Shepard v. McDonald, 4-3181.
| Decision Date | 13 November 1933 |
| Docket Number | No. 4-3181.,4-3181. |
| Parties | SHEPARD v. McDONALD, Secretary of State. |
| Court | Arkansas Supreme Court |
Lee Miles, Trieber & Lasley, of Little Rock, for plaintiff.
Hal L. Norwood, Atty. Gen., Robert F. Smith, Asst. Atty. Gen., and Owens & Ehrman, of Little Rock, for defendant.
Seeking judicial review of the acts of Ed. F. McDonald, secretary of state, approving a referendum petition upon Act No. 78, p. 227 of the General Acts of 1933, this suit was instituted by petitioner in this court as an original proceeding. In substance the petition alleged: That on June 10, 1933, respondent Ed. F. McDonald, secretary of state, filed and approved an insufficient referendum petition against Act No. 78 of the Acts of 1933, and issued his certificate suspending the effectiveness of said act until voted upon and approved by the people of the state of Arkansas at the general elections to be held in 1934; that said petition for referendum, filed and approved as aforesaid, was insufficient, in that the ballot title required to be submitted therewith was defective and misleading; that the action of the defendant in approving said petition and in issuing such certificate was unauthorized, unlawful, and void. The prayer was that said petition be judicially determined insufficient, and that the certificate issued suspending and referring said Act No. 78 of 1933 be declared null and void.
The respondent filed his demurrer to said petition as follows: First, the court is without original jurisdiction to determine the sufficiency of the referendum petition and defective ballot title; second, that the petition was not filed within the time required by law; third, that the complaint states no cause of action against the secretary of state.
There are four questions presented for determination; namely: First, is the ballot title a part of the referendum petition? Second, does this court have original jurisdiction to determine the sufficiency of a referendum petition? Third, the time when such suit must be filed? Fourth, is the secretary of state a necessary and indispensable party to such proceeding?
Adverting to the first issue raised, Is the ballot title a part of the referendum petition? We think this question was definitely decided in Westbrook v. McDonald, 184 Ark. 740, 43 S.W.(2d) 356, 360, 44 S.W.(2d) 331, wherein this court said: "As the ballot title here submitted might mislead, we have concluded that it was defective and insufficient and that the amendment was not sufficiently complied with in this respect."
The fact is, this is the exact point which was decided by this court in the Westbrook Case for the following reasons: The Initiative and Referendum Amendment, commonly known as Amendment 7 to the Constitution of 1874, provides:
From the language used in the amendment it is perfectly apparent that there could be no serious question raised in reference to the original jurisdiction of this court in a suit wherein the contention was that the petition standing alone for referendum was insufficient. It was insisted by respondent in the Westbrook Case that the ballot title was a part of the referendum petition and that his acts in refusing to file said petition, because of an insufficient title, should be sustained. This court sustained the...
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