Riviere v. Wells, 80-172

• Decision Date: 15 September 1980
• Docket Number: No. 80-172,80-172
• Citation: 604 S.W.2d 560,270 Ark. 206
• Parties: Paul RIVIERE, Secretary of State, v. John F. WELLS et al., Appellees.
• Court: Arkansas Supreme Court

Page 560

604 S.W.2d 560

270 Ark. 206

Paul RIVIERE, Secretary of State, v.John F. WELLS et al., Appellees.

No. 80-172.

Supreme Court of Arkansas.

Sept. 15, 1980.

Steve Clark, Atty. Gen. by W. Russell Meeks, III, Deputy Atty. Gen., Little Rock, for appellant.

James F. Lane, Little Rock, for appellees.

H. Clay Robinson, Fort Smith, Raymond R. Abramson, Clarendon, Allen Gordon, Morrilton, Georgia Elrod, Siloam Springs, Frank Huckaba, Mountain Home, Ralph Wilson, Jr., Osceola, Robert A. Leflar, Fayetteville, amicus curiae.

FOGLEMAN, Chief Justice.

Appellant, the Secretary of State of Arkansas, who has the duty of certifying the ballot for the General Election of 1980 to the Boards of Election Commissioners of the various counties of the state, brings this appeal questioning the decree of the Chancery Court of Pulaski County, holding that the ballot form for submission of the proposed Constitution of 1980he was preparing to certify, was void and directing him to certify another form.We agree with the holding of the chancery court and affirm its decree.

The Arkansas Constitutional Convention of 1979 was called pursuant to the vote of the majority of the legal voters who voted on the question at the general election of 1976, which had been submitted pursuant to Act 1177 of 1976.In execution of this expression of the will of the people, the ultimate sovereign, the General Assembly called the convention and provided for the selection of delegates, the assembling of the convention and the time for certification of its final draft of a proposed new constitution to the Secretary of State.Act 3 of the First Extraordinary Session of the General Assembly held in 1977, as amended by Act 622 of 1979.As a part of the proposal certified to the Secretary of State, the convention included a proposed ballot form for submission of its proposal for a new constitution(to the people) in the general election to be held on November 4.This ballot form was:

PROPOSED CONSTITUTION OF 1980

FOR PROPOSED CONSTITUTION OF 1980

FOR RETENTION OF THE CONSTITUTION OF 1874

Appellees, John F. Wells and Independent Voters of Arkansas, Inc., an Arkansas corporation, as citizens and taxpayers, brought this action to enjoin appellant from certifying the ballot form proposed by the convention.They alleged that the convention's proposed ballot form was void.They asserted that they were acting to prevent an illegal exaction.No one now questions the standing of appellees to bring this action.¹Appellant denied that the proposed ballot form was invalid or defective.By an amendment to their complaint, appellees asked for a reformation of the ballot form.

Appellant asserts only one point for reversal, but his argument is actually three-pronged.He first asserts that a judicial determination of the ballot form is invalid and in violation of Article IV, § 2 of the Constitution of Arkansas.Next, he argues that the applicable laws dealing with the powers of the Constitutional Convention of 1979 do not limit the convention's power to determine the ballot form to be used in submitting its proposed constitution to the people.Finally, he argues, the ballot form is not misleading.We disagree with each of these arguments.These arguments are intermingled and interrelated, so we will not treat them separately.

In asserting that this judicial determination violated the separation of powers mandated by the existing constitution, appellant first argues that the trial court impliedly found that the General Assembly should have provided a limitation on the power of the convention to prepare a ballot form, but, that as a matter of fact, there was no such limitation, even if it be conceded that a legislative limitation included in the act submitting the call to the people would have been valid.Appellant bases this argument upon the premises that there was no mention of the ballot form in Act 1177 of 1976 and that this act is the only one to be considered as the call by the people.

We have no difficulty in concluding that the chancellor was right.It is true that no legislative act pertaining to constitutional conventions contains a specifically worded form for submission of their proposals.It has been said that it is lawful for a convention to prescribe details for submission of constitutional changes recommended by it, in the absence of popular directions.Jameson on Constitutional Conventions (4th Ed.), p. 231.We find that there were popular directions.After the vote favoring the call of a constitutional convention, the General Assembly adopted Act 3 of the First Extraordinary Session of 1977.By § 7 of that act the General Assembly addressed the question of the time and manner of submission of the convention's proposal or proposals to the people.That section provided that the draft of the convention be submitted to the electorate for approval or rejection, either at a special election to be held in 1979 or at the 1980 general election.The act prescribed the exact form of the submission of the question to the electorate and it was submitted as prescribed, viz:

INSTRUCTIONS TO VOTERS

The proposed constitution to be drafted by the Constitutional Convention of 1979 will be submitted to the electors for approval or rejection at a Special Election to be held on the second Tuesday in November, 1979, or at the General Election to be held in November, 1980, as determined by the preference of the electors.Mark an X opposite the vote of your preference, since a vote for both preferences will nullify your vote.

FOR holding the election on the proposed Constitution at the general election to be held on November, 1980.

FOR holding the election on the proposed Constitution at a special election to be held on the second Tuesday in November, 1979.

(Emphasis ours.)

Even if the vote of the people on this proposal in 1978 was not as much a part of the call of the convention as its vote in 1976, any limitation imposed by the General Assembly was ratified by the people.At the time of the vote to call the election, Ark.Stat.Ann. § 2-112(Repl.1976) was in full force and effect.It had required that a convention's proposal be submitted at a general election for adoption or rejection.Act 3 gave the voters the option of voting on the proposal or proposals at a special election.Any limitation on submission of the convention's product was ratified, either expressly or impliedly.Any such limitation would meet the tests imposed in Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199.

The limitation upon the power of the convention was that its proposals be submitted for adoption or rejection, or approval or rejection.SeeHarvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281;Pryor v. Lowe, supra.See also, Jameson on Constitutional Conventions (4th Ed.), p. 490.Clearly, the people intended that a voter be given a clear cut choice of voting for adoption (approval) or for rejection.Nothing in the question submitted to the people indicated that there would be any opportunity for the statement of any other preference by a voter.The effect of a majority vote for adoption was stated in § 7 of Act 3.Likewise the effect of a vote "against the proposed constitution" was also clearly stated in that section, i. e., that the proposal "shall be deemed rejected by the electors" and the existing constitution of the state(not the Constitution of 1874), as amended, should continue to be the constitution of this state.Nowhere is it suggested that the voters should express a preference for the existing constitution, or the Constitution of 1874.

We find another basic premise of appellant's argument to be without merit.We find no violation of the doctrine of separation of powers in the action taken by the chancery court.That court did not impose a limitation upon the convention's powers.The ultimate sovereign, the people, in expressing their desire that the convention's proposals be submitted at the general election, certainly implied that the laws governing general elections be applied, insofar as possible.There has been judicial review of the method of presentation of questions on the ballot at general elections for many years.This has been done in connection with proposed constitutional amendments, initiated acts and referendums.SeeWestbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356;Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364;Johnson v. Hall, 229 Ark. 404, 316 S.W.2d 197;Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207;Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884.See also, Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433.The same principles which call for action by the judicial branch in those cases, in which there is no specific provision, either by statute or constitution, for judicial review of ballot titles, are applicable here.But, in any event, the courts may direct the action of officers of the executive branch, where their duty is clear and the exercise of discretion is not involved.SeeHardin, Comm. v. Cassinelli, 204 Ark. 1016, 166 S.W.2d 258, and cases therein cited.And actions of officers of the executive branch in the conduct of elections may be enjoined where they would constitute an illegal exaction by reason of expenditure of public funds in holding an unauthorized election.Townes v. McCollum, 221 Ark. 920, 256 S.W.2d 716.

Appellant's reliance on Wells v. Purcell, 267 Ark. 456, 592[270 Ark. 213] S.W.2d 100 and Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375, as barring judicial action, is misplaced.It is true that, in those cases, we recognized that the courts could not control the action of the legislative branch, but it is clear that the doctrine of separation of powers does not prevent the judicial branch from passing on the validity of legislative acts which were unauthorized.We have held that a constitutional convention is not a coordinate branch of government.Harvey v. Ridgeway, supra.Even if it were, that would not bar judicial relief from...