Marvel v. State ex rel. Morrow

Smith, J. By the decree of the chancery court of Johnson County, appellant was enjoined from selling intoxicating liquors illegally in a building owned by him in the town of Hartman, in said county. The suit was brought in the name of the State, on the relation of the prosecuting attorney. A demurrer to the petition was filed and overruled. It is now said this demurrer should have been sustained because the petition did not allege that the nuisance affected any public property or public civil rights; nor that the criminal processes were inadequate to afford relief; nor that there was no adequate remedy at law. The petition did not contain these allegations, and such allegations are not required under the statute under which this- proceeding was had. The court below made an order directing the abatement of the business conducted by appellant upon the ground that it was a public nuisance under Act No. 109, Acts 1915, page 408, and the appeal taken from that order questions the constitutionality of that act. Sections l.and 2 of this act read as follows: “Section 1. That the conducting, maintaining, carrying on or engaging in the sale of intoxicating liquors in violation of the laws of this State, in any building, structure or place within this State, and all means, appliances, fixtures, appurtenances, materials and supplies used fqr the purpose of conducting, maintaining, or carrying on such unlawful business, or occupation, are hereby declared to be/public nuisances, and may be abated under the provisions of this act. “Section 2. That jurisdiction is hereby conferred upon the chancery and circuit courts of this State to abate the public nuisances defined in the first section of this act, upon petition in the name of the State, upon relation of the Attorney General, or any prosecuting attorney of the State, or without the concurrence of any such officers, upon the relation of five or more citizens and freeholders of the county wherein such nuisances may exist, in the manner herein provided.” Other sections of the act make effective the sections quoted. It is insisted upon the authority of Hester v. Bourland, 80 Ark. 145, and United States Express Co. v. State, 99 Ark. 633, that the act in question is unconstitutional. In the case of Hester v. Bourland, supra, it was held that the Legislature could vest chancery courts only with jurisdiction in matters of equity, and that all other jurisdiction is vested in other courts, and that the Legislature is without power to divest or change this jurisdiction, and that any law passed for that purpose would be unconstitutional and void. And it was also there held that election contests for nominations are not matters of equity, and have never been so considered, and the act of the Legislature vesting chancery courts with jurisdiction as to them is unconstitutional and void. Other cases to the same effect are: Gladish v. Lovewell, 95 Ark. 619; German National Bank v. Moore, 116 Ark. 490; Walls v. Brundidge, 109 Ark. 250; Hempstead v. Watkins, 6 Ark. 317. This court has had frequent occasion .to consider the jurisdiction of courts of equity to abate nuisances, and in these cases familiar principles have been announced as controlling the action of the court in the decision of those cases. These cases have held that a court of equity will not lend its aid, by injunction, for the enforcement of right or the prevention of wrong in the abstract, disconnected with any injury or damage to the person seeking the relief, and that the petition for an injunction should generally show some primary equity in aid of which the injunction is asked.. The court has also had before it suits to abate public nuisances, and our case of State v. Vaughan, 81 Ark. 117, has become one of the leading cases on this subject. In this case, upon a review, of the authorities, it was held that a suit would not lie at the. instance of the State to restrain a public nuisance unless the nuisance sought to be abated was one touching civil property rights or privileges of the public or affecting the public health. The case of Lyric Theater v. State, 98 Ark. 437, reaffirmed the doctrine of the Vaughan case, supra. At the time of the enactment of the Act of 1915, supra, the laws of this State, as announced in the decisions cited, may be summarized as follows: The jurisdiction of chancery courts was fixed by the Constitution of 1874, beyond the power of the Legislature to enlarge or diminish. Courts of chancery were not authorized to restrain acts constituting a public nuisance unless the acts constituting the nuisance affected the civil or property rights or privileges of the public, or the public health. The act in question made the business of selling intoxicating liquors illegally in any building, structure or place within this State a public nuisance and enjoined upon the chancery and circuit courts of the State the duty of abating them. Is the act void? We think this act is not open to the objection which was made and sustained to the act involved in the case of Hester v. Bourland, supra. That was an act to provide for the contesting of primary elections. The court there pointed out that election contests for nominations are not matters of chancery jurisdiction, and had never been so considered, and it was, therefore, held that the act of the Legislature which attempted to vest chancery courts with jurisdiction as to them was unconstitutional and void. The subject-matter of this legislation — the abatement of nuisances — however, has always been within the jurisdiction of courts of chancery. In 2 Story’s Equity Jurisprudence (13 ed.), section 921, it is said: “In regard to public nuisances the jurisdiction of courts of equity seems to be of very ancient date and has been distinctly traced back to the reign of Queen Elizabeth.” These courts have imposed various conditions upon the exercise of this jurisdiction, but have always asserted the existence of the jurisdiction. The act in question has not conferred upon the chancery courts of this State any additional jurisdiction. It has merely prescribed a new condition upon which this ancient jurisdiction may be exercised. The act is remedial in its nature and, while the Legislature can not enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure for the exercise of this jurisdiction and to prescribe new conditions under which that jurisdiction may be exercised. The Legislature has not conferred the jurisdiction upon the chancery court to abate public nuisances. This jurisdiction they have always had. The jurisdiction of all the courts is fixed by the Constitution as appears from the above-cited cases. But this jurisdiction may be applied to new conditions if the Legislature so elects. For instance, the jurisdiction of justices of the peace in matters of damage to personal property is limited by the Constitution to suits for damages not exceeding $100. The Legislature might create a cause of action for damages to personal property which did not exist at the time of the adoption of the Constitution of 1874. If this was done, a suit to compensate these damages in a sum not to exceed $100 could be brought in the court of a justice of the peace. This would not be an enlargement of the jurisdiction of a justice of the peace. It would be a mere creation of a new condition upon which that jurisdiction would operate. We are of the opinion that this is what the Legislature did here. It follows therefore that the demurrer was properly overruled and the decree so ordering is affirmed.