dissenting. I dissent for the reason that the chancery court lacked jurisdiction to enjoin Appellants’ operation of two bingo halls as public nuisances. At first glance, the majority opinion appears to rely upon this court’s decision in State ex rel. Att’y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), quoting parts of that decision that are favorable to the majority’s conclusion. Upon closer examination, however, it becomes clear that the majority completely ignores the ultimate holding of that decision:
[T]he state may properly seek to protect the community by asking the aid of a court of equity where the criminal law enforcement agencies have broken down, and thereby rendered the remedy at law to be inadequate or incomplete.
Id. at 716, 187 S.W.2d at 333 (emphasis added). Contrary to the majority’s implication, that decision did not rest on prior holdings that gambling houses were common-law nuisances. Nor did it provide that whenever a criminal law is being violated, the State may put an end to it by seeking an injunction on the ground that the criminal activity is, in and of itself, a public nuisance. Instead, the decision in Karston turned upon the particular facts of that case, which are drastically different from those in the present case.
Karston, who was a notorious bookmaker in Hot Springs, had been arrested for gambling no less than ten times, but to no avail because he continued his bookmaking operations after his arrests. Moreover, there were allegations in that case that the local law enforcement agencies were condoning Karston’s activities and had refused to prosecute him on the charges. This court thus held that because the criminal law had broken down, rendering the remedy at law inadequate, equity had the power to enjoin the activity as a public nuisance. Here, there was no evidence or even allegation that the activities of the bingo halls constituted a public nuisance beyond the mere contention that they were being operated in violation of the law. No citizen complaints were heard and no allegations were made that anyone had suffered injury as a result of the bingo operations. In short, there was no demonstration that the criminal law had broken down such that equity became empowered to enjoin the activity as a public nuisance.
The first case to address the issue of whether equity could issue an injunction to stop a gambling operation was State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). In that case, this court held:
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 a 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 a crime.
Id. at 126, 98 S.W. at 690 (emphasis added).
In Karston, this court relied on the above language from Vaughan, as well as the decision in DeQueen v. Fenton, 98 Ark. 521, 136 S.W. 945 (1911), which held that the chancery court has no criminal jurisdiction, and thus, has no jurisdiction to restrain acts solely because they are criminal. Additionally, the Karston court cited 39 Am. Jur. Nuisances § 147 (1942) for the proposition that “[t]o warrant an injunction where the nuisance is also a crime, there must be proof of what that law denominates a nuisance as distinguished from a mere crime.” Karston, 208 Ark. at 711, 187 S.W.2d at 330. In other words, in order for equity to enjoin criminal activity, there must be evidence that the activity is a nuisance, in the traditional meaning of that term, in addition to the fact that the activity is a crime.
Subsequent to the decision in Karston, in Hickinbotham v. Corder, 227 Ark. 713, 301 S.W.2d 30, cert. denied, 355 U.S. 841 (1957), this court held that there were only two instances where chancery will assume jurisdiction to enjoin the commission of a criminal offense: (1) Where the enforcement of the criminal law will not deter violation, or (2) where the complaining party has shown an injury. Here, enforcement of Ark. Code Ann. § 5-66-103 (Repl. 1993) would deter violations of the law in that the persons convicted of gambling shall be sentenced to one to three years in prison. Moreover, in this case, the complaining party, the State, has shown no injury. There was absolutely no indication at all that any property owners or other citizens had complained about any adverse affects resulting from the bingo halls’ operations.
More recently, in Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990), the appellant sought to have the chancery court enjoin her housemate from committing acts of domestic abuse against her under a theory that chancery has jurisdiction to protect personal and property rights. This court held that equity may only protect those rights when certain conditions are present, one of which is where the remedy at law is inadequate. Appellant argued that the criminal statutes were ineffective because battered housemates are afraid to file criminal charges and prosecutors do not act diligently. This court held that “[ejven if the arguments were valid, we would not ignore the jurisdictional language of the Constitution and, in doing so, deprive an accused of his Constitutional right to a trial by jury.” Id. at 92, 793 S.W.2d at 790. This court held further that “equity will not enjoin the commission of a crime because the remedy at law is adequate. ... If the rule were otherwise, the constitutional right of trial by jury would be infringed.” Id. at 93, 793 S.W.2d at 791. This court did acknowledge a limited exception to that rule, which arises when the criminal act is “incidental” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” Id. at 93, 793 S.W.2d at 791 (quoting Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944)). Such exception is not applicable to this case because the criminal act of operating a gambling house was the sole reason for enjoining the activity.
In the present case, there was no evidence whatsoever that the criminal law had broken down or that the remedies at law were inadequate. In fact, there was no evidence that the legal remedy had even been attempted before the State filed for an injunction. Instead, the facts presented below indicate that the bingo halls had been in operation since January 1, 1993, and that the State filed its suit for injunction a mere twenty-one days later. It was stipulated by both parties that Appellants had never been arrested for any violation of the law pertaining to their bingo operations, and that further, there were no allegations concerning rowdiness, drunkenness, excessive traffic, loud noises, or any of the more traditional nuisances.
The trial court’s ruling that the remedies available at law were inadequate just because the bingo halls had been in continual operation for some time is clearly erroneous. It is not enough to render the legal remedy inadequate to merely point to the fact that a criminal offense has been committed. According to our case law, there must be more — i.e., an allegation that local law enforcement authorities have refused to enforce the criminal law or that the bingo operators have been arrested in the past and such arrests have not deterred their illegal gambling activities. The majority’s decision in this case circumvents the constitutional right to trial by jury, by allowing courts of equity to stop allegedly criminal activity and deprive the actors of their livelihood without requiring the State to prove beyond a reasonable doubt that such actions are criminal.
For the reasons given, I would reverse the ruling of the chancery court and dismiss the case.