“[I]mportant questions [should] be pounded out on the anvil of advocacy by persons whose interests are | ^vitally real, not academic, with all interested parties before the court.”
How later courts described this case
- “[I]mportant questions [should] be pounded out on the anvil of advocacy by persons whose interests are | ^vitally real, not academic, with all interested parties before the court.”
Written by the judges who cited it.
The opinion
John A. Fogleman, Justice, concurring. I concur in the result reached in this case without any reservation, but I would also affirm the action of the trial court because appellant had no right to be protected or .interest sufficient to provide the justiciable controversy necessary for an action such as this, either individually or as a citizen, taxpayer and elector of one senatorial district.
A litigant can question a statute’s validity only when and insofar as it is being, or is about to be applied to his disadvantage and a demurrer properly raises this point. Dowell v. School Dist. No. 1, 220 Ark. 828 , 250 S. W. 2d 127 ; Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206 , 41 S. W. 2d 755 ; Ferguson v. Hudson, 143 Ark. 187 , 220 S. W. 306 ; Lienhart v. Burton, 207 Ark. 536 , 181 S. W. 2d 468 ; Citizens Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309 , 10 S. W. 2d 493 ; Connor v. Blackwood, 176 Ark. 139 , 2 S. W. 2d 44 ; Priest v. Mack, 194 Ark. 788 , 109 S. W. 2d 665 .
While these authorities have to do with statutes, we apply the same rules to constitutional provisions as we do to statutes when called upon for construction.
If appellant has any litigable right at all, there is no showing of any kind what the Senate, as distinguished from five of its members, intends or is about to do in the matter.
If appellant has any litigable rights, they are political rights,, not civil or property rights, and were not Within the jurisdiction of the chancery court; so the demurrer. should have been sustained for that reason. Gladish v. Lovewell, 95 Ark. 618 , 130 S. W. 579 ; Walls v. Brundidge, 109 Ark. 250 , 160 S. W. 230 ; Davis v. Wilson, 183 Ark. 271 , 35 S. W. 2d 1020 ; Seabolt v. Moses, 220 Ark. 242 , 247 S. W. 2d 24 .
Of course, a question of jurisdiction of the subject matter cannot be waived by the parties, can be raised at any time and even if not raised, must be determined by the court. McCain, Commissioner of Labor v. Crossett Lumber Co., 206 Ark. 51 , 174 S. W. 2d 114 .
The declaratory judgment act is not intended to be the vehicle for advisory opinions to persons not having a justiciable controversy with their apparent adversaries by a court having no jurisdiction. It is far better, in my opinion, that important questions, particularly constitutional ones, be pounded out on the anvil of advocacy by persons whose interests are vitally real, not academic, with all interested parties before the court.