# Arkansas State Board of Pharmacy v. Troilett > Supreme Court of Arkansas · February 22, 1971 · 249 Ark. 1098 URL: https://www.frixlaw.com/law-library/cases/7818372 ## Case - **Full name:** ARKANSAS STATE BOARD OF PHARMACY v. Anthony TROILETT - **Court:** Supreme Court of Arkansas - **Decided:** February 22, 1971 - **Citations:** 249 Ark. 1098; 463 S.W.2d 383; 1971 Ark. LEXIS 1434 - **Precedential status:** Published - **Opinion:** Dissent by Harris - **Judges:** Brown, Harris - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7818372 ## Opinion text Carleton Harris, Chief Justice, dissenting. With the certain knowledge that I shall be deemed an “old fogy” in some quarters, I still desire to express my dissent in this case. Let it be borne in mind that there is no dispute but that appellees are violating the law; they admitted it. There was no pertinent fact remaining to be proved. Despite this circumstance, the Chancery Court refused to grant an injunction because a criminal penalty is provided in the act violated, Ark. Stat. Ann. § 82-944-953 (Repl. 1960), and “because of the difficulty in the enforcement of the injunction”. I do not agree that the criminal penalty provides adequate means for enforcement of the law. Let us say that an individual is tried and fined in a Municipal, or Justice of the Peace, Court; he is entitled to appeal to the Circuit Court, and to an entirely new trial before that tribunal. Let us say that he is again convicted. He is then entitled to appeal to the Supreme Court. Thus, when the conviction is finally affirmed, a year or year and a half has elapsed since his arrest for the offense. Not only that, but these trials and appeals relate to only one offense. In the meantime he may continue to violate the law, and unless he is arrested and tried every day (which would really burden the dockets of the Municipal and Circuit Courts if we multiply this one offender by the dozens of others who are likewise ignoring the statute) the violations have not been stopped. One of the main purposes of an injunction is to stop “repetitious violations”, for the Chancery Court, unlike the criminal court, has the power to “stop the violation before it is ever committed”. If an injunction is violated, the court can then immediately punish by contempt proceedings. Furthermore, if an appeal is taken, the injunction, if so ordered by the trial court, remains in effect until after the appeal is disposed of. See Gallup v. St. Louis, I. M. & So. Ry. Co., 158 Ark. 624 , 251 S. W. 30 , where we said, “The judgment of the chancery court was right. It is well settled that an injunction is not such a judgment as can be stayed by filing a supersedeas bond”. But even if a supersedeas bond were permitted, I cannot visualize any defendant, or bondsman, entering into a bond where the defendant has admitted committing the acts for which he is enjoined. The majority say that the statute here in question does not grant the right of injunction but simply provides that the State Board may apply for an injunction to restrain repetitious violations. This, to me, is nothing more than a play on words. In the Florida case of Florida Industrial Commission v. Hurlbert, 114 So. 2d 209 , the statute in question also used the term “may” rather than “shall”, but the Florida Court (District Court of Appeal of Florida, First District) took an entirely different view from that taken by the majority in this case. From the opinion: “The question here is: Does the statute give the Circuit Judge, as a matter of discretion, the right to deny the injunction, on the ground that the plaintiff could also proceed criminally, where the complaint adequately charges the violation of the statute and the defendant interposes no defense to the complaint, but allows a decree pro confesso to be entered against her? The general rule is that equity has no jurisdiction to enjoin the commission of a crime, but the exception is that equity may grant an injunction when the legislature has specifically, or by clear implication, authorized the injunctive process as a means of restraining violation of a statute, (citing cases) It is therefore apparent, and the attorneys for both parties agree, that the Circuit Judge could have granted the injunction in the instant case. It is our opinion that this discretion of the Circuit Judge can be exercised only when the defendant interposes a defense and presents evidence to the court which enables the court, in the exercise of a reasonable discretion, to conclude that the facts of the particular case are such that it would be inequitable, unjust or unduly harsh for the injunctive remedy to be granted at this time. When no defense is interposed and no facts as to thi§ particular case are presented by the defendant to the court, there is then no basis for the exercise of a reasonable discretion. If the court can refuse the injunction without such evidence, it would mean that the court, depending on the legislative views of the judge concerned, could decide that the legislature was ill-advised in enacting this statute and that injunction should not be granted in cases where the petitioner has a remedy to proceed criminally against the violators. * * * * Reversed and remanded with directions to enter a decree granting injunctive relief in accordance with the prayer of plaintiff’s complaint.” Here, there is no contention that the acts were not committed, and, under the same reasoning employed by the Florida Court, I see no basis for the exercise of the trial court’s discretion. Applying the fourth paragraph of the quoted opinion, and employing the language used to the case presently before us, let us ask, “Would an injunction against the sale of these condoms by vending machine be inequitable? Would an injunction be unjust? Would it be unduly harsh?” To me, the question is but to answer it, for I can see no inequity, injustice, or undue harshness, in ordering a person to refrain and desist from violating the law. We likewise said in Meyer v. Seifert, 216 Ark. 293 , 225 S. W. 2d 4 : “The most frequently quoted statement of the rule in Arkansas appears in State v. Vaughan, 81 Ark. 117, 126 , 98 S. W. 685, 690 , 118 Am. St. Rep. 29 , 11 Ann. Cas. 277, 7 L. R. A., N. S. 899, where after denying the injunction in the particular case, Chief Justice Hill added: ‘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 [my emphasis] by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will [my emphasis] enjoin, notwithstanding the act enjoined may also be a crime. The criminality of the act will neither give nor oust jurisdiction in chancery!’ Entirely aside from the matters already discussed, I feel that permitting young boys or young men to regularly and consistently see this merchandise displayed in rest rooms, encourages immorality. Rest rooms are frequented by persons of all ages. All view these vending machines. My sentiments are expressed in the Virginia case of Cavalier Vending Corp. et al v. State Board of Pharmacy et al, 79 S. E. 2d 636 . There the Supreme Court of Appeals of Virginia stated: “Where these devices are sold only by licensed retail outlets, as permitted by the Act, improper use will be discouraged. It may be reasonably assumed that the sale of such devices through vending machines placed in public rest rooms frequented by people of all ages might prove detrimental to morals, particularly of young people. It unnecessarily places before them a temptation fraught with great danger. Young people may be tempted to buy from this ‘silent salesman’ for immoral purposes, whereas they would not make such purchase from a clerk in a licensed retail outlet. * * * * One does not have to inquire as to the motives for this legislation. The reasons for its passage are obscure only to those who do not care to see.” The majority say: “The undisputed evidence in the case showed that rubber prophylactics are commonly sold throughout the State by vending machines. If we here say that the chancellor should have granted the injunction then we are saying to the twenty-three chancellors in this State that they must burden their dockets to enforce the criminal law against this type of contraceptive.” I shall have to admit that this reason does not appeal to me. Yes, Chancery Court dockets are crowded; Circuit Court dockets are crowded; the Supreme Court docket is crowded. A great many judges are overworked — but we cannot permit the processes of law to stand still because of this fact. I personally can never place my stamp of approval upon a refusal to enforce the law because the dockets will be burdened! Under the court decisión today, a person who is inclined to violate this particular statute can say, “Oh yes, I’m violating the law, but there is nothing you can do about it because you don’t have the facilities for enforcement.” The result is that an offender not only goes unpunished, but what is probably more important, respect for law and authority will soon evanesce. I dissent! --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7818372. Public record. Not legal advice.