Sturdy v. Hall, 4-6964.

• Decision Date: 12 October 1942
• Docket Number: No. 4-6964.,4-6964.
• Citation: 164 S.W.2d 884
• Parties: STURDY v. HALL, Secretary of State, et al.
• Court: Arkansas Supreme Court

164 S.W.2d 884

STURDY v. HALL, Secretary of State, et al.

No. 4-6964.

Supreme Court of Arkansas.

October 12, 1942.

Proceeding by J. H. Sturdy for a writ of prohibition restraining C. G. Hall, Secretary

of State, and others from submitting a proposed initiated act to the voters.

Writ denied.

Charles W. Mehaffy and Ed I. McKinley, Jr., both of Little Rock, for petitioner.

J. S. Abercrombie and Edward H. Coulter, both of Little Rock, and Tom F. Digby, of North Little Rock, for respondent.

HOLT, Justice.

On and prior to July 3, 1942, there was filed with the Secretary of State a petition made up of a large number of parts which contained the names of 27,194 signers. This petition was in support of proposed Initiated Act No. 1 which its sponsors refer to as the "Local Option Act".

The Secretary of State found, and declared, that the ballot title to the proposed Act was sufficient and that the requisite number of signers appeared on the petition to entitle said Act No. 1 to be placed on the ballot to be voted upon at the General Election to be held November 3, 1942. Immediately after the ruling of the Secretary of State on the petition, plaintiff here made a check of the signatures appearing on the various parts of the petition, and on September 5, 1942, filed complaint in this court in which he questioned the sufficiency of the ballot title to the proposed Act, and further alleged that the petition does not contain the names of the requisite number of legally qualified electors.

It is contended by plaintiff and not denied by defendants, that the petition must contain the genuine signatures of at least 16,192 qualified electors before the Act in question may be voted upon, and that if as many as 11,003 illegal signatures appear on the petition then it would be insufficient. Plaintiff has furnished us with a tabulation in which there are grouped and classified the challenged signatures appearing on the petition. Plaintiff claims that 79 signatures do not correspond with the certificate; that 264 are duplicates; 72 ineligible, scratched out or not certified; 224 have been "tampered with"; that 3,680 had no poll tax; that signatures of 792 were not properly witnessed by the circulator; that 10,752 appear on parts of the petition on which two or more names appear in similar handwriting and that a total of 15,838 illegal names appear upon the petition.

We proceed first to consider the sufficiency of the ballot title which reads as follows: "An Act to Amend the Liquor Laws of the State of Arkansas so as to Provide for Better Local Option Laws for Prohibiting the Manufacture or Sale or the Bartering, Loaning or Giving Away of Intoxicating Liquors; for Defining Intoxicating Liquors; for Fixing Penalties for the Violation of the Law in Territory Made Dry Under the Provisions of this Act; and for Other Purposes."

This court has many times had occasion to discuss the sufficiency of ballot titles and has consistently followed the general rule announced in Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 360, 44 S.W.2d 331, wherein it is said: "The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring." No hard and fast rule as a guide has been announced by this court. We have held that an abstract or synopsis of the Act is not essential in the ballot title, and that the provisions of amendment No. 7 referring to ballot titles should always be liberally construed.

In the comparatively recent case of Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364, 372, this question was gone into rather extensively, and after considering many of our own cases, as well as cases from other jurisdictions, we there said: "In the opinion [referring to the case of Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248], in which all the judges concurred, we held that the provisions of Amendment No. 7, with reference to ballot titles, should be liberally construed, and that the ballot title was sufficient. In so holding we said: `It may be observed that, if the ballot title were intended to be so elaborate as to set forth all the details of the act, the publication or advertisement might, for that very obvious reason, be omitted. Perhaps no set rule or formula can be announced as to what a ballot title shall contain, but it may be safely stated that, if it shall identify the proposed act and shall fairly allege the general purposes thereof, it is sufficient.' That case quoted the language of Chief Justice McSherry of the Court of Appeals of Maryland in the case of Mayor of City of Baltimore v. Stewart, 92 Md. 535, 48 A. 165, as follows: `It has never been understood that the title of a statute should disclose the details embodied in the act. It is intended simply to indicate the subject to which the statute relates. * * * When the general subject is indicated, no matter of detail need be mentioned in the title.'"

In the ballot title before us it is clear and certain that it is proposed to amend the local option laws on the subject of prohibiting the manufacture, sale or the bartering, loaning or giving away of intoxicating liquors and to provide penalties for the violation of the law in territory made dry under the provisions of the Act. This we think is sufficient. The details of the Act need not be recited as its general purpose is clearly stated.

2. We come now to a consideration of the sufficiency of the number of qualified signers on the petition. It is conceded that prima facie the petition contains 11,003 more signatures than is required to initiate the Act. This excess is such as to make it unnecessary to consider such questions as that persons who had not paid their poll tax and therefore not qualified electors had signed the petition. All signatures questioned by plaintiff for this and other reasons bearing upon the qualifications of the signers of the petition may be stricken and a sufficient number of signers remain to initiate the Act. As we view it there is only one theory upon which plaintiff may be awarded the relief prayed and the submission of the Act to the electorate enjoined and that is this — a handwriting expert, whose testimony is undisputed, stated that he had examined all of the parts of the petition and gave the names, petition numbers and signature line numbers of certain signers which were in the handwriting of persons who had signed other names. He testified to a total number of 10,381 names appearing on different parts of the petition, and that some of these names were in the same handwriting. This does not mean, however, that one person wrote all of these 10,381 names. That would be a fraud too obvious for doubt. But it means that different persons had written more than one signature on parts of the petition and that those names so written, together with all other names on these parts, total 10,381. The objection to counting any of these signatures is that they appear on parts of the petition verified by affidavits of the circulators and that these names being false, since they were not the signatures of the persons whose names appeared, voided all the names on the parts of the petition where these names appear. In more than 100 instances the names would apparently be that of husband and wife as John Smith and Mrs. John Smith. In other instances, according to this handwriting expert, one person had written more than one name.

Plaintiff argues here that all of the names on the parts of the petition containing such names should be stricken for the reason that the affidavit of the circulator is false. It is conceded that if this be done enough names will not remain to authorize the submission of the Act. In support of this contention plaintiff strongly relies upon the opinions of this court in the cases of Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335, and Sturdy v. Hall, 201 Ark. 38, 143 S.W. 2d 547, and especially the later case. Both of these opinions are to the effect that each petitioner must sign his own name and that no signature may be counted unless signed by the petitioner himself. But the question before us is what is the effect upon a petition containing signatures not signed by the petitioners whose names appear on the petition. Must the entire petition be disregarded, or is it required only to strike out the particular improper signature? The answer to this question must depend upon whether the circulator of the parts of the petition was guilty of fraud in permitting this to be done. In Sturdy v. Hall, supra, the circulator was likened to an official holding an election. We there said that if it were shown only that an irregular vote had been cast it was required only that such vote be excluded, but that if the fraud were permitted by the election officer, or with his knowledge and connivance, then the signature of the election officer as to the result of the election would be disregarded as unworthy of belief. The election certificate would have lost its prima facie verity and only those votes would be counted which were shown by testimony aliunde to have been legal and proper. So in the instant case persons wrongfully signing may not be counted and must be excluded, but only such names should be excluded and not counted unless it appears that the circulator was a party to the fraud of procuring illegal and improper signatures. This would not be true under the laws of the State of South Dakota, shown by the opinion of the Supreme Court of that State in the case of Morford v. Pyle, Secretary of State, 53 S.D. 356, 220 N.W. 907, 910, cited and quoted from in our case of Sturdy v. Hall, supra, and strongly relied upon by plaintiff here. This is true because as stated in the S. D. case "when a person circulates a referendum petition [and the rule is not different in the case of...