The opinion
On Petition eor Behearing
( 300 P. 1024 )
BBOWN, J.
The defendants have petitioned for a rehearing. They make the point that that part of section 20, chapter 141, General Laws of Oregon, 1915, providing for the issuance of a search-warrant, is invalid, in that it is in conflict with section 9, article 1 of the Oregon Constitution. For a statement of the facts in the case, with copy of the information and search-warrant issued, see our former opinion.
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For the purpose of this ease only, and without deciding the question, we shall assume that incriminating evidence wrongfully seized upon a search-warrant is not admissible against the owners or possessors thereof.
It is settled law in this state that “this court will avoid deciding upon the constitutionality of a statute, whenever there appears in the record any other ground sufficient to sustain a proper disposition of the case in judgment.”
Elliott v. Oliver,
22 Or. 44 ( 29 P. 1 ). See, also,
Briedwell v. Henderson,
99 Or. 506 ( 195 P. 575 ), and cases therein cited. Therefore, we shall not determine upon the constitutionality of section 20 of the Prohibition Law upon this appeal. Section 15 thereof defines the crime of maintaining a common nuisance, and our code provides sufficient procedure for the issuance of the warrant and the prosecution of the cause.
Chapter 141, General Laws of Oregon, 1915, provides, at section 40:
‘£ If any provisions of this Act shall be held void and unconstitutional, it is hereby provided that all other parts of the same which are not expressly held to be void or unconstitutional shall continue in full force and effect.”
The contention of counsel that that part of section 20 wherein the word “shall” is used is unconstitutional can in no way affect the disposition of this appeal. In the creation of additional crimes, it is unnecessary to provide additional criminal procedure for the prosecution thereof. So, in the cause at issue, if the word “shall” were eliminated from section 20 as being unconstitutional, there still remains the law denouncing as a crime the keeping of a common nuisance. And, when the prohibition agent had filed an information
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under oath containing all of the elements of a common nuisance as defined by the statute, it became the duty of the magistrate to issue a search-warrant upon a showing of probable cause, and the incriminating articles obtained on such a search would be competent evidence in the trial of the cause.
The petition for rehearing should be denied. It is so ordered.
Rossman and Kelly, JJ., did not participate in the hearing or decision of this case.