(dissenting). I do not agree with the majority opinion. On the merits I would concur with the conclusions reached in the dissenting opinion of Mr. Justice Boyd Tackett. However, in my view it was error to reach the merits since there is absolutely no justiciable issue presented so as to invoke the applicability of Act 274 of 1953 [Ark. Stat. Ann. § 34-2501 (Repl. 1962) et seg.] popularly known as the Arkansas Declaratory Judgment Act. I reach this conclusion notwithstanding the magnanimity of the three-Judge Federal Court’s [Western Division of the Eastern District of Arkansas] deference to this court in its opinion of October 8, 1959.
On February 5, 1960 appellees filed suit in Pulaski Chancery Court against the Attorney General and certain Pulaski County officials praying for a declaratory judgment declaring Acts 12, 13, 14 and 16 of the Second Extra-ordinary Session of the Sixty-first (1958) General Assembly [codified, respectively, as Ark. Stat. Ann. §§ 80-1910, 84-4012 (Repl. 1960), §§ 41-703, 41-707 (Supp. 1961)] unconstitutional and further praying that appellants be enjoined from attempting to enforce the statutes. After trial of the issues presented the Chancellor, on May 15, 1961, rendered a Memorandum Opinion .holding Acts 12,14 and 16 unconstitutional and Act 13 valid. This appeal and appellees’ cross-appeal are the result of that ruling.
For reversal appellants strenuously urge that the trial court erred by granting a declaratory judgment. It is contended that proceedings for a declaratory judgment, are only appropriate where there is a justiciable determinable controversy. Our rule relative to the contention is set forth in the recent ease of Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S. W. 2d 97, as follows:
‘ ‘ Our declaratory judgment act . . . was not intended to allow any question to be presented by any person: the matters must be justiciable. In Anderson on ‘Declaratory Judgments’ 2d Ed. § 187, the general rule is stated as to declaratory judgments:
“Since purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination. ’ ’
In the same authority in § 221 at page 488 the rule is stated:
“The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.”
This logical limitation adopted by our court generally prevails elsewhere. See 26 O. J. S., Declaratory Judgments § 24 et seq.
In the face of this rule the burden was on appellees to prove that there was a justiciable issue and hence a fit subject for declaratory judgment relief. See Am. Jur. Declaratory Judgments, §§ 69-70, Evidence and Trial Issues of Fact. See also 10 R. O. L., p. 897.
It is undisputed that no attempt has been made to apply the acts here complained of against appellees yet appellees contend that the mere fact that Acts 12, 13, 14 and 16 are on the books have adversely affected them in that there had been a loss of memberships and contributions. The principal witness for appellees, through whom it sought to prove appellees’ assertions, was Clarence A. Laws of New Orleans, Louisiana, Field Secretary for the National Association for the Advancement of Colored People. Laws testified to the effect that the Arkansas memberships in his association had been declining since 1956. However, the record shows that the membership increased somewhat in the year 1958, the same years those acts were passed. In fact, the entire context of Laws’ testimony, as well as the testimony of appellees’ other witnesses, upon whom they relied to prove a justiciable issue, shows beyond question that it is entirely speculative as to what caused the drop in membership and the alleged loss of contributions. Therefore, from the record before us, it is impossible for me to conclude that appellees sustained the burden of proving that a justiciable issue existed. The majority opinion to the contrary effectively opens the gate for every special interest group in Arkansas to demand the entire time of the courts of this state in passing upon all statutes which might, in their wildest imagination, affect their special interest. This, of course, is clearly contrary to the intent of the Declaratory Judgment Act and such an abuse as exists in the case at bar should not bear the stamp of approval of this court.
For the reason stated, I would reverse and dismiss.