delivered tbe opinion of tbe court.
On tbе nineteenth day of October, 1923, one Doris appeared before Honorable William E. Carroll, one of tbe judges of tbe district court of Silver Bow county, and made complaint and affidavit that be bad just and probablе cause to believe, and did believe, that intoxicating liquor was then unlawfully being manufactured, kept for sale, used and disposed of in tbe building located at No. 247 East Park Street, in the city of Butte, in said county, and stated as tbe reаsons for his belief that be “bought three glasses of whisky of Stevo
Upon this verified complaint and deposition Judge Carroll issued a search-warrant directed to any peace officer, sheriff, constable or special officer of the state of Montana, commanding him to search the described premises for any and all kinds of intoxicating liquors, including whisky, wine and beer together with the vessels in which they were contained, and all other liquors and articles in and about said premises used for or in any way connected with the unlawful manufacture, sale barter, furnishing or possession of intoxiсating liquors, and to seize the same and make a return of the writ within three days.
This warrant was placed in the hands of John Reynolds, a constable of South Butte township of said county, for service, and on October 20, 1923, this officer madе a return, reciting that under the warrant he had searched the described premises on October 19, 1923, and found certain intoxicating liquors therein, together with other personal property used and kept in connection thеrewith for its illegal sale or disposition, and that he had seized the same and held them subject to the further order of the court.
Thereafter Judge Carroll duly set the hearing on said return for November 10, 1923. On November 7, Stevo Tesla, by his cоunsel, filed a motion in said proceeding for an order
The first point made against the validity of the proceed- ings in appellant’s specifications of error is that there was no evidence before Judge Carroll at the time hе issued the search-warrant that the county attorney of Silver Bow county had given his approval of the issuance thereof.
Section 11071, Revised Codes of 1921, as amended by Chapter 116 of the Session Laws of the Eighteenth Sessiоn, page 285, provides: “Whenever complaint is made in writing, verified by affidavit, to any judge having cognizance of criminal offenses, or any justice of fhe peace, that complainant has just and probable causе to believe and does believe, that intoxicating liquor is manufactured, kept for sale, sold, exchanged, used or disposed of, in violation of any law of this state, in any house, building, premises, boat, receptacle, or any other place whatsoever partially [particularly?] describing and designating the same with the facts upon which such belief is based, the judge or justice may, with the approval of the county
It is suggested in the respondеnt’s brief that, if the provision of the above-quoted section, requiring the approval of the county attorney to the issuance of a search-warrant, restricts the right of the judge to issue the same without such approvаl then that part of the section is unconstitutional. A determination of that point is not essential to a disposition of this ease, and no opinion is expressed thereon, since the court will not decide the question of the constitutionality of a statute unless such a decision is necessary. (Chauvin v. Valiton,
If we were to consider that the meaning of the above statute is that a district judge may not issue a search-warrant thereunder without first having obtained the approval of the county attorney, and that it was competent for the legislature to impose such a restriction, still it would not avail the appellant upon the record in this case. The statute makes no requirement as to how such approval shall be manifested — whether orally, in writing, by participation in the proceedings, or by acquiescence. Appellant does not contend that such approval was not in fact hаd at the time of the issuance of the warrant, but does contend that the legislative intent was not only that such approval should be given prior to, or at the time of, an application for the warrant, but that such apрroval should be made to appear in some definite manner before the judge would have authority to issue the warrant.
Leaving out of consideration altogether the affidavit of the county attorney, there was nоt, at the time defendant’s motion was made and heard, any showing before the court as to whether or not the county attorney had given his approval to the issuance of the search-warrant by Judge Carroll. The defendаnt’s motion was not accompanied by any affidavit or
It cannot be successfully urged that the fact of approval by the county attorney should be made to appear in the warrant itself. The statute makes no such requirement. In this respect the case is analogous to the filing of an information in the district court charging a defendant with a criminal offense. Section 11801 of the Codes provides that an information may be filed against the defendant in a criminal proceeding by the county attorney after examination and commitment by a magistrate or on leave of court. In State v. Mansfield,
Appellant further contends that the complaint upon which the sеarch-warrant was issued is insufficient, for the reason that it did not state when appellant is alleged to have sold intoxicating liquors. This contention is without merit. The general provisions of the Code with reference to the issuance of search-warrants and the proceedings thereunder are found in sections 12394 to 12414, Revised Codes of 1921. “In enacting the Prohibition Enforcement Act, the legislature manifestly did not intend to amend or modify these # * * provisions.” (State ex rel. Samlin v. District Court,
Both the verified complaint and deposition were properly before the judge, and were considered by him in determining whether he should issue the warrant, as disclosed by the warrant itself, which recites: “Proof by complaint duly verified by one Clifford C. Doris, and the deposition of one Clifford C. Doris having this day been made before me * * * that intoxicating liquors * * * are being unlawfully # # * sold,” etc. This was a sufficient compliance with the statute, which requires probable cause therefor must be shown by affi
No error appearing in the case, the judgment of the district court of Silver Bow county is affirmed.
Affirmed.