(dissenting) — I respectfully dissent.
The issue involved on the surface is whether certain bottles *182of whiskey should be returned to the claimant-appellant forthwith or whether they may be held pending trial of an indictment against claimant in which they are exhibits. Underneath the surface, however, is the force and effect of Article I, section 8, Constitution of Iowa, and section 751.23, Code of 1950. Also, according to the majority opinion, section 771.13, Code of 1950.
Article I, section 8, Constitution of Iowa, a part of the Bill of Rights, states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause * * An unreasonable search has been defined as a search without authority of law of one’s premises, with a view to the discovery of stolen, contraband or illicit property or for some evidence of guilt, to be used in the prosecution of a criminal action. 47 Am. Jur., Searches and Seizures, section 52.
As stated in the majority opinion, the trial court found and ruled that the search warrant was issued without probable cause and was void. There has been no appeal from this finding, hence the case before this court is one of an “unreasonable search” as a matter of law. It is therefore a clear -violation of the rights of claimant under the Bill of Rights, supra. It might be stated that the articles seized bore the stamp of the Iowa Liquor Control Commission and are not contraband per se.
Section 751.23, Code of 1950, provides: “If it appears that-the property taken is not the same as that described in the warrant,- or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate shall cause it to be restored to the person from whom it was taken.” In other words, if the warrant was issued in a manner forbidden by the Constitution, supra, it shall be restored to the owner. Under the rule of construction announced in Vale v. Messenger, 184 Iowa 553, 558, 168 N.W. 281, the word “shall” in the statute is construed as mandatory. See also Wisdom v. Board of Supvrs., 236 Iowa 669, 19 N.W.2d 602.
The trial court recognized this rule but held that the return should be delayed until after the trial of the pending indictment. The majority opinion adopts this view.
*183Thus the single question before this court is: “Must the court, under this record, immediately restore the property or may it hold the seized articles for use in the pending case?”
In my judgment, the order must be for immediate restoration. The legislature said nothing in section 751.23 about holding the seized property temporarily after it was found that the search warrant was void. It is not the province of this court to legislate. As said in State v. Certain Intoxicating Liquors, 196 Iowa 230, 232, 194 N.W. 283: “Proceedings to condemn intoxicating liquors * * * are quasi-criminal. * * * The statute being penal in its nature nothing can be left to inference, presumption or legal intendment. A court is not privileged to amend the law. Its function is interpretative — jus dicere; not legislative — jus dare.”
The majority opinion seeks to sanction the holding of the seized articles, under section 771.13, Code of 1950, which is as follows: “When an indictment is found, all minutes and exhibits relating thereto shall be returned therewith and filed by the clerk of the court.” It is conceded that this statute is merely directory. State v. Bazoukas, 226 Iowa 1385, 286 N.W. 458. In State v. Bailey, 202 Iowa 146, 209 N.W. 403, we held relevant exhibits were admissible upon the trial of an indictment even though they had never been before the grand jury.
The majority opinion states that there are here “two different cases and that they are affected by two different statutes”; that a ruling in the confiscation case should not affect the criminal proceedings, and we should not conclude that the two statutes are in conflict, citing Iowa Farm Serum Co. v. Board of Pharmacy Examiners, 240 Iowa 734, 740, 35 N.W.2d 848, 851, to the effect that “where there are two statutes relating to the same subject matter, they should be construed, if it can be done, so that both may have full force and effect.”
I have no quarrel with the rule of construction announced. I do however take sharp issue with the statement that the two statutes relate to the same subject matter. Section 771.13 is merely a suggested course of orderly procedure to be followed by a grand jury in returning an indictment. That it does not deal with any substantive rights of an individual is evidenced’ by our holding in State v. Bailey, supra. On the other hand, section *184751.23 is clearly a legislative enactment of the provisions of Article I, section 8, Constitution of Iowa, and deals specifically with substantive rights. As stated in 47 Am. Jur., Searches and Seizures, section 10:
“The main, if not the sole, purpose of these inhibitions is to place a salutary restriction on the powers of government; that is to say, to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful any unreasonable search or seizure. This restriction was intended to operate on legislative bodies, so as to render ineffectual any effort to legalize what the people expressly stipulated could in no event be made lawful; * * # and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without color of authority, or sought to be justified under the guise of legislative sanction.”
If these two statutes relate to the same subject matter, as apparently the majority opinion holds to be the case, then in my humble opinion section 771.13 cannot stand in the face of the Constitutional provision. The answer is that they have no relation to each other and apply to entirely different matters.
The majority opinion further holds that the burden rests upon claimant to prove any affirmative defense, i. e:, why the seized articles should be returned. In this, the opinion clearly overlooks or ignores the basic factor in the case, namely, that it is the law of the case that the search warrant was issued without probable cause and was void.
Attempt is also made to liken the case to the situation where an officer in making an arrest may also take into his possession such articles as may reasonably be of use as evidence upon the trial, citing Getchell v. Page, 103 Maine 387, 69 A. 624, 18 L. R. A., N. S., 253. That case is an action against the officer for wrongful taking, involves a valid search warrant and is based on an entirely different statute. It is not in point. Furthermore, the officers were not making an arrest, nor does the record show claimant was ever arrested under the search warrant proceedings. Section 751.36, Code of 1950, authorizes an officer, when acting under a search warrant, to seize articles which may have evidenti-*185ary value, but certainly a valid warrant is a condition precedent.
State v. Arluno, 222 Iowa 1, 268 N.W. 179, is cited as bearing upon tbe question. All that case holds is that although not forfeited, articles may still be received in evidence upon the question of intent, where if forfeited they create a prima-faeie case of intent.
Appellant argues that the case of State v. Tonn, 195 Iowa 94, 191 N.W. 530, is determinative of this case. That case merely announces a rule of evidence and is clearly not in point.
While it might make the work of the law-enforcing officers easier if they could overlook the provisions of the Constitution, as is in effect contended for by the State, and which is the actual result of the majority opinion, I am not prepared to let the bars down by removing the safeguards set up under the Bill of Rights. Under this opinion no search warrant is needed by officers desiring to'obtain evidence of a law violation. Once they get it, no matter how, it is available for use against the party from whom taken by merely rushing it before a grand jury or even by merely showing it to be relevant to the issue in a pending or contemplated case. It would nullify section 751.23, Code of 1950, and likewise Article I, section 8, Constitution of Iowa. It would create an extremely dangerous precedent. I would reverse.
Smith, J., joins in this dissent.