dissenting. The ballot title is, of course, misleading. The irony or indignity, as the case may be, is that no ballot title is required for an amendment to the constitution that is proposed by the General Assembly. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976).
But the question presented to us is what happens when the General Assembly does attach a ballot title and it is misleading? Is there any remedy to correct such action? Does this court have the authority to act as it would in a case involving other ballot titles? It is my judgment that once the General Assembly elects to attach a ballot title, that title is subject to the same review as any other. We did not hold in the Chaney case that we did not have the authority to intervene in a case involving a defective ballot title. We held that after the people had approved such an amendment, we should be most reluctant to intervene. In Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980), we held that we had the authority to rule on the ballot form of the proposed constitution of 1980. There was no constitutional or explicit authority in the legislation creating the constitutional convention that granted us that right or power. We found the authority in years of precedents in which this court has considered ballot titles and elections. We found no violation of the separation of powers doctrine and observed that courts should intervene in matters where a department of government attempts to act ultra vires.
In Riviere v. Wells, supra, the proponents of the proposed constitution, rather than simply placing on the ballot a “for or against” opportunity, as they should have, created a ballot form as follows:
FOR PROPOSED CONSTITUTION OF 1980
FOR RETENTION OF THE CONSTITUTION OF 1874
This rather shoddy deception was found to be misleading and the proposal was declared void.
The deception in the ballot title before us is not of the same magnitude of that we recently found in the ballot title for proposed amendment 63. Dust v. Riviere, 277 Ark. 1,638 S.W.2d 663 (1982). But if we apply the usual legal test for ballot titles to proposed Amendment 60’s ballot title, it still fails. Our general test is that the ballot title must be free from any misleading tendency by amplification, omission, or fallacy, and it must not be “tinged with partisan coloring.” Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). In applying that test we have said:
It is our duty, ... to approve the ballot title only if it represents an impartial summation of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented . . . Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).
The ballot title for proposed Amendment 60 reads:
AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF.
The proposed amendment itself does four things: (1) It changes the rate of interest allowed which is presently 10%; (2) it raises that limit in the case of consumer loans to 17%; (3) it provides that in commercial loans the limit shall be 5% above the Federal Reserve discount rates; and, (4) it changes in some cases the present penalty for usury. None of these changes is spelled out in the ballot title. In fact, there is no mention at all of “usury,” which is the key word contained in the constitution. In my judgment the word “control” is decidedly deceptive. See Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The proposed amendment controls nothing. The use of that word in its ordinary meaning would be to restrain. It does exactly the opposite — it removes the existing control. So, the ballot title fails the test in several respects. It misleads by omission, it is deceptive, and it is tinged with partisan coloring to make it more attractive to voters. Any misleading characteristics in a ballot title, particularly those involving deception, have been readily rejected. Dust v. Riviere, supra; Bradley v. Hall, supra; Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Hoban v. Hall, supra; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).
While the deception in this case does not amount to fraud, it nonetheless exists — the majority does not deny it is a misleading statement to the voter. Here the deception was unnecessary. While the unvarnished truth in simple ordinary language may risk rejection, it is preferable to reform through deception. With all due respect to the majority I think it is a mistake to set a precedent that will permit the constitution to be changed through deception.
It is not difficult to draft a proper ballot title. But one must have the will to state the facts without deception. Only two years ago we approved a ballot title on the same subject matter. Becker v. Riviere, supra. In Becker the ballot title read:
AN AMENDMENT TO ARTICLE XIX, SECTION 13 OF THE 1874 CONSTITUTION TO PROVIDE THAT THE MAXIMUM RATE OF INTEREST SHALL NOT EXCEED 10 PERCENT EXCEPT BY LAW ENACTED BY TWO-THIRDS VOTE OF THE GENERAL ASSEMBLY; TO MAKE IT A CRIME KNOWINGLY TO CHARGE MORE THAN THE MAXIMUM RATE OF INTEREST AND TO ALLOW PERSONS PAYING MORE THAN THE MAXIMUM TO RECOVER TWICE THE AMOUNT OF INTEREST PAID.
That title contained every essential bit of information without amplification or omission regarding that proposed amendment, and we unhesitatingly approved it as a fair ballot title. Becker v. Riviere, supra.
I would grant the injunction.
George Rose Smith and Purtle, JJ., join in this dissent.