Shepard v. McDonald , 189 Ark. 29 ( 1934 )

I do not agree with the majority in holding that the ballot title is insufficient because it is misleading, colored or partisan, or that it is insufficient or defective for any other reason. I wrote a dissenting opinion in the case of Westbrook v. McDonald, in which I reviewed the authorities, and I do not deem it necessary to review all those authorities again. The dissenting opinion in the Westbrook case may be found in 184 Ark., beginning at page 753, 44 S.W.2d 331.

Mr. Justice SMITH, in his dissenting opinion in this case, has called attention to the law which prohibits any elector from occupying a booth or compartment for the purpose of voting for a longer time than five minutes. During that time, the voter must cast his vote for State, district, county and township officers. It would be unreasonable to expect any voter, within that time, to have any time to study ballot titles or anything else, except simply to cast his vote.

The law provides that, when a petition is filed to refer any act to the people, there must be filed with the petition an exact copy not only of the title, but of the act itself, and the only useful purpose of the ballot title is to enable the voter to identify that with the act filed in the Secretary of State's office, or the one published in the newspapers. It would be entirely unreasonable to expect a voter, in five minutes, to study the ballot title for any other purpose than to identify it with the act which he is supposed to have read.

The Constitution 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 or suggestion in the Constitution or the law as to what the title shall contain.

I have no doubt that a ballot title might be prepared by each of a dozen lawyers, and that they would all be different, and I submit that no one could prepare a ballot title that every one would agree was correct. Voters are not expected, within five minutes, to get information about the merits of an act and decide whether they want to vote for or against it;, they are supposed to have that knowledge before they go into the booth to vote. That is the reason that the law requires an exact copy of the act to be filed with the petition, and that is the reason that the act is required to be published in every county in the State for four months. The voters get their information as to the purpose of the act from the act itself, and not from the ballot title.

I think the decisions of this court have annulled the amendment to the Constitution providing for referendum. It should not be required that the ballot title should be such that the voters could learn the purpose and effect of the act from it. It should be such only as identifies it with the act filed in the Secretary of State's office and published in each county. I do not believe that any lawyer could prepare a ballot title that some one would not object to.

The Supreme Court of Oregon, in discussing ballot title, said:

"There is nothing in the Constitution as amended implying that the full title as appears in the proposed measure shall appear upon the ballot, nor does the act under consideration so require. The method provided is adequate to identify the bill, as indicated on the ballot, with the proposed measure on file in the office of the Secretary of State, the full title and text of which appear in pamphlets, a copy of which, under the law in force at the time the local option law was voted on, was presumably in the hands of each voter. The method then in use, and as since improved upon, was, and is, analogous to the proceeding before the legislative assembly. There, before the roll call for voting on a proposed measure is had, the presiding officer announces that "We are about to vote on House (or Senate) Bill No. 104, or whatever number the bill may have, which number as thus announced identifies the bill to be voted upon with the printed bill on the desk of each member. True, the title is previously read, as is the entire bill, and so it is presumed to have been previously read by each voter under the initiative system.

"The only question, then, to determine is, Does the title as designated and used on the ballot come within the purview of the Constitution as amended and supplemented by the act of 1903? We think it does. * * * As above stated, the title of a bill before the legislative assembly is required to be read with the measure to be voted upon, and the full title is presumed to appear thereon. This method under the initiative would be impracticable; for, as manifest from the length of the title of the act under consideration, if many measures should be submitted to the voters at one time, to print upon the ballot a full title to each would require the ballot to contain many pages of printed matter, which cumbersome method was plainly intended to be avoided. To recognize the rule invoked by appellant would defeat the very purpose contemplated by the adoption in our fundamental laws of our direct, and additional, system of lawmaking. The system provided, as above considered, was obviously designed to take the place of that employed by the Legislature, and accomplishes the same result." State v. Langworthy, 55 Or. 503, 104 P. 424, 106 P. 336.

The Oklahoma Supreme Court said: "As to the ballot title prepared and filed with the Secretary of State and with the Attorney General, it appears that the parties submitting the proposition have complied with the law. The ballot title was prepared by the Attorney General, acting in conjunction with the attorney for the parties submitting the proposition, and contains the gist of the measure, without any argument or statement either for or against it. The protestant has offered no substitute title for the one prepared and filed, as required by section 3377." In Re Referendum Petition No. 30, State Question No. 94. 71 Okla. 91, 175 P. 500.

The protestants here have offered no substitute title and the court offers none. If the title is defective, as the majority holds, then it would seem to be fair that either the protestants or the court should prepare a title that would be sufficient. That is especially true in this case because, since the decision, the Secretary of State is compelled to hold that the ballot title is insufficient; but whenever he makes that holding, the law provides that the parties shall be notified and given an opportunity to amend.

What could be accomplished by amending, if the amended or substituted ballot title is to be attacked with no reason to believe that it will be held sufficient? If the court would prepare a substitute ballot title, the people would then be permitted to vote on the act and the constitutional amendment providing for referendum would not be made ineffective. The purpose of the amendment was to permit the public to vote on measures like this; and if the ballot title is held insufficient by the court, the court certainly should tell them what would be a sufficient ballot title.

In the case of State v. Duluth N.M. Ry. Co.,102 Minn. 26, 112 N.W. 897, it was claimed that the act did not repeal the provisions of prior statutes. The Supreme Court of Minnesota said: "It is perfectly obvious from a mere reading of this statute, and we so hold, that it was intended to and did repeal all classifications of railroad companies in the matter of taxation," etc.

In the case of Wagoner v. City of LeGrande,89 Or. 192, 173 P. 305, the court, in discussing the ballot title, said: "We think that the title of the act is sufficient.

"The ballot title expressly directed attention to the amendment to the charter authorizing these assessments. It was sufficient within the rule announced in State v. Langworthy, 55 Or. 303, 104 P. 424. The amended complaint admits that the election at which the charter was adopted was duly and regularly held. It follows from this admission that every voter received a copy of the proposed amendment with the official arguments, if any, for and against its adoption. We must assume that the electors voted intelligently, and there is nothing in the record to impeach the validity of their action."

In this State the act must be published in every county, and every voter has a right and an opportunity to read it, and, as said by the Oregon court, we must assume that they will vote intelligently.

I think the Westbrook case is wrong and should be overruled, but, if that is not done, this case can be clearly distinguished, in my judgment, from the Westbrook case, and this ballot title should be held sufficient, so as to permit the people to vote on the question. If, however, the ballot title is insufficient, the court should prepare one that meets with its approval, to the end that the people may be permitted to vote on this act.

The North Dakota court said:

"Distinction must be made between the `ballot title' and the statement of the question to be voted upon. The proposed `ballot title' is not misleading. It does not purport to be a statement of the question — it is merely the title. It is possible it could be improved. It may not be labeled the way others may label it; but the only way it could have been stated at the time the petition was circulated was as `Senate Bill No. 100,' and, in addition, to prevent any misunderstanding it stated this bill provided for the tax of 4 cents per gallon. * * * Strenuous objection is made to the form of the `ballot title,' as if this constitutes the manner in which the electors will be apprised of the contents of the law referred." Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741.

In this case more than 25,000 voters signed the petition for the referendum, and yet, because the leaders of the movement failed to prepare a ballot title in the manner this court thinks it should have been prepared, these more than 25,000 voters are not permitted to have the act referred. The Secretary of State, whose duty it is to pass on the ballot title, thought it was sufficient; the petitioners thought it was sufficient, and three members of this court think it is sufficient.

I think when there is such difference of opinion about it that the doubt, whatever it is, should be resolved in favor of the ballot title, thereby enabling the people to vote on this measure.