Phillips v. Rothrock

This suit was brought in the Washington chancery court by appellant as "A resident, qualified elector, taxpayer, and patron of the schools." By the suit it is sought to enjoin county officers from carrying into effect Washington County Initiated Act No. 1, certified by the election commissioners as having been adopted by a vote of 3664 to 660.

It is alleged in the complaint and urged in appellant's brief that the act as proposed did not come within the purview of Amendment No. 7 to the Constitution of Arkansas because of certain claimed irregularities attending its initiation, the charges being (1) that the petitions of voters were not filed a maximum of sixty days before the general election of November 3, 1936; (2) that the petitions actually filed were not examined by the county clerk nor their sufficiency certified; (3) that the text of the measure was not published; (4) that no record of the adopted act was ever made by the county clerk; (5) that the election commissioners wrongfully placed the proposed act on the official ballots, and (6) even though it should be held that the act was legally adopted, it is in many specified respects violative of the state Constitution, and is in conflict with general laws to such an extent as to render impracticable its enforcement with respect to those sections which may not be fatally out of harmony with general laws and the Constitution.

The following points are raised by appellant:

(1) Section 2 of the initiated act directs that the county and probate judge shall receive a salary of $3,000 per annum, inclusive of compensation for his services as road commissioner, one-half of which shall be payable from the county general fund, and one-half from the county road or highway fund. Appellant says these provisions are contrary to act 133 of 1931 which fixes the salaries of all the county judges in the state. By said act 133 the salary of the county judge of Washington county is fixed at $2,000 per year. It is also alleged that effect of the initiated act is to misappropriate county road funds received from the state by virtue of act 65 of 1929, as amended by act 63 of 1931, and as further amended by act 48 of 1933, by virtue of which the so-called county turnback fund was created. Appellants refer to act 280 of 1935, which appropriated the sum of $1,000,000 as county turnback funds for each year of the biennium ending July 1, 1937, contending that application of any of this money to payment of a part of the salary of the Washington county judge constitutes an unlawful diversion.

(2) It is next insisted that 5 of the initiated act is an effort to amend 4587 of Crawford Moses' Digest, now 5673 of Pope's Digest. The digest sections refer to an act of the General Assembly of 1875 fixing fees of sheriffs throughout the state.

(3) Other alleged irregularities are: 6, fixing the salary of the sheriff as $2,000 per year and mileage of 5 cents per circular miles; actual expenses while on official business out of the state, and the further sum of one-half of all other fees as provided for in 5 thereof; also $1,500 for a deputy;

Section 7 of the initiated act, fixing the salary of the tax collector at 1 1/2 per cent. of collections, and 1/2 of 1 per cent. of penalties and fees attaching upon nonpayment of personal and property taxes, and making it mandatory that security of $50,000 be given by a bonding company; section 8, limiting the salary of the tax assessor to $1,800 per year, with a deputy at $600 per year, and providing that funds received from the state on account of the assessor's salary should be credited to the county salary fund; section 9, fixing compensation of the county treasurer at $1,800 per year, with provisions for a bond of $50,000 to be executed by a bonding company; section 9, prohibiting employment by county officers of deputies related to such officers within the fourth degree of affinity or consanguinity; sections 12 and 13, directing the circuit clerk and the chancery clerk to make "flat" charges of $5 for filing suits; section 14, directing all county officers whose salaries are fixed by the act (except those receiving no fees) to charge and collect for the use and benefit of the county the same fees, costs, commissions, bequests and compensation "now or hereafter permitted by law to be charged by such officers for such services," and declaring all sums so earned to be a county fund; section 16, requiring county officers to keep public records as specified in the act and to make reports; section 18, allocating one-half of the net county salary fund ("except the pro rata proportions of the treasurer's and collector's offices taken from the school districts") to be transferred to the common school fund for apportionment and the remaining one-half to be transferred to the county general fund. These sections, it is contended by appellant, are all in conflict with the Constitution or with general laws of the state.

It is urged that 7 attempts to amend act 85 of 1927, as amended by act 198 of 1928; that 8 violates act 330 of 1935, which sets up certain classifications by grouping counties and thereby fixing salaries [In this classification Washington county is in group 7, whereby the assessor's salary is fixed at $2,400 per annum, with an allowance of $600 per year for one deputy]; and that 9 is violative of act 85 of 1927, as amended by act 198 of 1929, creating a state board charged with the duty of passing upon the sufficiency of the bonds of county officers. Also, it is argued that 10 violates the following sections of Crawford Moses' Digest: Section 1370, authorizing circuit clerks to appoint deputies; 1402, authorizing county clerks to appoint deputies; 1910, authorizing county treasurers to appoint deputies; 1952, relating to the duty of county courts' purchase of land upon which to erect houses of correction; and 10027, authorizing collectors to appoint deputies; that 12 attempts to amend 4573, Crawford Moses' Digest, as amended by act 157 of 1933, fixing the fees of clerks of circuit courts; that 13 seeks to amend 4575, Crawford Moses' Digest, as amended by act 157 of 1933, fixing fees of chancery clerks; that 16 seeks to amend 4633 and 4639, Crawford Moses' Digest, the former relating to the keeping of records, and the latter relating to incomes.

The chancellor found that the proceedings were in the nature of an election contest; that as such the complaint was not filed within the time prescribed by law, and should be dismissed. He further found, however, that the requirement in 2 that one-half of the salary of the county judge should be paid from the highway fund was void, and ordered such portion to be paid from the county general fund, or from the county salary fund.

The majority opinion quotes from Beene v. Hutto,192 Ark. 848, 96 S.W.2d 485, where it was said: "It, therefore, appears that after a question has been 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." The opinion then contains this statement: "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."

With this last sentence issue is taken. The majority opinion sets out the ground upon which the cause is reversed, saying: "This suit 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 * * * and that act No. 1, therefore, did not become a law, notwithstanding the favorable vote thereon."

The opinion then closes with this expression: "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 proceedings as the Constitution contemplated and required. We conclude, therefore, that there was no authority for holding the election, and it is, therefore, a nullity."

Two propositions, and two only, are recognized in the majority opinion as authority for holding the act invalid: one, that the petitions were not filed within the time prescribed by law, and the other that there was not sufficient publication.

Admittedly the petitions, as filed, contained the requisite number of names of qualified voters. It is not insisted that the petitions would have been deficient if filed in a timely manner. There is no contention that the voters did not know what legislation was contemplated by the petitions, nor can it be said that there was any uncertainty as to the subject matter. No complaint is made that publicity was not ample in so far as publicity related to the purpose to be served — that is, public information. It is only argued that there was a technical deviation from the letter of the law; and now, more than a year after submission of the issue and its adoption by a vote of 3,664 to 660 — a majority of 3,004 — the beneficent provisions of the act must be swept a side because of the conception that certain rights guaranteed under the Constitution, and by legislation enacted in and thereof, have been denied.

But have these rights in fact been denied?

Amendment No. 7 to the Constitution provides that the sufficiency of a petition affecting county matters shall be decided in the first instance by the county clerk, subject to review by the chancery court, and "If the sufficiency of any petition is challenged, such cause shall be a preference cause and shall be tried at once, but 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 a vote of the people. * * * All measures submitted to a vote of the people by petition under the provisions of this section shall be published as is now, or hereafter may be provided by law."

This amendment provides, also, that if the county clerk shall decide that any petition is insufficient, "He shall without delay notify the sponsors of such petition." Act No. 4 of the General Assembly of 1935, fixes a penalty to which the county clerk is subject if he fails to perform his duties with respect to initiated petitions. It also provides that the county clerk shall, within ten days, examine initiated petitions, "and if they are sufficient, he shall notify the election commissioners." It will be observed that the Constitution requires the clerk to immediately notify the sponsors of petitions if he finds them insufficient, while the legislative act provides that he shall notify the election commissioners if he finds them sufficient.

The record in the instant case does not show that the clerk, at any time, notified proponents of initiated act No. 1 that the petitions were insufficient. On the contrary, he seems to have ignored the entire transaction, both as to notification and as to publicity.

While it is true, as appellants contend, that amendment No. 7 contains a declaration that its provisions shall be treated as mandatory, it is equally true that the very situation with which we are now dealing was anticipated when the amendment was written, for the following wise provision was incorporated in the amendment: "If the sufficiency of any petition is challenged * * * failure of the courts to decide prior to the election as to the sufficiency of such petition shall not * * * militate against the validity of such measure if it shall have been approved by the people."

As far back as 1887 — thirteen years after the Constitution of 1874 was adopted — this court held that "the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken." Wheat v. Smith, 50 Ark. 266, 7 S.W. 161. In that case the appellee had been elected in a special election to the office of circuit clerk of Lafayette county, and his right to take office was questioned. The law provided that notice of such election should be published in a newspaper in the county, and this was not done. The opinion says: "When a special election to fill a vacancy is ordered there is no presumption that the voters know the date fixed by the writ of election, and they must be informed of it. But the established rule is that the particular form and manner pointed out by the statute for giving notice is not essential. Actual notice to the great body of voters is sufficient. The question in such case is, whether the want of the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise, to change the result of the election. * * * If the law were otherwise it would always be in the power of a ministerial officer by his malfeasance to prevent a legal election. When the election is legally ordered, and the electors are actually apprised of the time and place appointed for holding it, the misfeasance or nonfeasance of the officer upon whom the statute devolves the duty of giving the election notice, cannot deprive the electors of the right to express their will through the ballots. * * * It does not appear that any one was misled or deprived of his privilege of voting his choice through ignorance of the date of the election. The number of votes cast is as great in proportion to the aggregate vote as that ordinarily polled at special elections. No evidence suggesting even that a different result might have been reached was offered. Elections are not to be lightly set aside, though the law has not been strictly complied with. It is of the utmost importance that the public should have confidence in the administration of the election laws, and to know that the will of the majority, when fairly expressed, will be respected."

One of the contentions made in Hildreth v. Taylor,117 Ark. 465, 175 S.W. 40, was that proposed amendment No. 14 to the Constitution was not legally adopted, the proof being that notice of submission had not been given by advertisement in newspapers as provided by statute. The existing law required that the secretary of state should cause to be published in one newspaper in each county * * * for thirty days a true copy of the title and text of each measure to be submitted.

In an opinion written by Chief Justice McCULLOCH, this court said: "It is conceded that the terms of the statute were not literally complied with in this instance; that the secretary of state did not mail out the copies for publication until May 25, 1914, and that only in two counties were the publications made before the first Monday in June, in the other counties the publication being from three to thirteen days late. * * * This court is committed to the rule, which is in accordance with the great weight of authority, that, so far as concerns election of officers, the failure to perform any duty, such as giving notice, does not deprive the electors of the right to choose their public officials. * * * A literal compliance is not required, and a failure to publish the notice within the time specified does not of itself prevent the people from adopting a measure at an election as specified in the Constitution. In order to defeat the submission, it must at least be shown that the omission to publish amounted to such a radical disregard of the requirements imposed by the legislature that it probably affected the result of the election. * * * It would be disastrous to hold that a statute or amendment to the Constitution could be defeated by showing that the publication in fact was not made in accordance with the specified terms."

In Shephard v. McDonald, 188 Ark. 124,64 S.W.2d 559, it was said: "The action of the secretary of state in passing upon the sufficiency of a petition may be reviewed at any time, but if the sufficiency of such petition is being reviewed at the time the ballot is being prepared, the secretary of state shall place the measure on the ballot, and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon. That is, no subsequent decision of the court reviewing the action of the secretary of state in passing upon the sufficiency of the petition shall invalidate the measure. When approved by the electors, it becomes a law, subject to the same rules of construction and interpretation as an act of the legislature." The opinion further held that if it should be determined that the petition and ballot title are insufficient, the secretary of state could be restrained from certifying out to the election officials of the several counties of the state such defective ballot title.

In Coleman v. Sherrill, 189 Ark. 843,75 S.W.2d 248, in considering an initiated county salary act, we said: "The amendment provides for advertisement or publication — that `all measures submitted to the vote of the people by petition under the provisions of this section shall be published as is now or hereafter may be provided by law. But it was not intended that the officer to whom the petition was submitted should have entire or exclusive control of the petition, but remedies were provided whereby such petitions could be brought before the electors of the next general election. Having in mind these and other provisions of amendment No. 7, it becomes apparent that a liberal construction, or interpretation in order to make effectual the purposes intended, is required."

Hutto v. Rogers, 191 Ark. 787, 88 S.W.2d 68, is in point. There it was held that the chancery court did not have jurisdiction to try a suit instituted after an election to determine whether a locally initiated measure relative to salaries of county officers had been legally adopted, "since amendment No. 7 to the Constitution confers jurisdiction on the chancery court only to review the action of the county clerk in determining the sufficiency of a petition for initiating a local law." The court further said: "It is true that it is alleged that the first certificate issued by the county clerk was valid and his second certificate was void. Had the latter certificate been challenged before the election, the chancery court would have had jurisdiction to review the action of the county clerk relative thereto. * * * The sufficiency of the petition was a moot question when the suit was filed."

The same controversy involved in Hutto v. Rogers, referred to supra, was up for consideration in June, 1936, in a cause entitled Beene v. Hutto, 192 Ark. 848,96 S.W.2d 485. After quoting that part of amendment No. 7 which provides that failure of the court to decide prior to an election as to the sufficiency of any such petition shall not prevent the question from being placed on the ballot, nor militate against the validity of such measure if it shall have been approved by a vote of the people, this unequivocal declaration of the law is found:

"It, therefore, appears that after a question has been 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."

It is insisted, however, that sufficiency of the petition has not been raised, and is not involved in the litigation. With due respect to the view so expressed, I must plead my utter inability to comprehend how this can be said, when the result is a holding that the act is void because there was no authority for its submission. To reach this conclusion it is necessary to prove such lack of authority by a showing that the petitions were ineffectual because filed too late, and because the text of the act was not published on order of the county clerk.

There is a maxim in geometry that things equal to the same thing are equal to each other. It is pertinent to this discussion. If there were no authority for holding the election, as the majority opinion holds, the lack of authority arose through tardiness in filing the petitions, and through failure to publish the text of the initiated measure. That amendment No. 7 provides that after a proposed law has been voted upon and adopted by the people, petition irregularities are of no importance, and shall not militate against validity of the act, is not open to contradiction or further construction, under previous decisions of this court. In effect, the majority opinion holds that the words "sufficiency of the petition," as used in amendment No. 7, have reference only to the number of persons signing such petition, or the legal status of the signators; and that other vices, such as procrastination with respect to time of filing, or irregularities in publication, do note go to the sufficiency of the petition, but are separate and distinct transactions which must be summarily dealt with in the sense that they are mandatory and cannot be cured by a purging at the polls. But the amendment in no sense distinguishes between irregularities which may be reached by mandamus or injunction before an election, but which, if ignored, may be sifted from other and more serious deficiencies and treated as directory, the omission to respect which would not render the adopted measure invalid.

The suggestion may be reasonably advanced that no such classification was made in the amendment, for the reason that "sufficiency of the petition" is a term broad enough to embrace all matters of irregularity susceptible of affecting the petition, such as the number of persons who subscribed thereto, the legal status of such signators, the time the petition was filed, action of the county clerk thereon, publication, and certification to the election commissioners. Any attempt by judicial interpretation to differentiate between these several transactions which, prior to adoption of a measure by vote of the people would have been conditions precedent and therefore mandatory, is foreclosed by former decisions of this court. Any argument that a petition filed by less than the requisite number of voters would be valid after a favorable submission, while an otherwise valid petition filed less than sixty days prior to an election would be a nullity, even though the measure should be overwhelmingly adopted, is obviously untenable. Such an involved and complicated theory would appeal only to minds so highly developed and so technically trained in word analysis and constitutional construction as to suggest the possibility that philosophy had been mistaken for logic to the utter annihilation of the latter.

The majority opinion correctly holds that the county salary act, if it had been submitted and adopted, would not be defective because of provisions in conflict with compensation laws passed by the General Assembly. That objection has been answered in other cases.

If there were any contention that the salary act voted on by the people of Washington county differed in any material respect from the text of the measure as reflected by the petition, then there might be some ground for the objections urged by appellant. But that is not the case. If it had been charged that the people were taken unaware, and that by connivance and deceit a vicious law had been fraudulently foisted upon the county, the appellant would have been entitled to relief for the benefit of all taxpayers. But when a majority of more than three thousand voters show by their actions that they thoroughly understood the nature of the business in hand and so overwhelmingly enact a law designed to put the county on a cash basis by savings amounting to thousands of dollars annually, it is farcical to even suggest by way of courteous conversation that this is a suit to restrain the defendants as county officers from diverting public funds and exacting illegal fees. Rather, the suit should have been entitled, "A legal move to defeat the will of the people of Washington county by destroying an economy measure and restoring extravagant and chaotic conditions heretofore existing, and in pursuance of such purpose to emasculate amendment No. 7."

I am authorized to say that Justices HUMPHREYS and MEHAFFY agree to this dissenting opinion.