The opinion
Conley Bybd, Justice. Appellants Alvin Bell, Theo Money, John Cage and Walter L. Hinton, Jr., director and board members of the Arkansas Alcohol Beverage Control, appeal from a chancery court decision holding invalid Act 352 of 1939 because a majority of the Senate did not vote in its favor as required by Ark. Const, art. 5 § 22. The only point on appeal is that the chancery court did not have jurisdiction of the subject matter.
In her petition for declaratory judgment appellee, Martha L. Adams, stated that her request to move the location of her liquor permit from the city of Forrest City to a place outside thereof had been denied solely because of the prohibition against the location of liquor stores outside city limits contained in Act 352 of 1939. She alleged the act was invalid because the Senate Journal showed that a majority of the Senate did not vote for its passage as required by art. 5 § 22 of the Constitution when the vote of Hon. Paul Gutensohn—whom we held to be neither a de jure nor a de facto senator in Matthews v. Bailey, 198 Ark. 830 , 131 S. W. 2d 425 (1939)—was not counted. Appellants’ response, in addition to the admission and denial of certain facts, affirmatively prayed for a determination of the constitutional validity of the act. This matter was presented to the chancellor upon stipulated facts and the authenticated copies of the Senate Journal. Thus the jurisdictional issue here raised was not presented to the trial court.
We have consistently held that where a defendant has answered and not reserved any objection to the court’s jurisdiction on the ground that there is an adequate remedy at law, he can not raise the issue for the first time on appeal. See Reid v. Karoley, 232 Ark. 261 , 337 S. W. 2d 648 (1960), and Taylor v. Bank of Mulberry, 177 Ark. 1091 , 9 S. W. 2d 578 (1928).
While the sale of intoxicating liquor has been held a mere privilege subject to the exercise of the police power, Gipson v. Morley, Comm’r of Revenues, 217 Ark. 560 , 233 S. W. 2d 79 (1950), it does not follow that a permit validly issued or subject to issue is not entitled to the protection of a court of equity. To hold that the location at which one can exercise such a privilege is not an economic right, as distinguished from a mere political right (see Catlett v. Republican Party 242 Ark. 283 , 413 S. W 2d 651 [1967]), for purposes of equity jurisdiction would require us to ignore the practical fact that the sale of liquor is a remunerative business.
Furthermore, it appears that exhaustion of administrative remedies through the Board under Ark. Stat. Ann. §§ 48-1313 to -1316 (Repl. 1964) would have been futile because of the prohibition in Act 352 against such location. Under such circumstances it is often recognized that the failure to exhaust such remedies is not a prerequisite to judicial relief. See 2 Am. Jur. 2d Administrative Law § 605. However, we do not reach the issue here since it was not raised in the trial court.
Affirmed.
Harris, C. J., dissents.