Fletcher v. Bryant

• Decision Date: 15 January 1968
• Docket Number: No. 5--4367,5--4367
• Citation: 243 Ark. 864,422 S.W.2d 698
• Parties: Senator Virgil T. FLETCHER, Plaintiff, v. Kelly BRYANT, Secretary of State, Defendant, Lytle Claremont Baber et al., Intervenors.
• Court: Arkansas Supreme Court

Page 698

422 S.W.2d 698

243 Ark. 864

Senator Virgil T. FLETCHER, Plaintiff, v. Kelly BRYANT, Secretary of State, Defendant Lytle Claremont Baber et al., Intervenors.

No. 5--4367.

Supreme Court of Arkansas.

Jan. 15, 1968.

Warren & Bullion, Little Rock, for plaintiff

Joe Purcell, Atty. Gen., William R. Hass, Henry Ginger, Asst. Attys. Gen., Little Rock for defendant.

Owens, McHaney & McHaney, by James M. McHaney, Little Rock, for intervenors.

FOGLEMAN, Justice.

This is an original proceeding under Amendment No. 7 of the Constitution of Arkansas in which the petitioner, Virgil T. Fletcher, questions the sufficiency of a petition to refer Act 306 of 1967, entitled 'The Arkansas Dairy Industry Stabilization Act.' Petitioner asserts four separate points upon which he relies. We will discuss these in the order in which he raises them. Since three of the four points relate to the sufficiency of the ballot title contained on the petition and approved by the Attorney General, we deem it advisable that the title be set out here. It is as follows:

BALLOT TITLE

An Act creating the Arkansas Dairy Commission consisting of five members appointed by the Governor, prescribing their qualifications, compensation, and terms of office; authorizing the employment of an Executive Director, attorney, and other employees; authorizing the Commission generally to supervise, investigate, and regulate the entire dairy industry engaged in processing, manufacturing, storing, distributing, and selling milk products (including fluid milk) and frozen dairy products, except health regulations, and to require certain processors to pay to the Commission equalizing charges as therein determined; requiring each dairy-farmer processor, processor, wholesale and retail distributor, retailer, and institution to obtain a license from the Commission for each place of business and pay a license fee; requiring licensees to maintain records and make reports; authorizing and, in certain classes of sales (including sales to consumers), requiring the Commission to establish minimum prices for sales of milk products (including fluid milk) and frozen dairy products in distribution marketing areas, after prescribed investigations, hearings, considerations, and requirements; requiring processors and distributors to file the uniform wholesale price at which certain products, the minimum price for which is not established by the Commission, will be sold by each such licensee; prohibiting the sale of milk products (including fluid milk), frozen dairy products, and other frozen products below established minimum prices or at variance from filed prices; providing for rules of practice, public hearings and procedures, public notice, and judicial review relating to quasi-legislative and adjudicatory functions of the Commission, including issuance, denial, or suspension of licenses; authorizing actions to enjoin violations; providing for assessments against processors and certain other licensees based on sales and in an amount not to exceed five cents per hundredweight on all milk or milk equivalent; providing that all license fees, assessments penalties and other monies received by the Commission be paid into a revolving fund to be used for the administration and enforcement of the Act, no expense to be a charge against State funds; the same being Act 306 of 1967.

In determining the sufficiency of this ballot title, we will keep in mind that we give a liberal construction and interpretation of the requirements of Amendment 7 in order to secure its purposes to reserve to the people the right to adopt, reject, approve or disapprove legislation. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248; Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77. Actions of electors in seeking to exercise this right must not be thwarted by strict or technical construction. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72; Cochran v. Black, 240 Ark. 393, 400 S.W.2d 280. For this reason, substantial compliance with the requirements of the amendment is sufficient. Blocker v. Sewell, 189 Ark. 924, 75 S.W.2d 658.

We must also remember that a ballot title is sufficient if it identifies the proposed act and fairly alleges the general purpose thereof, and it need not be so elaborate as to set forth details of the act.

Coleman v. Sherrill, 189 Ark. 75 S.W.2d 248; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81; House v. Brazil, 196 Ark. 602, 119 S.W.2d 397. The rule of liberal construction applies to determination of sufficiency of the ballot title. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884.

Some significance must be given to the fact that the Attorney General has approved it, pursuant to Ark.Stat.Ann. § 2--208 (Repl.1956). In considering the weight to be given to the approval of the Attorney General on the ballot title, it is to be noted that neither Amendment No. 7 nor enabling legislation thereunder (Act No. 2 of the Extraordinary Session of 1911 and Act No. 195 of 1943) makes any specific mention of the ballot title as a part of a referendum petition. ¹ On the other hand, a ballot title is specifically required to be a part of an initiative petition. Considerable distinction can be made in the emphasis on the ballot title on a newly proposed legislative measure and that on one which has been adopted by the General Assembly. On a referendum petition the voters are asked to reject a measure officially adopted and published as an act of the legislative branch. The petition, to be sufficient, must adequately identify the act in question. On an initiative petition the voters have no way to be informed except by the publication of the proposed measure which usually would take place some time later than the publication of acts of the General Assembly. The courts of other states have spoken of the presumptions arising from the approval of ballot titles by those charged with that responsibility. We quote from the opinion in Say v. Baker, 137 Colo. 155, 322 P.2d 317, as follows:

'The action of the statutory board empowered to fix the ballot title and submission clause is presumptively valid, and those who contend to the contrary must show wherein the assigned title does not meet the statutory requirement. No such showing is made in the instant case.

In a carefully considered opinion written for a unanimous court, the Supreme Court of California had occasion to consider a title fixed by the attorney general pursuant to a statute, and expressed this principle in clear language as follows:

'In approaching the question as to whether the title so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general's actions. Only in a clear case should a title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient. These rules of construction are in accord with the fundamental concept that provisions relating to the initiative should be liberally construed to permit, if possible, the exercise by the electors of this most important privilege.' Epperson v. Jordan, 12 Cal.2d 61, 82 P.2d 445, 448.

From this principle it further follows, as the Oregon court remarked in Wieder v. Hoss, 143 Or. 122, 21 P.2d 780, 781, that:

'The mere fact that after an appeal has been taken and we have had the benefit of the additional labor bestowed upon the ballot title by counsel we may be able to write a better ballot title than the one prepared by the Attorney General constitutes no reason for discarding his title. The purpose of the appeal is not to secure for the bill the best possible ballot title, but to eliminate one that is 'insufficient or unfair,' if it should develop that the one submitted by the Attorney General is of that kind."

There is a clear implication that the General Assembly intended that presumptions With these principles in mind, we now proceed to the separate statement and discussion of points urged by petitioner.

as to sufficiency of a ballot title approved by the Attorney General favor the sponsors of a referendum petition inasmuch as the act (Ark.State.Ann. § 2--208, adopted in 1943) specifically provides for relief to them, but not to opponents, by petition to this court.

POINT I.

The petition was fallacious and void in that it falsely advised the prospective signer that Act 306 became a law on March 13, 1967.

Section 17 of the Act provides that it shall become effective July 1, 1967, and expire June 30, 1969. The referendum petition, in describing the act, contained the following language:

'We, the undersigned, legal voters of the State of Arkansas, respectively order, by this, our petition, that Act 306 of the General Assembly of the State of Arkansas, which became a law on March 13, 1967, * * *.'

Petitioner contends that there is no legal justification for the statement that the act became a law on March 13, 1967, so that the inclusion of this language must necessarily have been for the purpose of confusing and deceiving prospective signers. In support of his argument, petitioner relies on language in decisions of this court wherein the effective date of acts not containing an emergency clause was in question. In the opinions in some of these cases there is language stating that the particular act did not become a law until ninety days after adjournment of the session of the General Assembly during which it was enacted. Perhaps a more accurate statement would have been that the particular act did not go into effect or become operative as a law until ninety days after the adjournment of the legislature, as was said in most of these decisions. See, e.g., Arkansas Tax Commission, State ex rel. v. Moore, 103 Ark. 48, 145 S.W. 199; Gaster v. Dermott-Collins Road Improvement District, 156 Ark. 507, 248 S.W. 2; School District No. 41 v. Pope County Board of Education, 177 Ark. 982, 8 S.W.2d 501; State ex rel. Woolens v. Davis, ...