The opinion
Morris S. Arnold, Special Chief Justice, dissenting. In my opinion, this case comes here on an entirely improper footing. It is fundamental that even in an action for a declaratory judgment plaintiffs are required to claim and demonstrate that they have a legally protected interest which is being, or is about to be, invaded. Andres v. First Ark. Development Finance Corp., 230 Ark. 594 , 324 S.W.2d 97 (1959). The plaintiffs in this case have not done so. Instead, they rely solely on their status as citizens and taxpayers in a "dry” county to give themselves standing, and that is too frail a foundation on which to raise a real case. If the defendants had initiated this action, in an effort to discover whether their conduct was criminal, then the matter would be entirely different and the action might well have been properly brought. Covington, The Declaratory Judgments Act, 7 Ark. L. Rev. 306 at 312-13 (1953). The defendants would have an obvious sort of interest in knowing whether their actions might subject them to prosecution. But here the plaintiffs show little more than an undifferentiated and idle curiosity about the legality of activities engaged in by people most of whom are not even their neighbors. Courts ought to decide cases, not encourage voyeurism.
Since this record presents no justiciable controversy, if there were not special circumstances, the plaintiffs’ complaint ought simply to be dismissed. However, in Kemp-Bradford VFW Post v. Wood, 262 Ark. 168 , 554 S.W.2d 344 (1977), this court held that the issues presented here could not be raised by petition for mandamus to the Alcoholic Beverage Control Board (A.B.C.). One of the alternative bases on which that holding proceeded had to do with the extraordinary character of mandamus: Since, the court’s argument ran, a declaratory judgment action was available to try the validity of Ark. Stat. Ann. § 48-1410, the petition for mandamus was improperly brought. Although, as noted above, the propriety of a declaratory judgment action in these circumstances is dubious at best, and although its availability was only an alternative basis for the holding in Wood, it nevertheless seems appropriate to reach the merits of this case. The plaintiffs would at the very least be entitled to feel hard done by if we were to dismiss their complaint in the face of the assertions made in Wood.
Turning therefore to the merits, it appears that the abstract legal question that the plaintiffs asked to have decided was whether Ark. Stat. Ann. § 48-1410, which allows the A.B.C. to license private clubs in “dry” counties, conflicts on its face with Ark. Stat. Ann. § 48-803, an initiated act which prohibits the manufacture, sale, barter, loan, or gift of intoxicating liquor in “dry” counties. It is not necessary, in order to answer this question, to remand this case for evidence of what private clubs actually do: The meaning of § 48-1410 is entirely independent of the practices engaged in under it. In my view, there is no conflict between the relevant statutes. Since § 48-803 prohibits neither the possession nor consumption of alcoholic beverages in “dry” counties, it is entirely possible for private clubs to operate completely within the law in such counties. A simple example should suffice. If liquor is purchased in a “wet” county by a private club as agent for its members, and that liquor is later served to them in a “dry” county, there has been in the “dry” county only possession and consumption. There has been there no sale, barter, loan, or gift. Since, therefore, the two statutes can stand together, it follows that the trial court ought to be affirmed.
By remanding this case for a determination of the actual practices of the defendant private clubs, the majority has transformed the nature of the plaintiffs’ complaint. Though the matter is not completely free of doubt, it appears that what began as an action to determine the facial validity of a purported statute will now become a proceeding to determine the criminality of the actual activities of particular defendants. While this metamorphosis at least has the advantage of creating for the first time something like a real case for adjudication, it is a very peculiar kind of case indeed. In fact, it is one hitherto unknown to the common law of Arkansas. The majority today gives its sanction to something very close to a privately initiated criminal “action”, the difference being that apparently the end in view is only a declaration that certain behavior has been criminal, rather than the imposition of a pecuniary or corporal penalty. There are, it is true, legal systems in which private individuals are empowered to institute criminal proceedings, but the common law long ago abandoned that idea. Certainly such a procedure has not been authorized in Arkansas since civilian legal processes were replaced by common-law institutions soon after the French and Spanish ceded their sovereignty over Louisiana in 1803. Presumably, however, one aspect of civilian criminal process, its inquisitorial character, is unavailable to the plaintiffs on. remand, since their rights of discovery will be circumscribed by the Fifth Amendment to the United States Constitution.
It ought to be obvious that the proper way to determine the legality of the activities of private clubs in “dry” counties is in the context of a properly instituted criminal case where the issues can be developed and decided in light of a specific set of facts. There are numerous agencies to which the enforcement of the criminal law has been entrusted, and this court ought not to combine with these plaintiffs precipitously to invent novel criminal procedures. Even if it were admitted that members of the public have, in the technical sense, an interest in the proper enforcement of the criminal law, a proposition by no means obviously correct, our legal system has for good reason delegated the vindication of that interest to public authorities. This constitutional arrangement, made long ago and for so long adhered to, ought not lightly to be swept aside. With respect, it seems to me that the majority, motivated by a desire to have an important public question decided, has acted without warrant in reaching its conclusion.