dissenting.
It is important to emphasize that the sale of “fermented malt beverages” is covered by sections one to fourteen, chapter 89, ’35 Colorado Statutes Annotated, designated there as article 1, and the sale of “malt, vinous or spirituous liquors” by sections fifteen to forty-seven, same chapter and compilation, designated as article 2. The first group of sections, or article 1, the “fermented malt beverage” law, was approved April 11, 1935, while the second group, or article 2, the “malt, vinous or spirituous liquors” law, was approved April 12, 1935. In short they were separate acts. Loosely, the first act has to do with nonintoxicating beverages, and the second act with intoxicating liquors. Or, as stated in the court’s opinion, “Under our statutes the term ‘fermented malt beverages’ means any such beverages containing not more than 3.2 per cent of alcohol by-weight, and their manufacture and sale are regulated by separate laws from those regulating the manufacture and sale of other alcoholic liquors, which are classified as malt, vinous and spirituous liquors.”
By their first complaint plaintiffs alleged that they were “engaged in the dispensing of fermented malt beverages,” and in an amended complaint they alleged that they were “engaged in the dispensing of fermented malt beverages and malt and vinous liquors.” More simply stated, by their first complaint plaintiffs (all of them) claimed to be operating under article one of chapter 89, but in their amended complaint all alleged that they were operating under both articles, not some of them, identified, under article 1, and the remaining ones, identified, under article 2.
They further alleged that defendant board of county commissioners had adopted a certain resolution which it has “enforced, and threatens to continue to enforce,” preventing the “sale of malt or vinous and fermented malt beverages between the hours of 12.00 o’clock mid*197night on Saturday and 8.00 a. m. on Monday of each week.” They further alleged that “said resolution is arbitrary, unlawful and inconsistent,” etc., and that there is “uncertainty and doubt as to the rights of these plaintiffs and of other persons similarly situated,” etc. Their prayer was for preliminary and permanent injunction, and for a declaratory judgment, “determining and adjudicating that said resolution is null and void and of no legal effect.” Defendant, answering, while not denying that all the plaintiffs were engaged in dispensing intoxicating liquors pursuant to article 2 of the law, nevertheless did deny that all of them were engaged in dispensing fermented malt beverages pursuant to article 1 thereof. It admitted the adoption and enforcement of the challenged resolution, its purpose to continue to enforce it, and the existence of certain statutes identified by plaintiffs as section 3, article 1, and .section 17, article 2, chapter 89, ’35 Colorado Statutes Annotated, quoted in paragraph 4 of the amended complaint; but it denied that said resolution is “arbitrary, unlawful and inconsistent with the provisions” of said sections of the statute. Based on its answer, defendant prayed for dismissal. Furthermore, a motion to that effect was appropriately and timely interposed by defendant. The motion was denied by the trial court, but I think it should have been sustained. But since after ..the incoming of the answer, the court granted defendant’s- motion for summary judgment, that which I think should have been done earlier, was quite as effectively accomplished by virtue of the motion which the court did grant, and perhaps more appropriately. In short, the final order resulted in judgment of dismissal, which was precisely what defendant prayed for.
Considering the joinder of plaintiffs in the light of the allegations, the question is, Was the action maintainable? Or, otherwise queried, Did not plaintiffs, judged only on their own showing, reveal a situation not maintainable by them jointly? A preliminary ob*198servation is, that, only plaintiffs are seeking relief — defendant seeks nothing. It stands on the resolution, which, as it is important to note, plaintiffs, standing on their allegations, confess they are observing. In granting defendant’s motion for summary judgment, the sum thereof, and the situation understandingly appraised, was that the status of the parties remained as it was before the action was instituted. That in the course of the trial court’s decision, it paused to discuss the merits of the controversy does not justify us in determining the law in a case presented by plaintiffs incompetently joined, and who, proceeding contrary to express statutory inhibitions, presently to be made clear, confessedly are operating under both articles of the statute.
1. By their allegations, as I conceive, plaintiffs pleaded themselves outside the pale, and, as I further conceive, no self-respecting minister of justice could have resolved other than did the distinguished trial jurist in his final order. Whether based on the allegations of the first complaint or the amended complaint, or both, plaintiffs were engaged in dispensing , fermented malt beverages, and consequently were operating pursuant to article 1 of the act, and some of them, and, their allegations considered, all of them—and there was no showing otherwise.—-were dispensing intoxicating liquors as well, which means that at one and the same time they were conducting establishments in which they sold both intoxicating liquors and fermented malt beverages. Such action is specifically barred by sections 5 and 12, chapter 89, ’35 Colorado Statutes Annotated.
2. In their first complaint, as already stated, all plaintiffs were claiming under article 1 of the act. In that view there was proper joinder of plaintiffs; but in the amended complaint, while still claiming under article 1, plaintiffs sought also to claim under article 2. In addition to the fact that the law inhibits the right of any to operate their establishments under both acts, and which should move us to order dismissal of the action, *199the court’s opinion necessarily is based upon the conclusion that some of the plaintiffs are operating under one statute and the others under another statute. Such construction, logically applied, indicates fatal misjoinder of parties plaintiff, and that likewise requires an order of dismissal. Where the “question of law * * * is common to all” in a given controversy, other necessary factors being present, there may be joinder of plaintiffs. Rule 20, R.C.P. Colo. Although, as already seen, plaintiffs did not allege, or even intimate, that some of them, identified, were dispensing nonintoxicants, and the remaining ones were dispensing intoxicants, the court here, assuming there were such groups, and proceeding on the premise born of that assumption, determined that one statute applied to one of the groups, and another statute to the other group, and adjudged that the group coming within the category of article 1 of the law must observe the resolution involved, and the group comprehended in article 2 of the law were absolved therefrom. It follows that, considered on the premise resulting from their pleading, plaintiffs stand thwarted by the law which forbids the sale. of both fermented malt beverages and intoxicating liquors in the same establishment; and on the premise conjured by the court here that plaintiffs consist of two distinct groups, one operating under article 1 of the law and the other group under article 2 thereof, they stand defeated because of their misjoinder, their several causes not being determinable on a “law common to all.” Incidentally, although the court here has conceived greatly and written mightily, law enforcement officers will scan its opinion vainly for light as they ponder the problem involved in’ keeping taverns operating in the circumstances here, both closed and open on Sunday. Indeed, the operators themselves, and their counsel as well, will not be able to proceed without concern born of uncertainty.
3. It is evident that the amended complaint is a departure from the first complaint. Originally, all of *200plaintiffs invoked the same law, or article 1, which justified joinder; but by their amended complaint they claimed under diverse statutes, some of them, as the court here regards them, invoking article 1, and the others invoking article 2, which by every rule reflects misjoinder. Reasonably, since plaintiffs originally pleaded that they were conducting taverns pursuant to the fermented malt beverages act, and in an amended complaint pleaded the same thing again, and added that they also were conducting their taverns pursuant to the intoxicating liquors act, not maintainable jointly, for disposition here plaintiffs should be regarded as invoking only the fermented malt beverages act. Counsel for the county commissioners so regarded it, and declined to argue on plaintiffs’ attempted joint claim under both statutes. The result in that regard is that, in so far as it pertains to intoxicating liquors, the court’s opinion was written sans argument in behalf of the county commissioners. Considering the gravity of the question, I challenge the wisdom of such disposition. The case should be dismissed, so that those plaintiffs who are licensed to dispense fermented malt beverages, and identifying themselves accordingly, may invoke article 1, and that in a separate action those licensed to dispense intoxicating liquors, consistently identifying themselves, may proceed under article 2 of the law. Thus, and only thereby, may issues competently be presented' and determined.
4. Considering what we have said in Mulcahy v. Johnson, 80 Colo. 499, 252 Pac. 816, and in Gabriel v. Regents, 83 Colo. 582, 267 Pac. 407, I gravely doubt the right of plaintiffs, in the situation here, to maintain actions for declaratory judgment. In the Mulcahy case we said that courts may not be interested in questions which have not arisen. In the sense of what I conceive to have been our meaning there, the question which plaintiffs seek to have determined here has not arisen; plaintiffs are observing the resolution against which *201they inveigh. In the Gabriel case we cited Mulcahy v. Johnson, and applied the doctrine thereof in a declaratory judgment case.
5. With all respect to my brethren who are responsible for the court’s opinion, and the judgment that taverns dispensing intoxicating liquors in Morgan county may remain open throughout Sundays, I regard such judgment, the record considered, as a gratuitous yielding to the improperly joined plaintiffs, who plead that they “are complying with the resolution, but such compliance inevitably damages their business heretofore had between 8 a. m. and 8 p. m. on Sundays.” The county commissioners of the county involved, weighing what they believed would promote the interest of the people they were honored to serve, against the extra profits plaintiffs engaged in selling intoxicating liquors would derive from operating their taverns on Sunday— profits that those engaged in other businesses disdain to seek—resolved that such places should be closed on Sunday. The Honorable George C. Twombly, local district judge, before whom the right of the county commissioners to adopt and enforce the resolution- was presented for determination, adjudged that the commissioners had kept within the law and performed “a reasonable and commendable” service. Let those who will, visit open Sunday taverns on a people thus circumstanced, but I will have none of it. Indeed, until such of the plaintiffs as are engaged in dispensing intoxicating liquors shall boldly proclaim their calling wholly disengaged with those dispensing nonintoxicants, and seek relief on their own status, I shall decline to give thought thereto. A new action, a fresh start, would not be more than fair to the county commissioners, nor less than fair to plaintiffs.
Mr. Justice Alter concurs in this dissenting opinion.