dissenting. My dissent goes primarily to the three-judge plurality opinion, which expresses the view that the case should be dismissed because an action for mandamus is not the proper remedy. I am firmly of the opinion that the principal issue should be faced and decided — not side-stepped, as the plurality opinion has done. In fact, four of the seven judges are reaching the merits of the case.
The original parties to the case have asked us to decide what all the parties, including the intervenors, have stipulated to be the only substantive legal issue: the validity of private club permits. The plaintiffs brought the suit for the single purpose of having that question decided. The only defendant, the Director of the Alcoholic Beverage Control Board, appearing by counsel, closed his oral argument in this court by stating positively: “We ask that this case be decided on the merits; we want to know our position under the law.”
Despite that bipartisan request, the plurality opinion avoids the issue by pointing out that a suit for a declaratory judgment would be a proper remedy. I agree, but our duty to treat a mandamus action as one for a declaratory judgment was established more than 20 years ago. Culp v. Scurlock, 225 Ark. 749, 284 S.W. 2d 851 (1955). There, as here, it was argued that mandamus is not the proper method of raising an important issue of public interest (in that instance, the meaning of a statute). Our answer was short and unmistakably clear:
It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute . . . Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes. [Citing authorities.] This complaint states all the facts necessary to a petition for a declaratory judgment, and it is the statement of facts rather than the prayer for relief that makes up the cause of action. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633. Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits.
We so decided it, our opinion ending with this directive: “Reversed, a declaratory judgment to be entered here.”
Two main arguments have been made against the propriety of settling this litigation once and for all by a declaratory judgment. It is said, first, that all necessary parties may not be represented and, second, that the property rights of absent persons may be affected.
The two arguments go hand in hand and may be discussed as one. If a declaratory judgment suit had been brought to begin with, it would probably have been a class suit, for the number of private clubs and the membership in the unincorporated ones must run to thousands. Yet the case at bar has in substance become a class suit, for the intervenors and the friends of the court include legitimate clubs of every kind envisaged by the statute; that is, country clubs and veterans’ organizations, some in wet counties and some in dry ones. None is unrepresented. The intervenors had the opportunity to stand aloof and insist upon their being sued as representatives of the class. They rejected that alternative and actively took part in the case. They should not be able to have it both ways.
As to property rights, the intervenors and the friends of the court are here only because they all affirmatively insist that their property rights will be affected by the decision. The intervenors participated fully in the trial, joined in the stipulation of facts, and had the opportunity to present or proffer proof. Moreover, afte the circuit judge refused to allow his judgment to be superseded, the intervenors obtained a supersedeas in this court by asserting positively that the property rights of private clubs throughout the state were at stake. Upon this record it cannot reasonably be said that the holders of property rights in the private clubs have not had their day in court.
Parenthetically, the makeweight reasons adduced by the plurality are specious. The suggestion that the Director’s duty is not clear because the members of this court are in disagreement implies that a writ of mandamus can be issued only by a unanimous court — an absurdity. That the trial judge did not treat the case as one for a declaratory judgment was also true in Culp v. Scurlock, but we so treated it. Finally, judicial restraint deters me from commenting upon the plurality’s statement that they “believe that an early determination of the substantive legal question which the appellees attempt to present is a desirable end.” Indeed?
Inasmuch as the plurality opinion does not reach the validity of Act 132 of 1969, as it applies to privat'e clubs, and the rest of us are not in agreement, my comments upon that issue are brief. Act 132 was intended primarily to permit the open sale of intoxicants by large restaurants and hotels, for consumption on the premises. Section 2 declares that purpose. The act levies a minimum $500 annual privilege tax and a 10% supplemental tax upon gross receipts from the sale of intoxicants. Sections 7 and 8. I do not understand the validity of the act to be questioned, insofar as it applies to sales by restaurants and hotels pursuant to a local option election held under Section 4 (d) of the act.
Section 10 of Act 132 authorizes the issuance of similar permits to certain private clubs, which, under Section 2, must have at least 100 members and must have been in existence for a year or more before the permit is applied for. Section 10 declares that the “preparation, mixing and serving” of mixed drinks under a “locker,” “pool,” or “revolving fund” system is not a sale. The section, however, levies the same $500 annual privilege tax and the same 10% supplemental gross receipts tax as those levied upon restaurants and hotels, except that in the case of private clubs the 10% tax is upon the gross receipts derived from “charges” made for the preparation, cooling, and serving of mixed drinks or beer drawn from the private stocks of club members. The only issue raised by lhe plaintiffs’ complaint and by the stipulated facts is whether Act 132 is valid with regard to private clubs that comply meticulously with its provisions. (Of course, we are all aware, by common knowledge, that private clubs in restaurants and hotels in strictly dry counties do not meticulously comply with the act; but that matter is not before us.)
The private-club provision of Act 132 is invalid if it amended Initiated Act 1 of 1942, because Act 132 did not receive a two-thirds vote in the Senate. I do not see how it can be seriously argued that the later act did not amend the earlier one. Initiated Act 1 provided for local option elections to prohibit the issuance of licenses for “the manufacture or sale, or the bartering, loaning or giving away of intoxicating liquor.” Ark. Stat. Ann. § 48-801 (Repl. 1964). With respect to the Thorn Liquor Law (Act 108 of 1935), the language of Initiated Act 1 created a completely effective local option law, because the Thorn act permitted the issuance of a retailer’s license for the distribution of intoxicants only in areas that had voted wet. Act 132 of 1969 purports to authorize the issuance of comparable licenses to private clubs in dry areas. The conflict between Act 132 and Initiated Act 1 is unmistakable. What one forbids, the other allows.
The argument by the appellants seems to be that the Initiated Act prohibited only the manufacture, sale, bartering, lending, or giving away of intoxicants. Upon that reasoning Act 132 is said to be valid, because the dispensing of such beverages under a locker, pool, or revolving fund system is not manufacturing, selling, bartering, lending, or giving away.
With respect, I think that argument verges on nonsense. The words of Initiated Act 1 must be read as a unit, expressing a single purpose rather than a multiple one. The issue in a wet-dry election, which is what the submission of Act 1 amounted to, is “wet or dry,” not “wet, dry, or moisturized.” True, the Initiated Act did not explicitly prohibit a locker, pool, or revolving fund system, nor, for that matter, did it explicitly prohibit the raffling off, growler rushing, or mortgaging of intoxicants. All the same, the people’s intent was clear, just as it was in the Eighteenth Amendment to the national Constitution, which referred only to the manufacture, sale, or transportation of intoxicants. Neither measure was designed to leave a loophole big enough to drive a beer truck through. I think it our duty to give effect to the people’s plain intent.
Roy, J., joins this opinion.