Great Falls tribune., 1922-04-06
ASSERTS M|LK|MAN
IS NOT FREE FROM
BOOZE SUSPICION

Associate Justice GaIen Vigor-
ously Dissents From Su-
preme Court Decision.
Helena, April 5.--The passage of the
| prohibition amendment to tie federal
constitution did not inaugurate reign
| Of legislative despotism to be carried
out by "snooping constables or peace
officers" according to a dissenting OPP
inion handed down today by Associate
Justice Albert ]. Galen of the supreme
court in the case Of the state against
Louis Mullen Of Deer Lodge.
Mullen, carrying handbag from
which the neck Of demijohn was pro-
truding was arrested by q prohibition
officer. The lower court released the
defendant but ordered the liquor de-
| stroyed and the bag and demijohn sold.
! claiming unlawful search and seizure.
The action Of the lower court was af-
| firmed by the supreme court, Justice
| Galen only dissenting. In his opinion
Justice Galen said in part:
"The constitution was amended, not
abrogated, and searches and seizures
are to be made today according to the
law of the land. l do not believe my
learned and worthy associates fully
appreciate the Importance of the prin-
ciple laid down in this decision. To my
mind it knocks at the very foundation
Of guaranteed constitutional rights OF
the people.
Under the decision every person
who carries container for liquids may
be subjected to an invasion Of personal
rights and privileges; the messenger
who flies from the diary with pasteur-
lied product Of the COW, in basket or
bottle to the infant in the nursery, as
well as the druggists clerk who carries
a demijohn or flask which cheers the
expiring moments Of the sick or aged
on their hospital cots. Ny brothers at
the bar had best discard their green
bags and portfolios for fish nets, in
order to avoid inquisitive constables at
tracted by bulging bag
Holloway Delivers Opinion
The majority opinion was delivered
by Associate Justice G. II. Cooper and
by District Judge Fl. II. Ewing. sitting
in place of Associate Justice Reynolds,
disqualified. A concurring opinion.
with reservations, was filed by Chief
Justice Theodore Brantly.
The defendant contended that the
court erred in entering judgment for
feiting the property before the defend
ant was convicted of violating the law.
The proceeding was instituted and
presented upon the theory that there
was presented a case of violation OF
the law in the presence of the officer,
and though there was not literal
compliance with the terms of the
statute. the defendant cannot complain
that he was not arrested or taken be-
fore the court or judge. The supreme
court holds that aside from this dere-
liction of duty on the part OF the Off
Ger there was substantial compliance
with the provisions of the law famil-
iarily known as the prohibition enforce
ment act.
Has Right to Arrest
"Section 8 imposes upon the sheriff
the duty to arrest the offender and
seize the contraband articles without
a warrant whenever a violation Of the
liquor laws occurs in his presence. The
right to seize without process is thus
made co-eytensiye with the right to ar
rest without warrant.
In other words if the circum-
stances are such that the officer could
properly secure warrant OF arrest, ne
NAV arrest without warrant if the Of
fense, which the circumstances tend to
establish. was committed in his pres
ence, and it is settled in this jurisdic-
ton that the officer need not have
actual, personal knowledge of the facts
which constitute the offense in order
to be able to make complaint and Sc
cure warrant
"s Having determined that the
circum stances would have justified the
sheriff in making complaint against
Mullen and in securing warrant for
his arrest, it follows from what has
been said that he would have been
justified in arresting defendant without
warrant, and since his authority to
seize the articles without process was
co-extensive with his authority to ar
rest without warrant, the seizure was
not unlawful
In separate concurrent opinion
Chief Justice Brantly writes:
'I concur in the conclusion reached
by Mr.. Justice Holloway, but in doing
so do not wish to be understood as
giving my assent, even by implication.
to the proposition that an arrest may
be made without warrant In any case
where the facts and circumstances, in
Of those discovered through
the arrest, are not sufficient to pro-
duce in the mind of the arresting Off
Ger conviction, which amounts to a
practical certainty, that he is witness
sing, at the time. the commission of a
public offense. No rule can be
laid down applicable to all cases. The
arrest or seizure must be justified by
the circumstances disclosed by the facts
in the case The facts found by the
trial court in this case were not en-
tirely satisfactory, but after a careful
examination and analysis of them, I
am not willing to say they were wholly
insufficient to justify the seizure"
Holds Opinion inconsistent
In his dissenting opinion. which is
of considerable length, Associate JUS
tice Galen writes that this opinion is
wholly inconsistent with the holding Of
the entire court in the Samlin case:
"In the Samlin case we held that a
search warrant issued upon an affi
davit alleging merely that the affiant
has probable cause to believe and does
believe Intoxicating liquors were un-
lawfully possessed In certain premises
described, is not sufficient to authorize |
the issuance of search warrant, being /
violative of the provisions Of Section
of article 3 of our constitution. ="