Dixon v. Hall, Secretary of State

A proposed initiated amendment to the Constitution has tentatively been designated No. 40. It bears the popular title, "Increasing Purposes and Millage for Municipal Improvement Bonds".¹

On July 20th plaintiff filed an original action in this Court, asking that the Secretary of State be enjoined from accepting additional signatures. It is not disputed that when the initiative petition was filed July 3 it contained but 3,664 names, while the requisite number was 21,685 — a deficiency of 18,021. But, say proponents of the measure, Act 195 of 1943 commands the Secretary of State to receive additional names within a period of thirty days; and these, it is insisted, must be considered a part of the petition.

Amendment No. 7 to the Constitution, under which the proposed measure and the method of initiating it are sought to be justified, provides that if sufficiency of any petition is challenged and the Secretary of State shall hold it to be deficient, "he shall, without delay notify the sponsors . . . and permit at least thirty days from the date of such notification . . . for correction or amendment".

Attention is called to Phillips v. Rothrock, 194 Ark. 945,110 S.W.2d 26; Beene v. Hutton, 192 Ark. 848,96 S.W.2d 485; Wait v. Hall, Secretary of State, 196 Ark. 508,118 S.W.2d 585; Hammett v. Hodges, 104 Ark. 510,149 S.W. 667; Stewart v. Hulett, 196 Ark. 403, 117 S.W.2d 1067; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81, and other decisions of our own. There are also citations to holdings in other jurisdictions.

The point at issue does not appear to have been directly determined by us.

Any attempt by the General Assembly to add something to or take substance from the constitutional provision would be a nullity.

An elastic construction would be the result if we should say that the right to correct and amend means that proponents may file an obviously deficient petition — containing, for example, one name from each of fifteen counties and upon notification by the Secretary of State that twenty thousand or more additional names were needed it would become mandatory that time be extended thirty days from the so-called "dead line".

Our view is that, under any rational construction, it was intended that a petition be filed within the time fixed by Amendment No. 7. To be a petition it must, prima facie, contain at the time of filing the required number of signatures. Correction and amendment go to form and error, rather than to complete failure.

The Secretary of State is directed to treat the proposed amendment as having failed for want of initiation. He is enjoined from certifying the measure to election commissioners.

¹ Two other measures, one known as "The Four Year Term Amendment," the other as "Community Property Law," were involved in the original pleadings, but inasmuch as sufficient signatures to complete the petitions were not secured within the extension of thirty days corresponding with the period here involved, it is not necessary to discuss them.

MR. JUSTICE McFADDIN dissents.