Phillips v. Rothrock , 194 Ark. 945 ( 1937 )

Appellant brought suit as a citizen and taxpayer of Washington county against the public officials of that county to enjoin the disbursement of the public revenues of the county pursuant to the provisions of "Initiative Act No. 1 of Washington county, Arkansas." The suit questioned the existence of the act as valid legislation upon various grounds, and from a decree dismissing the suit is this appeal.

This decree was based upon the finding contained therein that "The suit was not filed within the time prescribed by law, and this court has no jurisdiction to hear and determine the questions."

Much testimony was heard upon the various allegations of the complaint, all of which has been incorporated in the transcript before us, but we shall review only so much thereof as is required to elucidate the questions upon which we base our decision. We will first consider the two grounds above stated upon which the action of the court was based.

The declaration that "The suit was not filed within the time prescribed by law" is based upon 13 of act No. 4 of the Acts of 1935, p. 8. This act is entitled "An act to facilitate the exercise of the right of the initiative as to county acts and measures, and for other purposes." This act was passed pursuant to the direction of the initiative and referendum amendment to the Constitution that "General laws shall be enacted providing for the exercise of the initiative and referendum as to counties." Section 13 of this act provides that "The right to contest the returns and certification of the vote cast upon any proposed county act or measure is hereby expressly conferred upon any ten qualified electors and taxpayers of the county. Said contest shall be brought in the chancery court, and shall be conducted under statutes and procedure for contesting the election of county officers, except the complaint shall be filed within sixty days after the certification of said vote, and no bond shall be required of the contestants." The instant suit was not filed by ten electors and taxpayers of the county, and was not filed within sixty days after the certification of the vote upon the measure.

The provisions above quoted do not apply to this suit. It was not brought to contest the returns of the election, or the certification of the vote upon the proposed measure. It is conceded that a large majority was cast in favor of the measure and that the returns of this vote were properly certified. The objection made, among others, is that the submission of the question at the election was unauthorized under amendment No. 7 (the initiative and referendum amendment) and the enabling act No. 4, supra, passed pursuant thereto, and that act No. 1, therefore, did not become a law notwithstanding the favorable vote thereon.

That such suits are not election contests has been recognized in all the similar cases which have come before this court, and that any citizen and taxpayer may institute a proper suit to prevent unauthorized and illegal diversion of public funds is a proposition of law which this court has frequently announced, and the right of the individual citizen to be thus heard has always been enforced. Upon the right of the individual citizen to maintain such a suit the late case of Beene v. Hutto,192 Ark. 848, 96 S.W.2d 485, is authoritative. That case states the existence of such a right to be beyond question. Innumerable other cases decided by this court are to the same effect. If the present suit is not such a suit as 13 of act No. 4, supra, authorizes and limits as to time, then this time limitation does not apply. That it is not so regarded is concluded by the following cases which will be briefly discussed.

Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617, was a suit brought in the Pike chancery court attacking the validity of a local law alleged to have been enacted by a majority vote of the citizens of that county. The election held in that county was not questioned. The contention was that the local act had not been enacted notwithstanding the majority vote favoring its adoption for the reason that the act of the General Assembly pursuant to which the election was held was void as being a local law. There were three opinions in that case, one the original majority opinion, another a majority opinion overruling a petition for rehearing. The third was a vigorous dissenting opinion, in which three justices concurred. But in none of these opinions was it suggested that the proceeding was one to contest an election.

In the case of Tindall v. Searan, 192 Ark. 173,90 S.W.2d 476, suit was brought in the chancery court against the officers of Arkansas county for the purpose of having the salary act, affirmatively voted upon in that county, declared void and ineffective. Suit was brought by an individual citizen as a taxpayer, as was done in the instant case. The suit was not commenced until October 7, 1935, although the salary act had been voted upon at the election previously held November 6, 1934. Other citizens later intervened in that case and the questions there raised touching the validity of the act were considered and decided by the presiding chancellor, and upon the appeal therefrom the decree of the chancery court holding the act invalid was reversed; but there was no suggestion in the exhaustive briefs filed in that case, or in the opinion of this court, which discussed the questions at length, that there was any lack of jurisdiction on the part of the chancery court, or that the suit was one to contest an election. See also Coleman v. Sherrill,189 Ark. 843, 75 S.W.2d 248.

We conclude, therefore, that the instant case is not an election contest, but is one which any citizen and taxpayer may institute to prevent the alleged wrongful diversion of public funds, and that, therefore, the sixty-day limitation upon the right to contest the returns and certification of the vote does not apply, and further that the chancery court was not without jurisdiction to hear and determine the case.

The opinion in the case of Hutto v. Rogers, 191 Ark. 787,88 S.W.2d 68, is not in contravention of this view. That was an election contest. The relief prayed was that the board of election commissioners be required to "count and certify all such votes (cast at the election), same as if the ballot title had in fact been printed on said ballots, that said proposed initiative act be declared duly adopted and enforceable." The relief prayed was denied for the reason stated in a headnote of that case that "Equity has no jurisdiction to try election contests." Here, as has been stated, there is no contest of the election itself. It was, also, decided in that case that the sufficiency of a petition for initiating local laws was a moot question after the election was held. The statement that after the question is submitted to and affirmatively voted upon by the people the sufficiency of the petition calling the election is of no importance was reaffirmed in the second appeal of the Faulkner county salary act case (Beene v. Hutto, 192 Ark. 848, 854, 96 S.W.2d 485), which is cited above upon another proposition. Upon the application of this statement to the instant case more will be presently said.

Appellant contends there is no authority in fact for the initiating of county salary acts. To put this question definitely at rest it may be said that the right of the qualified electors of any particular county to enact a salary act, applicable to that county, was expressly affirmed and the source of that authority was pointed out in the case of Dozier v. Ragsdale, 186 Ark. 654,55 S.W.2d 779, and need not be repeated. It will suffice to say that we reaffirmed that holding in the cases of Tindall v. Searan,192 Ark. 173, 90 S.W.2d 476, and Reeves v. Smith,190 Ark. 213, 78 S.W.2d 72. Other cases recognizing the validity of local legislation relating to salary acts are: County Board of Education v. Austin, 169 Ark. 436,276 S.W. 2; Benton v. Thompson, 187 Ark. 208,58 S.W.2d 924; Smith v. Cole (and Brown v. Pennix), 187 Ark. 471,61 S.W.2d 55; Coleman v. Sherrill, 189 Ark. 843,75 S.W.2d 248; Blocker v. Sewell, 189 Ark. 924,75 S.W.2d 658; Hutto v. Rogers, 191 Ark. 787,88 S.W.2d 68; Clay County v. Ruff, 192 Ark. 150, 90 S.W.2d 474; Beene v. Hutto, 192 Ark. 848, 96 S.W.2d 485; Priest v. Mack, ante p. 788, 109 S.W.2d 665.

The chief insistence of appellant is that there was no legal authorization for the submission of the salary act to the electors, for the reason that the petitions praying that the election be held were not filed with the county court clerk within the time required by amendment No. 7. There appear to have been thirty-four petitions filed. One of these was filed September 22, 1936. Two were filed September 30, 1936. The others were filed October 1, 1936. The election was held November 3, 1936. It is, therefore, obvious that none of them was filed for as much as sixty days before the election. Amendment No. 7 provides that "General laws shall be enacted providing for the exercise of the initiative and referendum as to counties," but that "In municipalities and counties the time for filing the initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon." Enabling act No. 4, supra, does not otherwise provide.

The amendment prescribes the time within which petitions for initiative measures must be filed. It is essential, therefore, to confer authority to hold an election upon an initiated county measure that the petitions therefor be filed not less than sixty nor more than ninety days before the election "at which it is to be voted upon." It would hardly be contended that an election could be held if there were no petitions therefor. It is mandatory that petitions should be filed, and it is equally so that they be filed not less than sixty days before the date of the election. Lacking this prerequisite there is no authority to hold the election upon the initiative measure, and no majority — however large — can adopt a measure which was submitted without constitutional authorization.

Although the county clerk, through his deputies, did receive and file the petitions on the days above stated, he appears thereafter to have ignored them and to have neglected or failed to comply with any of the duties enjoined by act No. 4, supra, and he wholly failed to give notice as provided by that act. No attempt was made by mandamus or otherwise to compel him to act. His inaction was ignored. He may have entertained the view that there was no authority for filing the petitions at the time they were deposited in his office.

In the case of Townsend v. McDonald, 184 Ark. 273,42 S.W.2d 410, the Secretary of State took the position that petitions for a referendum upon an act of the General Assembly, which were tendered him for filing, did not conform to the requirements of amendment No. 7 and the enabling acts passed pursuant thereto. It was sought by mandamus to compel the Secretary of State to file the petitions. It was there held that the petitions presented to the Secretary of State did not comply with the requirements of the Constitution, and the writ of mandamus was denied for that reason. In other words, there was no authority for filing petitions which did not conform to the requirements of the Constitution. The opinion in this case of Townsend v. McDonald, supra, discussed the enabling acts which had been passed to make the constitutional amendment effective, and in holding the enabling acts mandatory said: "In determining whether the words of a statute shall have a mandatory or directory effect ascribed to them, the purposes of the act, the end to be accomplished, the consequences that may result from one meaning or the other, and the context are to be considered. The statute relates to the limits of the power of the Secretary of State to file the petition, which was not in compliance with the requirements of the statute, and does not relate to the manner in which the power is to be exercised. Phillips v. State, 162 Ark. 541, 258 S.W. 403."

That opinion further said that the enabling acts had not been passed as a mere matter of convenience or direction, but had been passed as a safeguard to the rights of the voters, and that "This is a right of great benefit to the voters, and we do not think the requirement should be regarded as merely directory, but that it is a substantial right which is of a mandatory character, and must be complied with or the proceeding will be void."

Here, the provisions of the amendment itself regarding the time within which petitions may be filed relate to the power of the clerk to receive petitions for filing, and he may, therefore, receive them within the time limited for that purpose, and not at a later time.

The case of Texarkana Special School District v. Consolidated Special School District No. 2, 185 Ark. 213,46 S.W.2d 631, involved a petition addressed to the county board of education to change the boundaries of certain school districts. The applicable statutes were construed as requiring petitioners to give thirty days notice of the intention to present the petitions before the meeting of the board. It was held that the notice must be given before the petitions were filed, and that posting the notice after filing and before the hearing did not give the board jurisdiction. The reason assigned for this holding was that the posting of the notice would apprise the electorate of the pendency of the proposal and would afford opportunity for investigation and discussion, as to whether the petitions should be signed.

The argument is made that the affirmative vote concludes all objections that could have been urged before the vote was taken. In support of this argument, cases are cited sustaining the text found in 9 R.C.L., page 1173, of the chapter on elections, that "all provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void."

We think this case comes not within the general rule stated, but within one or more of the exceptions thereto above stated.

The latest case cited in support of the above-stated contention is that of Johnston v. Bramlett, 193 Ark. 71,97 S.W.2d 631, which quoted from the case of Beene v. Hutto, 192 Ark. 848, 96 S.W.2d 485, as follows: "It, therefore, appears that after a question is submitted to and voted upon by the people, the sufficiency of the petition is of no importance. It is not important because, whether sufficient or insufficient, if the measure is adopted by the people at the election, it becomes the law. The I. R. amendment also provides that it shall be self-executing, and all of its provisions shall be treated as mandatory."

It will be observed that the question put beyond review, after an affirmative vote has been had, is that of the sufficiency of the petition. This question has not been raised and is not involved in this litigation.

It is argued that, to hold the initiative act here under review was not adopted, notwithstanding the favorable vote thereon, is to place it in the power of officers having duties to perform in this behalf to defeat legislation by mere inaction. Several answers may be made to this contention.

It was said in the case of Dozier v. Ragsdale,186 Ark. 654, 55 S.W.2d 779, that when any duty is required of a public officer, unless there is something to indicate the contrary, it will be presumed that he performed the duty according to law. The presumption is also that the officer will perform his official duty. The enabling act (act No. 4) provides that the performance of duties enjoined may be enforced by mandamus. This enabling act further provides that if the county clerk, the board of election commissioners, or any election judge or clerk, "shall knowingly and wilfully fail or refuse to perform any such duty, he shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than $100 nor more than $500, and shall be removed from office."

The argument that we should give conclusive effect to an affirmative vote, although neither the amendment itself nor the enabling act so provides, except only as to the sufficiency of the petition, for fear that a recalcitrant official might defeat the public will, may be met by other arguments equally as persuasive to the contrary.

For instance, it was held in the three cases affecting the Faulkner county salary act (Hutto v. Rogers, 191 Ark. 787,88 S.W.2d 68; Beene v. Hutto, 192 Ark. 848,96 S.W.2d 485, and Benne v. Hutto, ante p. 107, 105 S.W.2d 530) that electors might vote upon an act even though it had not been placed on the ballot when it should have been placed thereon, and that an affirmative vote would adopt the act although it had been omitted from the ballot. It may be said that three members of the court dissented from that view. Now, a majority of all the votes cast at the election is not an essential to the adoption of a law. A majority of those voting on the subject suffices. A single vote — if it were the only one — would be a majority. There is no limitation as to the number of acts which may be submitted at an election, nor is there any limitation as to the number of acts dealing with the same subject which may be submitted. The enabling act and the amendment itself contain provisions dealing with this very contingency. Stock laws appear to have primacy in the matter of number as to questions voted upon in these local elections.

It is undisputed that the county clerk did not publish the notice required by law, and if that was not essential here, it will not be in other cases. It is true there were news comments in three newspapers published in Washington county, and one of these gave what purported to be a synopsis of the entire act. But newspaper reports are not always accurate, and this is not the publicity which the law requires. There might be an election in which there was not even news comment in the county papers, and that omission, or lack of information, would be unimportant, as it is not required. If filing petitions sixty days before the election is not mandatory, there is no reason why petitions might not be filed ten days before the election, or within even a shorter time. If the sixty-day provision does not govern and is not mandatory, there is no other provision as to the time of filing which does. It must, therefore, be apparent that, if the beneficent purposes of the amendment are to be realized and much expense and hopeless confusion avoided, there must be some uniformity and certainty in its administration. This ad hominem argument, just made, may be excused only by saying that it is in answer to another of similar character. The point decided in this case is that the failure to file petitions prior to a date, which is as much as sixty days before the election, renders the election nugatory.

The state of Oregon was a pioneer in I. R. legislation, and we are accustomed to look to the decisions of the Supreme Court of that state for the proper construction of legislation which has been borrowed from it. The case of Marsden v. Harlocker, 48 Or. 90, 85 P. 328, decided by the Supreme Court of Oregon, goes further than we are required to go to hold mandatory the provision that the petitions must be filed within the time required by the Constitution. That case involved the validity of a local act which had received an affirmative vote, and it was there held (to quote a portion of a headnote) that "it is the duty of the county court, and not the clerk, to inspect the petition for an election and examine its records to ascertain whether it complies with 1, 12, 14 and, if so, to order an election, which order is a condition precedent to a valid election, and there was no valid election where the members of the court did not meet, nor assemble, and make the proper investigations, but merely signed a memorandum purporting to authorize an election." A reluctance to unduly extend this opinion prevents a review of the reasoning by which that conclusion was reached.

The case of Board of Greeley County Commissioners v. Davis, Auditor, 99 Kan. 1, 160 P. 581, involved the validity of a local act which had received an affirmative vote. The Supreme Court of Kansas held that the petition calling for the election was insufficient, a question which our own amendment precludes after a favorable vote. But absent that provision, in the laws of the state of Kansas, the Supreme Court of that state said: "No such petition was submitted, consequently the statutory basis on which the county board called the election was wanting. The election was therefore called without lawful authority, and its result is void." It was there further said: "We have sought diligently, but without avail, to escape this conclusion," as the necessity of a petition meeting the statutory requirements was a condition precedent to calling the election.

Appellees dismiss the case of Southern Cities Distributing Co. v. Carter, 184 Ark. 4, originally published in 41 S.W.2d 1085, republished in 44 S.W.2d 362, with the statement that "This case, like others cited by appellant, is not in point." We agree with this statement, and might, for the reason stated by counsel for appellees, omit comment upon it were we certain that all others reading it would reach the same conclusion. We, therefore, distinguish it in so far as it may be thought applicable to the instant case. That case arose upon a petition for a referendum on a resolution of a city council relating to rates to be charged by a utility company. The resolution in question was passed by the city council on May 30, 1930. Petition for a referendum was filed June 27, 1930, which was within thirty days after the passage of the resolution. The I. R. amendment provides "* * * for a referendum petition at not less than thirty (30) nor more than ninety (90) days after the passage of such measure by a municipal council." Justice KIRBY, speaking for the court, said: "This does not mean, of course, that the petition for a referendum cannot be filed less than 30 days after the passage of the measure sought to be referred, but only that the city must allow at least 30 days after the passage of the measure for the filing of a referendum petition thereon, and cannot allow more than 90 days."

The city clerk, with whom the petition was filed, was not called to pass upon, and did not pass upon, the petition until "on the 31st day after the passage of the resolution as containing sufficient signatures of qualified electors to authorize the referendum, petitioned for." There, the petition remained and was on file on the 31st day after the passage of the resolution. It was there said: "Although filed before the expiration of the 30 days allowed, they remained on file with the proper officer, who duly certified the sufficiency thereof after examination made on the 31st day from the passage of the resolution, and were therefore in all respects as valid and effective as though they had been filed on the 30th day thereafter. It may be that, after the signing of the petition, and before the expiration of the 30 days allowed for the filing thereof, any person who chose to do so could have insisted upon his signature being withdrawn therefrom; but where such petition was filed on time, and after its sufficiency was duly certified by the proper officer, any such signature could not be withdrawn as a matter of personal preference, nor without a sufficient showing that such signature had been fraudulently obtained. It then became a matter of public concern and part of the procedure necessary to invoke the referendum * * *." In other words, the petitioners did not lose control of the petition until thirty days after the passage of the resolution, and any signer who chose to do so could withdraw his signature therefrom, but if he did not do so before the thirty days expired he could not thereafter change his mind and withdraw his signature except upon a showing that it had been fraudulently obtained. The filing was then final, and was so regarded by the city clerk, who did not attempt to pass upon the petition until the 31st day after the passage of the resolution. The reason for so holding was that a petitioner might desire to withdraw his signature, a right he could not exercise after the filing had become final on the 31st day after the passage of the resolution. It appears, therefore, that the provision of the amendment, as to time for filing petition, was not considered as directory merely, but was regarded as having been complied with.

The proposition there involved is the converse of the question here at issue. Here, the petitions were not filed with the county clerk until within less than sixty days of the date of the election, and could not, therefore, be treated as filed until they had actually been deposited with their legal custodian. It may be said, in passing, that in this case of Southern Cities Distributing Co. v. Carter, supra, a referendum was compelled by mandamus.

The General Assembly, by act No. 4, supra, passed an enabling act to facilitate the operation of the amendment, as the amendment directed should be done. It contemplated the possibility of a contest of the submission of an act, and provided the time and manner in which this should be conducted, and time was allowed therefor by giving as much as sixty days before the election. This time was given by requiring the petitions to be filed not less than sixty days before the election. The act provides that the clerk shall have ten days in which to pass upon the sufficiency of the petitions. If he finds them insufficient, he shall give the petitioners ten days in which to amend or correct them. Thereafter the clerk has five days in which to determine their sufficiency after amendment and correction. Thereafter, any taxpayer has fifteen days in which to attack the petitions in the chancery court, and the chancellor has ten days in which to call a term of court to hear the case. In the remaining ten days the court passes upon the questions raised, and the ballots are prepared if the court holds the petition sufficient. In the meantime the county clerk is required to "give notice by publication for two weeks in some weekly newspaper in the county of bona fide circulation therein, that such act or measure will be submitted to the people at said election for adoption or rejection," and it is required that the notice shall "include a full text of the act and the ballot title." Expedition in these matters is contemplated within the respective periods of time limited, and it is, therefore, provided 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 nor militate against the validity of such measure if it shall have been approved by vote of the people."

It is, no doubt, true that cases may arise, and have arisen, in which the sufficiency of the petition may not be determined within sixty days after the petitions have been filed, in which event an affirmative vote adopts the act notwithstanding the fact that the petitions may have been insufficient.

This is not a case in which any presumption can be indulged to supply the omission to file the petitions not less than sixty days before the election. In this respect it is not unlike the case of Booe v. Road Imp. Dist. No. 4 of Prairie County, 141 Ark. 140, 216 S.W. 500. That case involved the validity of local acts passed at the special session of the General Assembly. The Constitution required — at the time when local bills might be passed by the General Assembly — that at least thirty days' notice be given of the intention to apply for passage of a bill of that character, and this provision was held to be mandatory. It has been consistently held, however, since the case of Davis v. Gaines, 48 Ark. 370, 3 S.W. 184, that a presumption should always be indulged in favor of the legality of legislative proceedings, and when the legislative records, of which the courts can take judicial notice, do not show to the contrary, the passage of a local act is conclusively presumed to have been in accordance with the constitutional requirement as to notice. On September 15, 1919, the Governor issued a proclamation calling the General Assembly to meet in extraordinary session on the 22nd day of September, 1919. The records of the General Assembly showed that it convened on that day and adjourned on the 1st day of October, 1919. At this extra-ordinary session local bills were passed, which were attacked as having been enacted without notice given as required by the Constitution. In defense of these acts it was insisted that the question, whether notice had been given, was one for the determination of the General Assembly itself, and that the passage of the acts concluded an inquiry into that subject, under the presumption that the General Assembly had discharged its duty by ascertaining that the notice had been given. That contention was not sustained for the reason that it was a physical impossibility to have given thirty days' notice between the date of the proclamation convening the General Assembly in extraordinary session and the adjournment thereof.

So, here, the filing dates show the petitions were filed less than sixty days before the election and there can, therefore, be no presumption that the public had the notice of the proceeding which the Constitution contemplated and required. We conclude, therefore, that there was no authority for holding the election, and it is, therefore, a nullity.

The decree of the chancery court will, therefore, be reversed, and the cause will be remanded with directions to enter a decree in conformity with this opinion.

GRIFFIN SMITH, C.J., HUMPHREYS and MEHAFFY, JJ., dissent.