Mahlon Pitney

“ Therefore the argument that a livery stable is not a nuisance per se, which is much insisted upon by plaintiffs in error, is beside the question. Granting that it is not a nuisance per se, it is clearly within the police power of the state to regulate the business, and to that end to declare that in particular circumstances and in particular localities a livery stable shall be deemed a nuisance in fact and in law, provided this power is not exerted arbitrarily, or with unjust discrimination, so as to infringe upon rights guaranteed by the 14th Amendment. ”

“ If the record, including the opinion, leaves it a matter of doubtful inference upon what basis of fact the state court rested its decision of the Federal question, it seems to us very plain, upon general principles, that we ought to assume, so far as the state of the record permits, that it adopted such a basis of fact as would most clearly sustain its judgment. ”

“ Plaintiffs in error insist that it is to be [p178] decided upon the basis of the averments contained in their complaint, because the supreme court ordered the complaint to be dismissed for want of equity. But it seems that in the practice of the courts of Arkansas, as elsewhere, the expression "dismissed for want of equity" is employed to indicate a decision upon the merits, as distinguished from one based upon a formal defect or default ”