption.
Editors have inveighed against conduct of the recalcitrant who prostitute alike the mind of young and old. Ministers, by sermons, have begged for public support in their struggle against that character of degradation which attends either legal or illegal gambling. Lay-workers in churches, whose sincerity rises higher than lip-service and an occasional contribution from surplus *Page 671 funds, have sought by example and entreaty to place human conduct upon a plane removed from dens where professional sportsmen ply their trade. There has always been willingness by the few to challenge procurers of protection who find immunity in public apathy. The lawless believe that technicalities and judicial "breaks" will wrap them in the folds of a constitution they have neither the capacity to understand nor the inclination to examine.
By a process of deduction which textwriters of law would perhaps term reasoning, the majority reaches the conclusion that an Act making it the duty of a supreme court judge to issue search warrants is unconstitutional because, says the opinion, art. 7, 4 restricts the tribunal to appellate jurisdiction except in cases otherwise provided.
No one contends that the supreme court has issued any writ. It could not do so if the Act in question had so provided; because, in that event, a review involving rights of those from whom equipment was taken would be before the authority that sanctioned the warrant. It is different when a single judge has responded to mandatory provisions of 3327 of Pope's Digest. This court should say that replevin would he for the purpose of determining whether the things taken were, in fact, gambling paraphernalia.
It is somewhat anomalous for the court to say it may, as an original proposition, assume jurisdiction to determine a constitutional question involving the right of a judge to issue search warrants, but it may not designate procedure for review.
As the judge who issued the warrant now questioned, and others not in issue; as one who under express authority of a statute imposing such duty responded to affidavits regularly presented (in consequence of which nearly a score of gambling houses were raided in Hot Springs in 1937 and fifty thousand dollars' worth of equipment at Belvedere, Southern Club, and other notorious halls was appropriated, and destroyed after sufficient time had been allowed to permit operators to question the procedure) I concede that a strict construction *Page 672 such as the court has placed on the constitution would produce the results Henry Levy has been able to procure. But I contend that art. 7, 4 should receive the liberal interpretation of which it is susceptible, thereby reserving to the authority designated by the general assembly the right to interfere when there is justification.