The operation and effect of the majority opinion will not be confined to Garland county) but applies, of course, to the whole state, and its practical effect is to impose upon chancery courts a supervisory jurisdiction over the law courts in the matter of enforcing the criminal laws of the state. In my opinion this jurisdiction was not conferred upon chancery courts by the Constitution of the state.
The observation of Chief Justice HILL in the case of State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L.R.A., N.S. 899, 118 Am. St. Rep. 29, 11 Ann. Cas. 277, strongly relied upon by the majority to support its order awarding injunctive relief, was made arguendo and is obiter for as that opinion expressly states, there were no allegations that the criminal processes were inadequate to enforce the criminal law, and as a matter of fact, the injunction there prayed for to restrain as a nuisance a pool room where bets were made, and money won and lost on horse races, was denied. The chancellor, Judge HART, of honored memory, later a member of this court, and its Chief Justice at the time of his death, denied injunctive relief, and that action was affirmed in the Vaughan case. That opinion concludes with a statement that: "The chancellor was right in refusing to entertain jurisdiction, and the judgment is affirmed." That opinion quoted from the case of In re Debs, 158 U.S. 564,15 S. Ct. 900, 39 L. Ed. 1092, the following statement; "Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences *Page 718 appear, the jurisdiction of the court of equity arises, and is not destroyed by the fact that they were accompanied by, or are themselves, violation of the criminal law."
There is no allegation here that there has been any interferences actual or threatened, with property or rights of a pecuniary nature, it being alleged only that the common law courts were not performing their duty in the enforcement of the criminal law of the state.
Whatever the rule may be elsewhere, it has been very definitely and repeatedly decided by this court that the jurisdiction of courts has been parceled out by the Constitution, and that this jurisdiction cannot be enlarged even by an act of the General Assembly. Here the court below was called upon to act even without that authority. It is, therefore, unimportant what the duty of attorneys general, or the jurisdiction of the chancery court may have been at the common law, as our Constitution has defined the jurisdiction of our courts, and no action of the attorney general can enlarge it by showing what the duty and powers of similar officers were at the common law in the abatement of common law nuisances.
The General Assembly, at its 1905 session, passed Act 328, page 782, which attempted to confer jurisdiction upon chancery courts to hear election contests. In reviewing this legislation and declaring it invalid, in the case of Hester v. Bourland, 80 Ark. 145, 95 S.W. 992, Justice BATTLE recited the provisions of our Constitution parceling jurisdiction among the courts of the state and there said: "The Constitution divides and parcels the judicial power of the state among the courts named. The General Assembly is authorized to create only three classes of courts, corporate, common pleas and chancery courts, and the jurisdiction with which they may be vested is specified. It can vest chancery courts only with jurisdiction in matters of equity. All other jurisdiction is vested in other courts. The Legislature is without power to divest or change it. Any law passed for that purpose would be unconstitutional and void." *Page 719
It was held in the case of City of DeQueen v. Fenton,98 Ark. 521, 136 S.W. 945, that a court of equity will not exercise jurisdiction by way of injunction to stay proceedings in matters or acts which are solely of a criminal nature, or in any case not strictly of a civil nature. It was held in the case of Lyric Theatre v. State,98 Ark. 437, 136 S.W. 174, 33 L.R.A., N.S. 325, that before an injunction will be issued restraining acts constituting a public nuisance, it is necessary that such nuisance effect the civil or property rights or privileges of the public, or the public health, and that it is not sufficient that such acts are criminal.
In that case, it was sought to enjoin the operation of a moving picture show on Sunday and the opinion recites that it was urged that the giving of these performances upon Sunday constituted an infraction of the law against Sabbath breaking, and that they gathered together an assembly of lawless and turbulent persons, and that this constituted a public nuisance. Answering that argument the court said: "But the illegal acts thus complained of were only violations of the criminal laws; and the courts of equity will not interfere simply for the purpose of restraining acts constituting crimes because they are criminal. Courts of equity do not exercise their powers to enforce the criminal laws." It was there further said: "It is true that courts of equity have jurisdiction to enjoin acts constituting public nuisances and to abate them. But such jurisdiction is interposed solely for the protection of property or of civil rights; and, whether the nuisance be private or public, the same principal must guide the interference of a court of equity in both cases. In the absence of an injury to property or to civil rights, the chancery court has no jurisdiction to restrain acts simply because they are criminal, nor has it the power to enforce the performance of moral duties solely as such."
In the case of U.S. Exp. Co. v. State, 99 Ark. 633,139 S.W. 637, 35 L.R.A., N.S., 879, it was said that an injunction would not lie to prevent a common carrier from bringing intoxicating liquors into prohibition territory *Page 720 merely because the intoxicating liquors caused a nuisance, drunkenness, and debauchery, resulting from the sale of the same, as injunction would not issue merely to prevent the commission of crime.
In the case of Hill v. Crater, 182 Ark. 1007, 33 S.W.2d 371, it was sought to enjoin certain persons from interfering with the holding of religious services, it being alleged that such action was a misdemeanor and would cause a disturbance of the peace. The relief prayed was denied, it being held that chancery courts will not ordinarily enjoin the commission of crime.
In the case of Ferguson v. Martineau, 115 Ark. 317,171 S.W. 472, Ann. Cas. 1916E, 421, prohibition was awarded against a chancellor who sought to interfere with the judgment of the circuit court imposing a death sentence, and in granting the writ of prohibition Judge WOOD said: "Courts of equity have to do with civil and property rights, and they have no jurisdiction to interfere by injunction with criminal proceedings. They cannot stay process of courts having the exclusive jurisdiction of criminal matters, where no civil or property rights are involved. Portis v. Fall, et al., 34 Ark. 375; Medical Surgical Institute v. Hot Springs, 34 Ark. 359; Taylor Cleveland Co. v. Pine Bluff, 34 Ark. 603; Waters-Pierce Oil Co. v. City of Little Rock, 39 Ark. 412; High on Injunctions, 68; Kerr on Injunctions in Equity, p. 2, Star; 1 Wharton Cr. Law, 403." In addition to these, the following cases are to the same effect: New Home Sewing Machine Co. v. Fletcher, 44 Ark. 139; Rider v. Leatherman, 85 Ark. 230, 107 S.W. 996; Dreyfus v. Boone, 88 Ark. 353, 114 S.W. 718; Merritt v. Gravenmier, 169 Ark. 779, 227 S.W 526.
In the case of Ferguson v. Martineau, Judge WOOD quoted from the case In re Sawyer, 124 U.S. 200,8 S. Ct. 482, 31 L. Ed. 402, the following statement: "The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, punishment or pardon of crimes and misdemeanors, or *Page 721 over the appointment or removal of public officers. To assume such a jurisdiction or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officials, is to invade the domain of the courts of common law, or of the executive and administrative departments of the government."
It was there further said: "This court in State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L.R.A., N.S. 899, 118 Am. St. Rep. 29, 11 Ann. Cas. 277, quoting from the Illinois Supreme Court, said: `It is elementary law that the subject-matter of the jurisdiction of the court of chancery is civil property. . . . The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. It is no part of the mission of equity to administer the criminal law of the state. A court of equity has no jurisdiction over matters merely criminal or merely immoral.'"
The majority opinion copies the complaint, and it contains no allegations which impeached the circuit court of Garland county; it states only the conclusions of the pleader. It does not allege that indictments were sought and not returned, and does not allege that any jury had failed and refused to convict in any case where there was testimony warranting and requiring that action. It contains only the general allegation that the law had been frequently violated without action being taken to prevent these violations. The opinion in the Kentucky case from which the majority so extensively quote, contains the recital that: "The nuisance has continued in the place for many years, despite the processes of the criminal court." Here, as we have said, there is no allegation that these processes have been invoked, the inactivity only of the court being alleged. At 1347, Pomeroy's Equity Jurisprudence, vol. 4, 5th Ed., it is said: "Injunction is never granted (merely) to restrain criminal acts; (crimes are confided to the criminal courts, and the remedy by indictment and prosecution is deemed to be adequate). . . . In proper cases an equity court will interpose for the protection of property rights although *Page 722 the injurious acts constitute violations of the criminal law."
The jury system has been the palladium of the liberty of all English speaking people. It is slow and cumbersome, and often miscarries, but it has preserved our liberty from the aggression of oppressors occurring in other lands, and we should hesitate to exchange it for a system which permit one man, although a chancellor, to usurp its functions. Our Constitution has sought to prevent this from being done in parceling out the jurisdiction of the courts of the state, which are supposed to, and ordinarily do, enforce the laws, and it was not contemplated in the Constitution that short cuts in the enforcement of the criminal law might be taken, just to get quick results.
It is, therefore, my opinion, shared by Justices McHANEY and ROBINS, that the order from which is this appeal should be affirmed.