If the majority opinion in the case of Westbrook v. McDonald,184 Ark. 740, 44 S.W.2d 231, was critical in construing the requirements of the Initiative and Referendum Amendment in the matter of the sufficiency of the ballot title, as was said of it in the dissenting opinion in that case, then the majority opinion in the instant case is hypercritical in the same respect. If only those ballot titles may be approved which are above and immune from criticism, the amendment has lost its value in both initiative and referendum features, as ballot titles must be submitted in either case. It is beyond contemplation or comprehension that the *Page 34 ballot title should advise the voter fully what the exact state of the law will be if the majority vote is cast for the legislation, which is called "the measure" in the amendment. If such a test is to be applied, it would be equally important to advise the elector what the state of the law will be if the majority vote is not cast for the proposed measure.
Act 78 of the Acts of 1933, hereinafter referred to as act 78, here sought to be referred, amends, in several particulars, act 169 of the Acts of 1931, hereinafter referred to as act 169. Suppose it had been attempted to refer this act 169? How could a ballot title ever be prepared which could meet the tests to which the majority have here subjected the ballot title relating to act 78? Act 169 consists of 198 sections, and extends from page 476 to page 588 in the Acts of 1931. It repeals 320 sections of Crawford Moses' Digest and 8 sections of Kirby's Digest, and either repeals or amends 19 separate acts of the General Assembly. What kind of a ballot title could be employed or devised which would advise the bewildered elector, when he saw the ballot which he was about to cast, what the effect of these changes would be? It must be remembered that the general election law provides that: "No elector shall be allowed to occupy a booth or compartment for the purpose of voting for a longer time than five minutes." Section 3800, Crawford Moses' Digest. Several times that length of time would be required to read even a synopsis of act 169, even though the voter was not interested in any other question being voted on or in any candidate for office.
The answer to all such suggestions is that the Initiative and Referendum Amendment does not contemplate the particularity and certainty which would be required to meet the objections which the majority have found to the ballot title here submitted. The requirement of the amendment is that "at the time of filing petitions, the exact title to be used on the ballot shall by the petitioners be submitted with the petition." Now, as was said in the Westbrook case, supra: "The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and ought to be *Page 35 free from any misleading tendency, whether of amplification, of omission, or of fallacy, and must contain no partisan coloring." These requirements could in most cases be met by employing as a ballot title the same title given to legislation by the General Assembly. The same rule, based upon the same reason, applies alike to legislation or measures initiated by or referred to the people. It would not be fair to permit the proponents of an initiated act to give it a title which was calculated to deceive the elector when he came to vote, and induce him, by reason of the misleading title, to vote for the measure; nor would it be fair to permit the opponents of the measure who had caused it to be referred to the people, to encompass its defeat by reason of a misleading title. It ought to convey an intelligible idea of the scope and import of the proposed law, without misleading tendency, and should contain no partisan coloring having that effect.
Now, under this test, it occurs to me that holding the ballot title insufficient and defective in the Westbrook case, supra, affords no justification for holding the ballot title insufficient in the instant case. There the suggested title read as follows: "Referendum of the act of the Legislature of 1931, amending 3505 of Crawford Moses' Digest of the laws of the State of Arkansas so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months." The act there sought to be referred did not permit the granting of decrees of divorce to applicants who had resided in the State for a period of only three mouths, and the majority thought it unfair and misleading to so state. What the act did — and all it did — was to shorten the time — which had previously been a year — during which one must reside in this State before having the right to sue for a divorce in the courts of this State. Unlike that title, the ballot title in the instant case contains no misstatement of a fact, and there is no omission or amplification or partisan coloring calculated or intended to mislead, in my opinion.
The first statement of the ballot title here under review is that "The purpose of the act is to abolish the *Page 36 State Board of Education elected by the people." And so it is.
The first section of act 78 repeals 3, 6, 7, 8 and 22 of act 169. Section 3 of act 169 created a State Board of Education, composed of one member from each Congressional district, and by 4 it was provided that the members "shall be elected by the qualified electors of each Congressional district at the regular annual school election." In other words, the electors of each Congressional district elect their own member, so that they are elected by the people.
The second statement of the ballot title is to "create a new State Board of Education appointed by the Governor." And so it is. Section 2 of act 78 reads as follows: "The State Board of Education as now constituted by law is hereby abolished, and there is hereby created a State Board of Education to be composed of seven members to be appointed by the Governor by and with the advice and consent of the Senate." This means, of course, that the appointment made by the Governor must be confirmed by the Senate, and, as stated in the ballot title, the appointments are made by the Governor, and if, for any reason, the appointments made are not confirmed, the Governor makes other appointments. The appointing power abides in the Governor.
But, again, I beg to suggest that if such mere matters of detail must be recited in the ballot title, as that an appointment made by the Governor must be confirmed by the Senate, then it will be difficult, if not impossible, to prepare a practical ballot title. It should not be required to employ a title of such length and intricacy as to cause the despair, if not the disgust, of the elector in the five minutes he is allowed to prepare and cast his ballot. This statement appears to me to be equally applicable to other objections made to the ballot title.
The third purpose stated in the ballot title is "To create the office of State Superintendent of Public Instruction." And so it is. The first paragraph of 3 of act 78 reads as follows; "The office of Commissioner of *Page 37 Education is hereby abolished and the office of State Superintendent of Public Instruction is hereby created."
The fourth purpose is stated in the ballot title to be "To repeal certain sections of the School Law which fixes the regular time of meeting for the State Board of Education, and requires said board to serve without remuneration." Section 6 of act 169 reads, in part, as follows: "The State Board of Education shall meet annually on the second Monday in September in the office of the Commissioner of Education, and shall also hold regular quarterly meetings on the second Monday in December, March, and June." This section is expressly repealed by act 78, as stated in the ballot title.
Section 8 of act 169, which is expressly repealed by act 78, provided that: "The members of the State Board of Education shall serve without remuneration, other than their actual expenses while attending meetings of the Board," so that the 4th statement of the purpose of the act appearing in the ballot title is literally true, except that the members of the State Board of Education under act 169 were allowed their actual expenses while attending meetings of the board. Being allowed this and nothing more, it may well be questioned whether the board members were to receive any remuneration. They were paid nothing for their services, and were only allowed expenses incurred while attending meetings to perform their otherwise unremunerated duties. This must be de minimis.
Now, it may or may not be wholly unimportant whether the board which is to administer the educational affairs of the State is elected or appointed, as the majority say. It is not, in my opinion, our function to say that there is no difference, when the number of electors required by the constitutional amendment to invoke its aid, have done so, for the purpose of retaining an elective rather than an appointive board.
It is said that the ballot title is partisan and colored, because it withholds from the voters the fact that the State Superintendent of Public Instruction, provided for by act 78, is to be elected by the people, because it had stated that the "abolished board is elected by the people," *Page 38 whereas the new board is "appointed by the Governor."
The majority opinion furnishes what appears to me to be a satisfactory answer to this objection, and that is, that the office of Superintendent of Public Instruction was not an innovation in the educational history of this State. We had had such an office for more than fifty years; in fact, since December 7, 1875, until it was abolished by recent school legislation, during all of which time that official had been elected as other State officers were elected. Section 8793, Crawford Moses' Digest.
However, had the ballot title recited, as the majority say it should have done, that upon the recreation of this office it would be filled as it had been during its former existence, it might have been objected that the statement was not accurate, but was partisan and colored, for the reason that 3 of act 78 provides that: "Immediately after this act has taken effect and is in force, the State Board of Education herein created shall elect a State Superintendent of Public Instruction, who shall serve until the next general election and until his successor is duly elected and qualified."
Can it be imagined that any one could prepare a ballot title to which no objection could be found, and which would be approved by all persons who considered it? On the contrary, it is impracticable, if not impossible, except in very simple matters of legislation, to advise the elector what the exact state of the law will be after the measure has been adopted or rejected by the people, and no such requirement should be imposed if the Initiative and Referendum Amendment is to produce the results, the anticipation and expectation of which induced its adoption.
The majority have said nothing about the substitute ballot title which was submitted in anticipation of the possible rejection of the original title submitted along with the petition, and I shall not, therefore, consider its sufficiency, as, in my opinion, the original title was sufficient. But I feel constrained to say that it was expressly held in the former opinion in this case to which the majority opinion refers, that the ballot title is a part of the *Page 39 petition. Shepard v. McDonald, 188 Ark. 124. The amendment expressly provides that the petition may be amended; therefore, the ballot title, which is a part of the petition, may be amended. The amendment provides that: "If the Secretary of State * * * shall decide any petition to be insufficient, he shall, without delay, notify the sponsors of such petition, and permit at least thirty days from the date of such notification * * * for correction or amendment."
Prior to the decision in this case there was no occasion to invoke this provision of the amendment, because the title had not been held insufficient. On the contrary, the Secretary of State held it to be sufficient. He must now, under the majority opinion, hold the ballot title insufficient, and, this being true, an opportunity to amend, for which the amendment itself provides should be afforded.
I therefore most respectfully dissent and am authorized to say that Justices MEHAFFY and McHANEY, concur in the views here expressed.