This proceeding is a continuation of the case of Shepard v. McDonald, 188 Ark. 124, wherein we said: "It has been specifically agreed between counsel for petitioner and respondent that the question of the sufficiency of the ballot title in the instant case be reserved for decision until the jurisdictional questions have been determined. Therefore we do not here decide or discuss the sufficiency of the ballot title, etc."
The question thus expressly reserved for future determinations here presented, and we now proceed to its determination.
The ballot title submitted with the referendum petitions as follows:
"The purpose of this act is to abolish the State Board of Education elected by the people; to create a new State Board of Education appointed by the Governor: to create the office of State Superintendent of Public Instruction; and to repeal certain sections of the `school law' which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration."
In Westbrook v. McDonald, 184 Ark. 740, 44 S.W.2d 231, in reference to the sufficiency of a ballot title submitted with a petition to refer, we stated the rule as follows: "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."
The rule thus stated is broad enough to be all inclusive and flexible enough to afford ample relief in all meritorious cases, therefore we reaffirm it without citing or discussing authorities from other jurisdictions. *Page 31
The only question here presented is, does the ballot title under consideration fall within or without the rule stated?
The first phrase of the submitted ballot title contains the following: "elected by the people." The only purpose for the use of these words was to lend partisan color to the position assumed by the petitioners. It was and is wholly immaterial whether or not the abolished board was elective or appointive. The Legislature has plenary power to create and abolish such boards and commissions.
The second phrase of the submitted title is likewise partisan and colored. The undue emphasis placed upon "appointed by the Governor" does not add to or detract from the merits or demerits of the act.
Not only is this phrase colored and partisan, but it is misleading and contains a half truth only. The act provides that the new State Board of Education shall be appointed by the Governor with the advice and consent of the Senate. Thus it appears that the elective Senate of the State is a part and parcel of the appointive power, but this is skillfully withheld by the proponents of the referendum petitions.
The third phrase of the submitted title is likewise partisan, colored and misleading. It provides, "to create the office of State Superintendent of Public Instruction." This language is partisan and colored because cause it withholds from the voters the fact that the superintendent is to be elected by vote of the people, and this, in the face of the fact that undue emphasis has just been placed upon the facts that the "abolished board is elected by the people," and that the new board is "appointed by the Governor." If it were important to advise the voters that the old board was elected by the people, and that the new board would be appointed by the Governor, certainly it was equally important to advise the voters that the superintendent would be elected by the people.
The third phrase of the submitted title is misleading because it creates the impression that a new office, that of superintendent of public instruction, is being created. This office has been in existence for the past fifty years, *Page 32 although for the past few years operating under the appellation of Commissioner of Education. The effect of the language employed in the act is to substitute the office of Superintendent of Public Instruction for that of Commissioner of Education under existing law, and this should have been reflected in the title instead of the converse, as was done.
The fourth and last phrase of the submitted ballot title as follows: "And to repeal certain sections of `the school law' which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration" is likewise misleading, partisan and colored. It is misleading because the fact is the members of the abolished State Board of Education do receive actual expenses while attending meetings of the State Board of Education. It is partisan and colored because it is immaterial whether or not such members are compensated. The inference sought to be conveyed by the use of the language thus employed is that the new State Board of Education to be appointed by the Governor will receive compensation when such is not the fact. If the language thus employed in the title is of importance to the voters, it was of equal importance that they be directly advised that the new State Board of Education to be appointed by the Governor would likewise be required to serve without remuneration.
Thus it appears that each sentence and phrase of the proposed title is either misleading, colored or partisan, and that each and all falls squarely within the prohibition announced in the Westbrook case, cited supra.
It is argued that the language contained in the proposed title is true, therefore cannot be considered as misleading, colored or partisan. The willful withholding of a material fact is equally as reprehensible as the misstatement of a material fact. This was fully recognized in the Westbrook case just referred to. There we had under consideration a proposed ballot title as follows: "To permit the granting of decrees of divorces to applicants who have resided in the State for a period of only three months." Each word, phrase and sentence of this *Page 33 proposed ballot title was literally true, yet we held it misleading because it did not directly advise the voters that it would be necessary for applicants for divorces to establish by evidence a legal cause for divorce in addition to the required three months' residence. Thus it definitely appears that this contention was decided and determined adversely to respondent's contention here.
Our conclusion is therefore, that the submitted ballot title in the instant case falls within the prohibition of the Westbrook case and is insufficient.
After the filing of this suit, one W. E. Greene et al. were permitted to intervene upon the theory that they were offering as a part and parcel of the petition for referendum a supplemental and substituted ballot title. Prior to the submission of this cause, however, interveners requested permission to withdraw said intervention. We have concluded that interveners have the right to withdraw said intervention and substituted or supplemental ballot title. Therefore this question passes out of the case.
It follows from what we have said that the respondent McDonald, Secretary of State, should have denied the petition for referendum, because of the insufficiency of the ballot title submitted therewith, and his actions in submitting and referring same is quashed, and a peremptory writ of prohibition is awarded in behalf of petitioners.
Justices SMITH, MEHAFFY and McHANEY dissent.