Arkansas State Board of Pharmacy v. Troilett

Lyle Brown, Justice. The Arkansas State Board of Pharmacy, by petition in chancery, sought to enjoin the dispensing of rubber prophylactics (condoms) from vending machines located in four filling stations in Conway, operated by Anthony Troilett and his co-defendants, appellees here. The merchants defended on the ground that Act 189 of 1943, the prophylactic law, is unconstitutional. The chancellor held Act 189 constitutional but denied the injunction “because of the criminal section of the Act and further because of the difficulty in the enforcement of the injunction.” We are asked to pass on the constitutionality of the Act and also to reverse the chancellor’s refusal to grant the injunction. The constitutional question can be disposed of in short order. A determination of the constitutionality of the Act is not necessary to a disposition of this case. It is therefore our duty to avoid the question. Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968). Act 189 is codified in Ark. Stat. Ann. § 82-944-954 (Repl. 1960). It is there provided that rubber prophylactics shall not be sold except by those possessing a license from the State Board of Pharmacy (excluding, those licensed to practice medicine or osteopathy); that retail licenses shall be issued only to retail drug stores; and that it is a misdemeanor punishable by fine and/or imprisonment for violation of the Act. In addition to the criminal penalties it is provided in Ark. Stat. Ann. §_ 72-1039 (Repl. 1957) that “The State Board of Pharmacy, may in its discretion, in addition to the various remedies now provided by law, apply to a court having competent jurisdiction over the parties and subject matter for a writ of injunction to restrain repetitious violations of the pharmacy laws of this State.” First, it should be pointed up that the recited injunction section does not grant a right of injunction. It simply says the State Board may apply for an injunction to restrain repetitious violations. In a number of instances there are statutes which give state agencies the right to a writ of injunction in equity. For example, the State Board of Dental Examiners is entitled to the writ against one who practices dentistry or dental hygiene without a license. Ark. Stat. Ann. § 72-542 (Repl. 1957). As we read the penalty section of Act 189 and the injunction provision in § 72-1039 together, we perceive a very logical legislative intent. The basic enforcement provision is the severe penalties recited in Act 189. Then if a violator who, once having been punished, persists in repetitive violations, the Board may apply for an injunction. There is no evidence in this record that any of these appellees have ever been prosecuted for any violation of Act 189. Additionally, the chancellor gave some very logical reasons for his conclusions: The court finds that although defendants have admittedly violated the Act an injunction should be denied because of the criminal section of the act and further because of the difficulty in enforcing the injunction. The court finds that the plaintiff has an adequate remedy at law through the crimi-anl processes and that widespread violation of the Act should be suppressed through the processes of the criminal courts rather than through the granting of an injunction which would bind only the defendants presently before the court in this case. The undisputed evidence in the case showed that rubber prophylactics are commonly sold throughout the State by vending machines. If we here say that the chancellor should have granted the injunction then we are saying to the twenty-three chancellors in this State that they must burden their dockets to enforce the criminal law against this type of contraceptive. We cannot believe that such was the legislative intent when § 72-1039 was enacted, especially in view of the fact that the in-junctive section refers only to “repetitious violations.” Criminal courts are available to every city and hamlet in the State, whereas some chancellors have as many as nine counties; hence the local courts, such as municipal courts, are in much better position to process the litigation. The most that can be said of the jurisdiction of the chancellor is that the granting of the injunction was discretionary and for the reasons stated we cannot say he abused his discretion. We are not unaware of a multitude of cases wherein our chancellors have appropriately granted injunctions to prohibit an unlawful act. They generally fall into three catagories, (1) cases wherein by statute the granting of the injunction is mandatory, (2) cases in which there is no adequate remedy at law, and (3) cases wherein the granting of the injunction is discretionary. Before we will disturb the discretion exercised in the last category we must be convinced that the court has manifestly abused its discretion. Price v. Edmonds, 231 Ark. 332, 330 S. W. 2d 82 (1959). Finally, the appellant carried a heavy burden of proof. In order to obtain relief by injunction against the commission of acts of a criminal character “the court will require that the complainant clearly show such facts and circumstances in the particülar case as will justify the court in granting the relief desired.” Arkansas State Board of Architects v. Clark, 226 Ark. 548, 291 S. W. 2d 262 (1956). In the case at bar the complainant did not meet that test. Affirmed. Harris, C. J., dissents.