dissenting. Speaking for myself, I have read the majority opinion, and I am confused as to how the court reached the decision to affirm this case. The correct result in this case is to reverse and dismiss this appeal for lack of jurisdiction. Hopefully, I can write in clear terms why I reach the result I have. Since I have no serious quarrel with the facts as set out in the majority opinion, I go directly to the law that decides this case.
The threshold issue in this election case is: When is the referendum petition, referring Ordinance No. 1866, to be legally submitted to the voters of Russellville? The Russellville City Council called a special election to be held on October 11, 2005, for the voters to decide the issue, but the Council was clearly mistaken. The Pope County Board of Election Commissioners also erred when it proceeded to prepare a ballot for the October 11 special election.
At the outset, I point out that neither Wilkins, the Pope County Board of Election Commission, nor the City Council had the authority to set a special election on October 11, 2005. It is settled law that an election contest is a statutory or special proceeding under Ark. R. Civ. P. 81. See Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); Willis v. King, 352 Ark. 55, 98 S.W.3d 427 (2003). I also note that neither Kinchen nor Wilkins mentions or cites any of Arkansas’s applicable statutes that govern how our state and its cities and counties conduct elections and prescribe the means by which voters can reject or approve petitions for initiatives and referenda. See, e.g., Ark. Code Ann. §§ 7-9-101 et seq. (Repl. 2000) and (Supp. 2005). For example, Ark. Code Ann. § 7-9-105(a) (Supp. 2005) provides a form for a petition and order of referendum, which an interested voter can circulate for legal electors to sign in order to have the ordinance or measure placed on the ballot. Of particular relevance to the case now before us, § 7-9-105(a) provides that an ordinance referred to the people of a municipality may be approved or rejected by the vote of the legal voters of the municipality at the “biennial (or annual, as the case may be, if a city ordinance) regular general election (or at a special election, as the case may be)[.]”
The statute which controls the setting of an election for voters to decide the referring of a municipal measure — like Ordinance No. 1866 — is provided in Ark. Code Ann. § 7-9-111(h)(1) (Supp. 2005), which reads as follows:
Municipal referendum petition measures shall be submitted to the electors at a regular general election unless the petition expressly calk for a special election. If the date set by the petition does not allow sufficient time to comply with election procedures, then the city or town council shall fix the date for any special election on the referendum measure. The date of any special election shall not be more than one hundred twenty (120) calendar days after the date of certification of sufficiency by the municipal clerk.
(Emphasis added.)
Under § 7-9-111 (h)(1) the Kinchen petition and order established that the City’s referendum election was to be voted on at the November 7, 2006, General Election, and not an October 11, 2005, special election as was called here. As discussed above, § 7-9-111 (h)(1) mandates that referendum petition measures shall be submitted to the electors at a regular general election unless the petition expressly calls for a special election. Again, under the undisputed facts before this court, the voters’ petition did not call for or order a special election; consequently, this referendum, by statutory law, must have been placed on the ballot at the next regular general election on November 7, 2006, the date plainly established by the Kinchen petition.
Arkansas provides that an election held without statutory authority is a nullity, and authority to hold an election at one time will not warrant an election at another. Langston v. Johnson, 255 Ark. 933, 504 S.W.2d 349 (1974). In Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973), this court said that the procedure for contesting an election is purely statutory, and a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that elections have a degree of stability and finality. (Emphasis added.) Based on this reasoning alone, the City Council and the trial court had neither authority nor jurisdiction to call the October 11, 2005, special election. Rather, only the petitioners had that authority, under § 7-9-111 (h)(1), to decide whether their referendum issue would be presented to the voters at a special election or the next regular scheduled general election,1 and the petitioners chose the November 7, 2006, General Election as the date the City referendum in issue must be presented to the Russellville voters. Because the trial court lacked jurisdiction, this court also lacks jurisdiction. See Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). Thus, the issue does involve this court’s jurisdiction, and the majority is wrong to state in a footnote that the court can neither raise nor address these issues sua sponte.2
Instead of dismissing this case because the City illegally called a special election, the majority court merely affirmed the trial court by granting Wilkins’s request for declaratory judgment and injunction and enjoined the Election Commission and City Clerk from conducting earlier voting, absentee voting or other voting relating to the October 11, 2005, special election. Neither the Election Commission, Wilkins, nor Kinchen mentioned that the referendum on Ordinance No. 1866 would be held on November 7, 2005. Of course, at this point, the unlawfully scheduled October 11, 2005 election is a nullity, yet this court continues its review of other election issues as though the special election were valid. In fact, the November 7, 2006, election was hardly mentioned in this appeal or at the trial below. Because our court has dealt with some petition and ballot title issues but not others that could arise before the November 7 General Election, I will touch on a few of those issues now, as we near the November 7 General Election.
For example, Wilkins argues, among other things, that the petitioners’ use of the wrong ordinance number — number 1886 instead of 1866 — in their referendum, in conjuction with the failure to supply a ballot title, made the petition legally insufficient. However, Ark. Code Ann. § 7-9-106(b) (Repl. 2000) requires that, to every petition for referendum shall be attached a full and correct copy of the measure (or in this case, the ordinance). In Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), this court discussed the purpose of this requirement that a copy of the measure be attached to the petition when it is circulated. The court reasoned that the purpose of § 7-9-106(b) was to inform the petitioner “as to the exact provision of the measure sought to be referred.” Westbrook, 184 Ark. at 745, 43 S.W.2d at 359 (citing Townsend v. McDonald, 184 Ark. 273, 42 S.W.2d 410 (1931)). The proposed measure in Westbrook had been misnumbered 71, not 80, and it was approved on February 26, 1931, not on March 2, 1931. However, this court concluded that such misnumbering was a clerical misprision — an error that should not have occurred, but that was not fatal to the validity of the petition. The court concluded as follows:
The purpose ofstating the number of the act and the date of its approval was to aid in its identification, but these errors could not have been misleading when an exact copy of the act otherwise appeared on the petition. It is settled law that even the title of an act is not controlling in its construction, although it is considered in determining its meaning when such meaning is otherwise in doubt.
Id. at 746, 43 S.W.2d at 359 (emphasis added). See also Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). I believe the rationale formed in Westbrook is applicable and controlling law here-.
Next, I think this court should consider Wilkins’s contention that the central question to be resolved by the court in a ballot title case is whether, in the voting booth, the voter is able to reach an intelligent and informed decision for or against the proposal and to understand the consequences of his or her vote based on the ballot title itself. In making this argument, Wilkins relies on cases where this court discussed ballot titles; however, those cases apply only to initiated proposals under Amendment 7 to the Arkansas Constitution. See Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); see also Theil v. Priest, 342 Ark. 293, 28 S.W.3d 296 (2000). I am unaware of any statute or case where the sponsors of a referendum of any city or county ordinance were (or are) required to place a ballot title or popular name on the referendum.3
Clearly, no statute or constitutional provision in Amendment 7 authorizes the County Board of Election Commissioners or other officials to modify or approve a ballot title for a county or city referendum prior to placing the question to the vote of the city electors.
In conclusion, because I believe the October 11, 2005, special election was illegally called and a nullity, I would dismiss the case, leaving the parties to sort through what issues still might need to be addressed when the 1866 referendum comes to a vote at the November 7, 2006, General Election.
I note that, under our rules, statutes and case law, injunctive relief is not the relief one seeks to set aside an illegally called special election. Instead, a party’s relief is mandamus coupled with declaratory judgment. See State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.3d 169 (1989) and its progeny. Since the trial court had no authority to decide this case for the above jurisdictional reasons, one need not discuss why injunctive relief is no longer the remedy in election matters.
The majority declares, without argument or citation to authority, that Ark. Code Ann.§ 7-9-111 (h)(1) does not present a question of subject-matter jurisdiction. As discussed above, our election statutes require strict compliance in order for our courts to exercise jurisdiction over election matters, and the trial court in this case did not have the jurisdiction to order a special election. I am at a loss to understand how the majority can conclude that a question pertaining to this court’s jurisdiction cannot be raised sua sponte. It is, after all, not only the right but the duty of this court to determine whether there is jurisdiction of the subject matter. See In re: Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995); Viswanathan v. Mississippi County Community College Bd. of Trustees, 318 Ark. 80, 887 S.W.2d (1994).
It is noteworthy to mention the majority opinion which, without citation or argument, states that, just as a ballot title must be submitted for a statewide referendum, so must one be submitted to a local election commission for a local referendum petition. As seen in the Chaney case, the majority opinion is wrong. Furthermore, there is good reason why ballot titles are not required for a referendum, since the referral is from a measure enacted by a legislative body. Other reasons exist for not requiring ballot titles for referendums of city measures — (1) who is legally going to approve the ballot, not the Attorney General as is provided under Ark. Code Ann. § 7-9-107 (Repl. 2000); and (2) local voters have easier access to obtain information relating to the measure in question.