author: McCulloch, C. J. Smith, J.,

text:
    Knight v. State.
    Opinion delivered October 11, 1926.
    1. Arrest — necessity op warrant. — Since the offense of possessing an unregistered still is a felony under Acts 1921, p. 372, an officer may,_ without a warrant, arrest one who, he has reasonable grounds to believe, is in possession of such a still.
    2. Criminal law — unreasonable search. — Where there is a lawful arrest for possessing an unregistered still, the officer making the arrest may, without a search warrant, make a search for such a still in the dwelling of the person arrested.
    Appeal from Lee Circuit Court; E. D. Robertson, Judge;
    affirmed.

      D. S. Plummer, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose-, Assistant, for appellee.
   McCulloch, C. J.

Appellant was tried and convicted under an indictment charging him with the offense of having in possessipn an unregistered still, and his contention for reversal is based on the ground that the evidence is insufficient to sustain the verdict, and that the court erred in admitting testimony based upon information obtained by the arresting officer while searching appellant’s dwelling-house without a search warrant. Appellant iq a negro tenant farmer residing in Lee County, about ten or twelve miles from Marianna.

The State relies upon the testimony of Smith, the sheriff, and Curtis, a deputy, who accompanied him to appellant’s house. According to the testimony of these two witnesses, the sheriff received information that appellant was operating a still somewhere about his premises, and the sheriff and 'Curtis, one of his deputies, went to appellant’s house, and found in the loft of the house an apparatus which he described as a still, and testified that it was in fact a still and had recently been in operation. He testified that he found the apparatus in a sáck, and brought it down into the lower room in the presence of appellant .and Curtis. Curtis testified to the same effect.

When the two'officers got to appellant’s house, they did not find 'appellant or any other person there, and Curtis went out into an adjoining field, under Smith’s instruction, to find appellant and bring him to the house, which Curtis did. While waiting for appellant to be brought in, Smith, according to his own testimony, strolled about the lower rooms of the house to ascertain what he could find, and, when Curtis returned with appellant, he went up into the loft and found the still. He described it as a large copper boiler, with an eighteen-inch pipe attached thereto, and testified that the whole apparatus smelled strongly of whiskey, and that it was complete as a crude still for making whiskey. Another witness, who had examined the still after it was' brought into town, testified that, without any coil on it, it was sufficient to use in distilling spirituous liquors. The sheriff testified that he found the apparatus in a sack, and that there' was ‘also a coil in the sack, adapted to use in attaching it to the pipe which protruded from the boiler.

Curtis testified that, when the sheriff came down from the loft, he had the sack in one hand containing the apparatus, and the coil in the other hand. Appellant was arrested by the sheriff, and the apparatus was taken into custody and carried to town and held in the sheriff’s office until the trial of the cause. The apparatus itself was not introduced in evidence, but the sheriff and his deputy testified concerning its condition and how it was obtained.

Appellant admitted that he had the boiler with the pipe in it, which he claimed he had found a few weeks before beneath the waters of a lake, and that be bad taken it ont and pnt it in liis loft for the purpose of selling the boiler as old copper. He denied that there was any coil with the apparatus, but stated that the coil then in possession of the sheriff had been found at another house, over which he had no control.

We are of the opinion that the apparatus, as described by the officers, was a crude still, assembled at appellant’s house for the purpose of manufacturing ardent spirits, and that it was susceptible to that use. Moore v. State, 154 Ark. 13, 240 S. W. 1082.

Appellant made objection to all the testimony with reference to the finding of the still, on the ground that the evidence was unlawfully obtained by search without warrant. The court overruled the objection to the testimony, and it is earnestly insisted that this was error which calls for a reversal. In other words, we are asked to overrule former decisions of this court holding that such testimony is admissible even though based upon information wrongfully obtained by unlawful search. The same argument is made as was made in the recent case of Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, that our previous decisions on this subject are in conflict with the rulings of the Supreme Court of the United States, and should be overruled.

We deem it unnecessary to enter upon a reconsideration of the precise questions decided in previous cases, for the reason that we conclude that the facts of the present case bring it within the exception announced by the Supreme Court of the United .States to the rule against allowing testimony based upon information obtained by search without warrant. In the recent case of Carroll v. United States, 267 U. S. 132, Chief justice Taft, speaking for the court, said:

' “When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense, may be seized and held as evidence in the prosecution. * * * The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

In the still more recent case of Agnello v. United States, 269 U. S. 70, the court said:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.’ * * * Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places.”

Further on in the opinion the court said:' “While •the question has never been directly decided by this court, it has .always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. ’ ’

The offense of possessing an unregistered still is a felony under opr statute. Acts 1921, p. 372. A peace officer may lawfully make an arrest without warrant “where he has reasonable grounds for believing that the person arrested has committed a felony.” Crawford & Moses’ Digest, § 2904. The sheriff testified that he had reasonable information that appellant was engaged in the manufacture of whiskey, and he went to appellant’s house pursuant to that information, and had him brought in from the near-by field where he was at work, and that the search was made in appellant’s presence. He testified also that appellant was immediately arrested on the charge of possessing an unregistered still. Th.e testimony is not altogether clear as to the precise moment when the formal arrest was made, but the testimony, when considered together, shows that appellants was taken into custody out in the field and brought to the house, pursuant to the sheriff’s information that whiskey was being manufactured there. In other words, the testimony, reasonably considered, shows an arrest substantially contemporaneous with the search of the premises, and the case in this respect comes clearly within the decisions of the Supreme Court of the United States. It is not proper, we think, to draw fine distinctions as to the particular moment the arrest was made, for, according to the decisions of the Supreme Court of the United States, when there is a lawful arrest and the arrest and search are substantially contemporaneous, there is no violation of the constitutional guaranty against unlawful search, and the evidence found under those circumstances is not inadmissible. Our conclusion, therefore,-under the facts of this case, is that the testimony of the arresting* officers was admissible, and this conclusion is reached without reconsidering our former rulings on that subject.

Judgment affirmed.

Smith, J.,

(dissenting). It must be conceded that the admission of the testimony of the sheriff, which the majority holds was properly admitted, was not erroneous under the decision of this court in the case of Benson v. State, 149 Ark. 633, 233 S. W. 758, and some later cases following it. In that case there had been a wrongful search of the defendant’s home without a search warrant, and intoxicating liquors had been found as a result of the search, and we held that the evidence thus secured was not rendered inadmissible because it had been illegally obtained. We recognized in that case that there was a division in the authorities, and, upon an investigation of the authorities, we concluded that the weight of authority supported the rule that this evidence was not to be excluded because it had been illegally obtained, and we adopted what we conceived to be the majority rule, and did so because it was the majority rule.

The question has since recurred with such frequency that we are caused to pause and doubt whether the real effect of that decision has not been to license officers of the law to treat as meaningless very sacred provisions of onr Constitution.

We have therefore further considered the question of the admissibility of testimony obtained as a result of a wrongful and illegal search of one’s home, as we have the right to do, inasmuch as only a rule of evidence is involved, and the writer and Mr. Justice Hart have corn eluded that, even though we were correct as to where the weight of authority was when the Benson case was decided, we should now follow the rule which is supported by the better reasoning, and hold that testimony obtained by an illegal and wrongful search of one’s home should be excluded when proper objection is made to its admission.

When our Constitution was framed, there were certain rights which were considered so sacred and inviolable that they were specifically enumerated in article 2 of the Constitution, and this article was called the “Declaration of Rights.”

In § 8 of this article it is provided, among other things, that no person shall be compelled, in any criminal case, to be a witness against himself; and § 15 of this article reads as follows: “The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

The source from which these guaranties to the citizens come is certain. The first is found in the Fifth Amendment to the Constitution of the United States, and the second is almost an exact copy of the Fourth Amendment to the Constitution,. of the United States, indeed is identical with the provisions of the Fourth Amendment to the Federal Constitution, except that, fol-' lowing the words, “The right of the people”, our Constitution contains the clause, “of this State”. This was an unnecessary phrase, perhaps, but manifests unmistakably tbe intention to reserve to the citizens of this State specifically the right to immunity from unreasonable searches and seizures.

Under these two amendments to the Federal Constitution, testimony obtained as the result of a' wrongful search has always been held to be incompetent by the Supreme Court of the United States, the leading case so holding being that of Boyd v. United States, 116 U. S. 616.

The Boyd case gives a history of the Fourth and Fifth Amendments to the -Federal Constitution, and makes plain thé purposes thereof and the evils they were intended to protect the citizens against, and the history of these amendments, as there shown, makes it very clear that the purpose of the amendments was to afford protection from a system of espionage which had become intolerable in England. The opinion in the Boyd case also recites the travail of the British people in securing immunity to themselves from illegal searches and seizures.

• It was thought that, if one’s person, house, papers or effects could be unreasonably seized or searched, and the evidence obtained as a result thereof be used against the person whose rights had been thus violated, he was, in effect, required to become a witness against himself. The provision of the Fifth Amendment, that no person shall-be compelled, in any criminal case, to be a witness against himself, has been regarded by the Supreme Court of the United States as supplementing the Fourth Amendment.

The reason inducing the decisions of the Supreme Court of the United States and the decisions of the courts which have followed the Supreme Court of the United States, is that the Fourth Amendment and the rights guaranteed thereby cannot be given effect if testimony is admitted which was obtained by violating the amendment. Indeed, as is pointed out in many of these cases, a desire to obtain the testimony is ordinarily the inducing cause to violate the Constitution by the officers making the search, and, if this unlawful invasion of the rights of the citizens is rewarded by permitting this purpose to be accomplished, the guaranty of the Constitution against such invasions becomes a mere phrase of meaningless words, affording the citizen no protection at all.

It was said in the Boyd case: “We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which, in criminal cases, is condemned in the Fifth Amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms. ’ ’

It was there also said: “Both amendments relate to the personal security of the citizen. They nearly run into and mutually throw light upon each other. When the thing forbidden in the Fifth Amendment — namely, compelling a man to be a witness against himself — is the object of a search and seizure of his private papers, it is an ‘unreasonable search and seizure’• within the Fourth Amendment. ’ ’

In the case of Silverthorne Lumber Co. v. United States, 251 U. S. 385, as the result of an illegal search and seizure, certain books and papers belonging to the company had been obtained, and copies and photographs thereof were made, and the company was ordered to produce the originals, and was fined for contempt for refusing to do so. That judgment was reversed, and Mr. Justice Holmes, speaking for the court, said: “The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right 'to avail itself of the knowledge obtained by that means, which otherwise it would not have had. The proposition could not be presented more nakedly. It is that, although of course its seizure was an outrage which the Government now regrets, it may now study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession, but ’not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. * * * It reduces the Fourth Amendment to a form of words. 232 U. S. 393. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be’ proved like any Others; but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”

It will not do to say that an illegal search of one’s home will not be regarded as unreasonable if made by an officer for the reason that an officer would not make a search unless he had probable cause to believe that a search would disclose some evidence of crime. The historical fact is that the inhibition was directed against officers. This is pointed out by the Supreme Court of Appeals of West Virginia in the case of State of West Virginia v. Wills, 91 W. Va. 659, 114 S. E. 261, where it was said: “But we are told that the constitutional privilege under § 5 is strictly limited to admissions of the party, as a witness, and that that provision does not apply to incriminating articles taken from the accused illegally; that, if the accused is required as a witness, wnder judicial process, to produce the incriminating articles, it applies, and he can claim the privilege; but, if the State does not choose to act under the law and pursuant to the law, but wholly without the law, it may do so — it may forcibly and illegally seize them from the accused, either from his person or his home, and use them against him. Possibly that might be true, if it were not for § 6, which prohibits unreasonable searches. That prohibition was meant not for private persons, but for the State and all its officers. Searches and seizures made by private persons, or officials acting in their private capacity or for private purposes, were always against law, and needed no constitutional inhibition. We repeat that § 6 was meant for the State. It makes it unlawful for any one acting in an official capacity under governmental authority to make unreasonable searches and seizures. It does not prohibit all searches and seizures, but only those which are unreasonable. And what are unreasonable'? Certainly all those searches and seizures that are unlawful. To search without a search warrant the person of one not charged with felony, or committing an offense within the presence of the officer which would authorize his arrest without a warrant, is an unlawful and therefore an unreasonable search; and to seize liquors so found upon him, after such unlawful search, is an unlawful and therefore an unreasonable seizure.”

The § 6 there referred to is a section of the Constitution of the State of West Virginia substantially identical with the provision of our 'Constitution and that.-of the Fourth Amendment to the Constitution of the United States.

The majority opinion in the recent case of Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, concedes that we have not given to our constitutional provisions the same interpretation as has been given by the Supreme Court of the United States to the provisions of the Federal Constitution, although ours were taken from that instrument. The provisions are substantially identical, yet we are refusing to follow the court whose right and duty it is to interpret language that we borrowed and incorporated into our own Constitution. The net result of this difference, I submit, is that the Federal courts are preserving a sacred and constitutional right, while we are permitting the provisions of our Constitution to become, as was said by Mr. Justice Holmes, a mere form of words.

There is recently off the press a work on Search and Seizure by A. L. Cornelius, of the Detroit bar. This work contains a most exhaustive review of the Fourth and Fifth Amendments to the Federal Constitution and the provisions of the State Constitutions which have incorporated the substance of these amendments, and the cases, Federal and State, construing these provisions are reviewed at great length.

At § 7 of this work it is said: “Critics of the Federal rule usually assert that the doctrine admitting evidence illegally seized is sustained by the weight of authority.” And this Was what we said in the case of Benton v. State, supra. The author then proceeds to say: “This statement, although it may have been true some years ago, is of doubtful accuracy at the present time, since there has been a steady drift of-authorities towards the exclusion doctrine in recent years. Seven years ago, not to exceed four States had announced adherence to the Federal rule. At the present time; fifteen States have announced unqualified adherence to the doctrine excluding evidence illegally seized. ’ ’

The author then reviews the decisions of the various States on the subject.

After commenting upon Professor Wigmore’s view that evidence was not to be excluded because it had been illegally obtained (page 2955 of volume 3 of Wigmore on Evidence), which we quoted from in our opinion in the case of Benson v. State, supra, the author proceeded to say: “The question is not merely, as Professor Wigmore seems to assume, one between the courts and a criminal, or, upon a larger view, between society and a criminal, but the problem which confronts the courts in the adoption of a practical policy that will preserve to all of the people — the innocent as well as the guilty— the guaranty of the Constitution against the invasion of the right of privacy. Faced with a startling incréase in illegal searches and seizures which affected not only the guilty but the innocent as well, many of the courts came to a realization that practical measures would have to be adopted or the constitutional provisions against unreasonable searches and seizures would become a dead letter. ’ ’

In this connection, we quote from the recent decision in the case of Youman v. Commonwealth, 224 S. W. 860, wherein Chief Justice Carroll, speaking for the Court of Appeals of Kentucky, said: “It seems to us that a practice like this (that of admitting testimony obtained as the result of. an illegal search) would do infinitely more harm than good in the administration of justice; that it would surely create in the minds of the people the belief that courts had no respect for the Constitution or laws, when respect interfered with the ends desired to be accomplished. We cannot give our approval to a practice like this. .It is much better that a guilty individual should escape punishment than that a court of justice should put aside a vital fundamental principle of the-law in order to .secure his conviction. In the exercise of their great powers, courts have no higher duty to perform than those involving the protection of the citizen in the. civil rights guaranteed to him by the Constitution, and if, at any time, the protection of these rights should delay, or even defeat, the ends of justice in the particular case, it is- better for the public good that this should happen than that a great constitutional mandate should be. nullified. It is trifling with the importance of the question to say, as some courts have said, that the injured party had his cause of action against the officer, and this should be sufficient satisfaction. Perhaps, so far as the rights of the individual are concerned, this might answer; but it does not meet the demands of the law-abiding public, wbo are more interested in the preservation of fundamental principles than they are in the punishment of some petty offender. ’ ’

A case in which the subject was thoroughly considered and the authorities reviewed both in the majority and in the dissenting opinions is that of State of Missouri v. Owens, 302 Mo. 348, 259 S. W. 100, and there is an ’extensive annotator’s note to this case in 32 A. L. R. 383. In that case it was said by Mr. Justice White, speaking for the Supreme Court of Missouri, that “in nearly all the States where the Constitutions have provisions similar to the Fourth and Fifth Amendments to the Federal Constitution, the courts agree with the ruling in the United States Supreme Court in the interpretation of the principle.”

The Supreme Court of Appeals óf West Virginia had held, as this court has held, that the admissibility of evidence is not affected by the illegality of the means by which it is secured, and, in the case of State v. Wills, supra, this rule was invoked to justify the admission 'of testimony obtained by' an illegal search, as a result 'of which “moonshine liquor” was found in the defendant’s possession, and, in holding against that contention,'the court said: r “We subscribe to the general doctrine that the admissibility of evidence is not affected by the illegality of the means by which it is secured; 'but; where the evidence is secured by an illegal search or seizure in violation of the Constitution, the article so seized, as well as the information so illegally obtained, is inadmissible upon a trial of the accused. It therefore follows that the court erred in' admitting such evidence, over objection of the defendant, which was seasonably made. Under the practice in this State the defendant- might object to the introduction of the evidence when offered. He is not required, as he did in this case, to filé his petition for the return of .the seized articles and the rejection of-- -the evidence, to prevent their introduction against him.”

The majority held the testimony of the sheriff that he found a still in defendant’s home competent, because, after finding the still,- he arrested defendant. _ In other words, the sheriff wrongfully searched defendant’s home, and there found a still, and then arrested him, and it is held that, because defendant was arrested, the evidence showing the. result of Jhe illegal search became comp extent. - This result is reached in the application of the rule of-evidence, which has always prevailed in the Federal courts and all other courts, that,-“where a man is legally arrested for an offense, whatever is found on his person or in his control which it is unlawful for him to have, and-which may be used to prove the offense, may be seized-and-held as evidence in the prosecution,”’and the majority cite also a statute of this State which gives a peace officer the right to make an arrest when he has reasonable grounds for believing the person arrested has committed a felony.

I submit that these undisputed propositions of law have nothing whatever to do with the admissibility of the testimony of the sheriff, and that we should'either reaffirm, our holding in the Benson case,- supra, under which the testimony is competent, or that we should follow the rule-announced by the Supreme 'Court-of the United States holding the testimony is incompetent.

So far as the statute cited is concerned, it has no relation whatever to unlawful searches made in violation of our Constitution, and the cases of Carroll v. United States, 267 U. S. 132, and Agnello v. United States, 269 U. S. 20, cited in the majority opinion, do not in any manner change the rule of the Federal courts that-evidence obtained as the result of an illegal search of one’s house is. inadmissible when proper objection to its admission is made.

The principal point in the Carroll case was whether the search of an automobile was legal, and the court held that it was legal, and, this being true, the evidences of guilt found as an incident to the search and arrest were, -of course, admissible.-

In the Agnello case the facts were that Frank Agnello and certain other defendants were indicted for a conspiracy to violate the Federal Drug Act. Certain of the •conspirators were lawfully arrested, and in that connection Mr. Justice Butler, who delivered the opinion of the court, used the language which the majority quote. After quoting from the Carroll case, and pointing out that a necessary difference exists between the right to search a dwelling house or other structure, in respect to which a proper official warrant might readily he obtained, and the right to search a ship, motor-boat, wagon or automobile, for contraband goo'ds, when it was not practicable to secure a warrant, because -the vehicle could be quickly moved out of the locality or jurisdiction in which -the warrant must be sought, the learned justice proceeded to say: ‘ ‘ The protection of the Fourth Amendment extends to all -equally — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant.” It was there further said: “Belief, however well founded, that an article is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful, notwithstanding facts unquestionably showing probable cause. The search of Frank Agnello’s house and seizure of the can of cocaine violated the Fourth Amendment.” Continuing,'it was further said: “It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination eby the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment.”

The -court then quoted from the case of Silverthorne Lumber Co. v. United States, supra, as follows: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not he used at all.” And then proceeded further to say: “The admission of evidence obtained hy the search and seizure was error and prejudicial to the substantial rights of Frank Agnello. The judgment against him must he set aside and a new trial awarded.”

The work on Search and Seizure from which we have already quoted is recent enough to contain a review of both the Carroll and the Agnello cases, and at § 20 of this work it is said: “A search that is ¡unlawful when it begins is not lawful when it ends by the discovery and seizure of intoxicating’ liquor or other property being used unlawfully. It was against such prying on the chance of discovery that the constitutional amendment was intended to protect'the people. Neither is the discretion of the officer, however good and well-intentioned, a substitute in law for a search warrant issued by a proper magistrate.”

The argument that the evidence wrongfully obtained hy the sheriff through the illegal search of appellant’s home becomes admissible, because the search was not fruitless and appellant was arrested, is so completely answered by the Supreme Court of the State of Wisconsin in the case of Allen v. State, 183 Wis. 323, 197 N. W. 808, that we copy somewhat at length from that opinion: “In the instant case the police officers did not find the defendant violating any law of the State until after his illegal search and illegal arrest, when they discovéred evidence leading them to believe he was violating a law of the State. This statute cannot be construed to give police officers the right to find a person guilty of the offense by illegal arrest or illegal search. Policemen are not to try the accused. If they see him in the act of committing an offense, they may arrest him without a warrant. But if the accused is searched, without warrant as a basis of arrest, or if arrested without warrant as a basis of search, in order to ascertain that the accused is committing an offense, the proceedings are void from the beginning. Had the officers made a legal arrest, they would have been justified in. their search of the defendant; or, had the officers made a legal search of the defendant, they would have been justified in making an arrest upon finding defendant violating the law. .But the officers- did. neither. They had no .warrant to arrest, they had-no warrant to-search. So, assuming that the arrest was made before, the search, the arrest was illegal,, and the search following was illegal.; or,, assuming the ..search - was made before the arrest, the search Was illegal, and the arrest based thereon without a warrant was illegal. * * * The defendant was peacefully going his way. He was officially restrained — illegally restrained. He.was searched — illegally searched., The test i,s not that the officers found liquor upon the defendant. Suppose they had not found it. . They would have been guilty under the law of illegal search — of violation of the defendant’s sacred right, under the Constitution, to .walk the street unmolested. That the officers found liquor could not change'the original wrong into a right. That wrong was not blotted out by what they.found. The test is the right.of an innocent pedestrian against unlawful invasion of his person. And the. innocent cannot be protected if officers -are permitted to search the- person of, every one who has been accused,by hearsay or rumor-. If -these officers might waylay a pedestrian without warrant and search-his person, opportunity would be-.open wide for the night .prowler and robber to hold up-their victims under.pretense, of official authority, search their persons, and take their valuables without resistance.The answer is that it cannot be done. It is-well-recognized by - the authorities that a, person- unlawfully restrained may resist, but we should not come to such a pass. A citizen should respect officers of the law, especially when clothed in the habiliments of. authority; This, respect for authority can only be secured.and maintained by such officers themselves.respecting the law they, are sworn to uphold.”

The question of the admissibility of testimony obtained as the result of an illegal search would not arise unless some evidence of crime were found, and there would be no trial if no one was arrested. If, therefore, because evidence of crime was found,.-and an arrest was made, as the result of an illegal search, it is competent to prove what was found, then there is no distinction between a search made under the authority of a warrant and one made by the officer because his suspicions had been aroused. And if we are to permit officers’ who violate the Constitution by searching homes without warrants to be rewarded by being allowed to give testimony showing the result, of their unlawful act — the' purpose of the search being to obtain testimony — then, as was said by Justice Holmes in the Silverthorné case supra, the constitutional provisions have become a mere form of words.

The case of Weeks v. United States, 232 U. S. 383, is one of the more recent, and leading cases holding that testimony, obtained by an illegal search is inadmissible, and in that ease Mr. Justice Day, speaking for the Supreme Court of the United States, said: “While the efforts of courts and their officials to bring the guilty to punishment are praiseworthy, they are. not to be aided by sacrificing the great fundamental rights secured by the Constitution."

The home of the citizen should not- be searched and his right of privacy invaded unless there' is probable cause for doing so, and, if this cause exists, it is not difficult to obtain a warrant authorizing the : officer to make a search; but, if he does not do so and ignores a constitutional right guaranteed the citizens, the courts should say, as a warning to qther officers not to repeat the wrong, that the violation of the Constitution, shall be fruitless by denying the right to prove the result of the search.

For these reasons, the writer and Mr. Justice Hart have concluded that the court was in error in the Benson case supra, and that that case should be overruled, and the judgment in the' present’ case should be reversed on account of the admission of the sheriff’s testimony showing what he had found in defendant’s home after wrongfully searching it.

Justice Hart concurs in this dissent.


source: Caselaw Access Project

author: Humphreys, J. Wood, J.

license: Public Domain

text:
    Kansas City Southern Railway Company v. Sevier County.
    Opinion delivered June 28, 1926.
    1. Highways — establishment—notice.—Under Crawford & Moses’ Dig., § 5230, providing that, previous to any petition being filed for the establishment of a county road, notice thereof shall be given in some newspaper published in the county, etc., held that a judgment of the county court opening a road over a railroad right-of-way is not invalid because the petition was presented before notice was given that the application would be made for the road, where the court did not act upon the petition until the notice has been properly authenticated and filed.
    2. Highways — establishment — sufficiency of bond. — Under Crawford & Moses’ Dig., § 5228, providing that an application for laying out a public road shall be signed by ten freeholders of the county, and one or more of the signers shall enter into bond with sufficient security, payable to the State for the use of the county, held, that one contesting the establishment of a road is in no position to complain because the bond was signed only by two of such signers, but hot by a surety, as the bond was given to protect the cofinty for cost and expenses incident to the view.
    3. Highways — establishment—irregularities.—'That a bond to protect the county was filed and the viewers were appointed before the notice of the application to establish a public road was- published for a full week was a mere irregularity in the exercise of the county court’s jurisdiction.
    4. Evidence — matter of common knowledge. — It is common knowledge that streets run through; railroad yards where there are many switches and tracks, and that extraordinary hazards of the traveling public are guarded against by flagmen.
    5. Highways — establishment—discretion of county court. — The county court held, under the evidence, not to have- abused its discretion in opening up a public road over and across a railroad switchyard.
    Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    affirmed.

      James B. McDonough, for appellant.

      J. R. Campbell, Jr., and Henry Collins, for appellee.
   Humphreys, J.

This suit was commenced in the county court of Sevier County, by certain landowners, to open a public highway over a railroad right-of-way of appellant near DeQueen, under authority of §§ 5228, 5229 and 5230 of Crawford & Moses’ Digest. Appellant interposed three defenses to the proceeding, as follows; First, that the petitioners did not publish the notice as required by § 5230 of Crawford & Moses’ Digest; second, that the petitioners did not give the bond with security required by law; and third, that railroad yards cannot be condemned for a public highway.

The suit was first tried in the county court, then on appeal in the circuit court, where it was adjudged upon the testimony and law that the highway should be opened across appellant’s right-of-way at a point where its land had been acquired exclusively for railroad yards.

An appeal has been duly prosecuted to this court from said judgment. The record reflects the following facts pertinent to the issues involved in the appeal.

The proposed highway will intersect the railroad right-of-way about a mile and one-half north of the depot in DeQueen, over land acquired by the railroad for yard purposes. The proposed crossing is 912 feet north of the most northerly switch and at a point where the railroad has only one track and where the right-of-way begins to narrow in width. It is the purpose of appellant to use its land at the proposed point of highway and railroad right-of-way intersection for terminal and switching purposes in the natural expansion and development of its business. The right-of-way purchased for yard purposes is about 800 feet wide, whereas the customary width of rights-of-way is 100 feet. Appellant also introduced testimony to the effect that, when the switching tracks should be laid on the north end of the yard, it would be dangerous to have a highway through it on account of cars moving back and forth. The proposed road will connect county road No. 2, mail route, west of the railroad track, with the Jefferson Highway running parallel with the railroad on the east side thereof, and being the main highway between DeQueen and Mena. The proposed road is about two miles long, and will furnish the people in its vicinity and the neighborhood west of the road an outlet to the Jefferson Highway without being compelled to go around by DeQueen, two miles south, or about two miles north to a cross-road: The petition for the proposed road was filed in the office of the county clerk on the 30th day of January, 1922. Notice of the application was published March 31, 1922. Proof of the application of the notice was filed April 3, 1922. The bond required by the statute was approved April 4, 1922. The viewers for the proposed road were appointed April 6, 1922, and filed their report on July 3, 1922, the day the order was made establishing the highway.

. Appellant’s first contention for á reversal of .the order or judgment establishing the road is because the petition was presented before notice was given that the application would be made for the road. Section. 5230 of ..Crawford & Moses’ Digest requires that notice must be given by publication of the intended application for the road previous to the presentation of the petition for same, and that the notice shall be duly authenticated -and presented with the petition to the county court. We think the statute means that, before the petition shall be called to the attention of the court for action, a required notice shall have been published and duly authenticated. It did no.t mean that the notice should be necessarily published and authenticated before the petition could be filed in the clerk’s office. The record reflects that the petition was filed several months before it was acted upon by the court, but the court-did not act upon it until after the notice had been properly authenticated and filed. The petition was directed to the court and not the clerk. Of course, the court did not- acquire júrisdiction until the notice had been given, authenticated, and filed, because it was a necessary prerequisite and the basis of any action on the part of the court, but it would be technical indeed to interpret the statute as meaning that the notice could not follow the .filing of the petition when the statute provides, in so many words, that the notice shall be duly authenticated and presented with the petition to the county court.

Appellant’s second contention for a reversal of the order or judgment is that the court approved a bond without security and appointed the viewers on April- 2, 1922, before the notice had been published-f or a full week. The objection made to the bond is that it was'not -signed by a surety. It was signed by two of the petitioners,-presumably solvent, and was approved by the court. We do not think appellant is in any position to complain of this, since the bond was given to protect the county for costs and expenses incident-to the view in case the-prayer of the petitioners should not be granted or in case the proceedings should not be finally confirmed and established. Section 5228 of Crawford & Moses’ Digest. Objection was also made because the bond was filed- and the viewers appointed before the notice had been published for a full week. These were mere irregularities in the exercise of jurisdiction, and not necessarily prerequisites to the exercise thereof by the court. Polk v. Road Improvement District No. 2 of Lincoln County, 123 Ark. 334.

Appellant’s third and last contention for' a reversal of the order or judgment is that highways cannot be opened across lands acquired by a railroad for yard purposes, although not being used for such purposes.- The testimony was to the effect that, at some future time, the land at the point of intersection of the railroad and the proposed highway would likely- be used -for yard purposes. The argument is that highways opened across railroad yards entail great hazard and danger upon users of the roads and much inconvenience to the railroads themselves. The same, might be said concerning the extension of streets through railroad rights-of-way in cities and towns, yet it is a common thing and acknowledged right to do so. St. L. S. Ry. Co. v. Fayetteville, 75 Ark. 535. It is common knowledge that streets run through railroad yards where there are many switches and tracks, and that the "extraordinary hazard and danger to the traveling public is guarded against by flagmen. We can see no reason why railroad and public cannot o.ccupy the land for their respective purposes, as the uses may reasonably coexist. In this State county courts have exclusive jurisdiction in the matter relating to county roads. Article 7, § 28, Constitution of 1874. It is provided by § 5226 of Crawford & Moses ’ Digest that:

“All public roads and highways shall be laid out, opened and repaired agreeably to the provisions of this act, and the county court of each county shall have full power to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof.” When a railroad acquires or condemns property for railroad purposes, it takes it with full knowledge that its easement is subject to the establishment of intersecting highways or crossroads wherever necessary for the convenience of the public, and the existing necessity therefor is within the sound discretion of the county court so far as rural highways are concerned. It is suggested by appellant that this rule would allow county courts to lay off highways through depot buildings and other like expensive improvements of railroad companies. Not so, for this could ibe avoided by slight detours, and it would be an abuse of discretion not to make a detour under such circumstances. And likewise it would be an abuse of discretion to unnecessarily cross railroad yards with highways when it could be avoided by a slight deviation in the route of the road, or when it would be practical to construct an overhead or underground way. The whole matter is one of sound discretion by the county court, and subject to review.

We do not think that the testimony in this case shows that the county court abused its discretion.

No error appearing, the order or judgment is affirmed.

The Chief Justice and Mr. Justice Wood concur in the judgment.

CONCURRING OPINION.

Wood, J.

The Chief Justice and the writer concur in the judgment for the reason that the proposed highway does not invade any land of appellant that is now in actual use as yards. The county surveyor testified concerning this, in effect, that the appellants had indicated the yard limits hy a sign painted on a post, which post was a considerable distance north of the proposed road; that the sign, “yard limits,” had been at the same place north of the proposed highway for fifteen or twenty years; that the proposed road was nine hundred and twelve feet north of the last switch at the north end of the yards of appellant. The testimony of witnesses of the appellant, its superintendent, trainmaster, civil engineer of the DeQueen & Eastern and the Texas, Oklahoma & Eastern, was to the effect that the land condemned for the proposed highway was acquired several years ago by appellant for yard purposes; that “it is necessary that this land be held by the railway company for future expansion and use as yards;” that “it would be dangerous to permit, or to have a highway running through the yards,” both to the traveling public and. the railroad. The assistant engineer of appellant, in answer to a question, stated that he did not know of any proposed changes in the yards of appellant at this time. The appellant’s superintendent, on cross-examination, referring to a map of the situation of appellant’s road' at DeQueen, testified that appellant had twenty-five hundred feet south of the proposed crossing upon which appellant could build tracks if it desired. Appellant had not thought about extending the yards .for the past ten years; it had' not been necessary. This witness exhibited a drawing showing the tracks that are now in actual use, and those that would be necessary when the tracks would have to- be expanded and extended. He was asked how far in the future that would be, and answered, “That depends on the traffic of the country.” He was further asked the following question: “I wish to get some idea from you about how long it will be before that will take place, and whether or not there is any immediate danger of that taking place,” and answered, “There is no immediate danger. ’ ’ He further stated that, in his opinion, i| is necessary now for the better operation of the road and transportation of freight, bnt the superior officers of the railway company, while agreeing to the idea, were, not quite ready for it. Witness had not received any instructions to extend the yards, at DeQueen and did not know of any proposed changes in the yards of the Kansas City Southern in DeQueen at this time.

It occurs to us that the above testimony was legally sufficient .to sustain the finding and judgment of the county court and of the circuit court “that the county of Sevier had the right to condemn a highway over the property of the defendants,” because, according to the undisputed testimony, the appellants were not using the land condemned for the highway as yards, and the above testimony was sufficient to warrant a finding by the court that it was uncertain when, if ever, the land condemned would be actually used by appellants as railroad yards. While the lands were acquired many years previous for yard purposes, appellants had not used the,land condemned for railroad yards, and whether they would so use them was, under the evidence, a possibility and probability which the future exigencies of railroad traffic would determine. Appellants • could not purchase land and appropriate it for yard purposes by merely designating.same as “yards.” Bottomed upon such facts we concur in the judgment.

But these facts do not justify this court in announcing broadly that “the whole matter of condemning railroad, yards is one of sound discretion by the county court, and subject to review.” Such, we believe, is not the law. The exclusive jurisdiction vested in county courts “in the matter of public roads” by our Constitution, article 7, § 28, does not confer upon county courts the power to condemn railroad yards that are in actual use as siich for the purposes of public highways. Section 5226 of C. & M. Digest provides as follows: power and authority to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof.”

“All public roads and highways shall be laid out, opened and repaired agreeably to the provisions of this act,.and the.county court of each county shall have full

The general powers conferred by the above statute to lay out, open, and repair public roads do not vest county courts with authority to condemn for public highways railroad land that is set apart and being lised for railroad yards. Under our Constitution, statutes, and decisions construing them, “a railroad corporation is by its charter clothed with the power of eminent'domain to the extent of its necessities.” Railroad corporations have the right to acquire land, to the extent of their necessities in the building and operation of their roads, either by condemnation, purchase, or voluntary grants and donations. See § 1, art. 17, Constitution; § 8450, C. & M. Digest, subdivs. 2, 3, 4, 5, 6 and 8; St. L. I. M. & So. Ry Co. v. Faisst, 99 Ark. 61; St. L. I. M. & So. Ry. Co. v. F. S. & V. B. Ry. Co., 104 Ark. 344. See also McKennon v. St. L. I. M. & So. Ry. Co., 69 Ark. 104.

It is wholly immaterial by,'what method the lands are acquired by the railway company., If théy are set apart, and are in use, for'railroad yards,.it is not within the power of the county court'to lay' off and establish a. public ro'ad over such yards' without special' legislative' authority so to do. Such authority is not included, ¿s we have stated, under the general power vested in the county court to establish public roads. The question is one of very great" importance, and, in various, pilases, depending upon the 'facts in the particular case, the question of the right to exercise the power of eminent domain over land that, under such power, has already been devoted to the use of the public, has been before many courts of last resort in this country. It is unnecessary to review them all. Suffice it to say that, under statutes conferring general power similar to that tíonf erred by § 5226 supra, the power does not exist in the county court to condemn for a public highway land which has been purchased and which is being used by railroad companies for yards. Such power can only be exercised by express legislative authority. The cases establishing this doctrine are cited and succinctly and correctly reviewed in the excellent brief of counsel for the appellants. In New York, S. & W. R. Co., Prosecutor, v. Mayor, etc., of City of Patterson, 39 Atlantic 680, the court states the doctrine as follows: “Under the authority given by the charter of the city of Patterson to lay out and open streets; and to take such lands as may be necessary therefor, upon making compensation, the city has no power to lay out a street through land used by a railroad company as a freight yard, when it will deprive the company of the beneficial use of such freight yard, and compel it to transfer its freight business to another locality. To authorize such an invasion of the rights of the company, there must be an express grant of power by the Legislature, or an implication equally conclusive. Such power will not ibe inferred from the general authority granted to lay out and open streets.” Winona & St. P. Ry. Co. v. City of Watertown, 56 N. W. 1077. See also C. R. I. & P. Ry. Co. v. Williams, 148 Fed. 442; Richmond F. & P. Ry. Co. v. Johnston, 49 S. E. 496; St. Louis & San Francisco Ry. Co. v. City of Tulsa, 213 Fed. 87; Pros. Park & C. I. R. Ry. Co. v. Williamson, 91 N. Y. 552-561; Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167. See also St. Paul Union Dep. Co. v. City of St. Paul, 15 N. W. 684; Town of Alford v. Great Northern Ry. Co., 161 N. W. 467; In re Saratoga Ave. in City of New York, 123 N. E. 197; B. & O. Ry. Co. v. North (Ind), 3 N. E. 144; City of Seymour v. J. M. and I. Ry. Co., 126 Ind. 466; City of Fort Wayne v. Lake Shore Ry. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. Rep. 277; City of Terre Haute v. Evansville & T. H. Ry. Co., 149 Ind. 174.

The rationale of the doctrine is that lands once taken and devoted under the power of eminent domain for a public purpose cannot be taken under the same power for a public use inconsistent with the first taking. In such case the two uses cannot coexist. The last appropriation for the public use destroys the first. This cannot be done without legislative sanction which, in express terms or by necessary implication, authorizes such appropriation. Marsh Mining Co. v. Inland Empire Min. & Mill Co., 165 Pac. 1128; Vermont Hydro-Elec. Corp. v. Dunn, 112 Atl. 223; Williamson County v. Franklin & Spring Hill T. Co., 228 S. W. 714; Byfield v. City of Newton, 141 N. E. (Mass.) 658; Northern Cent. Ry. Co. v. Mayor and City Council of Baltimore, 106 Atl. 159.

Our Constitution declares ‘ ‘ all railroads shall be public highways.” Art. 17, § 1. They are public highways in the sense that, when chartered, their owners serve the pulblic as common carriers over their roads, having the right to acquire land by eminent domain and by purchase or donation. When the railroads have acquired lands by donation or purchase, if they devote the same to a public use, it is in legal effect precisely the same as when they condemn land for such use. In re Saratoga Ave. in City of N. Y., supra; Cochran v. Wilson, 229 S. W. 1050; Town of Alvord v. Great Northern Ry. Co., supra; In re East 161st Street, 102 N. Y. Supp. 500.

Article 17, § 9, of our Constitution declares: “The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the Greneral Assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as the property of individuals.” See also § 3929, C. & M. Digest.

This right of eminent domain is a supreme power. It belongs to the State as the sovereign, and can only be exercised by the Legislature, the supreme power of the State, or the agencies to which it has delegated that right. The power “is essentially political in its nature, and not judicial.” 3 Dillon on Municipal Corporations, p. 1640, § 1036 (600), and authorities cited in note'l; also § 1742. The exercise of this right has been delegated to the State’s subordinate governmental agencies — counties and municipalities — in the following particulars, to-wit: in counties, through its county court, to lay out, open and repair public roads and highways, § 5226, C. & M. Digest, supra, and in municipalities “to lay off,' open,” etc. “streets, alleys, public grounds,” etc. In St. Louis & S. F. Ry. Co. v. Fayetteville, 75 Ark. 534, we held that the statute “giving the city the authority to lay off and establish streets-Within the corporate limits impliedly gives’it the right to cross the tracks of railroads when it is necessary to do so for the purpose of connecting the two ends of a street.” “A right,” says the court, “so lightly affecting the franchise of the corporation may be inferred from the general power to lay off, condemn and establish' streets.” . Section 8483, C. & M. Digest, provides,-in part, “where any public road, highway or street of any incorporated city or town hereafter established shall cross any-railroad now established or hereafter to. be established, such railroad company or corporation, shall be required'to - so construct such railroad crossing,” etc. In St. L. S. W. Ry. Co. v. Royal, 75 Ark. 530, we held “that, where any public road shall cross any railroad, the railroad company shall construct and keep it-in repair” without compensation. And in K. C. So. Ry. Co. v. City of Mena, 123 Ark. 323, we. held that “where a city opened, a street across the right-of-way and tracks of a railroad company, the railroad is required to construct and maintain the crossing, without compensation. It'may be said-that the language of §'8483 is sufficient to give express author-ity to counties and cities and towns to condemn land for highways or streets across railroad tracks.,Even if such power were not expressly conferred by.the statute upon these governmental agencies, they would have such power under their general powers delegated to them to lay off, open, and establish highways or streets. But the right to condemn land for a public.highway or street over the railroad track or tracks is one thing, while the right to condemn: over railroad yards is an entirely, different thing. All the authorities, as shown above, hold that the right to condemn for public highways or streets over land appropriated by railroads and used for station grounds and yards is not conferred, and cannot be implied, from’the general powers above mentioned. There is a broad distinction between land used by railroad companies for depot grounds and yards and that used' for tracks over which their trains run on schedule. All the authorities recognize the fact that the use of land for grounds and yards is entirely inconsistent with the use over same for highways or streets. The danger and inconvenience in the use of highways or streets over grounds and yards is so great, so imminent, both to the railroad and the pub: lie, that such use is prohibited unless there is. express, or'implied authority therefor. Whereas such use over railroad tracks is.not inconsistent .with.their use also for highways over same. In addition to the authorities already cited, see Cincinnati W. & M. Ry. Co. v. City of Anderson, 38 N. E. 167; Penn. Ry. Co. v. Bogert, 59 Atl. 100; City of Fort Wayne v. Lake Shore & Mich. So. Ry. Co., 18 L. R. A. Ann. 367.

There is no statutory authority Which, either expressly or by necessary implication, confers upon counties the right to condemn highways over • railroad yards. Therefore it cannot be done.

The county court and .the trial court, on the facts, wére justified in holding that this was, in reality, .but a proceeding to condemn land for a public highway over a single track of the appellant and not over its yards, at all. That is the only theory -upon which this case should be affirmed. For, if it be assumed that this is a proceeding to condemn land for a highway over appellant’s yards, then there is no statutory authority for such condemnation. If the right to condemn over appellant’s yards is involved, then the cases of Fayetteville v. St. Louis & S. F. Ry. Co., and So. Ry. Co. v. Royal, and K. C. So. Ry. Co. v. Mena supra, have no application whatever, for the only issue in-these cases, except as to compensation, 'was (in fwo of the cases) whether a city had power to condemn land for a street over a railroad track, or tracks, and in the other, whether the county had the power to condemn for- a public- highway over a railroad track. There was no issue as to railroad yards in any-' of these cases.

The.line of demarcation seems very clear to us. The failure to observe it is fraught with grave consequences.

The majority of the court, by holding that the whole matter of condemning railroad yards for public highways is “one of sound discretion of the county court, and subject to review,” has approved what we consider an unauthorized assumption of jurisdiction by the county court to exercise the right of eminent domain, one of the highest functions of the legislative department. The exercise of such power, unauthorized by the Legislature, even though the Supreme 'Court should determine, on review, that the county court had abused its discretion, would nevertheless subject the railway companies to the annoyance and expense of defending in order to protect their rights in property which had already been appropriated by them for a public use. This of itself would be a manifest injustice. The question of the right of a county to condemp lands for a public highway over railroad yards is one of first impression in our State, and, because of its far-reaching significance, we have concluded to express our views of the law. For the reasons stated it occurs to us that, while the judgment, on the facts, is correct, the opinion of the majority, as to the law, is erroneous. We therefore concur in the judgment but earnestly dissent from the opinion.