Washburn v. Hall

Sam Robinson, Associate Justice.

A petition for a referendum on Act No. 94 of the Acts of the General Assembly of Arkansas for 1955 was filed with C. G. Hall, Secretary of State. Acting upon the opinion of the Attorney General that the petition was insufficient because no popular name or ballot title was designated, the Secretary of State refused to certify it to the election officials. Contending that the petition is valid in every respect, Alex H. Washburn, and others, have filed an original action in this Court to compel the Secretary of State to certify the petition. The Attorney General, on behalf of the Secretary of State, has responded. Joe Ray, and others, Officers and Directors of the Arkansas Poultry Federation, have filed an intervention. The principal point in issue is whether Amendment No. 7 to the Constitution of Arkansas and Act No. 195 of the General Assembly for 1943, Ark. Stats. Sec. 2-208, have been complied with by the sponsors of the referendum petition.

Amendment No. 7 reserves to the people the right to refer and initiate laws; with reference to the petition to submit a measure to a vote of the people, the Amendment provides: “At the time of filing petitions, the exact title to be used on the ballot shall, by the petitioner, be submitted with the petition . . .” This amendment was adopted at the General Election in November 1920; it is in substitution of the I. and R. Amendment approved February 19, 1909. The enabling act for the 1909 amendment, Act No. 2 of the Extraordinary Session of the General Assembly for 1911, is repealed only in so far as it is in conflict with the 1920 amendment. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. We mention the 1911 Act at this point because Section 2 thereof provides: “The petition and order for referendum shall be substantially in the following form.” Then follows the form that must be used in preparing the petition.

In 1943, the General Assembly adopted Act No. 195, which is now Ark. Stats. § 2-208. It provides: “Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft thereof to the Attorney General, with a proposed legislative or ballot title and popular name. The Attorney General shall, within 10 days, approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each such amendment or act; the ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure. If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in such premises, they may, by petition, apply to the Supreme Court for proper relief.

As heretofore mentioned, the act which petitioners seek to refer is Act No. 94 of the Acts of the General Assembly of 1955. The substance of this act is that it exempts all feedstuffs used in growing or producing livestock and poultry from what is known as the Gross Receipts Tax Act and the Arkansas Compensating Tax Acts, otherwise the Sales Tax. On April 1, 1955, Mr. Wash-burn, one of the petitioners, wrote to the Attorney General as follows: “I submit herewith an original draft of a petition for a referendum on Act No. 94 of 1955 for your consideration in accordance with Sec. 2-208 Ark. Stats. 1947.” With the letter was enclosed the original draft of the petition. The petition is headed in bold face capital letters: ‘ ‘ PETITION FOR REFERENDUM. ’ ’ Then printed under the above is: “ Sales Tax Exemption for Livestock and Poultry Feed.” Following, in very small print is: “This law was House Bill No. 222 by Teague of Carroll, et al.” Next is the petition itself and following the petition is: “Act No. 94, approved February 22, 1955 ’ ’; thereafter is set out the act in full, including the title and enacting clause. On April 5, 1955, the Attorney General wrote to Mr. Washburn: “I have examined your form for petition for referendum on Act No. 94 of 1955 and in accordance with Ark. Stats. 1947 (2-208), the same as submitted is hereby approved.”

Nothing is mentioned in either the letter from Wash-burn to the Attorney General or from the Attorney General to Washburn about a popular name or ballot title. The sponsors of the petition proceeded to obtain signatures thereto and when a sufficient number were obtained, the petition was filed with the Secretary of State. There immediately arose the question of whether Amendment No. 7 and Ark. Stats. Sec. 2-208, Act 195 of 1943, had been complied with in respect to obtaining the approval of the Attorney General as to the popular name and ballot title before the petition was circulated. The Secretary of State promptly asked for the Attorney General’s opinion about the matter. The Attorney General answered the Secretary of State as follows: “It is my opinion that, since the sponsor has not submitted a ballot title and popular name as required by Section 2-208, and has not submitted a ballot title to the State Board of Election Commissioners as required by the 7th Amendment, as Secretary of State or as a member of the State Board of Election Commissioners, you have no authority to certify, order or place this question on the ballot as the provisions of the Constitution and Statutes which h'ave not been complied with are mandatory.” The Secretary of State, in accordance with the opinion of the Attorney General, refused to certify the petition to the election officials. Shortly after receiving a letter from the Secretary of State refusing to certify the petition, the sponsors filed this original proceeding. It is the contention of the petitioners that the sub-heading on the petition “Sales Tax Exemption for Livestock and Poultry Peed” is the popular name and, since the act itself contains a title, this title should be considered as the ballot title; and that, in any event, the petitioners should be allowed to amend the petition by designating a popular name and ballot title.

Act No. 195 of 1943, Ark. Stats. § 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Here, the Attorney General was not asked to approve a popular name or a ballot title. Nothing was pointed out to him as a popular name or ballot title which the circulators of the petition intended to use as such. The Attorney General says that he was not asked to approve or disapprove a popular name or ballot title and that he has not done so; that he only gave his opinion as to the form of the petition. The form of the petition is set out by Act No. 2 of the Extraordinary Session of 1911, and that part of the Act as to the form of the petition was not repealed by the 1920 amendment to the Constitution.

It is clear that the framers of Act 195 of 1943 intended that the Attorney General should pass on the sufficiency of the ballot title and the popular name before the petition is circulated. The Act provides: “If the Attorney General refused to act or if the sponsors feel aggrieved at his acts in the premises, they may, by petition, apply to the Supreme Court for proper relief.” There is nothing complicated about Act 195; it is not difficult to follow; it is not calculated to make troublesome the right to take advantage of the I. and B. Amendment. It goes without saying that before any one could safely undertake to refer a measure to the people it would be necessary to review the Constitution and the Statutes pertaining to such referendum. It would be very easy to say to the Attorney General: “Now here is what we propose as a ballot title and this is what we propose as a popular name.” And the Attorney General would be required to either approve that which had been submitted or substitute something else. If the sponsors should feel aggrieved at his acts, they would have the right to apply to the Supreme Court for proper relief. This is not a contest between the Attorney General and the sponsors of the referendum petition. It must be remembered that Act No. 94 was adopted by the General Assembly of the State of Arkansas; and the sponsors of the Act, who we presume are the intervenors here, have some rights in the matter. If the Attorney General approved a ballot title and popular name that was calculated to be misleading or not suitable to the question to be voted on, there would be a remedy in the courts. But those interested in the adoption of the measure could hardly attack a popular name or ballot title when neither had been designated as such; and, especially so, when the Attorney General had not passed on a ballot title or popular name and in fact states that he had not been requested to give an opinion in respect to such title and name.

Petitioners cite Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, where a petition to initiate a county salary act was filed with the County Clerk. It appears that the act as filed had a title which was sufficient to convey a fair meaning of the act; but such title was not designated as a ballot title. The Court held that although the title of the act was not designated the ballot title, there was substantial compliance with Amendment No. 7. This was also the holding in Blocker v. Sewell, 189 Ark. 924, 75 S. W. 2d 658; but both of those cases were decided many years prior to the adoption of Act No. 195 of 1943, Ark. Stats. § 2-208.

The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must contain no partisan coloring. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. See also Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. The proposed popular name and ballot title should be submitted specifically to the Attorney General in order that he may determine whether the name and ballot title meet these requirements.

In Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547, Mr. Justice Prank Smith said: “It appears, therefore, that a very small per cent of our population may, at each general election, assemble the electorate into both a general assembly and a constitutional convention. The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the Constitution conferring these powers should be required. ’ ’ And it might be added that there should be substantial compliance with the statutes enacted in aid of the Constitution. “The great body of the electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.” Westbrook v. McDonald, supra. There should be no confusion, no uncertainty, nothing indefinite, about what is designated as the popular name and ballot title when the petition is presented to the Attorney General. The popular name and ballot title should be called to the Attorney General’s attention specifically so that he may act in accordance with the statute. Here, this was not done and the Attorney General has rendered no opinion approving a popular name or ballot title and the Secretary of State correctly refused to certify the petition to election officials.

As to petitioners’ contention that time should be allowed to amend the petition for referendum by designating a popular name and ballot title, Ark. Stats. § 2-208 provides for obtaining the Attorney General’s approval of popular name and ballot title before the petition is circulated; therefore, of course, it could not be amended by getting such approval after the circulation of the petition.

The petition to require the Secretary of State to certify the referendum petition is denied.

Justices MoFaddin and Millwee dissent. Justice George Rose Smith disqualified.