The sufficiency of the ballot title to proposed Amendment No. 28 is attacked in this suit to enjoin the Secretary of State from certifying it to the election commissioners of the several counties of the state for submission to the voters in the general election in November, 1938.
The majority of the court are of the opinion the ballot title is sufficient and have given their reasons for *Page 949 sustaining the title in an opinion handed down by one of their number, to which I cannot agree. I do not question their general declaration of law relating to the sufficiency or insufficiency of a ballot title, but I think they have misapplied the law as declared by them in sustaining the ballot title to the proposed Amendment No. 28 or the so-called "Refunding Amendment."
Before a ballot title can be sufficient in the law it must identify the proposed amendment and fairly and completely state its general purpose so as to convey an intelligible idea of the scope and import of the proposed measure, and the ballot title must be free from misleading tendencies and partisan coloring.
The proposed amendment and ballot title have been incorporated verbatim in the majority opinion so I am relieved from incorporating them in this dissenting opinion.
"By reference to Section 9 of the proposed amendment it will be seen that the State absolutely assumes the payment of all valid bonds of Bridge Improvement Districts, Road Improvement Districts, and Road Maintenance Districts, outstanding on January 1st, 1938, whether the districts were organized before or after the passage of Act 11 of the General Assembly of 1927, and to pay 3% interest upon them annually.
"By reference to the ballot title relating to this section it will be seen that it calls the attention of the voters to the authorized exchange of 3% bonds for the valid bonds of Bridge Improvement Districts, Road Improvement Districts, and Road Maintenance Districts, outstanding on January 1, 1938, and that the Commissioner of Revenues is authorized to pay interest at 3% and the average annual maturities of principal on the valid bonds of Bridge Improvement Districts, Road Improvement Districts, and Road Maintenance Districts, outstanding on January 1, 1938, which are not refunded."
The title does not attempt to inform the voters that upon the adoption of the amendment the state assumes millions of dollars represented by outstanding bonds of said districts, even though there may be a failure to refund under the amendment. The failure to do this in *Page 950 the ballot title has a tendency to mislead and deceive the voters. If the voters knew that upon the failure to refund the bonds the State had, notwithstanding, by the adoption of the amendment, assumed all the valid bonds of Bridge Improvement Districts, Road Improvement Districts, and Road Maintenance Districts, outstanding on January 1, 1938, most of the voters would vote against the amendment, as the state is already staggering under an indebtedness of about one hundred and fifty million dollars. I venture to say that very few voters would vote for Amendment No. 28 if apprised of the fact that when adopted millions upon millions of dollars would be added to the indebtedness of the state. The voters are entitled to this notice in the ballot title and on account of its omission therefrom the ballot title in this respect only tells a small part of the truth and is a snare and a trap to inveigle voters into voting for the amendment. There is little chance to refund bonds which bear a high rate of interest with 3 per cent. bonds, so I think the motivating purpose and scope of Amendment No. 28 is to get the state to assume these additional millions of dollars issued by said improvement districts, not connected with or related to the general highway system of the state. Many of the district bonds which the state will assume if the amendment is adopted were issued to improve streets, driveways, avenues and boulevards in, through, and around privately owned suburban property and such bonds should not be unloaded on the state unless the voters are given full and complete notice that that was the real purpose and scope of the amendment.
If I am correct in concluding from the face of Amendment No. 28 that its general purpose and scope is to unload millions of dollars of debt of private individuals upon the state, then the entire ballot title is not only a snare and a trap to deceive the voters of the state, but it is colorable and partisan and should be condemned under the declarations of law announced in the majority opinion.
But aside from this specific arraignment of the ballot title, I think it insufficient by not pointing out to the voters that Amendment No. 28, if adopted, will deprive *Page 951 the state of funds with which to maintain her highway system and will practically eliminate or destroy the turn-back fund to the counties or so reduce both funds that the fund received will be inadequate to maintain the roads already built and inadequate to build any farm to market roads of consequence, and also defective in that the Legislature cannot reduce the gasoline tax or automobile license tax until the last bond is paid. Not only until the bonds that are not outstanding, but also until the millions of dollars which the state assumes under the amendment are paid.
Many other such iniquities might be pointed out in proposed `Amendment No. 28 of which no notice is given to the voters by the ballot title, but I think, perhaps, I have said enough to show some of my reasons for dissenting from the views of my associates in holding that the ballot title meets the requirements of the law announced in their opinion.
I might mention the fact that as the law now stands the state is immune from suits without her consent and this proposed amendment surrenders that sovereign right in advance and permits suits against the state both in state and federal courts. This surrender of the sovereign immunities of the state is not made clear in the title.
The proposed amendment also makes the Revenue Commissioner a constitutional officer and authorizes him to pay his own salary, to employ all the help he desires and fix their salary and pay them without the necessity of an appropriation unless restricted by the Legislature, and the ballot title does not so inform the voters. This is a departure from the law as it exists and the voters are certainly entitled to notice of this fact before the ballot title would be sufficient under the law.
After a careful reading of the proposed amendment and the ballot title attached thereto, I have concluded the ballot title does not fairly state the general purpose of the proposed amendment so as to give an intelligible idea of its scope and import, and that the title is misleading and contains partisan coloring. The ballot title is very adroitly drawn so as to emphasize the good *Page 952 features of the proposed amendment and minimize the iniquities in it. The skillful hand of a Philadelphia lawyer, as it were, in drafting the title, completely camouflaged the scope and purpose of the proposed amendment in many respects. As stated before, I think it can be clearly seen that the main purpose and scope of the amendment is to unload private debts of individuals, running into millions of dollars on the state when it is already carrying a burden of about one hundred and fifty million dollars that is causing the citizens of the state to pay exorbitant prices for gasoline and automobile licenses.
It seems to me that this is the bug under the chip which is hidden from the voters by omissions heretofore set out in the ballot title.