¶1(dissenting.) I am not able to concur in the judgment of the court ordering a writ of mandamus in this case, and will state some reasons why I think the writ should not be granted.
¶2First, the response of the circuit judge and the copy of the order of the county court of Jackson County, referred to in the response and made a part thereof, show that “at the general election held on the first Monday of September,. T902, a majority of the electors of said county voted for license, and a majority of the electors voting the first ward of said city vpted for license, and that it is now lawful for any person to run a dramshop under license in said first ward.” I agree with the statement in the majority opinion that the vote for license at the general election in 1904 will not have effect before January, 1905, and did not authorize the issuance of license in October, 1904; but the judgment of the county court of Jackson County shows that the majority of electors in the general election of 1902, as well as in 1904, both in the first ward of Newport and in Jackson County, were'in favor of license. That order of the county court shows that the first ward of the city of Newport is not within a prohibited district, and for that reason does not come within the scope of the act of 1899. It is true that the affidavit filed before the circuit judge to obtain the search warrant states that the first ward was within a prohibited district, but the circuit judge was not bound by such statement. Thq different prohibited districts are shown either by the election returns or by the records of the courts in which they are located, and the exact truth as to whether there is such a prohibition district can be easily ascertained by the officers of the law. For this reason it seems unreasonable to believe that a circuit judge is absolutely bound by the statement in an affidavit that a certain ward in a city is in a prohibited district, and that he is compelled, upon the presentation of a proper affidavit, to issue a warrant directing the seizure of liquors being sold therein, notwithstanding the fact that he may know that such ward is not in a prohibited district. I see nothing in the language of the act that requires the court to put such a construction on the act, the result of which would empower any rival saloon keeper to have the stock in trade of his competitor in another ward of the city seized and his business stopped at any time by making an affidavit, that he was selling in a prohibited district, even though the court might know that the place where the liquor was being sold was not in a prohibited district. He need not make the affidavit himself. Any tramp or vagabond that comes along whom he can induce to make it may make the affidavit, and then leave the State, or go his way; but under the decision of the court when the affidavit is presented to the circuit judge he must issue the writ, even though he may know that the facts stated in the affidavit are not true, and that the party making it is utterly unworthy of belief.
¶3The court in its opinion says that the party whose liquor is thus seized has his day in court, and that is true; but as the term of the court at which the case can be tried may be some months away, the party whose property is thus seized may be irreparably damaged by the process of the law put in force by the affidavit of an irresponsible party. This act of 1899 was plainly directed against clandestine sales of liquor and sales without license, and is only an extension of what is known as the “blind tiger act,” which act by express terms does not apply to those selling liquor under license. Kirby’s Dig. § § 5146, 5148. The law does not permit courts to issue a license for the sale of liquor in a prohibited district; and, as courts are presumed to act within the law, when one is selling liquor under license issued by the proper court, that of itself raises a presumption that the place at which he is licensed to sell is not within a prohibited district, sufficient to protect him against a proceeding of this kind, unless the judge who is asked to issue the warrant is convinced that the defendant is selling in a prohibited district. The facts of this case well illustrate the absurdity of the law as the court finds it to be. A saloonkeeper in one ward of Newport just before the Christmas holidays, when trade is usually brisk, makes an affidavit that a rival saloonkeeper in another ward of the same town is selling within a prohibited district, and asks the circuit judge to issue a warrant for an officer to seize the stock of liquors in such saloon. The circuit judge, knowing that the defendant is selling under a license from the county court, refuses to issue the writ on the ground that from his acquaintance with the records of the courts he is satisfied that the ward named is not in a prohibited district, and that in his opinion the affiant is not a credible person; but this court holds that he has no discretion in the matter, even though he may know that the liquors are not being sold in a prohibited district, and that the affiant is not a credible person; and it issues a writ of mandamus to compel him to issue a warrant for the seizure of the rival’s stock in trade. The result of this seizure will be to stop his sales' and to place his property in the hands of the sheriff until the next term of the circuit court; for, as the law says he shall have his day in court, it does not mean a trial before a judge in vacation, but before a court from whose judgment an appeal may be taken. The purpose of the act was, as before stated, to-suppress clandestine and illegal sales of liquor, not to allow one saloonkeeper to suppress the business of his rival who is selling under a license that has never been questioned in the court. The writ of mandamus is not a writ of right, and the issuing or withholding of it is within the discretion of the court, and the court should not permit it to be used for the purposes sought to be attained by the petitioner in this case. Fitch v. McDiarmid, 26 Ark. 482.
¶4Being fully convinced, not only that we have the discretion to refuse the writ of mandamus, but that the circuit judge was right in refusing to issue the warrant to seize the liquors being sold under a license that had never been questioned, I therefore dissent from the opinion and judgment of the court.