State v. Karston

• Decision Date: 07 May 1945
• Docket Number: No. 4-7619.,4-7619.
• Citation: 187 S.W.2d 327
• Parties: STATE ex rel. WILLIAMS, Atty. Gen., v. KARSTON.
• Court: Arkansas Supreme Court

Page 327

187 S.W.2d 327

STATE ex rel. WILLIAMS, Atty. Gen., v. KARSTON.

No. 4-7619.

Supreme Court of Arkansas.

May 7, 1945.

Appeal from Chancery Court, Garland County; Sam W. Garratt, Chancellor.

Proceeding by the State, on the relation of Guy E. Williams, Attorney General, against A. J. Karston, for an injunction enjoining the defendant from conducting a bookmaking establishment. From a judgment dismissing the petition, the relator appeals.

Reversed and remanded with directions.

Guy E. Williams, Atty. Gen., and Cleveland Holland and Elmo Taylor, Asst. Attys. Gen., for appellant.

Jay M. Rowland, of Hot Springs, for appellee.

McFADDIN, Justice.

This is an appeal by the State from the refusal of the Chancery Court to entertain jurisdiction of an injunction proceeding instituted by the Attorney General. On June 28, 1944 the State of Arkansas, on the relation of Guy E. Williams, Attorney General, filed in the Garland Chancery Court a petition for injunction against appellee, Karston. The petition, omitting only caption and signature, reads as follows:

"Comes the State of Arkansas on the relation of Guy E. Williams, the duly elected, qualified and acting Attorney General, and shows to the Court:

"1. That the defendant, A. J. Karston, in violation of the criminal laws of the State of Arkansas, now is and has been for many months heretofore the owner of, and conducting, operating and maintaining at 310 Central Avenue in Hot Springs, Arkansas, a gambling house known as `White Front Club' wherein and whereat a turf exchange or pool room is maintained and operated where money is received, bet, won and lost on horse races and where tickets for pools on horse races to be held and run in this State and elsewhere are bought, sold and cashed; and where large numbers of persons congregate daily for the purpose of buying, selling or cashing pools on horse races and for betting on horse races, which said place is a gambling house and is commonly known and referred to as a `bookmaking place' and that the conducting, operating and maintaining of said gambling house or bookmaking place, as above described, is a violation of the criminal laws of the State of Arkansas and constitutes and is a public nuisance at Common Law.

"2. The said gambling house or bookmaking place conducted by the said A. J. Karston at 310 Central Avenue, Hot Springs, Arkansas, has been raided and the said A. J. Karston has been arrested therefor by the State Police on numerous occasions as follows: January 17, 1943; January 24, 1943; January 30, 1943; October 18, 1943; October 22, 1943; October 22, 1943; October 27, 1943; December 19, 1943; February 7, 1944; May 5, 1944.

"3. That a large number of other similar gambling houses or bookmaking places operated by other persons in Hot Springs have also been raided and the operators thereof arrested many times by the State Police, but that the said A. J. Karston, the defendant herein, and also the operators of said other gambling houses or bookmaking places continue to carry on their unlawful practice, as herein above set out, without restraint or molestation on the part of the local law enforcing officers charged with the duty of enforcing the law against such illegal practice and of prosecuting those who violate the law.

"That such violations of the law will be permitted to continue without being prosecuted by the local enforcement officers, and that the State of Arkansas, on the relation of Attorney General, alleges that by reason of the failure and refusal of said local officers to prosecute said operators of said bookmaking places, said open and flagrant violations of the law go on undisturbed, and that by reason thereof the ordinary and usual criminal processes are inadequate and the State of Arkansas has no adequate remedy at law to afford relief; and that the State of Arkansas is entitled to have an injunction against said persons, enjoining and restraining them from further operation of said bookmaking establishments,

"Wherefore, the petitioner prays that the defendant, be restrained and enjoined from conducting and operating and maintaining said bookmaking establishment, conducted by him as herein alleged, and for all other equitable relief."

The defendant filed his general and special demurrer to the petition; and on November 29, 1944 the Chancery Court sustained the demurrer: "upon the ground that the Chancery Court has no jurisdiction of the matters involved, and that the attorney general is without authority to present said action." Thereupon the plaintiff, refusing to plead further, the petition was dismissed; and this appeal follows.

I. The Effect of the Demurrer. Preliminary to a discussion of the two grounds assigned by the Chancery Court as reasons for dismissing the petition, it is fitting that we make a few observations:

The demurrer by the defendant admitted, for the purpose of a ruling thereon, all the allegations of the petition that were well pleaded. See cases collected in West's Arkansas Digest, "Pleadings", Section 214. So, we have here a case where it is admitted by demurrer that Karston is operating a gambling house; that his place has been frequently raided by the State Police over a period of a year; that he continues to carry on his unlawful business "without restraint or molestation of the local law enforcing officers"; that there is a "failure and refusal by said local officers to prosecute"; that "the ordinary and usual criminal processes are inadequate"; and that, by reason of these matters, the State, on the relation of the Attorney General, claims it is entitled to the aid of a court of equity to enjoin the further operation of the gambling place. The case of Albright v. Karston, 206 Ark. 307, 176 S. W.2d 421, 423 concerned the gambling house operated by Karston; and we said: "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." That case is judicial recognition that the appellee is maintaining a public nuisance at common law. Many cases declare a gambling house to be a public nuisance at common law. See Fox v. Harrison 178 Ark. 1189, 13 S.W.2d 808; and Blumensteil v. State 148 Ark. 421, 230 S.W. 262, where some of them are listed. The Attorney General alleges that the local law enforcement has broken down, and that nothing is being done to abate this public nuisance. These facts stand as admitted by the demurrer. With this background, we approach the case.

II. Authority of the Attorney General to Bring the Suit. The Chancery Court held that the Attorney General was

without authority to bring this suit. The office of Attorney General of Arkansas is created by the Constitution. See Article VI, Sections 1, 3, 4, and 22. We therefore look to the Constitution to see the authority of the Attorney General; and Article VI, Section 22 says: "The * * * Attorney General shall perform such duties as may be prescribed by law; * * *." The Constitution thus gave the Legislature the right to state the powers and duties of the Attorney General; and Section 5582 of Pope's Digest (Section 5 of Act 131 of 1911) says: "Nothing in this act shall relieve the Attorney General of discharging any and all duties now required of him under the common law, or by any of the statutes of this State, * * *." From this section it is clear that the Legislature has placed on the Attorney General certain statutory duties, and also "all duties now required of him under the common law." The common law was adopted in this State by Section 1679 of Pope's Digest. For a full discussion of the common law, see Articles in 12 C.J. 175, 15 C.J.S., Common Law, 610, and 11 Am.Juris. 153. The general rule in other states as to the powers and duties of the Attorney General is in accord with the views herein expressed. In 7 C.J.S., Attorney General, § 5, p. 1222 there is this statement: "The office of attorney general has existed from an early period, both in England and in this country, and is vested by the common law with a great variety of duties in the administration of the government. The duties are so numerous and varied that it has not been the policy of the legislatures of the states of this country to attempt specifically to enumerate them; and where the question has come up for consideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the power pertaining thereto under the common law."

In 5 Am.Juris. 234, in discussing the powers and duties of the Attorney General at common law, the rule is stated: "At Common Law.—The common-law duties of the attorney general, as chief law officer of the state, when not restricted or limited by statute, are very numerous and varied. In England, the Attorney General was the chief legal adviser of the Crown and was intrusted with the management of all legal affairs and the prosecution of all suits, civil and criminal, in which the Crown was interested. He exercised the right of enforcing public charities, possessed supervisory powers over the estates of lunatics, and could institute equitable proceedings for the abatement of public nuisances which affected or endangered the public safety or convenience and required immediate judicial interposition. Such being the nature of the rights and duties that attached to the position at its inception, it is generally held that in the exercise of his common-law powers, an attorney general may not only control and manage all litigation in behalf of the state, but he may also intervene in all suits or proceedings which are of concern to the general public."

We emphasize the fact that at common law the Attorney General could "institute equitable proceedings for the abatement of public nuisances which affected or endangered the public safety or convenience and required immediate judicial interposition." In 5 Am.Juris. 244, in discussing the power of the Attorney General...