concurring. I wholeheartedly agree with Mr. Justice Smith that the issue in this case should be decided. Although it is true that the respondents in this case pleaded that mandamus was not the proper remedy, they have abandoned that position and are as anxious for the real issue to be decided as the petitioner is. In spite of this, the plurality has permitted intervenors and amici curiae to dominate and assume control of the litigation. The reasons for the Alcohol Control Board and its Director wanting a resolution of the question, without being put into a whole new squirrel cage of litigation are both obvious and appropriate. The reasons for interveners wanting to avoid the real issue by leading the petitioner through a jungle of barbed wire procedural entanglements may be as obvious, but not as appropriate. It is as if they seek to postpone the evil day of an inevitably unfavorable conclusion. More time, effort and argument have been directed toward the propriety of the remedy than to the real issue raised by the petitioners for mandamus. This case is a classic example of the reason that intervenors and amici curiae should not be permitted to control litigation into which they inject themselves, however properly. See Giles v. State, 261 Ark. 413, 549 S.W. 2d 479; Grayson v. Arrington, 225 Ark. 922, 286 S.W. 2d 501; Weber v. Pryor, Governor, 259 Ark. 153, 531 S.W. 2d 708. The interest of a citizen and taxpayer in having the laws enforced and public duties performed is sufficient basis for application for the writ. 52 Am. Jur. 2d 713, Mandamus § 390. See Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485; Buchanan v. Halpin, 176 Ark. 822, 4 S.W. 2d 510; Moses v. Kearney, 31 Ark. 261.
I do not agree that mandamus was not the proper remedy. It is designed to permit the citizen to force a public officer to perform his duty. See State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. The writ is an order of the circuit court commanding an executive, judicial or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law. Ark. Stat. Ann. § 33-102 (Repl. 1962). It is a plain, simple, direct and adequate remedy, when the validity of a statute is the only question involved. The requirement that a petitioner have no adequate remedy at law before he is entitled to mandamus does not mean that there must be absolutely no way in which he can come up with another remedy. An adequate remedy at law, sufficient to preclude mandamus, is a remedy which is plain and complete, as practical and efficient to the ends of justice and the proper administration thereof as the remedy invoked. Ghent v. State, 189 Ark. 747, 75 S.W. 2d 67. There we said that the adequate remedy contemplated by the law must be one which itself enforces in some way the performance of the particular duty and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance.
Obviously, had appellees pursued the matter by seeking a declaratory judgment, they would have been confronted by many questions. The first would probably have been that no litigation was threatened. See Jessup v. Carmichael, 224 Ark. 230, 272 S.W. 2d 438. The next question raised would have been compliance with Ark. Stat. Ann. § 34-2510 (Repl. 1962). That section requires that all persons be made parties who claim any interest which would be affected by the declaration and the declaration would not prejudice the rights of persons not parties to the proceeding. McFarlin v. Kelly, 246 Ark. 1237, 442 S.W. 2d 183; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21. The flood of interventions and the abundance of amici curiae clearly show that this remedy would not have been plain or practical. And then, a declaratory judgment is not self-executing. After obtaining a favorable judgment, the appellees would have been required to apply to the court for the relief they sought by mandamus and then any adverse party would be permitted, after reasonable notice, to show cause why this relief should not be granted. Ark. Stat. Ann. § 34-2507 (Repl. 1962). This is not the plain, complete, practical and efficient remedy contemplated as a bar to mandamus.
The alternate remedy must be well adapted to remedy the wrong complained of and if it is inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. If resort to further action might be necessary to enforcement of the right after pursuing the other remedy, the court may properly issue the writ. Huie v. Barkman, 179 Ark. 772, 18 S.W. 2d 334. There was no abuse of the trial court’s discretion in determining that mandamus was the proper remedy. We should not hold that it was an abuse of discretion. In my view, it is an abuse of discretion to hold that he erred in this respect.
I particularly deplore the plurality’s taking the stance that constitutional questions are not to be decided in a mandamus proceeding. There is ample authority to the contrary. See 52 Am. Jur. 2d 418, Mandamus 95. The position taken on this point by the plurality of this court is definitely a minority view. The difficulty of the-legal questions presented is not an excuse for the denial of relief on the ground that there is no clear legal right to the remedy. 55 CJS 93, Mandamus, § 53. The fact that there is a disputed question of law and the construction of a statute involved does not make mandamus unavailable. 55 CJS 95, Mandamus § 53. What is even more important is the public interest involved, as is always the case when any element of the alcohol problem is treated. The public interest demands that the question be settled one way or the other. The public interest may be the actuating reason for granting the writ, even though the petitioner may not have a clear legal right thereto. 52 Am. Jur. 2d 360, Mandamus § 35. If public policy demands an early determination of the issues involved, the court may grant the writ if the circumstances warrant, notwithstanding the existence of another remedy. 52 Am. Jur. 2d 372, 375, Mandamus §§ 46, 49.
I have quite a different view from that of my brother Smith as to what is nonsense and what isn’t. In my view, the two acts in question are not in irreconcilable conflict and Act 132 of 1969 should be held valid.
Jn approaching the question, we must start with the strong presumption that the legislative act is valid. State v. Moore, 76 Ark. 197, 88 S.W. 881, 70 LRA 671; Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634. All doubts must be resolved in favor of constitutionality and the courts must construe an act so it will meet the test of constitutionality if it is possible to do so. Stone v. State, supra. Then we must not ignore the expressed intent of the legislature but must give effect to its language if reasonably possible to do so. 82 CJS 583, Statutes, § 322; 73 Am. Jur. 2d 362, Statutes, § 158. See State v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 606, 174 S.W. 248; City of Ft. Smith v. Gunter, 106 Ark. 371, 154 S.W. 181. In § 1, the General Assembly reaffirmed the public policy of the state that the qualified electors of any political subdivision have the right of local option to prohibit the sale or manufacture of intoxicating liquor therein pursuant to Initiated Act 1 of 1942. In § 20, it stated the legislative intent thus:
* * * Nothing in this Act shall be construed to authorize the sale of alcoholic liquors or beer, or to allow the issuance of any permit therefor, in any ward or portion of a city, or in any county, or portion thereof, in which the sale of alcoholic liquors or beer is prohibited pursuant to local option election held under the Initiated Act, nor shall anything in this Act be deemed to amend or repeal any of the provisions of said Initiated Act.
I agree that if there is an irreconcilable conflict between Act 132 and Initiated Act 1 of 1942, that the legislature could not either repeal or amend the Initiated Act on the vote recorded on the later act. But we should not declare the express declaration of the legislative intent to be nonsense, if it is possible to construe the act in accordance with that intent.
If I could find any definition of the acts prohibited in dry territory by Initiated Act 1, contrary to Act 132, I would agree that Act 132 was invalid insofar as dry territory is concerned. Initiated Act No. 1 makes it unlawful to manufacture, sell, barter, loan or give away intoxicating liquor in any county, township, municipality, ward or precinct in which the manufacture or sale is prohibited by a local option election. At such elections the voters voted for or against the manufacture or sale of intoxicating liquors, not “wet or dry.”,The prohibited acts are not further defined. In Act 132, the General Assembly said:
Section 10. (a) The General Assembly recognizes that many individuals in this State serve mixed drinks containing alcoholic beverages to their friends and guests in the privacy of their homes and, in addition, many individuals associated together in private non-profit associations and/or corporations established for fraternal, patriotic, recreational, political, social or other mutual purposes as authorized by law, established not for pecuniary gain, have, for their mutual convenience, provided for the preparation and serving to themselves and their guests of mixed drinks prepared from alcoholic beverages owned by such members individually or in common under a so-called ‘locker,5 ‘pool,5 or ‘revolving fund5 system. In order to clarify the alcoholic beverage control laws of this State, and to regulate and prohibit the sale of alcoholic beverages in violation of the provisions of this Act and other applicable alcoholic beverage control laws of this State, the General Assembly hereby determines that the preparation, mixing and serving of such mixed drinks, beer and wine for consumption only on the premises of a private club as defined in Section 2 (j) hereof by the members thereof and their guests, and the making of a charge for such services, shall not be deemed to be a sale or be in violation of any law of this State prohibiting the manufacture, sale, barter, loan or giving away of intoxicating liquor whenever:
(1) The alcoholic beverages, beer and wine so consumed have been furnished or drawn from private stocks thereof belonging to such members, individually or in common under a so-called ‘locker,’ ‘pool,’ or ‘revolving fund’ system, and are replenished only at the expense of such members;
(2) Such private club has acquired a permit from the Board, in such form as the Board may appropriately determine. No private club permitted hereunder shall sell alcoholic beverages either by the package or drink. Alcoholic beverages, beer and Wine owned by members may be stored on the premises of the club. If any permittee shall sell, barter, loan or give away any intoxicating liquor in violation of this Act or other alcoholic beverage control laws of this State, the permit of such club shall be revoked.
(c) The Alcoholic Beverage Control Board is hereby authorized and directed to establish rules and regulations with respect to permits issued under the provisions of this Section to assure compliance with the provisions hereof and to prohibit any permittee from engaging in the unlawful sale of alcoholic beverages.
I have searched for any definition of the acts prohibited by Initiated Act 1 other than the statement contained in the act itself. I have found none. I submit, therefore, that the later act did not amend Initiated Act 1 by changing any definition of those terms.
I find that the legislature has taken a position very similar to that this court took many years ago in sustaining the conviction of one accused of selling intoxicating liquor without a license. The court, in rejecting an argument made by the accused, made a distinction that fully recognized the possibility of similar legal transactions which would not constitute a sale. In Hunter v. State, 60 Ark. 312, 30 S.W. 42, the court said:
* * * It is said by appellant’s counsel, in argument, that “any personal property may be purchased and held by the purchasers as tenants in common.” But a tenancy in common is not created by several purchases of distinct and specific portions of common property, for it is said: “Tenants in common are generally defined to be such as hold the same land together by several and distinct titles, but by unity of possession, because none knows his own severalty, and therefore all occupy promiscuously.” Black, Law Diet. The purchases in this case were not like the purchases made by the servant or employe of a club, or partnership, or other persons acting in a body as one person, for in such case each does not buy a specific quantity, but the body buys, and each member of the body has an interest, not in any particular part or portion of the whole, but in every drop and particle, — something after the manner of a tenancy in common. * * *
See also, Fenix v. State, 90 Ark. 589, 120 S.W. 338; Whitmore v. State, 72 Ark. 14, 77 S.W. 598.
In my opinion Act 132 of 1969 neither amended nor repealed Initiated Act No. 1 and the trial court erred in so holding. I must add that the ineffectiveness of enforcement of Act 132 is not a matter to which this court should address itself. That is a matter that should be called to the attention of the executive and legislative branches and to the Alcohol Control Board and its Director. The fact that a permit fee is paid is an inappropriate basis for holding the act invalid. The cost of regulation should be borne by the permittees and the operation should be controlled. The imposition of a gross receipts tax on services rather than sales is not at all a novel approach in Arkansas. Ark. Stat. Ann. § 84-1903 (Repl. 1960 and Supp. 1975).
I would reverse the judgment and dismiss the proceeding.