Petitioners apply to this court for a mandamus to compel the judge of the Third Judicial Circuit to issue a warrant to search for certain liqxtors, and when found to seize them according to the 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 one of which 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, further, any sheriff or other officer having knowledge of any such blind tigers and failing to perform his duty shall forfeit his commission; provided, further, that the provisions of this act shall not repeal or affect section 4886 of Sandels & Hill’s Digest; provided, that any persons on whose premises or in whose custody any such liquors may be found under warrant of this act shall be entitled to his day in court before said property shall be destroyed.”
Peter Anderson and R. T. Simmons on the 8th day of October, 1904, made an affidavit, in which they stated that they had reasons to believe and believed that alcohol, ardent, vinous, spirituous, malt and fermented liquors, etc., were kept in a building numbered 308, on East First street, and in the First Ward of the city of Newport, in this State, and in apartmeilts, rooms and annexes thereof and connected therewith, to be sold contrary to law; said buildings, apartments, rooms and annexes thereof and connected therewith being used, occupied and controlled by J. E. Doherty and being in a prohibited district; and they asked for a warrant to search the same for such liquors, and to seize and destroy the liquors when found. And the prosecuting attorney of the Third Judicial Circuit of this State made the statements contained in the affidavit of Anderson and Simmons, and asked for the same relief. This affidavit and information were on the nth of October, 1904, presented to the judge of the Third Judicial Circuit for a warrant to search and seize under the act of February 13, 1899, and he refused to issue it.
The circuit judge responded to the petition, but did not show that the First Ward of the city of Newport was not a prohibited district; but he did show that the majority of the votes cast in the First Ward of the city of Newport, and in the township in which it is situate, at the general election held on the 5th of September, 1904, was “for license”; and that in October following the county court of Jackson County, in which the city of Newport is situate, granted -to said J. E. Doherty license to sell liquor. He questioned, in his response, the credibility of Anderson and Simmons.
Upon the presentation of the affidavit and information to the circuit judge, it was his duty to issue a warrant in accordance with the act of February 13, 1899. He had no discretion in the premises. The act allows the owner of the liquor a “day in court” for the purpose of showing that his property has not been forfeited and should not be destroyed. Ferguson v. Josey, 70 Ark. 94. In this provision of the act the necessity or reason for the -exercise of discretion is obviated. By allowing a “day in court” all parties in interest are given an opportunity to be heard and to protect themselves. A discretion in the circuit judge and other officers named in the act to issue or refuse the warrant would place it in their power to defeat the act, a construction wholly inconsistent with the letter and spirit of the act.
Counsel for respondent say that other penalties for the illegal sale of .liquor are provided by law. That is true, but that does not interfere or dispense with the enforcement of the act of 1899. The duty to obey it is still imperative. They say that it does not apply to sales made openly under a claim of license. They are in error. A license to sell in a prohibited district is void; and the act applies to all illegal sales in such districts. Ferguson v. Josey, 70 Ark. 94.
The majority of votes cast for license at the general election on the 5th of September, 1904, did not authorize the issue of license until on or after the 1st day of January, 1905. The statute so provides. Sandels & Hill's Digest, § 4868.
The petition for mandamus is granted.