Masterson v. State Ex Rel. Bryant

949 S.W.2d 63, 329 Ark. 443, 1997 Ark. LEXIS 448
CourtSupreme Court of Arkansas
DecidedJuly 14, 1997
Docket96-1064
StatusPublished
Cited by7 cases

This text of 949 S.W.2d 63 (Masterson v. State Ex Rel. Bryant) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Masterson v. State Ex Rel. Bryant, 949 S.W.2d 63, 329 Ark. 443, 1997 Ark. LEXIS 448 (Ark. 1997).

Opinions

Ray Thornton, Justice.

Donna M. Masterson owns and controls DG’s Shiloh Two, Inc. Both aré appellants in this action. Between January 1993 and August 1996, DG’s Shiloh Two owned, and Donna Masterson managed, two bingo halls located in Springdale, Arkansas. In January, 1993, the State of Arkansas ex rel. Winston Bryant, Attorney General, appellee, filed a complaint in the chancery court of Washington County against appellants alleging that the bingo operations constituted public nuisances and seeking an order to abate and enjoin such activities. Other operators of bingo halls were named but were dismissed when they discontinued their bingo operations. Appellants continued to operate their bingo halls and agreed with appellee to submit the matter to the chancery court upon stipulated facts.

Appellants argued that appellee failed to allege irreparable harm as a basis for injunctive relief, and urged that the adoption by the state of Ark. Code Ann. §§ 26-52-1501 — 1507 (Supp. 1995), which taxes gross receipts from bingo operations, under which appellants remitted $316,266.00 in taxes to the state, supports appellants’ contention that the bingo halls are not public nuisances. Appellants also argued that the chancery court lacked subject-matter jurisdiction.

On August 12, 1996, the chancery court entered a decree abating the bingo activities as a public nuisance and enjoining the appellants from continuing such activities. On appeal, appellants assert that the chancery court erred in finding that their bingo operations constituted a public nuisance, and further contend that the court lacked subject-matter jurisdiction to conclude that bingo is a lottery or to abate and enjoin such activity. Finally, appellants argue that the court erred in not granting their motion for summary judgment. We have considered each assignment of error and have determined that the trial court should be affirmed. This resolves any issue concerning summary judgment.

Subject-Matter Jurisdiction of Chancery Court

Appellants correctly state the general rule that a chancellor has no criminal jurisdiction. State v. Vaughan, 81 Ark 117, 98 S.W. 685 (1906). Further, it is correct that “except in narrow circumstances . . . equity will not enjoin the commission of a crime because the remedy at law is adequate.” Bates v. Bates, 303 Ark 89, 93, 793 S.W.2d 788, 791 (1990). However, there are circumstances to which we refer in Bates and other cases where both criminal and equitable relief are appropriate. In a case involving an erroneously granted exception to the provisions of a city ordinance prohibiting the erection of a nonfireproof building, the chancery court refused to issue an injunction against the prohibited structure because the ordinance prescribed criminal punishments of a fine for each day of violation. Meyer v. Seifert, 216 Ark 293, 225 S.W.2d 4 (1949). The appellees in that case argued that the criminal penalty was exclusive. We disagreed and reversed, stating in the words of Justice Robert A. Leflar:

That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity’s action to enjoin it.

Id. at 296-97, 225 S.W.2d at 6.

In State ex rel. Att’y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), we decided that the chancery court erred in refusing to entertain jurisdiction of an injunction proceeding brought by the Attorney General seeking to enjoin the operation of a gambling house and stated:

The chancery court held that it had no jurisdiction in this case. We have repeatedly recognized that equity has authority to abate a public nuisance. In Ross et al. v. State, 184 Ark. 385, 42 S.W.2d 376, we quoted from Marvel v. State, 127 Ark. 595, 193 S.W.2d 259, 5 A.L.R. 1458, as follows: “The Legislature has not conferred the jurisdiction upon the chancery court to abate public nuisances. This jurisdiction they have always had.”

Id. at 710, 187 S.W.2d at 330 (emphasis added).

We also quoted with approval the statement from 39 Am. Jur. 410, as follows:

Where the act is both a public nuisance and a crime, the state may suppress it by a suit in equity, or resort to a criminal prosecution, or may do both. ... To 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.

Id. at 711, 187 S.W.2d at 330.

In an earlier case involving the same gambling house, Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943), we reversed the local chancellor’s decree protecting the gambling house from interference by the state police. We pointed out that “a gambling house was a public nuisance at common law, and the operation of a gambling house has by statute been made a felony in Arkansas.” Id. at 311-312, 176 S.W.2d at 328.

In State ex rel. Att’y Gen. v. Karston, supra, we cited many decisions declaring a gambling house to be a public nuisance at common law, determined that the Attorney General has the power and duty under common law to institute equitable proceedings to enjoin the nuisance, and summed up as follows:

[B]y the weight of authority, equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the pubhc nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief.

Id. at 712, 187 S.W.2d at 331.

In the case under consideration we note that the stipulation of facts, considered together with the principles we have reviewed, support the chancery court’s following conclusions of law:

That each of the bingo halls at issue in this case have operated (openly, publicly, repeatedly, continuously, persistently, and intentionally) on a regular basis for an extended period of time, notwithstanding any potential application or enforcement of any criminal statutes. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate. (Emphasis added.)

We will not reverse the findings and conclusions of a chancery court unless they are clearly erroneous. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1993).

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Related

Bashaw v. State
219 S.W.3d 146 (Supreme Court of Arkansas, 2005)
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Arkansas Attorney General Reports, 2004
Masterson v. State Ex Rel. Bryant
949 S.W.2d 63 (Supreme Court of Arkansas, 1997)

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949 S.W.2d 63, 329 Ark. 443, 1997 Ark. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masterson-v-state-ex-rel-bryant-ark-1997.