Hargis v. Hall

• Decision Date: 17 October 1938
• Docket Number: 4-5332
• Parties: HARGIS v. HALL, SECRETARY OF STATE
• Court: Arkansas Supreme Court

120 S.W.2d 335

196 Ark. 878

HARGIS v. HALL, SECRETARY OF STATE

4-5332

Supreme Court of Arkansas

October 17, 1938

Petition for injunction; an original action; writ granted.

Writ granted.

Miles & Amsler, for plaintiff.

A. L Rotenberry, for defendant and interveners.

OPINION

GRIFFIN SMITH, C. J.

Prior to July 8, 1938, A. L. Rotenberry and others filed with the Secretary of State certain initiative petitions which purported to contain the names of 17,985 electors. They proposed to initiate an act to create a state pension department and to provide for its administration.

The text of the proposed act is voluminous. It was painstakingly prepared and printed in appropriate form, whereupon counterparts containing certain signatures were filed with the Secretary of State, at which time the proposed ballot title, copied below, was submitted:

"An act to provide pensions for indigent aged and blind citizens of Arkansas; for a pension department and an honorary pension commission and the manner of their selection; a pension commissioner and the manner of his selection and salary county directors and honorary boards and the manner of their selection; limiting the administrative expenses to five per cent. of pension funds; providing revenues to pay the pensions by reenacting present sales tax law and appropriating forty per cent. thereof for same, and the retention of the 33 1/3 per cent. of the present horse and greyhound racing taxes, $ 500,000 liquor tax, pool hall and slot-machine taxes and the grants from the Federal government; appropriating three million dollars for the fiscal year 1938-1939; providing penalties for violation of act, and for other purposes."

Proceedings were filed in this court wherein it was sought to have the ballot title declared insufficient. Such action was instituted before the Secretary of State had approved or disapproved the title. The suit was dismissed as premature. Thereafter, the Secretary of State held that the title was sufficient, and again the question was presented to this court. Lewis v. Hall, Secretary of State, ante 196 Ark. 115, 116 S.W.2d 353. Action of the Secretary of State was sustained, and the injunction was denied.

September 10, 1938, H. P. Hargis filed his complaint in an original action in this court, naming as defendants the Secretary of State, and the State Board of Election Commissioners.

It was alleged that fraud had been practiced in procurement of signatures to the petition; that several thousand of the names tendered were not those of qualified voters; that other thousands had been forged, and that still other irregularities of a nature impairing the petition existed. Prayer of the complaint was "That the action of the Secretary of State in declaring the petition sufficient be held void; that all names appearing on said petition who are not legal voters be stricken therefrom; that all names which are forgeries be declared void; that the names on all parts of the petition which were not signed and properly certified thereto by the circulators thereof be stricken; that the names on all parts of the petition which are not properly notarized be stricken; that all names which appear more than once upon the petition and which are duplications be stricken; that said petition be declared insufficient as to the number of signers; . . . that the State Board of Election Commissioners be restrained and enjoined from certifying said ballot title to the Secretary of State, and that the Secretary of State and the Board of Election Commissioners be restrained and enjoined from placing said act, or the ballot title thereof, upon the ticket which is to be voted upon in the general election November 8, 1938."

A. L. Rotenberry and others, as "sponsors, legal voters, taxpayers, and citizens, for themselves and all other interested parties," were permitted to intervene. They filed a separate answer and general denial. They also pleaded that the plaintiff was barred from further prosecuting the cause "for the reason that any defense that the plaintiff or any other interested party might raise could have been raised and adjudicated in the case of Lewis v. Hall [referred to, supra], and that all such issues have been duly adjudicated, or could have been adjudicated in that case. Interveners further allege that if the plaintiff had any cause of action it should have been first brought before the Secretary of State and decided by him in the first instance, and that whatever cause of action the plaintiff might have had is prematurely brought in this court."

At an adjourned session held September 20 for the purpose of disposing of preliminary questions, we held that original jurisdiction to determine the sufficiency of state-wide petitions was conferred upon the Supreme Court by Amendment No. 7; that official action of the Secretary of State in holding that the petition was sufficient was subject to review in the manner prayed for by plaintiff, and that in the Lewis-Hall case there was an express finding that the petition and response "presented the sole issue of whether the ballot title . . . was sufficient." The plea of res judicata was denied. It was directed that the cause be heard on depositions and oral argument, and that briefs be submitted.

Amendment No. 7 to the Constitution, known as the Initiative and Referendum Amendment, authorizes eight per cent. of the voters to propose any law. There are these provisions: "Only legal voters shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant's knowledge and belief each signature is genuine, and that the person signing is a legal voter. . . . No law shall be passed . . . interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions. . . . That this amendment to the constitution of the state be, and the same shall be in substitution of the. initiative and referendum amendment, approved February 19, 1909, . . . and that the said amendment (and the act of the General Assembly to carry out the same, approved June 30, 1911, so far as the same is in conflict herewith), be and the same are hereby repealed."

Depositions filed by the plaintiff present evidence which, if true, renders the initiative petition, insufficient.

Louise Dennis testified that she had examined the 544 separate sheets or parts of the petition. Attached an exhibit, to her testimony was the official list of electors of Pulaski county, showing the names of those who paid their poll taxes prior to June 15, 1937. By comparing such list with the petition, she found that 931 of those who purportedly signed the petition were not listed in the certified publication.

With respect to other counties checked by the witness in similar manner, the following discrepancies were testified to: Names appearing on petition counterparts from various counties, and not appearing in the official poll tax books, were: Benton county, 72; Clay, 35; Little River, 104; Saline, 167; Ouachita, 63; Greene, 107; Hempstead, 55; Franklin, 118; Phillips, 10; Logan, 253; Mississippi, 528; Lincoln, 23; Lawrence, 126; Polk, 361; Sebastian, 218; Jackson, 14; Ashley, 15; Clark, 76; Craighead, 377; Crawford, 203--a total of 4,250 as to which the evidence is undisputed that such signers were not included in the official poll lists.

The witness also identified a list of 2,003 names taken from sheets 1 to 159 of the Pulaski county petition, copied on 26 typewritten pages, and filed as exhibit "56" to her testimony. Other similar lists were brought into the record as exhibits "57" to "72," inclusive. These contained names taken from counterparts circulated in Arkansas, Lincoln, Ouachita, St. Francis, Little River, Phillips, Lafayette, Jackson, Crittenden, Sharp, Greene, Izard, Lee, and Perry counties. There were 4,280 names on these lists.

Exhibit "73" is a list of the names of persons who appear more than once on the petition.

The witness testified that she made a list showing that affidavits by those who circulated petition parts had been taken before G. G. Fulmer in Little Rock. Four of the sheets so attested were from Arkansas county, one from Crawford county, sixteen from Ouachita county, eight from Phillips county, one from Sebastian county, three from St. Francis county, and sixty-one from Pulaski county. Exclusive of names appearing on exhibits "56" to "72," Fulmer had taken the affidavits of petition circulators who presented a total of 4,983 names. Four sheets of the petition from Arkansas county appeared to have been attested by the same person who...