dissenting. The majority approach this case as if there is only one question to be considered: Has it been shown by admissible evidence that the City of Benton validly adopted Ordinance No. 2 in 1949? The majority, with the aid of secondary evidence and legal presumptions, find that the ordinance was validly adopted. That ends the majority’s inquiry; the people are denied the right to vote at a referendum election.
I think the majority have not reached the true issue in the case. In my judgment the controlling question is this: Has the city, by failing to make the ordinance a matter of public record, sufficiently complied with the law to put the sponsors of the referendum petition on notice that their permissible time under Amendment 7 has been shortened to 30 days? I would answer that question in the negative and accordingly permit the election to be held.
Our proper attitude toward a controversy such as this one was well expressed in 1959: “It is against public policy to restrict the free use of the ballot or place restraints on free elections.” David v. Fowler, 230 Ark. 39, 320 S.W. 2d 938 (1959). In harmony with that principle of public policy I would require a city to comply strictly with the statute which requires that all ordinances “shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding office of the governing body and the clerk or recorder.” Ark. Stat. Ann. § 19-2404 (Repl. 1968).
I am not suggesting that recordation is essential to the enforcement of every ordinance in every situation. If, for example, the city adopted an ordinance authorizing the mayor and city clerk to enter into a certain contract on behalf of the city, the city could not invalidate the contract by failing to record the ordinance.
But that is not the situation before us. Under Amendment 7, in the absence of municipal action, referendum petitions may be filed not less than 30 nor more than 90 days after the passage of the measure to be referred. If a city chooses to limit the time to the minimum of 30 days, it should put its citizens on notice of that limitation. The City of Benton wholly failed to do so.
The appellee Nethercutt, before preparing to circulate referendum petitions, asked for copies of the pertinent ordinances. He was, understandably as it now appears, not supplied with a copy of Ordinance No. 2 of 1949, restricting the petitioners to 30 days No wonder! That ordinance had not been recorded in the ordinance book kept by the city, as required by law. There was no copy of the ordinance in the city hall. The members of the city’s board of directors did not know whether such an ordinance existed. The city manager, after an intensive search begun after the present controversy arose, was finally able to find an unsigned copy on microfilm at the city library. Yet the voters are now told that they were charged with notice of the sleeping ordinance, even though responsibility for their actual want of notice rested squarely upon the city itself. I would not permit the city, as a result of its own disregard of the law, to block the efforts of the voters to hold a referendum election. The circuit court’s judgment, directing that the election be held, should be affirmed.