(dissenting).
I respectfully dissent.
Before we can proceed to review the action of the lower court we must assure ourselves that it had jurisdiction to act. The jurisdictional questions are: Can the Attorney General and the Director obtain a declaratory judgment on the question and related subjects from the District Court of Santa Fe County in this action? Can the intervenors? Since the question is jurisdictional it must be raised sua sponte and resolved before we can proceed. Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027 (1940).
Our declaratory judgment statute, § 22-6-1, N.M.S.A., 1953 Comp., states: “In cases of actual controversy the court of record of the state of New Mexico shall have power * * * to declare rights and other legal relations of any interested party * * (Emphasis added.)
Here the petition filed by the Attorney General states that, in plaintiff’s opinion, ch. 280, N.M.S.L.1969, is unconstitutional, but that the defendant Director intends to enforce it, and that, in plaintiff’s opinion, ch. 216, N.M.S.L.1969, permits dispensaries to sell alcoholic liquors by the drink on Sundays, but that the defendant may consider this chapter repealed or may interpret it as not permitting such sales. The petition further states that regulations consistent with plaintiff’s interpretation have not been adopted by defendant and asks that the court declare in accordance with plaintiff’s opinion and restrain and enjoin defendant from enforcing the provisions of ch. 280, supra, against any licensed dispenser in New Mexico. The Director answers the petitioner and asks the court to declare the law to be in accordance with his views. In addition, the Director filed a counterclaim asking the court to interpret ch. 197, § 7(C), N.M.S.L.1969, which requires a “review” by the Attorney General of the Director’s regulations. Three racetrack corporations intervened, and by answer they asked that § 2 of ch. 280, supra, which permits the sale by the drink on Sundays from noon to 11:00 P.M. at racetracks during the racing season be declared constitutional.
Two questions are presented. First, are the original parties “interested” so as to make this a “justiciable” controversy? And second, is there a case or actual controversy before the court which would permit it to declare the rights of the racetrack corporations, although they did not allege that any of their rights were being threatened. On this subject we quote from Borchard, Declaratory Judgments at 33 (2d Ed.1941) :
“Justiciability is the necessary condition of judicial relief. It is that which the term ‘case’ or ‘controversy’ is designed to insure, and the Supreme Court has had frequent occasion to consider the matter. So have the courts of foreign countries. What, then, are the ‘necessary features’ of justiciability? While state courts occasionally assume legislative and executive functions which could not be imposed on federal courts, the power to determine contested rights is a traditional function of all judicial courts in the western world. Expediency and the relative danger of conflict with other departments of the government have induced a refusal to decide major political questions or review mere administrative findings. Expediency and a desire not to function in the abstract, but to decide only concrete contested issues conclusively affecting adversary parties in interest, have induced a refusal to render advisory opinions or decide moot cases. Actions or opinions are denominated ‘advisory,’ when there is an insufficient interest in the plaintiff or defendant to justify judicial determination, where the judgment sought would not constitute specific relief to a litigant or affect legal relations or where, by reason of inadequacy of parties defendant, the judgment could not be sufficiently conclusive.”
And at page 36:
“The ‘necessary features’ of justiciability which afford the greatest difficulty in analysis are the requirements of ‘interested’ parties asserting ‘adverse’ claims. When has the plaintiff a sufficient ‘interest’ to warrant judicial protection? When are claims ‘adverse’ ?
“To be ‘interested,’ some legal relation of the plaintiff must be capable of being affected by the decision; but besides that, the ‘interest’ must be ‘substantial.’ Courts differ in their views as to what is ‘substantial,’ a difference especially qotable in actions by taxpayers designed to determine the validity of public action under statute or administrative order. State courts, when they think the public issue important, are disposed to find a taxpayer’s interest, however trifling, as adequate to sustain the justiciability of the action. Federal courts are more inclined to scrutinize carefully the nature of the interest of the plaintiff in the public issue presented, and to require that it be 'substantial’ to the plaintiff personally. The factors giving ‘substance’ to an interest appear to be the importance of the legal relation, the value of the property, the immediacy of the interest to be affected by the decision. * * * ” (Emphasis added.)
See also 6A Moore’s Federal Practice, ff 57.17 (2d Ed. 1966). As to- our requirements for adequacy of a taxpayer’s interests, see State ex rel. Overton v. State Tax Commissioners, 80 N.M. 780, 461 P.2d 913 (1969), when public interest requires we exercise our power of superintending control. State ex rel. Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357, 443 P.2d 850 (1968).
Here, we do think the Sunday sale of liquor is an issue of public importance, and that the Attorney General and the Director should be commended for their concern over the question. Why shouldn’t the court decide it for them in this action? We quote again from Borchard, supra, at 888:
“Administrative authorities find in the declaration a protection against mistaken or illegal conduct and against the resulting penalties and attacks. In general, the traditional law compels an officer to-be his own constructionist, and whether he acts, because he assumes he is lawfully authorized thereto, or fails to act, because he assumes he is not, he exposes himself to serious risks in either case, and stakes his security on the accuracy of his guess. This is neither wise nor efficient administration, for the public, for the officer, or for the individual citizen directly affected. While injunction has offered slight relief for these dilemmas, its scope is limited. The declaratory judgment shows the way out. It is hardly possible to measure completely the social advantage accruing from the opportunity to secure a conclusive adjudication upon contested official action before rather than after it is undertaken. The conditions of justiciability are naturally demanded, to avoid any question of rendering merely advisory opinions. • But the decision when made between the plaintiff administrative authority, bringing to issue his or its own power or privilege to act, and an interested opponent, serves to clarify the legal position and averts the danger of incurring a criminal penalty, dismissal, or action in tort, and the deleterious public consequences of wrongful official acts.” (Emphasis added.)
In the present action, only the intervenors have any interest as to how the matter should be decided; the only concern of the plaintiff and the defendant, as public servants, is that the matter be decided. The constitution of a number of states requires or authorizes advisory opinions. The jurisdiction in declaratory judgment actions is consequently broader in those states than it is in New Mexico where advisory opinions are not permitted. Richardson: “Declaratory Judgments and Advisory Opinions as Judicial Legislation,” 22 Tenn.L. Rev. 354 (1952).
The question is only one of standing or right to sue as in the Overton cases, State ex rel. Overton v. New Mexico State Tax Com’n, 81 N.M. 28, 462 P.2d 613 (1969), and State ex rel. Overton v. State Tax Comr’s, supra, because of the nature of the action here and the lack of an interested party. Either the plaintiff or the defendant would have standing to appear in behalf of the state against an interested opponent. Taos County Board of Education v. Sedillo, supra; Harriett v. Lusk, 63 N.M. 383, 320 P.2d 738 (1958); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Order of Railway Conductors of America v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471 (1947).
, Certainly the plaintiff has standing in an action against other departments of the state if their interests would make them adversaries so as to present a real case or an actual controversy. See State ex rel. Yeo v. Ulibarri, 34 N.M. 184, 279 P. 509 (1929), a mandamus action. In State ex rel. State Highway Commission v. Walker, 61 N.M. 374, 301 P.2d 317 (1956), it was decided that a writ of mandamus would lie. if the contention of the Highway Department in its action against the Land Commissioner was correct, and there we said:
“ * * * This fact [the appropriateness of mandamus] has caused us to determine the case on its merits, although the action was brought for a declaratory judgment. It is, therefore, unnecessary to pass upon the question whether under our Declaratory Judgments Act, § 22-6-1 et seq., NMSA, 1953, an action will lie against a state department or official at the suit of another state department or official. In this connection see: Taos County Board of Education v. Sedillo, 1940, 44 N.M. 300, 101 P.2d 1027; and Arnold v. State, 1944, 48 N.M. 596, 154 P.2d 257.” (61 N.M. at 376, 301 P.2d at 318.)
The case before us, however, is similar to State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 103 A.L.R. 1089 (1936). There, the Governor sought a declaration of his power to make interim appointments which power the Secretary of State denied. The court thought this was merely a difference of opinion since the Governor had not made any appointments — even though the Governor asserted that the Secretary of State’s opinion prevented him from securing suitable persons in filling the vacancies. There, the court said that this difference in opinion is not enough to make a justiciable controversy. The court said further:
“ * * * Any declaratory judgment that we might now render would in no real sense be binding either upon those who may hereafter be appointed to office or upon the present occupants thereof. That circumstance alone is sufficient to cause us to refrain from rendering a declaratory judgment at the present time, since the rights of the very persons whose protectible interests are sought to be affected by the requested declaratory judgment would not be prejudiced thereby, section 269.56(11), and the uncertainty or controversy so-called, which gave rise to this proceeding, would not be terminated, section 269.56(6). State ex rel. Mellott v. Board of Com’rs of Wyandotte County, 128 Kan. 516, 279 P. 1; Harrell v. American Home Mortgage Co., 161 Tenn. 646, 32 S.W.2d 1023; Sadler v. Mitchell, 162 Tenn. 363, 367, 36 S.W.2d 891; Miller v. Miller, 149 Tenn. 463, 261 S.W. 965.” 264 N.W. at 629, 103 A.L.R. at 1093.
See also United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789, 79 L.Ed. 1546 (1935), and the cases in the annotation at 103 A.L.R. at page 1094, also the annotation at 149 A.L.R. 349, at 367 and 368.
In State ex rel. Dickson v. Aldridge, 66 N.M. 390, 348 P.2d 1002 (1960), the Attorney General sought to restrain the Chief, Division of Liquor Control, from reclassifying a club license. The holder of the license and the prospective purchaser were permitted to intervene. The “interest” of the Attorney General in the matter was not questioned, but certainly the “interest” of the intervenor in the matter was substantial and was capable of being affected by the decision. But, in the case before us, the intervenors as well as the principal parties seek only an advisory opinion. The intervenors do not allege that any of their rights are being threatened, nor is there any serious contention made by either the plaintiff or the defendant that § 2 of ch. 280, supra, relating to sales of liquor at the racetracks, is not constitutional as a sever-able portion of the act so that it would stand even if the rest of the act is unconstitutional.
It is obvious that the intervenors appeared herein simply to avail themselves of the possibility of a precedent being established against their interest and to obtain such assurance as they could against possible future adverse action. Their appearance under these circumstances did not present a justiciable controversy. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952). No injunction was sought against intervenors, and no advisory opinion can be rendered by this court in their behalf. Bell Telephone Laboratories, Inc. v. Bureau of Revenue, 78 N.M. 78, 428 P.2d 617 (1966).
In the case here on appeal there was no licensed distributor before the court below or any other “interested party” sufficient to give it jurisdiction. Its judgment would not even be binding upon the parties hereto if raised in a later action by “interested” persons. As we said in Asplund v. Alarid, 29 N.M. 129, 219 P. 786 (1923), and reiterated in State ex rel. Overton v. New Mexico State Tax Comm., supra:
“* * * It is not the duty of this or any other court to sit in judgment upon the action of the legislative branch of the government, except when the question is presented by a litigant claiming to be, adversely affected by the legislative act on the particular ground complained of.”
Believing that the district court had no jurisdiction to decide the matter before it, I would reverse with instructions to dismiss the action.