We have frequently dismissed declaratory judgment proceedings upon the ground that the proceeding presented no justiciable controversy. Oregon Cry. Mfgrs. Ass'n. v. White, 159 Or. 99, 78 P.2d 572 (1938); Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594 (1941); Hale v. Fireman's Fund Ins. Co., supra, ( 209 Or. 99); Oregon Medical Assn. v. Rawls, supra, ( 276 Or. 1101). In the Hale case above cited we dismissed a declaratory judgment proceeding seeking to secure a declaration on insurance coverage.
Such advisory opinions have not been authorized in Oregon. In re Ballot Title, 247 Or. 488, 492-495, 431 P.2d 1 (1967); Hickey v. City of Portland, 165 Or. 594, 597-598, 109 P.2d 594 (1941); Oregon Creamery Mfrs. Ass'n v. White, 159 Or. 99, 109-111, 78 P.2d 572 (1938). Even where they are allowed, advisory opinions generally deal with questions of governmental organization, powers, or procedures, not with the constitutional rights of individuals.
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.
In the absence of such constitutional authority courts cannot render valid advisory opinions: Oregon Creamery Manufacturers Association et al. v. White et al., [1938], 159 Or. 99, 78 P.2d 572." Hickey v. City of Portland, 1941, 165 Or. 594 at 598, 109 P.2d 594, 596. The Oregon Constitution is, in fact, prohibitive, not permissive, Art III, § 1 provides:
Aside from counsel's assertion that the complaint was so laid, there is nothing in the pleading itself that would remotely suggest such intendment. The cardinal defect which defeats plaintiff's theory, in this respect, is the absence of any allegations indicating the presence of a justiciable or actual bona fide controversy existing between plaintiffs and defendants. Recall Bennett Committee v. Bennett et al., 196 Or. 299, 249 P.2d 479; Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594; Oregon Cry. Mfgs. Ass'n v. White, 159 Or. 99, 78 P.2d 572. In 1 Anderson, Declaratory Judgments 2d ed, 588-589, § 253, the following statement is made concerning the necessary allegations of a complaint for a declaratory judgment:
We turn now to the defendant's second contention as above set forth, since his first point is embraced in the second. The general rule established by judicial decision is that a suit or action for a declaratory judgment will not lie unless there is an actual controversy existing between adverse parties. Oregon Creamery Manufacturers Association v. White, 159 Or. 99, 78 P.2d 572; Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594. It remains to be determined whether there was such a controversy in the pending case.
There an order overruling a demurrer to a petition for declaratory relief was reversed and the cause was dismissed by the appellate court on the ground that the petition failed to show a justiciable interest in the plaintiffs. It is declared in Hickey v. City of Portland, Oregon, 165 Or. 594, 109 P.2d 594, after reviewing authorities cited by plaintiffs, that it was the opinion of the Court: "* * * it is a jurisdictional pre-requisite in cases of this character that the petition disclose a justiciable controversy."
Oregon appellate courts have frequently dismissed declaratory judgment proceedings in the absence of such a controversy. See, e.g., Mitchell Bros. Truck Lines v. Lexington, supra; Oregon Medical Assn. v. Rawls, supra; Hale v. Fireman's Fund lns. Co. et al, supra; Hickey v. City of Portland, 165 Or. 594,109 P.2d 594 (1941); Oregon Cry. Mfgs. Ass'n v. White, 159 Or. 99, 78 P.2d 572 (1938); Granata v. Tanzer, 31 Or. App. 21, 569 P.2d 1090 (1977). The determination of when a controversy is justiciable is not subject to precise and clear standards.
22 Am.Jur.2d Declaratory Judgments § 11, p. 849. And see 26 C.J.S. Declaratory Judgments § 64b; 26 C.J.S. Declaratory Judgments § 136; Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594; Aralac, Inc. v. Hat Corp. of America, 166 F.2d 286 (3rd Cir. 1948). As indicated by the above quotation, the problem of "justiciable controversy" is related to that problem of the joinder of parties to be affected by the declaratory judgment.