Sturdy v. Hall
| Decision Date | 14 October 1940 |
| Docket Number | No. 4-6196.,4-6196. |
| Citation | 143 S.W.2d 547 |
| Parties | STURDY v. HALL, Secretary of State. |
| Court | Arkansas Supreme Court |
Charles W. Mehaffy and Ed I. McKinley, Jr., both of Little Rock, for appellant.
J. S. Abercrombie and Edward H. Coulter, both of Little Rock, and Tom F. Digby, of North Little Rock, for appellee.
On and prior to July 6, 1940, there was filed with the Secretary of State numerous petitions, which, together, contained the names of 13,807 signers. The petitions were in support of proposed Initiated Act No. 2, which the sponsors of the proposal refer to as the "Local Option Act".
The Secretary of State found and declared that the ballot title proposed for the Act was sufficient, and that 11,232 signatures were requisite and sufficient for the initiation of the proposed Act, and that the required number of electors had signed the petitions to entitle said Act No. 2 to be placed on the ballot to be voted upon at the general election to be held November 5, 1940.
Immediately after this ruling, the plaintiff here, who alleges he is a resident and elector of this State, had a check made of the signatures appearing on the petitions, and on September 10th he filed a complaint in this court, challenging the sufficiency of the petitions. In the complaint the signatures challenged are arranged by counties, and there appears the name of each person whose signature is challenged and the ground of the challenge. At the time of the filing of this complaint here a copy thereof was delivered to the Attorney General, and another copy to the attorney for the Anti-Saloon League, which organization had sponsored the petitions. Without filing any response to the petition here, the Anti-Saloon League has been treated as an intervener, and its attorney was present at the taking of the voluminous testimony which we have in the record before us.
In the abstract of the testimony and the brief thereon for the plaintiff here, this testimony has been tabulated so that we have tables showing the grounds upon which the signatures have been questioned, and the number of signatures questioned in each county. The task would be interminable, and its performance of but little value, if we should review in detail the testimony abstracted in plaintiff's brief. We must be content to summarize and announce our conclusions upon it.
It is first insisted that the petitions bear the names of 2,998 persons who had failed to pay their poll tax. This number is arrived at by introducing copies of the published lists of persons who had paid poll tax (as required by § 4696 Pope's Digest, as amended by Act 82, page 170 of the Acts of 1939), and checking the names of the signers against these lists, counting all names not found in the published lists.
This procedure was approved in the cases of Taaffe v. Sanderson, 173 Ark. 970, 294 S.W. 74; Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335; and Purdy v. Glover, 199 Ark. 63, 132 S.W.2d 821. The last two of these cases held that, where it is shown that a person has signed as a resident of a particular county, and the name of this person does not appear upon the official list of voters of that county, published pursuant to statute above referred to, a prima facie showing has been made that such person was not a qualified elector. This showing is prima facie only, and not conclusive.
If the names of these persons who, prima facie, had not paid their poll tax, were excluded, the petitions do not contain the requisite number of names.
It has been held, however, that for this published list of voters to be given this prima facie effect, the requirements of the statute authorizing its publication must be complied with, and that where this was not done the published list of voters may not be given this prima facie value as evidence. For instance, in Brown v. Nisler, 179 Ark. 178, 15 S.W.2d 314, a contest by one claiming to be the rightful nominee of his party for the contested office based his claim almost entirely on the printed list of voters. His contest was dismissed when it appeared that there had not been a substantial compliance with the statute in the publication of the list. See, also, Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319; Darmer v. White, 182 Ark. 638, 32 S.W.2d 625; Tucker v. Meroney, 182 Ark. 681, 32 S.W.2d 631; Connelley v. Vester, 186 Ark. 393, 53 S.W.2d 861.
In the case of some of the lists of official voters here offered in evidence as having been published pursuant to the statute, it appears that the lists were not authenticated by the affidavit of the Collector in person, or were not properly certified by the County Clerk, as required by the interpretation of the statute in the cases last above cited. It becomes necessary, therefore, to consider the validity of other signatures. Before approaching this question it is well to announce the rules which must be applied, and the necessity therefor will be better appreciated when we consider the purpose and effect of these rules.
The recent census gave this state a population of slightly less than two million, and the belief is general that our population would have been shown to be substantially more had the census been accurately taken. There was polled at the last preceding general election 140,391 votes for the candidates for governor. The constitution makes this number the basis for the calculation of the number of signers who are required to initiate a law, who may refer an Act passed by the General Assembly, or who may propose constitutional amendments. Eight per cent. of the number of persons voting for governor may initiate an Act. That number is now 11,232. This is slightly more than one-half of one per cent. of our population. Six per cent. of this number, which is slightly less than one-half of one per cent., may arrest legislation passed by the General Assembly without an emergency clause and may refer even that legislation to the people for their approval. Ten per cent., of this number, which is less than one per cent., of our population, may propose constitutional amendments. There is no limitation upon the number of Acts which may be initiated. Nor is there any limitation upon the number of Acts passed by the General Assembly which may be referred. Nor is there any limitation upon the number of constitutional amendments which may be proposed. It appears, therefore, that a very small per cent. of our population may, at each general election, assemble the electorate into both a general assembly and a constitutional convention. The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the Constitution conferring these powers should be required.
As a practical matter, and in the very nature of the case, signers to these petitions must be obtained by persons who make it their business and duty to obtain them. The I. & R. Amendment, Const. Amend. No. 7, provides that: "No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions". That compensation would be a matter of agreement between the contracting parties, and might, in some instances, although not in the present case, be based upon the number of signers obtained, and the law must be declared as it should be applied in any case. There would, therefore, be a constant temptation for the circulator of petitions to increase his compensation by loose practices in obtaining signatures. The Constitution contemplated this possibility, and attempted to guard against its consequences.
Under the subhead on verification of petitions, the I. & R. Amendment provides: .
This provision, as to the effect to be given the affidavit of the circulator, has been several times interpreted to mean that the circulator's affidavit is given prima facie verity. But this presumption is not conclusive. It would be intolerable if this were true. All of the cases of our own and from all other courts, construing similar provisions found in various I. & R. Amendments are to that effect.
It was held in the case of Hargis v. Hall, supra, that § 13289, Pope's Digest, passed as an enabling act to the first I. & R. Amendment, had not been repealed by the adoption of our present I. & R. Amendment, and that its provisions, as well as those of our present I. & R. Amendment, to which further reference will be made, must be substantially complied with.
The circulator of a petition is of the nature of an election official. The elector directs, by signing the petition, that the proposed Act shall be submitted to the people, and he must sign his own name, as held in Hargis v. Hall, supra, and he must do so in the presence of the circulator of the petition, in order that the circulator may truthfully make the affidavit required by both the Constitution and the statute. In many instances no one is present except the circulator of the petition and the signer, and when the circulator makes the required affidavit, the prima facie showing has been made that the elector signed the petition.
It is shown — and not questioned — that 92 persons signed more than one petition. No one will contend that any elector has the right to sign more than...
To continue reading
Request your trial