Bradley v. Hall, 4-9942
| Decision Date | 06 October 1952 |
| Docket Number | No. 4-9942,4-9942 |
| Citation | 251 S.W.2d 470,220 Ark. 925 |
| Parties | BRADLEY et al. v. HALL, Secretary of State. |
| Court | Arkansas Supreme Court |
Brooks Bradley, Josh W. McHughes, Roger L. Murrel and Tilghman E. Dixon, all of Little Rock, for appellant.
Ike Murry, Atty. Gen., and Cleveland Holland, Asst. Atty. Gen., for appellee.
Bailey & Warren, O. W. Garvin, Howard Cockrill, Armistead, Rector & Armistead, U. A. Gentry, Barber, Henry & Thurman and Wright, Harrison, Lindsey & Upton, all of Little Rock, Amici Curiae.
This is a petition to enjoin the Secretary of State from certifying as sufficient a ballot title for a proposed constitutional amendment, to be voted upon at the general election next month. The petition asserts that the ballot title is defective, incomplete, and misleading, that it conveys a false idea of the proposed law, and that it contains half truths and partisan coloring. These assertions are controverted by the respondent and by the sponsors of this initiated measure.
The proposed popular name, ballot title, and amendment are as follows:
[Popular Name]
'Modern Consumer Credit Amendment'
[Ballot Title]
'A proposed constitutional amendment to amend Article XIX, Section 13 of the Arkansas Constitution of 1874 by empowering the General Assembly to enact laws to authorize, define, and limit charges, in addition to interest, in connection with the lending of money and commercial transactions.'
[Proposed Amendment]
Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716. Yet, on the other hand, the ballot title must be free from "any misleading tendency, whether of amplification, of omission, or of fallacy," and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81, 83.
It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.
What, then, are the changes in the law that would occur if this amendment were added to the constitution? The first sentence of the amendment is an exact re-enactment of Article 19, Section 13, as it now reads. We are therefore concerned only with the second sentence, which undertakes to modify the present law in two major respects:
First, the General Assembly is to be given the power to authorize lenders to make charges for their services and for their expenses in connection with loans. Even without this amendment many such charges are already permitted, such as fees paid by the lender for an abstract, a title opinion, or an insurance policy. Winston v. Personal Finance Co., Ark., 249 S.W.2d 315. Obviously the amendment is not intended to authorize charges such as these, since they are now permissible. But there are other charges, such as one by which the lender attempts to pass on to the borrower the overhead costs of the lender's business, that are not countenanced by existing law. Strickler v. State Auto Finance Co., Ark., 249 S.W.2d 307. It is reasonable to suppose that the framers of this amendment meant to legalize those charges that have heretofore been regarded as interest and therefore as possibly usurious. This conclusion is reinforced when we observe that the amendment imperatively declares that if such charges are within a maximum to be fixed by the legislature they 'shall' be considered earned and 'shall not' be considered as interest.
Second, the amendment declares by its concluding clause that the difference between a cash price and a credit price shall not be considered as interest. For the most part this has long been the law in Arkansas, as this court announced in 1880. Ford v. Hancock, 36 Ark. 248. The present amendment was certainly not drafted for the purpose of reaffirming the existing law. There is, however, one situation in which a time price differential has in the past been treated as interest, when it results from a prearrangement by which a seller enables a lender to obtain more than a ten percent return upon his money. Hare v. General Contract Purchase Corp., Ark., 249 S.W.2d 973. Doubtless the final clause of the amendment is intended to abrogate this rule.
Thus the proposed amendment has a twofold purpose: (a) It would legalize service charges that have previously been regarded as usurious, and (b) it would legalize credit price differentials that have previously been regarded as usurious. Of course the wisdom of these changes does not concern this court, but neither should it concern the draftsman of the ballot title. It is his duty to provide an impartial summation of...
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