In my opinion, this case may be readily and easily disposed of without declaring the statute, section 1235, Code of 1930, unconstitutional, even if it be granted that the record, in anywise, permits the raising of the constitutional question disposed of by a majority of the court.
The reasonable construction of section 1235, Code 1930, is that it requires every officer acting thereunder, without a warrant, to have "probable cause" for so doing.
Risher, the officer, whose evidence is objected to here on the ground that it was illegally procured, acted upon information given by his son that a game was in progress in the house of the appellant Polk. It reasonably appears that the son spoke upon information obtained from an unrevealed source. It may have been an idle rumor, even scandal, so far as the officer knew, and did not constitute probable cause for search or arrest; and, if the objection is properly interposed, Polk is entitled to a reversal of his case and to be discharged, but not so as to the other defendants.
This view disposed of the entire case, and relieves this court of the necessity, in my opinion, of determining the validity or invalidity of the statute involved.
An act of the legislature should never be held to be violative of the fundamental law, unless the right of the *Page 514 litigant in the particular case before the court requires it to be done.
Courts will not decide constitutional questions, unless necessary to the disposition of the cause before them. Hendricks v. State, 79 Miss. 368, 30 So. 708; Bell v. Kerr, 80 Miss. 177, 31 So. 708; Native Lumber Co. v. Board of Sup'rs of Harrison County, 89 Miss. 171, 42 So. 665; and Town of Flora v. American Express Co., 92 Miss. 66, 45 So. 149.
In the case of Thompson v. Grand Gulf R. Banking Co., 3 How. 240, 34 Am. Dec. 81, Chief Justice SHARKEY said: "To determine between the constitution and the legislature, is often embarrassing, and always demands a cautious and deliberate investigation. In the inquiry is involved the highest function of the judicial department. The acts of the legislature should be sustained if possible; the constitution must be preserved inviolate."
In the case of Wirt Adams, State Revenue Agent, v. Capital State Bank, 74 Miss. 307, 20 So. 881, 882, THOMPSON, Special Judge, approved the above language, and further said that, "While the obligation rests upon the courts to fearlessly see that the constitution is preserved, still wisdom requires that they should proceed in such matters cautiously; and we think an act of the legislature should never be held to be violative of the fundamental law unless the right of a litigant in the particular case before the court requires it to be done. We are fortified in this conclusion by the opinion of Judge COOLEY, who, in his work on Constitutional Limitations (page 163), says: `While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extrajudicial disquisition *Page 515 is entitled. In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.'"
I concur in the conclusion reached by all of us in this case, but upon ground herein set forth.
Judge COOK joins in this concurring opinion.