dissenting. I dissent from the judgment in this case because I think the principles of law announced are in conflict with the established law of this State. The opinion of the majority in my opinion in effect overrules several of our prior decisions.
The act under consideration makes the business of selling intoxicating liquors in violation of the laws of this State in any building a public nuisance and this part of the act is but declaratory of the law as it already existed. The authorities are in conflict as to whether or not a chancery court has jurisdiction to abate a nuisance by injunction where no civil or property rights are involved. We need not review these authorities for our court has held that injunction is not the proper remedy.
In the case of State v. Vaughan, 81 Ark. 117, the court said: “It is demonstrably true that it is a sound principle of equity jurisprudence that an injunction will not lie at the instance of the State to restrain a public nuisance where the nuisance is one arising from the illegal, immoral or pernicious acts of men which for the time being make the property devoted to such use a nuisance, where such nuisance is indictable and punishable under the criminal law. On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be crime. The criminality of the act will neither give nor oust jurisdiction in chancery.”
The holding of the court in that case has also been approved in several later decisions which are cited in the majority opinion.
In the case of State v. Ehrlick, 64 S. E. 935, 23 L. R. A. (N. S.) 691, the Supreme Court of West Virginia, in an able and exhaustive opinion in which many of the authorities on both sides of the question are reviewed, held that equity had no jurisdiction to abate a public nuisance by injunction at the instance of the State where no property or personal rights are involved.
In some of the States it has been held, that the Legislature may confer upon the chancery courts jurisdiction to abate by injunction public nuisances where no property or civil rights are involved, but under the construction given to our Constitution the Legislature can neither enlarge nor diminish the jurisdiction of chancery courts. Hester v. Bourland, 80 Ark. 145; Gladish v. Lovewell, 95 Ark. 618; Walls v. Brundidge, 109 Ark. 250.
Under our Constitution, the jurisdiction of equity, like that of law, is of a permanent and fixed character and courts of equity have only such jurisdiction as they could properly exercise at the time of the adoption of the Constitution. As we have already seen, they did not have the power to abate, by injunction, public nuisances where no property or civil rights are involved.
The opinion of the majority attempts to distinguish these decisions from the present one by saying that equity has always had jurisdiction over public nuisances and that the statute in question is only a statute regulating the practice in chancery courts. It occurs to me that this is reasoning in a circle. As we have already seen, this court has repeatedly held that chancery courts have no jurisdiction to abate public nuisances where no property or personal rights are involved. So it will be readily seen that the statute grants an additional power to the chancery court which it could not exercise before the statute in question was passed. Such has been the interpretation by the American courts including the Supreme Court of the United States.
In Mugler v. Kansas, 128 U. S. 623, the statute involved expressly conferred jurisdiction upon chancery courts to prevent the use of real estate in the manufacture of intoxicating liquors. It declared all places where intoxicating liquors were manufactured or sold in violation of the act to be public nuisances and authorized a suit in the name of the State to abate them by injunction. This was recognized to be a jurisdiction created by statute.
So, too, in State v. Ehrlick, supra, it was. recognized that the Legislature of that State within the constitutional limits of its powers might grant to courts of equity the power to abate a public nuisance where no property or civil rights are involved.
This statute conferred upon circuit courts the same jurisdiction that is given to chancery courts; and has been construed in the case of Hickey v. State, 123 Ark. 180. We did not there construe it as a statute regulating the practice in circuit courts, but expressly stated that under the act, the circuit court was given the power to abate the nuisance by injunction.
All the cases that I have read which uphold the power of chancery courts to abate public nuisances by injunction where no civil or property rights are involved proceed on the theory either that equity has always had jurisdiction to abate all public nuisances regardless of the fact of whether or not civil or property rights are involved; or that the Legislature has the power to confer such jurisdiction upon chancery courts.
As we have already pointed out, this court has held that chancery courts have no power to abate public nuisances by injunction except where property or civil rights are involved and has also held that the Legislature has no power to enlarge or diminish the jurisdiction of chancery courts. I think that the statute in question confers upon the chancery court a jurisdiction which it did not possess before the statute was enacted.
The views I express make the statute void as it confers jurisdiction upon the chancery courts, but it by no means follows that the whole statute should fail. It is evident that the statute is divisible, and that it would have been passed even if the jurisdiction in the premises had not been conferred upon the chancery court. This is apparent from the fact that jurisdiction to abate the nuisance in question was conferred upon the circuit courts and the jurisdiction of the circuit court to abate nuisances under this act by injunction was upheld in the case of Hickey v. State, 123 Ark. 180. The reason is that all jurisdiction was parceled out and distributed by the Constitution, and the jurisdiction,not expressly granted to some other court, or authorized to be granted, is reserved to the circuit courts.
I am authorized by Mr. Justice WOOD to state that he concurs in this dissenting opinion.