Hoban v. Hall, 5-1736

• Decision Date: 29 September 1958
• Docket Number: No. 5-1736,5-1736
• Citation: 229 Ark. 416,316 S.W.2d 185
• Parties: Virginia M. HOBAN et al., Petitioners, v. C. G. HALL, Secretary of State, Respondent.
• Court: Arkansas Supreme Court

Page 185

316 S.W.2d 185

229 Ark. 416

Virginia M. HOBAN et al., Petitioners, v. C. G. HALL, Secretary of State, Respondent.

No. 5-1736.

Supreme Court of Arkansas.

Sept. 29, 1958.

Tom Gentry, Little Rock, for plaintiffs.

Bruce Bennett, Atty. Gen., Roy Finch, Jr., Asst. Atty. Gen., for defendant.

GEORGE ROSE SMITH, Justice.

By this original action the petitioners seek 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 in November. In substance the petition asserts that the ballot title is so incomplete and so abbreviated that it fails to convey sufficient information to enable an elector to vote upon the measure with intelligence and understanding.

The proposed amendment carries as its popular name 'The States Rights Amendment' and has the following paragraph as its ballot title:

'An Amendment Creating a States Rights Commission and Providing For Its Duties, Qualifications and Operation; Defining an Offense of Barratry and Providing Penalty thereof; Providing for the Suspension of State Funds to School Districts in Certain Cases, the Redistribution of Public School Funds in Certain Districts, the Possible Closing of Schools and Creation of Private Schools in Certain Districts, and the Recall of School Board Members, all of which to Be Determined by Special Elections of Qualified Voters; Regulating Voter, Candidate and Party Qualifications; Providing for Certain Penalties; Providing for a Severability Clause; and, Providing for a Repealing Clause.'

The amendment itself is of such extreme length and touches upon so many different subjects that we shall merely summarize the provisions deemed pertinent to this discussion, with the full text being set out as an appendix to the opinion. Even a casual reading of the measure will disclose that it is the most far-reaching proposal ever offered to the state's electorate.

Returning to the ballot title, one sees at once that its language is cast in generalities. The voter is told that the amendment is to create a States Rights Commission, but he is given no intimation of its powers or duties. He knows that the schools are to be affected 'in certain cases' and 'in certain districts,' but he is given no inkling of what those contingencies actually amount to. He realizes that he is to vote for or against changes in the election laws, but the ballot title supplies no clue as to the nature of those changes.

The single question is whether this ballot title meets the requirements of the constitution. The governing rules are well settled and perfectly familiar. The ballot title need not be a complete abstract of the act. Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248. It must, however, provide the elector with information concerning the choice that he is called upon to make. Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470. It was pointed out in our leading case, Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 360, 44 S.W.2d 331, that 'the great body of the electors, when called upon to vote for or against an act at the general election, will derive their information about if from the ballot title. This is the purpose of the title.'

Especially pertinent here is the decision in Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81, 82, for it dealt with an error of omission. There the ballot title recited that the proposed measure was an act to provide for the assistance of the aged and the blind, but it failed to state that this assistance was to be financed by the levy of a sales tax and by the appropriation of a third of the taxes upon horse and dog racing. In holding the title to be misleading and therefore insufficient we said: 'The title carries an appeal to all humane instincts. Few would object to some provision being made for the support of the aged and blind; but to levy a general sales tax of 2 per cent. for that, or any other purpose, is a different question altogether, and would furnish the elector, however generous his impulses might be, serious ground for reflection if that information were imparted to him by the title of the question upon which he exercised his right of suffrage.'

Our inquiry, then, is whether this ballot title conceals matters which, if disclosed, would furnish the elector with 'serious ground for reflection' before yielding to his impulse to vote in favor of an amendment ostensibly furthering the cause of states' rights. After carefully studying the measure as a whole we are unanimously of the opinion that this ballot title fails to supply the voter with the information that the constitution expects him to have. For brevity we shall discuss only the provisions concerning the proposed commission and the election laws.

With respect to the commission the ballot title merely tells the elector that the measure will create a States Rights Commission and provide for its duties, qualifications, and operation. The cause of states' rights, like that of the aged and the blind, is deservedly a popular one and undeniably appeals to the great body of the electorate. But are there provisions in the amendment which, if made known, would give the voter serious ground for reflection?

We have no doubt that there are. The Commission, created by Article I of the measure, consists of twelve members. Sections 5 and 6 of this article destroy the system of checks and balances that has characterized our government since its birth. Section 5 provides that no court shall be empowered to enjoin the Commission from performing the duties set out in the amendment. Those duties, however, are not clearly defined. By § 7 the Commission is invested with the duty and the power to 'perform any and all things deemed necessary and proper' to protect the sovereignty of the several states and to resist the usurpation of the rights reserved to the states. Within the vague limits of this clause it is difficult to conceive of any power--legislative, executive, or judicial--that the Commission might not lay claim to. The ballot title, it may be observed, does not even mention the powers of the Commission, much less does it give a hint of their unlimited scope.

Having immunized the Commission from the action of the state courts, the amendment next frees it from the control of the state legislature. It has traditionally been the function of the legislative branch to exercise some measure of restraint over the other departments, through its power to enact laws and to control the public purse. But here that restraint is swept away. Since the Commission's powers would be conferred by the constitution, they could not be affected by any laws that might be passed. And by § 6 the General Assembly is deprived of any financial supervision over the Commission. This section makes an annual appropriation of $250,000, which the Commission is at liberty to spend in any way it chooses. It may be noted that the General Assembly, in creating a State Sovereignty Commission that superficially resembles the proposed States Rights Commission without the latter's unbridled powers, deemed an annual appropriation of $30,000 to be sufficient. Acts 83 and 170 of 1957. It will also be observed that the ballot title does not suggest to the voters that a quarter of a million dollars is to be appropriated every year, without any effective safeguard over its expenditure.

It is really not enough to say that the proposed Commission would have equal status with the other branches of the state government; the amendment contemplates that every other department shall be subservient to the Commission. Section 10 of Article I requires all elective and appointive officers and employees of the state and its subdivisions to cooperate with the Commission and to render such aid and assistance as may be requested by the Commission. By Article V if any person, public official, or employee of the state fails to carry out 'the clear mandates' of the amendment he is subject to a fine of not more than $5,000, to imprisonment for not more than a year, and to automatic forfeiture of his office. It is obvious that under the measure before us every public officer and employee in the state, without exception, would live in daily fear of offending the Commission.

Nor is the private citizen to be left untouched by the unlimited powers of the Commission. By §§ 8 and 9 of Article I the Commission is given broad authority to make investigations and to conduct public or secret hearings. It is evidence that in the exercise of its inquisitorial power the Commission might interrogate any citizen in the state about his business affairs, his private life, his political beliefs, or any other subject that can be imagined. Although the measure purports to preserve certain fundamental rights of witnesses called before the Commission, these provisions are meaningless in view of the Commission's immunity from the action of the judiciary. The blunt truth is that, however improper the Commission's inquiries might be, the witness's only choice would be to answer the questions or go to jail for contempt.

We have said enough, we think, to demonstrate beyond any question that, with respect to the proposed Commission, the ballot title fails to disclose essential facts that the voter is entitled to know before making up his mind. Much the same situation exists with reference to the changes in the election laws that would be brought about by the measure.

On the latter subject the ballot title simply tells the elector, in six words, that the amendment will regulate voter, candidate, and party qualifications. In fact, however, the proposal embodies such extensive innovations in the election laws that we cannot conscientiously suppose that the average voter would regard them as immaterial.

In addition to lengthening the period of residence required for qualified electors the measure introduces novel conditions to the right to vote. Section 5...