Brown v. Davis, 5-1198

• Decision Date: 29 October 1956
• Docket Number: No. 5-1198,5-1198
• Citation: 226 Ark. 843,294 S.W.2d 481
• Parties: George D. BROWN et al., Appellants, v. Charles L. DAVIS et al., Appellees.
• Court: Arkansas Supreme Court

Page 481

294 S.W.2d 481

226 Ark. 843

George D. BROWN et al., Appellants, v. Charles L. DAVIS et al., Appellees.

No. 5-1198.

Supreme Court of Arkansas.

Oct. 29, 1956.

Van Johnson and Shaver, Tackett, Jones & Lowe, Texarkana, for appellants.

Avin E. Johnson and A. P. Steel, Texarkana, for appellees.

HOLT, Justice.

This appeal comes from a decree of the Miller Chancery Court entered October 6, 1956, which denied appellants' petition for review of the action of the County Clerk of Miller County in certifying the sufficiency of a petition filed by certain qualified electors in said county for a local option election and which decree denied appellants' prayer that the Miller County Board of Election Commissioners be enjoined and restrained from causing to be placed upon the ballots to be used in Miller County in the general election, November 6, 1956, the question proposed by the sponsors of the petition.

For reversal appellant relies on the following points: '1. The Chancellor erred in dismissing plaintiff's complaint and in denying the restraining order prayed for. 2. The Chancellor erred in ruling that the Clerk made a certification of the sufficiency of the petition, whereas the alleged 'certification' was insufficient in law. 3. The Chancellor erred in ruling that Act 15 of 1955 [Ark.Stats. §§ 48-824, 48-825 and note] did not repeal all provisions of Initiated Act No. 1 of 1942 [Ark.Stats. § 48-801 et seq.] except such as pertain to the 'preparation' of the petition. 4. The Chancellor erred in ruling that, since the adoption of Act 15 of 1955, it does not take a county initiative act under the I & R Amendment No. 7 to change a 'wet' county into a 'dry' one. 5. The Chancellor erred in saying that appellants contend that Act 15 intended to and did abolish for all practical purposes local options on the liquor question in Arkansas. 6. The Chancellor erred in his construction of the term 'preparation', as used in Act 15, 1955. 7. The Chancellor erred in ruling that it was not necessary to set out in the petition the proposed initiative act containing a proper or sufficient title or an enacting clause. 8. The Chancellor erred in ruling that the failure of the County Clerk to submit a ballot title to the County Board of Election Commissioners and to give the notice of election required by Act 4, 1935 [Ark.Stats. §§ 2-301, 2-303 et seq.], was not fatal, and in ruling that a title can hereafter be so submitted and that the notice can be hereafter published. 9. The Chancellor erred in holding that Sec. 4 of Act 4, 1935 (§ 2-305, Ark.Stats.), does not apply to the petition in question as it is not a county initiative petition within the meaning of Amendment No. 7. 10. The proceedings for the proposed election are insufficient in law for reasons not heretofore covered or commented upon by the Chancellor, though briefed and argued.'

Proceeding under the provisions of our I & R Amendment No. 7 to the Constitution of the State of Arkansas, Initiated Act 1 of 1942, and the recent Act 15 of 1955, the following steps in this case were taken as recited in the chancellor's findings:

'The undisputed evidence shows that on September 5, 1956, there was filed with the County Clerk of Miller County a petition composed of several identical parts, purporting to be signed by more than 15% of the qualified electors of said county, as shown by the poll tax records, seeking a Local Option Election in Miller County under the provisions of Initiated Act No. 1 of 1942, as amended by Act 15 of [226 Ark. 846] 1955. * * * On September 14, 1956, the County Clerk executed a certificate wherein he certified as to the sufficiency of the petition, and later sent such certificate, and other papers, to the Miller County Board of Election Commissioners, including a copy of the petition. In addition, and prior thereto, the clerk had also certified the sufficiency of the petition to the Miller County Court, and on September 14, 1956, the county court made and entered an order wherein that court also found the petition sufficient and ordered the County Board of Election Commissioners to cause said Local Option Election to be held on the regular biennial election date of November 6, 1956. The County Court order, among other things, directed that the ballot contain the question:

"FOR the manufacture or sale of alcoholic liquors.'

"AGAINST the manufacture or sale of alcoholic liquors.'

'That was the ballot title, or question, proposed in the body of the petition as circulated. A copy of this County Court Order was also sent to the Board of Election Commissioners by the County Clerk.

'Plaintiffs have conceded in oral argument before this Court that the petition in question was prepared in accordance with the original provisions of Initiated Act No. 1 of 1942, but contend that such petition does not meet the requirement of that Act as now amended by Act 15 of 1955. So the disposition of this lawsuit will turn on the meaning of Act 15 of 1955 and the effect that the enactment of such measure has had on the provisions of Initiated Act No. 1, supra.'

At the outset we point out that we have consistently held that local option elections, as here, are not initiated measures within the meaning of Amendment 7 but are in the nature of a referendum measure. In the case of Yarbrough v. Beardon (Phillips v. Foreman), 206 Ark. 553, 177 S.W.2d 38, 39, we said, "Amendment No. 7 to the constitution has no application. This is not an initiated act as provided for in that amendment. It is merely a submission to the legal voters of the county on the question of the sale of liquor, and is more in the nature of a referendum than an initiative petition. * * *" Act 15 of 1955 provides: 'An Act to Fix the Time for Holding Certain Elections; and for Other Purposes. Be It Enacted by the General Assembly of the State of Arkansas: Section 1. Local option elections, to determine the legality or illegality of the manufacture, sale bartering, loaning, or giving away of intoxicating liquors, shall hereafter be held only on the regular biennial November general election days. Section 2. Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7...