{
  "id": 1642531,
  "name": "Ladwig v. The Arlington Hotel Company",
  "name_abbreviation": "Ladwig v. Arlington Hotel Co.",
  "decision_date": "1956-02-13",
  "docket_number": "5-853",
  "first_page": "972",
  "last_page": "975",
  "citations": [
    {
      "type": "official",
      "cite": "225 Ark. 972"
    },
    {
      "type": "parallel",
      "cite": "286 S.W.2d 853"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "223 Ark. 559",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "opinion_index": 0,
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    {
      "cite": "78 S. W. 2d 70",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "opinion_index": 0
    },
    {
      "cite": "190 Ark. 218",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "294 S. W. 33",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "173 Ark. 989",
      "category": "reporters:state",
      "reporter": "Ark.",
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        8725438
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    {
      "cite": "96 S. W. 119",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "79 Ark. 517",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1495680
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  "analysis": {
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  "last_updated": "2023-07-14T16:45:58.446055+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Justice Ward dissents."
    ],
    "parties": [
      "Ladwig v. The Arlington Hotel Company."
    ],
    "opinions": [
      {
        "text": "Minor W. Millwee, Associate Justice.\nAppellees are the owners of certain hotels and bathhouses located outside the boundaries of Hot Springs National Park but within the city of Hot Springs, Arkansas, and are engaged in the business of giving baths in the therapeutic waters of the government-owned hot springs. Appellants are the officers and members of the \u201cArkansas Board of Massage, \u2019 \u2019 created pursuant to Act 180 of 1951, which is known as the \u201cMassage Registration Act.\u201d\nAppellants brought this suit alleging appellees were employing many persons as masseurs and masseuses who were unqualified to engage in the practice of massaging because of their failure to obtain a certificate of registration in compliance with Act 180, and that such employment was in violation of Section 3 of said act. None of said employees were made defendants to the suit, it being alleged that individual criminal action against them would be so numerous that adequate relief could not be obtained against the irreparable injury which it was further alleged the public would suffer by failure of appellees to comply with the act. Appellants asked that appellees be enjoined from further violation of Sec. 3 (b) of said act.\nAppellees demurred to the complaint on the following grounds: 1. The complaint does not state facts sufficient to constitute a cause of action. 2. Plaintiffs have no legal capacity to sue. 3. There is a defect of parties plaintiff. 4. There is a defect of parties defendant. The chancellor sustained the demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action against appellees and overruled it as to other grounds urged. Upon appellants \u2019 failure to plead further, the complaint was dismissed. The appellant board members have appealed and part of the appellees have cross-appealed from the action of the court in refusing to sustain the demurrer on the additional grounds of,appellants\u2019 incapacity to sue and a defect of parties defendant.\nThe question on direct appeal is whether the complaint stated a cause of action against appellees for violation of Section 3 (b) of Act 180 of 1951 [Ark. Stats., Sec. 72-1203 (b)] which reads:\n\u201cIt shall be unlawful for any person or persons to operate or conduct any Massage Establishment which does not conform to the sanitary regulations herein contained, or which may be adopted by the Board created herein, or to employ any person or persons as an operator or instructor who does not hold a certificate of registration, or to open and conduct a Massage Establishment or School in a place of residence in the State of Arkansas.\u201d (Italics supplied.)\nIt should be noted that the complaint does not charge that appellees failed to conform to sanitary regulations contained in the act, nor that they conducted a massage establishment or school in a \u201cresidence.\u201d So the real issue is whether the only other prohibition in Sec. 3 (b) makes it unlawful for appellees to employ any person as a masseur or masseuse who does not hold a certificate of registration, as appellants contend, or whether it merely makes it unlawful for them to employ any person as an \u201coperator\u201d of a massage establishment or an \u201cinstructor\u201d in a massage school if such person does not hold a certificate of registration, as appellees insist. We think the chancellor correctly adopted the latter view.\nTo adopt appellants\u2019 contention, we must construe the word \u201coperator\u201d as having been used by the Legislature as synonymous with the words \u201cmasseur or masseuse. \u2019 \u2019 While it has various meanings, the Legislature obviously used the word \u201coperator\u201d in the subsection in the same sense that the word \u201coperate\u201d is used therein; and that is that an operator is \u201cone who operates\u201d a massage establishment, just as an \u201cinstructor\u201d is one who instructs at a massage school. This is the first and general definition given the word in Webster\u2019s New International Dictionary. This view is fortified by consideration of other sections of the act which define the terms, \u201cmasseur and masseuse,\u201d \u201cmassage establishment,\u201d \u201cmassage school\u201d and \u201cmassage,\u201d but do not define \u201coperator\u201d or \u201cinstructor.\u201d Section 11 of the act makes it unlawful for any person \u201cto own, manage or operate any massage school or establishment, \u2019 \u2019 unless certain sanitary requirements are met.\nEven if there were some ambiguity in the meaning to be placed on the wording of Section 3 (b), we would reach the same conclusion. The act is in derogation of the common law and is highly penal with a maximum penalty of a jail sentence of six months and a fine of $500 upon conviction for violation of its provisions. Under our well settled rule it must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. State v. International Harvester Company, 79 Ark. 517, 96 S. W. 119. As this court said in Holford v. State, 173 Ark. 989, 294 S. W. 33: \u201cThere is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature.\u201d See also, Giles v. State, 190 Ark. 218, 78 S. W. 2d 70.\nSince we have concluded that the trial court correctly dismissed the complaint against appellees on the ground that it did not state facts sufficient to constitute a cause of action against them, we find it unnecessary to determine the moot question as to whether the court erred in refusing to sustain the demurrer on other grounds as contended by some of the appellees on cross-appeal.\nAffirmed.\nJustice Ward dissents.\nIn Ladwig v. Nance, 223 Ark. 559, 267 S. W. 2d 314, we held that Act 180 had no application to bathhouses located within the Hot Springs National Park.",
        "type": "majority",
        "author": "Minor W. Millwee, Associate Justice."
      }
    ],
    "attorneys": [
      "Tom Gentry and Boy Finch, Jr., for appellant.",
      "House, Moses & Holmes; Wootton, Land & Matthews and Richard W. Hobbs, for appellee."
    ],
    "corrections": "",
    "head_matter": "Ladwig v. The Arlington Hotel Company.\n5-853\n286 S. W. 2d 853\nOpinion delivered February 13, 1956.\nTom Gentry and Boy Finch, Jr., for appellant.\nHouse, Moses & Holmes; Wootton, Land & Matthews and Richard W. Hobbs, for appellee."
  },
  "file_name": "0972-01",
  "first_page_order": 994,
  "last_page_order": 997
}