450 P.2d 547 (Or. 1969), Gortmaker v. Seaton

Citation:450 P.2d 547, 252 Or. 440
Opinion Judge:GOODWIN, J.
Party Name:Gary D. GORTMAKER, District Attorney of Marion County, Oregon, Appellant, v. Layke L. SEATON et al., Respondents.
Attorney:Gary D. Gortmaker, District Attorney, Salem, pro se, argued the cause and filed a brief for appellant. Peter S. Herman, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, Salem. Donald H. Coulter and D. F. Myrick, Gr...
Case Date:February 13, 1969
Court:Supreme Court of Oregon
 
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Page 547

450 P.2d 547 (Or. 1969)

252 Or. 440

Gary D. GORTMAKER, District Attorney of Marion County,

Oregon, Appellant,

v.

Layke L. SEATON et al., Respondents.

Supreme Court of Oregon, En Banc

February 13, 1969

Argued and Submitted Dec. 2, 1968.

Page 548

[252 Or. 441] Gary D. Gortmaker, Dist. Atty., Salem, pro se, argued the cause and filed a brief for appellant.

Peter S. Herman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Donald H. Coulter and D. F. Myrick, Grants Pass, filed a brief as amici curiae.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

[252 Or. 442] GOODWIN, Justice.

This suit for declaratory relief was brought by the district attorney of Marion County, who claims to be in doubt about the meaning of various statutes and regulations designed by the Legislative Assembly to restrict the sale of lysergic acid diethylamide (LSD). 1 For reasons set forth below, the suit must be dismissed without a decision on the merits.

It is fundamental to appellate jurisprudence that courts do not sit 'to decide abstract, hypothetical, or contingent questions * * * or to decide any constitutional question in advance of the necessity for its decision * * *.' Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), quoted with approval in Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969).

We have examined the record made in the court below, and are satisfied that the district attorney is not a party whose rights, within the meaning of ORS 28.020, could be affected by judicial construction of the drug statutes.

The pleadings reveal agreement by the parties on every material question of fact, and reveal further that if a timely demurrer had been interposed, this case would have been dismissed in the trial court. Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594 (1941). The only purpose of this admittedly 'friendly' litigation is to obtain an advisory opinion, in advance of executive action, concerning the effect of certain penal statutes and regulations.

[252 Or. 443] In order to have standing to maintain declaratory proceedings, one must allege a substantial interest in the matter in controversy. Ore. Newspaper Pub. v. Peterson, 244 Or. 116...

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