dissenting. I agree with the dissenting opinions of Justices Smith and Byrd, and then some.
No doubt the general assembly in its collective wisdom passed Ark. Stat. Ann. § 19-2404 (Act 36 of 1949), which requires that all ordinances be recorded in a book kept for that purpose, to obviate years of shoddy bookkeeping practices. It is a good law. The obvious intent of the statute is to require that all city ordinances be kept in one place so that interested people or those with a need to know can go to one book to determine what laws are in effect in a particular city.
The City Clerk of Benton testified that the ordinance in question was not in the Benton Ordinance Book. The fact that ordinances which were passed before the one in question were in the book is a significant fact that cannot be ignored.
After a diligent search the city produced some evidence that an ordinance had been passed. It consisted of unsigned minutes of the Board, a newspaper clipping and an unsigned copy of the ordinance. Considering the requirements and formalities of making laws, that evidence is certainly not conclusive. The requirement that laws be signed is to assure citizens that those laws have been duly passed by governing authorities; unless there are exceptional circumstances, that requirement should not be waived.
The majority has clearly ignored the provisions of Ark. Stat. Ann. § 19-2404, which requires that ordinances be recorded in a book, and instead has applied general rules of evidence in deciding that a law, in fact, existed which limits the constitutional rights of voters to refer matters to the city as a whole.
The old maxim, “Ignorance of the law is no excuse”, takes on a new meaning in the City of Benton and other cities in view of the majority opinion. It will be the rule, rather than the exception, because the majority has found that a city ordinance to be lawful does not have to be signed or recorded to be valid; minutes of council meetings do not have to be signed to be credible; a law may be proved by using a newspaper clipping or an unsigned copy of an ordinance which is found in some file somewhere.
We are not dealing here with a matter of form. We are dealing with a substantial right of the voters. Amendment 7 to the Arkansas Constitution granted voters a right, within a certain number of days, to petition their government for change. Also, by that Amendment, cities, by local legislation, may limit that right. Any attempt to limit such substantial rights should be carefully scrutinized, and any laws providing therefor should be strictly construed in favor of the voters. The majority has certainly not applied any such standard.
I suppose the decision also means that property rights can be taken by zoning ordinances, or citizens can be fined or jailed on the basis of similar laws lying in some form, somewhere in a file, unsigned, unrecorded and brought out at a time to fit a particular need.
What is the sense of having a law that requires that ordinances be recorded in a book if it has no significance? What is the use of requiring that ordinances be signed if it has no effect?
There is no doubt that the majority has by its decision completely negated the effect and import of Ark. Stat. Ann. § 19-2404. The statute says ordinances will be recorded and authenticated. The majority opinion says they do not have to be recorded or authenticated. If there is to be any remedy in this matter, obviously it lies with the legislature.