Mr. Henry Gray Citizens Resisting Undermining State Highways 2412 Fairway North Little Rock, Arkansas 72116
Dear Mr. Gray:
This is in response to your request, received by this office on February 7, 1991, for approval and certification of the following popular name and ballot title, pursuant to A.C.A. § 7-9-107 (Supp. 1989):
(Popular Name)
AN ACT TO IMPOSE A HIGHWAY USE TAX ON HEAVY TRUCKS
(Ballot Title)
AN ACT TO AMEND AND TO REENACT, AS AMENDED, SECTIONS 1, 3, 4, 5, 7 AND 8 OF ACT NO. 3 OF THE SECOND EXTRAORDINARY SESSION OF 1987, KNOWN AS THE "HIGHWAY USE TAX," TO PROVIDE THAT VEHICLES WHICH THE USERS OF SUCH VEHICLES ELECT TO OPERATE ON THE HIGHWAYS, ROADS AND STREETS OF THIS STATE HAVING DECLARED GROSS WEIGHTS IN EXCESS OF 73,280 POUNDS SHALL BE TAXED AT THE RATE OF FIVE CENTS (5¢) PER LADEN MILE; TO EXCEPT FROM THE TAX SO-CALLED "NATURAL RESOURCE" VEHICLES, INCLUDING FARM VEHICLES, POULTRY VEHICLES, LOGGING VEHICLES AND MINERAL ORE VEHICLES; TO EXCEPT FROM THE TAX VEHICLES OWNED AND OPERATED BY THE UNITED STATES OR THIS STATE OR ANY OF THEIR POLITICAL SUBDIVISIONS; TO PROVIDE FOR DISTRIBUTION OF THE TAX PROCEEDS FIFTEEN PERCENT (15%) TO THE COUNTY AID FUND, FIFTEEN PERCENT (15%) TO THE MUNICIPAL AID FUND; AND SEVENTY PERCENT (70%) TO THE STATE HIGHWAY DEPARTMENT FUND, FOR THE MAINTENANCE, CONSTRUCTION, AND RECONSTRUCTION OF THE HIGHWAYS, ROADS, STREETS AND BRIDGES OF THIS STATE; TO AUTHORIZE REIMBURSEMENT FOR RETALIATORY TAXES PAID TO OTHER STATES AS A RESULT OF THE IMPOSITION OF THIS TAX; TO DEFINE TERMS AS USED IN THE ACT; TO PROVIDE PENALTIES FOR VIOLATIONS OF THE ACT; AND FOR OTHER PURPOSES.
The Attorney General is required pursuant to Section 7-9-107 to approve and certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, or if the proposed popular name and ballot title are sufficiently misleading, the entire petition may be rejected.
Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment or the likelihood that it will accomplish its stated objective. Consequently, this review has been limited to determining whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed initiative.
The purpose of my review and certification is to insure that the popular name and ballot title honestly, intelligently, and fairly set forth the purpose of the proposed amendment. SeeArkansas Women's Political Caucus v. Riviere, 282 Ark. 463,466, 677 S.W.2d 846 (1984). The popular name is primarily a useful legislative device. Pafford v. Hall, 217 Ark. 734,233 S.W.2d 72 (1950). It need not contain detailed information or include exceptions which might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular name is to be considered together with the ballot title in determining its sufficiency. Id.
A ballot title must include an impartial summary of the proposed amendment which will give the voter a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 417,316 S.W.2d 185 (1958); Becker v. Riviere, 270 Ark. 219, 223, 226,604 S.W.2d 555 (1980). It has been stated that the ballot title must contain any information that would "give the elector `serious ground for reflection'". Finn v. McCuen, 303 Ark. 418, S.W.2d (1990), citing Gaines v. McCuen, 296 Ark. 513,758 S.W.2d 403 (1988). It has also been stated that the ballot title must be: 1) intelligible, 2) honest, and 3) impartial. Becker v.McCuen, 303 Ark. 482, S.W.2d (1990) citing Leigh v. Hall,232 Ark. 558, 339 S.W.2d 104 (1960).
Applying these precepts to the submitted popular name and ballot title, it is my opinion that a more suitable popular name should be substituted in order to provide a more useful device for discussion of the proposed initiative prior to the election. The following popular name is hereby substituted in place of the one submitted:
(Popular Name)
AN ACT TO REENACT AND AMEND A HIGHWAY USE TAX ON HEAVY TRUCKS
With regard to the ballot title, it is my opinion that the submitted title should be supplemented to give the elector a fairer understanding of the issues presented. The submitted ballot title is therefore disapproved and the following substituted:
AN ACT TO AMEND AND TO REENACT OR REINSTATE, AS AMENDED, SECTIONS 1, 3, 4, 5, 7, AND 8 OF ACT NO. 3 OF THE SECOND EXTRAORDINARY SESSION OF 1987, KNOWN AS THE "HIGHWAY USE TAX"; TO ALLOW CERTAIN VEHICLES IN THIS STATE TO OPERATE AT A GROSS WEIGHT OF UP TO 80,000 POUNDS; TO
PROVIDE THAT USERS OF VEHICLES OPERATING ON THE HIGHWAYS, ROADS AND STREETS OF THIS STATE HAVING DECLARED GROSS WEIGHTS IN EXCESS OF 73,280 POUNDS SHALL BE TAXED AT THE RATE OF FIVE CENTS (5¢) PER LADEN MILE, WHICH TAX REPRESENTS AN INCREASE FROM 2.5 CENTS (2.5¢) PER LADEN MILE UNDER THE 1987 ACT; TO EXCEPT FROM THE TAX SO-CALLED "NATURAL RESOURCE" VEHICLES INCLUDING VEHICLES LICENSED EXCLUSIVELY FOR: HAULING UNFINISHED AND UNPROCESSED FARM PRODUCTS, FOREST PRODUCTS, CLAY MINERALS AND ORES, AND FOR HAULING ANIMAL FEED BY OWNERS OF LIVESTOCK OR POULTRY; TO EXCEPT FROM THE TAX VEHICLES OWNED AND OPERATED BY THE UNITED STATES OR THIS STATE OR ANY OF THEIR POLITICAL SUBDIVISIONS; TO EXEMPT CERTAIN INTERSTATE TRIPS; TO PROVIDE FOR THE DISTRIBUTION OF THE TAX PROCEEDS FIFTEEN PERCENT (15%) TO THE COUNTY AID FUND, FIFTEEN PERCENT (15%) TO THE MUNICIPAL AID FUND, AND SEVENTY PERCENT (70%) TO THE STATE HIGHWAY DEPARTMENT FUND, FOR THE MAINTENANCE, CONSTRUCTION, AND RECONSTRUCTION OF THE HIGHWAYS, ROADS, STREETS AND BRIDGES OF THIS STATE; TO PROVIDE THAT A "TRIP PERMIT FEE" OF EIGHT DOLLARS ($8) PER EACH ONE HUNDRED LADEN MILES MAY BE PAID BY NON-ARKANSAS REGISTERED VEHICLES IN LIEU OF THE TAX; TO PROHIBIT RECIPROCAL AGREEMENTS BETWEEN STATES WHEREBY PERSONS ARE EXEMPTED FROM THE TAX; TO AUTHORIZE REIMBURSEMENT FOR RETALIATORY TAXES PAID TO OTHER STATES AS A RESULT OF IMPOSITION OF THIS TAX; TO GIVE THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT THE POWER TO ADMINISTER AND COLLECT THE TAX, BASED UPON GUIDELINES SET OUT IN THIS ACT; TO GIVE THE DEPARTMENT AUTHORITY TO ENACT RULES AND REGULATIONS TO IMPLEMENT THE ACT AND THE POWER TO AUDIT AND INSPECT, AT REASONABLE TIMES AT ANY PLACE AND WITHOUT NOTICE, THE BOOKS OF PERSONS REQUIRED TO PAY THE TAX; TO EXEMPT THIS TAX FROM THE "ARKANSAS TAX PROCEDURE ACT" AND TO PROVIDE FOR HEARINGS ON DISPUTED ASSESSMENTS BY A HEARING OFFICER TO BE APPOINTED BY THE DIRECTOR OF THE HIGHWAY DEPARTMENT; TO PROVIDE PENALTIES FOR VIOLATIONS OF THE ACT; TO DEFINE TERMS USED IN THE ACT; AND FOR OTHER PURPOSES.
Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers are enclosed herewith.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb