Walton v. McDonald
| Decision Date | 15 October 1936 |
| Docket Number | No. 4-4551.,4-4551. |
| Citation | 97 S.W.2d 81 |
| Parties | WALTON v. McDONALD, Secretary of State, et al. |
| Court | Arkansas Supreme Court |
Miles & Amsler, of Little Rock, for plaintiff.
A. L. Rotenberry, and June P. Wooten, both of Little Rock, for defendants.
A. D. Walton, as a citizen, taxpayer, and elector of this state, has filed an original proceeding in this court for the purpose of questioning the sufficiency of the ballot title of a proposed initiated act.
The question presented, that of the sufficiency of ballot titles, has been definitely decided in previous opinions of this court, and we find it unnecessary to review any of the numerous cases in other jurisdictions on the subject.
The title of the proposed act reads as follows: "An Act to provide for the assistance of aged and/or blind persons and funds therefor, the administration and distribution of same, penalties for the violation of Act, and for other purposes."
The act contains forty-nine sections, but, without reciting its various provisions and administrative details, it may be said that it proposes to levy a permanent general sales tax of 2 per cent., and to appropriate 33 and 1/3 per cent. of the gross proceeds of the tax on horse and dog racing to the old age and pension fund, and appropriates $15,000,000 of the funds so to be raised for the purposes of the act for the biennial period ending June 30, 1939, if that sum shall be raised by its operation.
It will be observed that the ballot title consists of thirty-two words, and sixteen of these convey no information regarding the provisions of the proposed law. It does recite that it is "An Act to provide for the assistance of aged and/or blind persons and funds therefor * * *." The additional words, "* * * the administration and distribution of same, penalties for the violation of Act, and for other purposes," furnish no explanation of its provisions, and afford the elector no information upon which to base intelligent action.
The title carries an appeal to all humane instincts. Few would object to some provision being made for the support of the aged and blind; but to levy a general sales tax of 2 per cent, for that, or any other purpose, is a different question altogether, and would furnish the elector, however generous his impulses might be, serious ground for reflection if that information were imparted to him by the title of the question upon which he exercised his right of suffrage. Especially would this be true if he were also advised that the act appropriates to its purposes 33 and 1/3 per cent. of the gross proceeds of the tax on horse and dog racing, which amounted, during the last biennium, to the gross sum of $379,059.73.
In Westbrook v. McDonald, 184 Ark. 740, 43 S.W.(2d) 356, 360, 44 S.W.(2d) 331, the rule in regard to the sufficiency of a ballot title was stated as follows: "The ballot title should be complete enough to convey an intelligible idea of and 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."
The rule thus announced was reaffirmed in the case of Shepard v. McDonald, 189 Ark. 29, 70 S.W.(2d) 566, where it was said: "The rule thus stated is broad enough to be all-inclusive and flexible enough to afford ample relief in all meritorious cases; therefore, we reaffirm it without citing or discussing authorities from other jurisdictions."
These cases were cited and approved in Coleman v. Sherrill, 189 Ark. 843, 75 S. W.(2d) 248, 251, and in Blocker v. Sewell, 189 Ark. 924, 75 S.W.(2d) 658. In the case of Coleman v. Sherrill, supra, it was said:
The conclusion to be deduced from all these opinions is that, while the ballot title need not be so elaborate as to set forth the details of the act, it must identify the proposed act and recite its general purposes. In view of these decisions, further discussion or amplification of the requisites of a valid title appear to be unnecessary.
The proposed ballot title fails to disclose the vital portion of this act, which is, not whether some provision shall be made for the aged and the blind, but how that provision is to be made. We do not hold that it is essential that the ballot title should have disclosed what the provisions for the aged and blind should be, or the amount thereof. But we do hold that the manner of making this provision is of the essence of the act. It is an essential fact which should be disclosed to the elector, and could have been done by the addition of only a few more words and without recitation of details. Every one knows the general operation of a sales tax. The undisclosed fact is that such a law will be put in operation. The ballot title does not, therefore, meet the test that it shall be free from any misleading tendency, whether of amplification or of omission, and we, therefore, hold it insufficient. It may be said, in this connection, that our present sales tax law expires, by its own limitations, on July 1, 1937. Section 20-A, Act No. 233, Acts 1935, p. 603.
It is suggested that the elector could, through the publication and public discussion of this and other initiated acts, acquire full information concerning their provisions. This is no doubt true in the case of many electors. But, even so, the law contemplates that all electors shall have certain information before them at the very time they exercise their right of suffrage, and this the ballot title here under review fails to furnish.
It is insisted that the sufficiency of the ballot title has not been questioned in apt time. It is argued that had this been done at an earlier date any defect in the title could have been supplied. It is true the Initiative and Referendum Amendment (Amendment No. 7), pursuant to which proponents have proceeded, provides that, if the Secretary of State, in the case of statewide petitions, shall decide any petition defective, he shall permit thirty days for amendment; and this applies to the ballot title, as it is a portion of the petition. Shepard v. McDonald, 188 Ark. 124, 64 S.W.(2d) 559. But this provision of the amendment applies only in the case of adverse action on the part of the Secretary of State, and has no application to original suits brought in this court. The only limitation as to the time of action by the courts is that: "The failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition." There has been no such delay in the instant case.
The prayer for a writ of injunction against the certification of the act to the election officers of the state is therefore granted, and the writ awarded.
The only question in this case is whether the ballot title is sufficient. The majority hold that it is insufficient, and I do not agree in this conclusion.
In order to determine whether a ballot title is sufficient or not, it is important to inquire into the purpose of the ballot title. The majority opinion states: "Perhaps no set rule or formula can be announced as to what a valid 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."
I think even under this rule announced by the majority that the ballot title is sufficient, although I do not think there is anything in the constitution or the law that requires the ballot title to fairly allege the general purposes of the act.
The Constitution (Amendment No. 7) provides: "At the time of filing petitions the exact title to be used on the ballot shall by the petitioner be submitted with the petition, and on state-wide...
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