¶1Dissenting. If this were a criminal proceeding of a kind requiring proof of intent and evidence of guilt beyond a reasonable doubt it might be possible to agree with the Court’s majority. But since we have not the pardoning power, and are permitted merely to construe and declare the law, I must respectfully dissent from a determination that in effect creates, by judicial fiat, a middle ground, in the nature of a refuge between conduct denounced by the General Assembly and freedom from statutory interdictions.
¶2Act 109 of 1915, a part of which appears as Ark. Stats., § 34-105, presupposes that it is possible to engage in the sale of intoxicating drinks without violating the law; but (§ 1) engaging in illegal sales is declared to be a public nuisance, “and may be abated under the provisions of this Act.”
¶3That there were violations of the law is all but admitted.
¶4What were the facts'?
¶5While amplification of the testimony by more extensively abstracting it would shed a great deal of light upon customs and practices, it is not necessary to go beyond the majority opinion to find the answer. Four boys, whose ages were 15, 18, 19 and 20 years, respectively, were in the grog shop. The two younger testified that they drank coca-cola, while the others had beer, “bought for them by some man from their home town whom they did not know”; and, says the opinion, “their positive testimony was that this man was not a clerk of appellant, and that he left the place after giving the beer to them”. The 19-year-oldster testified that on previous occasions he had received gift-beer — “some one” having brought it to him where he was waiting on the outside in a car. The opinion says:
“There was no evidence whatever that any sales of beer had ever been made to minors, and no proof that on the occasion above described appellant or his employes knew that any beer had been given to the minors.”
¶6The effect of this statement is to say that the trial Court must gullibly accept as true the obviously evasive answers of these boys, who were attempting to protect appellant. The trial Court, and we, are not to exercise that degree of discretion ordinarily applied to situations like this, where credibility itself becomes a matter of evidence, and where doubtful conclusions are resolved in favor of the judge who heard the witnesses, appraised their attitudes while testifying, and gave credence or denied it as the clarity suggested.
¶7But there was other evidence. A Town Marshal and Deputy Sheriff, after testifying that he “loafed around all of those drinking places”, was asked if he had made any arrests at appellant’s place during the past year, and replied that he had. Question: “Tell the Court what arrests were made for.” Answer: “Mostly for drunkenness.” Question: “How many arrests did you ordinarily make on Saturday night?” Answer: “Three or four.”
¶8It further developed that the Marshal who testified was on appellant’s payroll for $80 per month, and that half of all arrests made in the Town of Altus occurred at or around Alston’s place.
¶9Highlights in the Town Marshal’s testimony, as abstracted by appellant, include these statements:
“. . . On Saturday night and other nights there are dances at Alston’s place. . . . Some Saturday nights there would be from 150 to 400 people there. . . . I have made arrests for a fight now and then — a little disturbance, but not much. ... On the inside a fellow hit a fellow, but we got him out before the fight started. ... I have seen drinking on the outside in automobiles, but I try to stop it. . . .1 have seen whiskey bottles lying around on the outside, [and] I have seen them all over the town. I have seen young people under twenty-one years of age at the dance hall [adjoining Alston’s place and operated by him] and [at] the beer place. . . . Except for one disturbance on the outside and the one fight on the outside I did not observe anything else except a few arguments. I have seen about fifteen or sixteen young people, under twenty-one years of age, sit in the beer place until the dance starts. We have a curfew law and people under eighteen are not supposed to hang around after ten o ’clock. . . . Didn’t think Alston sold beer to persons under twenty-one. . . . The dance hall is not a disorderly place”.
¶10Jim Hyde, a Deputy Sheriff, testified: “I made a good many arrests for drunkenness. ... I have seen boys under the age of twenty-one in the beer and cafe parts. . . . The young people range from fifteen or sixteen years up. . . . They usually gather about 7:30 or 8:00 o’clock in the beer joint or cafe; the dance didn’t start until eight. Some of these young people would go into the dance and some wouldn’t. I helped arrest two boys under nineteen for drunkenness. Neither of these was in the dance that I know of. I have never arrested a girl there under age, but I took one drunk woman, [‘Blondie’, we called her] out of the dance hall. She was 35 or 40, or maybe older than that. ‘Blondie’ was supposed to be from California”. The witness did not know her.
¶11Continuing his testimony, the witness Hyde said: “As to the arrests made for drunkenness about this place, it happens very often that fellows go get whiskey and then come in a beer joint. When he comes in you think he is sober, and when he drinks a bottle or two of beer he gets drunk as a lord. . . . Some of those arrested at Alston’s place for drunkenness got drunk in some other place in town and then came down there. I have seen them come to this place and they would be pretty drunk when they got there”.
¶12Questions by the Court: “A moment ago, in describing the manner in which these persons became drunk, you stated that ‘it happened that some came in there when they had been drinking whiskey, then they would buy a bottle or two of beer and sit there fifteen or twenty minutes, and they would be drunk’, is that correct? Answer: “Yes, sir.” The Court: “Then you said you noticed some men come in and sit on stools and drink beer and become drunk?” Answer: “Yes, sir.” The Court: “Have you observed that in [Alston’s] place?” Answer: “That happens in all of these beer places”. The Court: “You are saying that this happened in Mr. Alston’s place, and has also happened in other places?” Answer: “Yes, sir! We drag them away from the counter where we see them drinking and take them to jail”. [The witness later stated that “Mr. Shelton took two out”] . . . “We picked up two or three boys who said they were nineteen years old. I have never seen the eighteen-year-old girls there.”
¶13Excerpts from testimony abstracted by the Attorney General serve to emphasize the conduct complained of by the State:
¶14Sheriff Bill Russell: “Alston runs a cafe and beer parlor and has a skating rink and dance hall. . ■. . Alston asked me to deputize Ellis Lauhon, and he stays there all the time. Lauhon is Recorder of the Town of Altus, elected by the people”. As a Deputy Sheriff, (paid by Alston on the basis of $5 for each night he worked "directing parking”) Lauhon thought "tfiat when a car drove up and some one got out and we found it necessary to arrest them before they were in Alston’s place, it was plain to know that they got drunk in some other place.”
¶15Prom the abstracted testimony of Jim Hyde: (Question on cross-examination relating to drunks on stools): "They could have gotten drunk at some other place in town and they come in down there?” Answer: "That is right; some of them fell when they came in”. Question: "You have never observed them selling beer to minors?” Answer: "Only what these boys said”. Question: "Did you say there was a night when it seemed that everybody was drunk ? ’ ’ Answer: " No, sir! I said drunks run something like traffic on the highway — you can see lots of it sometimes, and then none for awhile. . . . About five is as many as we ever took [to jail on a single night]. We did bring up six, but one got away. . . . Mr. Shelton and I walked through once in awhile, and you can tell when they are getting drunk. ... I am not singling out Mr. Alston’s place; [the illustration] applies to all of them. ... I think Jim [Alston] wants his place run ‘nice’, because he never makes a kick about us getting anybody”.
¶16Against this testimony and other evidence somewhat similar, there is appellant’s denial and the testimony of these who do not pretend to have personal information, that they have heard that Alston runs an orderly place and that he does not permit law violations.
¶17There is no suggestion that the proceedings against Alston were motivated by political prejudice, personal unfairness, or because of spitefulness. The record clearly reflects that the Prosecuting Attorney’s conduct was motivated by a desire to discharge his official duties in circumstances showing extreme difficulty in meeting local unwillingness to testify against a resident. For this Mr. PartainHs to be commended. The proof does not justify us in nullifying the Prosecuting Attorney’s work in behalf of public morals and law enforcement by lightly brushing aside proven violations of law because there were but few and appellant’s financial investments were heavy.
¶18I think the unintentional error of the majority opinion is its assumption that a protracted course of illegal conduct must be established before it can be said that a case has been established by preponderating evidence. One can not read statements of the prosecuting witnesses without concluding that their official duties upon the one hand and their personal friendship upon the other had coalesced to an extent subsidizing intellectual frankness — something always to be suspected where the State must rely upon testimony of someone Avho is paid by the defendant.
¶19And yet, in spite of this procedural difficulty, there is implicit in the examinations all that the prosecution was required to show. In addition there is positive testimony — not inferences, that near-drunks were served with beer while occupying stools at the counter, that minors drank — admittedly on occasions; that half of the arrests made in the entire town occurred on appellant’s premises, where empty whiskey bottles were scattered; that young people, from age fifteen up, congregated to become patrons of the same proprietor’s dance hall when it should open, where “JBlondie’s” conduct, both before and after arrest, was not calculated to promote admiration for grog-shop deportment or inspire juvenile respect for the kind of entertainment recommended by the State.
¶20The sale of intoxicants, as has so often been said, is a mere license, as contrasted with a right. The State may attach any condition it chooses, and the seller must abide the consequences of his own mistakes as well as the misconduct of those with whom he surrounds himself, either as agents, employes, or invitees. His obligation is not only that he will not violate the law, but that he will not permit it to be violated on or within the business environments of the place he operates.
¶21(dissenting). From a reading of the transcript in this case, I reach the following conclusions:
¶22(1) —-There is sufficient evidence of sales of liquor to minors to justify the injunction against the beer parlor. The evidence in this case, as to drinking by minors in the beer parlor, is similar to the evidence in Digiacomo v. State, 194 Ark. 24, 105 S. W. 2d 78; so I dissent from the majority holding as reg'ards the beer parlor.
¶23(2) —There is not sufficient evidence to support the injunction closing the dance hall; and on that issue I agree with the majority.