concurring. I agree with the majority opinion and write to emphasize what today’s holding does. All parties agree that chancery court cannot enjoin a pending criminal prosecution. See, e.g., Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995); S & S News Agency v. Freeze, 247 Ark. 1078, 449 S.W.2d 404 (1970). Today’s decision makes it clear that even when no criminal prosecution or investigation is pending, chancery court has no jurisdiction to decide the constitutionality of a criminal statute. In reaching this conclusion, the majority relies on Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981), where we said (1) that declaratory judgments are resolved in courts with underlying subject-matter jurisdiction, and (2) that if circuit court has jurisdiction to grant a declaratory judgment, it may also issue an injunction. Neither party in this case cites Daley, which attests to the fact that the Attorney General, at least, was unaware of the jurisdictional precedent set by that decision.
I have some sympathy for attorneys researching proper jurisdiction for a declaration of a criminal statute’s constitutionality. Those attorneys would find several cases which, on the surface at least, appear to sanction jurisdiction in chancery court. See, e.g., Handy Dan Improvement Tr. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982) (chancery court decided the constitutionality of the Sunday closing laws, which carried criminal penalties for violation but where no prosecution was pending); Arkansas State Bd. of Pharmacy v. Troilett, 249 Ark. 1098, 463 S.W.2d 383 (1971) (discretionary with chancery court whether to take jurisdiction to determine constitutionality of the prophylactic law; chancery court transferred case to circuit court); State v. Epperson, 242 Ark. 922, 416 S.W.2d 322 (1967) (chancery court struck down the law against teaching evolution on religious-freedom grounds where no criminal prosecution was pending); Bennett v. N.A.A.C.P., 236 Ark. 750, 370 S.W.2d 79 (1963) (chancery court declared three laws designed to thwart civil rights activity to be unconstitutional, some of which were criminal, and upheld one law); Carr v. Young, 231 Ark. 641, 331 S.W.2d 701 (1960) (chancery court upheld constitutionality of act requiring teacher affidavits of organizations belonged to for past five years; violation of act carried criminal penalties but no prosecution pending); Hickinbotham v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1956) (chancery court upheld constitutionality of Sunday closing laws which had been attacked on equal protection grounds; violation of act was a misdemeanor but no prosecution pending).
In Daley v. Digby, supra, we did not expressly overrule those decisions, but that is certainly the effect of our decision today.
Chancery court has traditionally been the proper jurisdiction for protecting personal and property rights where there is no adequate remedy at law. See Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990); see also Union Pac. R.R. Co. v. State, 316 Ark. 609, 873 S.W.2d 805 (1994). Here, a personal right to privacy is asserted by the appellees who argue that the threat of criminal prosecution hangs over their heads like a sword of Damocles. Circuit court is the proper jurisdiction for things criminal, and under Daley v. Digby, supra, circuit court may not only resolve the constitutional question but also enjoin enforcement of an unconstitutional statute. The remedy at law is adequate. For that reason, I agree with the transfer to circuit court.
Imber, J., joins.