Hildreth v. Taylor

• Decision Date: 22 March 1915
• Docket Number: 253
• Citation: 175 S.W. 40,117 Ark. 465
• Parties: HILDRETH v. TAYLOR
• Court: Arkansas Supreme Court

175 S.W. 40

117 Ark. 465

HILDRETH v. TAYLOR

No. 253

Supreme Court of Arkansas

March 22, 1915

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Hal L. Norwood, Ratcliffe & Ratcliffe, Moore, Smith & Moore Morris M. Cohn and J. C. Marshall, for appellants.

1. The notice of the submission was not given by advertisement in a newspaper as required by statute.

2. The amendment did not receive the number of votes requisite for its adoption. The amendment was not legally adopted. 106 Ark 506; Const., art. 19, § 22; Ib., art. 6, § 15; Amendment No. 10; 93 P. 254; 78 Ark. 346; 98 Id. 125; 104 Id. 417; Endlich on Int. of Stat., 747; 74 P. 721; 105 Ark. 381; 104 Id. 583; 106 Id. 63; 93 Id. 228; 27 Id. 648; 60 Id. 343; 12 Id. 101; 2 Id. 98; 4 Id. 473; 9 Id. 270; 78 Id. 442; 24 Ala. 108; 50 L. R. A. (N. S.) 196; 61 Ark. 594; 76 Id. 534; 106 Id. 248-253; Kirby's Dig., §§ 702 710, etc.; 98 P. 241; 34 Utah 369; 98 P. 180; 96 Id. 1047; 58 S.E. 715; 92 P. 353; 100 N.E. 833; 115 N.W. 429; 70 Ark. 326; 79 Id. 236; 156 Ky. 783; 162 S.W. 99; 25 L. R. A. (N. S.) 560; 19 P. 894; 24 Ala. 108; 104 Ark. 510; 78 Id. 422; 106 Ark. 506-508; 78 Id. 442.

J. W. Mehaffy, Coleman & Lewis, Cockrill & Armis-tead and Rose, Hemingway, Cantrell, Loughborough & Miles, for appellee.

1. The notice was sufficient. The provision is not mandatory. The measure received a majority of the votes cast thereon, and was legally adopted. "Referred to the people" applies to initiative measures. Amendment No. 10; 93 P. 237. "Measure" includes a constitutional amendment. Thorpe, Am. Charters, vol. 6, p. 3404; 7 Id. 4278; 109 P. 823; 11 Id. 802; 109 Id. 658; 124 P. 176; 114 Id. 293; Cooley, Const. Lim., 76; 20 N.E. 461; 8 Cyc. 736; 15 Ark. 675; 52 Id. 339; 80 Id. 374; 85 Id. 95; 50 Id. 266; Ib. 278; 132 Mass. 289; 15 O. St. 532; 33 Ark. 716; McCrary on Elections, § 150; 146 N.W. 785; 104 P. 56. The electors had actual notice. 50 Ark. 277; 36 Id. 450; 106 Id. 512. This was sufficient.

OPINION

MCCULLOCH, C. J.

Each of these cases involves the inquiry whether or not proposed Amendment No. 14 to the Constitution, authorizing cities and towns to issue bonds, was legally adopted. In each of the cases a citizen and taxpayer of the city of Little Rock has sought to restrain the mayor and city council from taking steps toward the issuance of bonds. The validity of the amendment is attacked on two grounds: First, that notice of the submission was not given by advertisement in a newspaper as required by statute; and, second, that the amendment did not receive the number of votes requisite for its adoption. Both of these questions are judicial in their nature, for if the proposed amendment to the Constitution was not legally adopted, it becomes the duty of the court to so declare. The declarations of the result made by the presiding officers of the two branches of the General Assembly are not conclusive. Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; St. Louis S.W. Ry. Co. v. Kavanaugh, 78 Ark. 468, 96 S.W. 409; Grant v. Hardage, 106 Ark. 506, 153 S.W. 826.

We will address ourselves first to the question of giving notice, or stating the proposition as argued by counsel in the case, whether or not the provisions of the statute concerning notice are mandatory. The amendment itself is silent on this subject, but it contains a provision authorizing the General Assembly to pass laws prescribing the method of submitting to the people petitions for the initiative and for the referendum.

The General Assembly of 1911, at the extraordinary session, enacted what is popularly known as the Enabling Act, Public Acts 1911, page 582, which undertakes to regulate submission of measures to the people under the initiative and referendum. Section 15 of the statute provides that not later than "the first Monday of the third month before any regular general election at which any proposed law, part of an act or amendment to the Constitution or measure referred is to be submitted to the people, the Secretary of State shall cause to be published in one newspaper in each county * * * for thirty days a true copy of the title and text of each measure to be submitted with the number and form in which the ballot title thereof will be printed on the official ballot." Another section provides that when any measure is initiated by a percentage of the people, in conformity with the Constitution as amended, the Secretary of State shall furnish the Attorney General a copy, and within ten days thereof the Attorney General shall return to the Secretary of State a ballot title for the measure. Petitions to initiate measures are required to be filed four months before the election at which they are to be voted on, and it so happens that that date occurred in the year 1914 on May 14, and the last day for publication under the Enabling Act fell on the 1st day of June. If, therefore, the Attorney General took the full number of days allowed to him for preparing the ballot title, it only left seven days before the date of publication, during which time the Secretary of State would have had to mail out the copy for the printer and it would have to be set up before the date of publication. It is conceded that the terms of the statute were not literally complied with in this instance; that the Secretary of State did not mail out the copies for publication until May 25, 1914, and that only in two counties were the publications made before the first Monday in June, in the other counties the publication being from three to thirteen days late. It is urged by learned counsel that this imposed the performance of an almost impossible condition, and that to require literal performance would defeat the provisions of the Constitution itself. There is much force in the argument, we think, and the fact that a condition has been imposed by the Legislature which is, to say the least, difficult of literal performance, affords much reason for holding that it was merely directory, and not mandatory. It can be readily seen that strict compliance with that provision depends upon acts to be performed by nonofficials, and if it is held to be mandatory and given literal interpretation, it would mean that there is entrusted to those who are not public officials the duty of carrying out the terms of the act, thus leaving it possible for them by their own misconduct to prevent a submission of a measure to the people, and to defeat an expression of the popular will. If the act involved only the conduct of a public official, such as the Secretary of State, there might be more reason for assuming that the lawmakers, in reliance upon a discharge of public duty by that official, made the provision mandatory; but when we consider that this notice must necessarily go through and into the hands of many others, who may not always act under a strict sense of public duty, we can not presume that the Legislature meant to make the right to submit a measure to the people depend upon the strict performance of duty by all those individuals. The framers of the amendment to the Constitution did not see fit to put in a condition or provision about publication of notice, but left the whole subject to the will of the General Assembly. That delegation of power did not, however, constitute authority to adopt a regulation so strict in its terms as would defeat the purpose of the amendment itself.

Now, it is worthy of consideration that the lawmakers, in framing this provision, have not imposed any requirement for the preservation of the evidence of the notice. It contains no provision at all with reference to proof of the publication nor of preservation of that proof. It is true, the general statute on the subject of legal advertisement (Kirby's Digest, § 4924) provides that the affidavit of the editor, proprietor, manager or chief accountant of a newspaper shall be sufficient evidence of a publication of any notice or advertisement required by law; but neither in that statute nor in the Enabling Act is there any express provision for preservation of the notice. It is inconceivable that the lawmakers would have imposed upon the Secretary of State a duty intended to be mandatory without making some provision for preservation of the evidence of his act so that the courts might take notice of his records and discover whether or not that duty has been discharged. This omission furnishes strong evidence that the lawmakers did not intend the provision to be mandatory.

The authorities on this subject are not entirely harmonious. This court is, however, committed to the rule, which is in accord with the great weight of authority, that, so far as concerns elections of officers, the failure to perform any duty such as giving notice does not deprive the electors of the right to choose public officials. In Wheat v. Smith, 50 Ark. 266, 7 S.W. 161, Chief Justice COCKRILL, speaking for the court, said: "The right to hold the election in such cases comes from the statute, and the notice required to be given thereof is only a reminder to the people of what the law has otherwise provided. An omission to publish the statutory notice of the election does not, in such cases, affect its validity."

It is argued that the rule thus announced does not apply to an election upon some proposition other than the selection of an officer. That contention is not without authorities to support it. Janesville Water Co. v. City of Janesville, 156 Wis. 655, 146 N.W. 784.

Cases cited by counsel for the appellants hold that provisions for notice are mandatory and that they must be strictly complied with, otherwise the election is void. McCreary, Governor, v. Speer, 156 Ky. 783, 162 S.W. 99; State ex rel. Woods v. Tooker, 15 Mont. 8, 25 L. R....