The opinion
John A. Fogleman, Justice, concurring. I concur in the result reached by the majority, on rehearing, because I am now of the opinion that the drugs and merchandise seized were not contraband, and it was not illegal for the doctor, a dispensing physician, to possess them. See Ark. Stat. Ann. §§ 82-2107 (a) (5), (c); 82-2105 (a) (Supp. 1971). Furthermore, I do not think that there was authority for a warrant to seize the books and records, although I think there is ample authority for inspecting and copying them. Ark. Stat. Ann. § 82-2107(e). My views on the subject are expressed in my concurring opinion in Ferguson v. State, 249 Ark. 138 , 458 S. W. 2d 383 , wherein I pointed out that there was no common law or statutory authority for the issuance of a warrant to search for mere evidence. See, also, my concurring opinion in Montgomery v. State, 251 Ark. 645 (1971), 473 S.W. 2d 885 .
The constitutional question raised here was not reached by the majority in Ferguson. In view of the fact that the drugs and medicine were not contraband and the books and records were at best evidentiary material, this court should not consider the constitutional question treated by the majority in the substituted opinion. We have said for more than 75 years that courts do not and should not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221 , 29 S. W. 752 ; Porter v. Waterman, 77 Ark. 383 , 91 S. W. 754 ; Smith v. Garretson, 176 Ark. 834 , 4 S. W. 2d 520 ; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619 , 61 S. W. 2d 436 ; Satterfield v. State, 245 Ark. 337 , 432 S. W. 2d 472 ; County of Searcy v. Stephenson, 244 Ark. 54 , 424 S. W. 2d 369 ; Mobley v. Conway County Court, 236 Ark. 163 , 365 S. W. 2d 122 ; Rome v. Ahlert, 231 Ark. 844 , 332 S. W. 2d 809 . We have even said that where litigation is disposed of without reaching constitutional questions, anything said on the constitutional point would be pure dictum [Bell v. Bell, 249 Ark. 959 (February 8, 1971), 462 S. W. 2d 837 ]; that where the case can be disposed of without determining the constitutional question, it is our duty to do so (Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168 , 431 S. W. 2d 487 ); that constitutional questions are never decided unless necessary (Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53 , 342 S. W. 2d 407 ); and that constitutional questions are not decided unless the case cannot be disposed of on any other ground (Bailey v. State, 229 Ark. 74 , 313 S. W. 2d 388 , cert. denied 358 U. S. 869 , 79 S. Ct. 101 , 3 L. Ed. 2d 101 ).
Our invariable rule was founded upon the language of Judge Cooley quoted in Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221 , 29 S. W. 752 . A part of that quotation follows:
In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.
There is no reason why we should decide, in this case, the constitutional question arising from lack of statutory authority for a warrant to search for goods illegally possessed. We should adhere to our unvarying rule.
I am authorized to state that Mr. Justice Jones joins in this opinion.