McDonald v. Bryant

• Decision Date: 14 September 1964
• Docket Number: No. 5-3435,5-3435
• Citation: 381 S.W.2d 736,238 Ark. 338
• Parties: Erwin L. McDONALD et al., Plaintiffs, v. Kelly BRYANT, Secretary of State of Arkansas, Defendant.
• Court: Arkansas Supreme Court

Page 736

381 S.W.2d 736

238 Ark. 338

Erwin L. McDONALD et al., Plaintiffs, v. Kelly BRYANT, Secretary of State of Arkansas, Defendant.

No. 5-3435.

Supreme Court of Arkansas.

Sept. 14, 1964.

Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for plaintiffs.

Bruce Bennett, Atty. Gen., by Jack L. Lessenberry, Chief Asst. Atty. Gen., and John P. Gill, Asst. Atty. Gen., Little Rock, for defendant.

McFADDIN, Justice.

This is an original action ¹ by citizens and taxpayers against the Secretary of State, and is an attack on both the popular name and the ballot title of proposed Constitutional Amendment No. 55. Prior to July 10, 1964, a petition to initiate proposed Constitutional Amendment No. 55 was filed with the defendant as Secretary of State. The Attorney General--acting under the provisions of Ark.Stat.Ann. § 2-208 (Repl.1956)--had approved the popular name and the ballot title. See Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494. On July 10, 1964, the Secretary of State advised the sponsors of proposed Amendment No. 55 that the necessary valid signatures were present and that both the popular name and the ballot title were legally sufficient. The proposed amendment is now in process of publication and will be submitted to the voters at the 1964 General Election unless litigation prevents it. On August 13, 1964, the plaintiffs filed this proceeding, and prayed that this Court enjoin the defendant Secretary of State from certifying the proposed Amendment No. 55 to the State Board of Election Commissioners.

It is conceded by all parties that there is no necessity for the appointment of a Master, under Rule 17(c) of this Court; and we are asked to decide the case on the pleadings and briefs. Plaintiffs preface their argument with the following paragraph, which we approve:

'Since the popular name and ballot title of the petition are the only portions of the proposal which appear on the ballot, Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), the proponent owes a duty to the electorate to draft a popular name and ballot title which is nonpartisan, descriptive of the amendment, free from misleading words and phrases, and, generally speaking, one which is simply a fair representation of his proposal. Johnson v. Hall, 229 Ark. 400, 316 S.W.2d 194 (1958).'

I. The Popular Name. The popular name ² of the proposed Amendment No 55 is: 'GARLAND COUNTY LAWFUL WAGERING AMENDMENT.' The petitioners' attack on this popular name is summarized:

'The popular name of the petition is misleading in that it contains partisan coloring, superfluous words designed to solicit votes, and conveys a false idea as to the meaning and effect of the proposed act.'

We have several cases involving attacks on the popular name of proposed measures. Some of them are: Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 73; Hope v. Hall, 229 Ark. 407, 316 S.W.2d 199; More v. Hall, 229 Ark. 411, 316 S.W.2d 307; and Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104. In the light of our cases we proceed to examine the popular name of the proposed Amendment No. 55. It is claimed that the word 'lawful' is misleading and is a coloring designed to solicit votes for the amendment which proposes to legalize gambling in Garland County. Also, it is claimed that the word 'wagering' is a softening of the real word 'gambling,' or a 'sugar-coating of the pill.' We find no substantial merit in the plaintiffs' attack against the popular name here involved. The amendment proposes to legalize gambling in Garland County. The words, 'wagering,' 'betting,' and 'gambling,' are practically synonymous, and the terms are so used in common parlance, in dictionary and legal definitions, and in statutory and constitutional enactments.

Webster's New Third International Dictionary says of wagering: 'Relating to the act of one who wagers: betting * * *'; and of betting the same authority says: 'To stake (money) on the outcome of an issue or the performance of a contest (betting $2 on the race); (betting $100 on the election)'; and of gambling the same authority says: 'The act or practice of betting: the act of playing a game and consciously risking something on an uncertain event: wagering.' Thus it will be observed that wagering and betting are synonymous terms with gambling.

'Black's Law Dictionary has these definitions:

'WAGER. A contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them or that they shall gain or lose on the happening of an uncertain event or upon the ascertainment of a fact in dispute, where the parties have no interest in the event except that arising from the possibility of such gain or loss.'

'BET. An agreement between two or more persons that a sum of money or other valuable thing, to which all jointly contribute, shall become the sole property of one or some of them on the happening in the future of an event at present uncertain, or according as a question disputed between them is settled in one way or the other.'

'GAMBLE. To play, or game, for money or other stake; hence to stake money or other thing of value on an uncertain event.'

The United States Government by U.S.C.A. Title 26 § 3285 (Internal Revenue Code of 1939) has a federal statute which levies a 'tax on wagers,' that is a tax on betting; so wagering and betting are synonymous terms in the federal statute. Likewise, Arkansas Constitutional Amendment No. 46 provides: 'Horse racing and parimutuel wagering thereon shall be lawful in Hot Springs, Garland County, Arkansas, and shall be regulated by the General Assembly.' (Italics supplied.) The word 'wagering' means 'betting' in the Arkansas Constitutional Amendment.

So when the word 'wagering' was used as a popular name for the proposed Amendment No. 55, the framers of the popular name were using a word that was definitely defined in the dictionary, definitely determined in the cases, and previously used with a definite meaning in both State and Federal enactments. There are scores of cases which hold that 'betting' and 'wagering' are all forms of gambling. Some of them are: Lucas v. Harper, 24 Ohio State 328; Somers v. State, 37 Tenn. 438; Thornhill v. O'Rear, 108 Ala. 299, 19 So. 382, 31 L.R.A. 792; Carpenter v. Beal-McDonnell & Co., D.C., 222 F. 453; 5-Spot Short Range Gun Clubs of America v. Rinehart, 56 Ohio App. 259, 10 N.E.2d 450; United States v. Nadler, D.C., 105 F.Supp. 918; Rahke v. United States, D.C., 180 F.Supp. 576.

We have found no case, and learned counsel for petitioners have cited us to none, that makes any sound distinction between wagering and betting as forms of gambling. We hold against the petitioners in their attack on the popular name of Amendment No. 55.

II. Ballot Title. The ballot title of the proposed Amendment No. 55 is as follows:

'AN AMENDMENT MAKING GAMES OF CHANCE AND WAGERING THEREON LAWFUL IN ESTABLISHMENTS IN GARLAND COUNTY, ARKANSAS, LICENSED PURSUANT TO THIS AMENDMENT IF APPROVED BY A MAJORITY OF THE LEGAL VOTERS OF GARLAND COUNTY, ARKANSAS, VOTING ON THE QUESTION BY VOTE ON THIS AMENDMENT OR AT A SPECIAL LOCAL OPTION ELECTION; CREATING THE ARKANSAS GAMING CONTROL BOARD TO ADMINISTER AND ENFORCE THE PROVISIONS OF THIS AMENDMENT AND TO REGULATE WAGERING ACTIVITIES PERMITTED HEREUNDER, SAID BOARD TO CONSIST OF 5 MEMBERS APPOINTED BY THE GOVERNOR, AND PRESCRIBING THE TERMS, QUALIFICATIONS, POWERS, DUTIES, FUNCTIONS AND AUTHORITY OF THE BOARD; APPOINTING THE ATTORNEY GENERAL OF THE STATE AS THE ATTORNEY FOR THE BOARD; AUTHORIZING THE APPROPRIATION OF FUNDS FOR EXPENSES AND OPERATION OF THE BOARD; PROVIDING FOR HEARINGS BY THE BOARD AND APPEALS THEREFROM; PROVIDING FOR THE LICENSING OF WAGERING ESTABLISHMENTS AND FIXING THE MAXIMUM PERMITTED NUMBER; PROVIDING FOR THE ELIGIBILITY AND QUALIFICATIONS OF LICENSEES; RESTRICTING THE LOCATION OF LICENSED ESTABLISHMENTS AND PROVIDING FOR CHANGE OF LOCATION IN CERTAIN CASES; FIXING THE DURATION OF LICENSES AND PROVIDING FOR AUTOMATIC RENEWALS WITH CERTAIN EXCEPTIONS; PROHIBITING TRANSFERS OF LICENSES OR INTERESTS THEREIN WITH CERTAIN EXCEPTIONS; LEVYING A STATE TAX OF NOT LESS THAN 4% NOR MORE THAN 5-1/2% OF THE QUARTERLY GROSS PROFIT FROM WAGERING OF EACH LICENSEE; PROVIDING FOR THE COLLECTION OF SAID TAXES; PROVIDING FOR STATE LICENSE FEES AND FIXING THE AMOUNT THEREOF; AUTHORIZING THE CITY OF HOT SPRINGS AND THE COUNTY OF GARLAND TO LICENSE AND TAX LICENSEES AND PROVIDING FOR LIMITS ON SUCH LICENSE FEES AND TAXES; PROHIBITING PERSONS UNDER 21 FROM PLAYING OR LOITERING ABOUT OR BEING PERMITTED TO PLAY OR LOITER ABOUT LICENSED

GAMES OF CHANCE; MAKING CERTAIN LAWS RELATING TO GAMBLING INAPPLICABLE TO ACTS PERMITTED BY THIS AMENDMENT; PROVIDING THAT SAID AMENDMENT SHALL BE SELF-EXECUTING.'

Plaintiffs summarize their attack on this ballot title:

'The ballot title of the petition is defective and insufficient in that it does not convey a complete and intelligible idea of the scope and import of the proposed act, is misleading in that it conveys a false idea as to the meaning and effect of the proposed act, contains partisan coloring, and is designed to solicit votes.'

The proposed Constitutional Amendment has seventeen sections and contains more than 3400 words. The ballot title has approximately 300 words. We have carefully compared the ballot title against the text of the amendment; and we cannot agree with the petitioners in their attack on the ballot title. ³ We have a number of cases involving the ballot title of initiated measures, some of which are: Westbrook v McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331; Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 556; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81; Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364; Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716; Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884; and Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470.

In Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470, we said:

'Our decisions...