Westbrook v. McDonald

• Decision Date: 14 December 1931
• Docket Number: No. 54.,54.
• Citation: 44 S.W.2d 331
• Parties: WESTBROOK v. McDONALD, Secretary of State.
• Court: Arkansas Supreme Court

Page 331

44 S.W.2d 331

WESTBROOK v. McDONALD, Secretary of State.

No. 54.

Supreme Court of Arkansas.

December 14, 1931.

Dissenting opinion.

For majority opinion, see 43 S.W.(2d) 356.

MEHAFFY, J. (dissenting).

I do not agree with the majority in holding that the ballot title submitted might mislead and that it was therefore defective and insufficient, and that the constitutional amendment was not sufficiently complied with in this respect.

The ballot title submitted is as follows:

"Referendum of the act of the Legislature of 1931, amending Section 3505 of Crawford & Moses' Digest of the laws of the State of Arkansas so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months.

"For act, known as the Three Months' Divorce Law, amending Section 3505 of Crawford & Moses' Digest.

"Against act, known as the Three Months' Divorce Law, amending Section 3505 of Crawford and Moses' Digest."

It will be observed that the title submitted does not undertake to state on what grounds or for what causes divorces may be granted, but it plainly shows that it is an amendment to section 3505 of Crawford & Moses' Digest, "so as to permit the granting of decrees of divorce to applicants who have resided in the State of Arkansas for a period of only three months."

I think anybody would understand, from the title submitted, that nothing had been changed in the divorce laws except the time applicants had to live in the state of Arkansas before a divorce could be granted.

There are numerous causes of divorce, and the section of the statute amended provides: "The plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause of divorce: First. A residence in the State for one year next before the commencement of the action."

The act of 1931 (page 201) amended that section of the Digest so as to permit applicants who have resided in the state for three months instead of one year to obtain a divorce.

The act only requires a residence in the state of two months before suit is brought, and three months before the final judgment granting the divorce.

I do not see how any one old enough and qualified to vote could be misled by the title suggested by the ballot. The majority say that if one were to read the act itself, even casually, he would know that it had not been enacted that one might obtain divorce by proving a residence in the state for ninety days only, but they say the great body of the electorate, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. If they do, they will know that the act provides that one need live in the state only ninety days in order to procure a divorce; they will know that it is an amendment to section 3505 of Crawford & Moses' Digest.

The majority calls attention to the case of Wallace v. Zinman, 200 Cal. 585, 254 P. 946, 62 A. L. R. 1341, as sustaining its holding that the ballot title is insufficient. The court in that case held that the act involved was violative of a section of the Constitution of California which provides: "Every act shall embrace but one subject, which subject shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be expressed in its title." Const. Cal. art. 4, § 24. The court also held that it violated another section of the Constitution which reads as follows: "All laws of a general nature shall have a uniform operation." Article 1, § 11. It then held that the act was invalid for some other reasons. The title of the act passed on by the California court was as follows: "An act, to be known as the usury law, relating to the rate of interest which may be charged for the loan or forbearance of money, goods or things in action, or on accounts after demand, or on judgments, providing penalties for the violation of the provisions hereof, and repealing sections 1917, 1918, 1919, and 1920 of the Civil Code and all acts and parts of acts in conflict with this act." St. 1919, p. lxxxiii. The court then called attention to the provisions of the act and held that the subject-matter of the act was not referred to directly or indirectly in the title to said statute. If the decision in this California case has any application at all to the instant case, I am unable to see it.

Another case referred to by the majority is In re Opinion of the Justices (Mass.) 171 N. E. 294, 296, 69 A. L. R. 388. That was a case where thirteen questions were submitted to the justices of the senate, and the only question answered by the justices that has any bearing on the present case was the first question, and it is as follows: "Does the `description of the proposed law' (as it appears on the petition blanks, copy of which is submitted herewith and as reprinted on pages 130 and 131 of said Senate, No. 280) required by said Article forty-eight to be printed at the top of each signature blank and also upon the ballot meet the requirements of said Article forty-eight and adequately inform the voters as to the provisions of said proposed law, especially as to the differences between said provisions and the present system of compulsory motor vehicle liability insurance?" The court, among other things, said: "The `description' is inaccurate in that it includes all these statutes as among those repealed. The `description' is insufficient in that by section 1 of the proposed law the limitation to one year after the rendition of the judgment for bringing suits in equity to enforce against an insurer payment of a judgment for personal injuries or death caused by the insured is repealed. That repeal is not required because `inconsistent with the proposed law.' It relates to an independent and important matter, to which no reference is made in the `description.'"

There are a number of other things pointed out by the justices that make the description insufficient. No such differences can be found in the ballot title in the instant case. Certainly it cannot be supposed that any voter would think that the law intended that any person could obtain a divorce simply by living in Arkansas ninety days without showing some cause of divorce, and I think they could not have been misled by this ballot title.

The majority referred to one other opinion, of the Oregon court, State ex rel. Gibson v. Richardson, 48 Or. 309, 85 P. 225, 229, 8 L. R. A. (N. S.) 362. In that case, however, the court held that the title was sufficient, and in my judgment there is nothing in that opinion that supports the opinion of the majority in this case. The Oregon court was considering the title of the act and not the ballot title.

Neither of the cases cited by the majority supports its decision for two reasons: First, the cases cited as authority by the majority were decisions on the sufficiency of the title of a bill or act and not the ballot title; second, the court held in each of the cases that the title violated a provision of the Constitution which designated things necessary to be stated in the title.

We have no provision either in the Constitution or the laws of Arkansas prescribing what the ballot title shall contain. The constitutional amendment (No. 5) simply provides that the exact title to be used on the ballot shall be by the petitioners submitted with the petition. There is no intimation in the Constitution or the law as to what the title shall contain.

After the adoption of the first initiative and referendum amendment, the Legislature passed an act to the effect that the secretary of state should cause the ballot title to be printed and that the ballot title should be the legislative title of the measure.

Evidently the people, in adopting the present amendment to the Constitution, intended that the petitioners should submit the title, and did not intend that it should be the legislative title.

The constitutional provision also requires that the state board of election commissioners shall certify such title; that is, the title submitted by the petitioners to the secretary of state to be placed upon the ballot. The people could have adopted an amendment requiring the court or some other officer or officers to prepare the ballot title, but they did not see fit to do so.

The Oregon case cited to support the majority opinion, as we have already said, was considering the title of an act, and not a ballot title. The Constitution of that state (article 4, § 20) provides: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." We have no such provision in our Constitution, and the Oregon case is therefore not authority for the opinion of the majority.

The majority might have cited an Oregon case discussing the identical question that we have here, that is, the ballot title. In a case decided by the Oregon Supreme Court more than three years after the opinion referred to by the majority, that court passed upon the sufficiency of a ballot title. In Oregon at that time, the law required the printing of the act in pamphlets. Our law requires the publication in newspapers in each county.

The Oregon court said, in holding that the ballot title was sufficient:

"There is nothing in the Constitution...