Westbrook v. McDonald

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 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 3505 of Crawford Moses' Digest."

"Against act, known as the Three Months' Divorce Law, amending 3505 of Crawford 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 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, a residence in the State for one year next before the commencement of the action."

The act of 1931 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 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 3505, of Crawford Moses' Digest.

The majority calls attention to the case of Wallace v. Zinman, 200 Cal. 585, 254 S.W. 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."

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."

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 acts after demand, or on judgments, providing penalties for the violation of the provisions hereof and repealing 1917, 1918, 1919, and 1920 of the Civil Code and all acts and parts of acts in conflict with this Act."

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, 171 N.E. 294, 69 A.L.R. 388. That was a case where 13 questions were submitted to the Justices by 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 these statutes as among those repealed. The description is insufficient in that by section 1 of the proposed law the limitation of one year after the rendition of the judgment for bringing suit 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 can not be supposed that any voter would think that the law intended that any person could obtain a divorce simply by living in Arkansas 90 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, 8 L.R.A. (N.S.) 362, 85 P. 229. 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 support 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 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 provides: "Every act shall embrace but one subject and matters 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 as a, mended, 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 appears 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 since improved upon, was and is analogous to the proceeding before the Legislative Assembly. * * * 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 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 any 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 systems of law-making. The system provided as above considered was obviously designated to take the place of that employed by the Legislature and accomplishes the same purpose." State v. Longworthy, 104 P. 424.

To hold that the ballot title submitted by the petitioners in this case is insufficient would defeat the very purpose of the Initiative and Referendum Amendment.

The law requires that to every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered, and the law also provides that, not later than the first Monday of the third month before any regular general election at which any proposed law referred is to be submitted to the people, the Secretary of State shall cause to be published in one newspaper in each county for thirty days a true copy of the title and text, and all that is required of the petitioners is to submit a ballot title which may be compared with the act on file with the Secretary of State or the act as published in the county papers.

The purpose of the amendment is to permit the people to refer laws to themselves and to permit them to vote on these laws, and there is no provision anywhere in our Constitution or laws that the ballot title shall be such a full title as contended for in this case. It would be impracticable and probably no two persons would prepare the same ballot title for any measure. The only thing necessary is, as said by the Oregon court, that the ballot title be such that the voter can identify it as being the act on file with the Secretary of State. To hold other wise would defeat the very purpose of the amendment.

With due respect to any associates, I think they have put form above substance and have underestimated the intelligence of the voters of Arkansas.

They quote some argument from the California and Massachusetts courts about protecting the people. The argument is plausible, but I do not think it is true. I think the people generally devote as much time to a discussion of measures of this sort as we do, and that they can vote on it just as intelligently. Not only people differ about what a ballot title should be, but courts differ about the construction of the Constitution and the laws.

An illustration of this may be found in the decisions of the Arkansas and Colorado courts on the question of the number of amendments that could be submitted at one time after the adoption of the Initiative and Referendum Amendment. This court held that only three amendments could be submitted at one election notwithstanding the adoption of the amendment which did not limit the number. State ex rel. v. Donaghey, 106 Ark. 56, 152 S.W. 746.

The Colorado court held exactly the reverse, and in so holding said: "We have no right to assume such a result, for such argument, if heeded, would sweep away our present form of government. * * * We cannot be unmindful that this court must not usurp power or abuse its right of construction or lose sight of the dangers which might arise, not only to the State, but to the court itself, from such usurpation and abuse. It is just as important for the preservation and just administration of government of this State that the power of courts should be exerted only within the limits of the Constitution and be not abused as it is that the power of the people, the General Assembly or Executive Department, should be so exerted and not abused." State ex rel. Tate v. Prevost, 134 P. 129.

I think the words of the Colorado court above quoted are applicable here. Of course there may be a few voters who would not understand from the ballot title what act they were voting for or against, but that may be said with reference to any measure submitted to the people.

I think to hold, as the majority has, that this ballot title is insufficient destroys the constitutional amendment permitting the people to have measures referred to them. There must, of course, be a compliance with the provisions of the Constitution and the laws in order to permit the people to vote on any measure, but we have recently held that a substantial compliance is sufficient.

It is next held by the majority that Westbrook was not a petitioner, and that he therefore had no right to submit a ballot title or to bring suit. The opinion of the majority, to the effect that Westbrook was not a petitioner is based on a provision of the amendment to the Constitution. The first sentence of the paragraph on which the majority opinion is based, reads as follows: "Only legal votes shall be counted upon petitions."

It is true that this paragraph requires an affidavit, but the purpose of the affidavit is to show that the signer of the petition is a legal voter, and that his signature is genuine, and the Constitution provides that, if this affidavit is made, no other affidavit or verification shall be required to establish the genuineness of such signature. When this entire paragraph is considered, it clearly appears that any legal voter may sign the petition, and the only requirement is that the signer be a legal voter, otherwise his vote will not be counted.

The Constitution requires, in order to refer a measure, a certain per cent. of the vote's of the State to sign the petition. That, of course, means legal voters, and it was the intention of this provision of the Constitution that the proper number of legal voters should sign the petition.

Westbrook was unquestionably, in my judgment, a petitioner, and it is not disputed that he was a legal voter, and to say that he is not a petitioner because the person who circulated the petition neglected to attach the jurat, is in my judgment a narrow technical construction of the Constitution.

The Constitution does not provide that proof that a petitioner is a legal voter may not be made in other ways besides the affidavit referred to, but, if it did, if Westbrook was a legal voter he was a petitioner, and, even though his vote could not be counted in determining whether a sufficient number had signed the petition, he would still have the right to submit the ballot title.

But, if he were not a petitioner, he would have the right as a lawyer, not only to file the petition with the Secretary of State, but to submit the ballot title for the petitioners. This court knows that Westbrook has been practicing law in this State for more than thirty years, and the other attorney with him in bringing the suit to review the action of the Secretary of State, is a former Attorney General of the State of Arkansas, and these lawyers had the right to bring the suit for the petitioners, even if it be conceded that Westbrook was not a petitioner.

It was publicly published and generally known that Westbrook was representing the petitioners, and the majority in its opinion holds that the petitions were properly filed, and I think this is correct. They were filed, however, by Westbrook, representing the petitioners. The fact that Westbrook represented the petitioners was not only published all over Arkansas, but the petitioners themselves referred to him as their representative publicly, and none of them ever questioned his authority to submit for them the ballot title or to bring this suit.

The majority state, however, that whoever acts for a class must be a member of that class, and cite several authorities and quote 1098 of Crawford Moses' Digest. I do not think that this section has any application here for several reasons. This is not the kind of action mentioned in said section; is not a civil action, but is in the nature of special proceedings. "A civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement of a private right, or the redress or prevention of a private wrong. It may also be brought for the recovery of a penalty or forfeiture." Section 1028, Crawford Moses' Digest.

The statute also provides that every other remedy in a civil case is a special proceeding. Section 1029, Crawford Moses' Digest.

It clearly appears that this proceeding is not for the enforcement of a private wrong. It is therefore a special proceeding, and the section with reference to many persons interested in a thing of common or general interest has no application.

The provisions of the Constitution permitting people to refer measures to themselves should be liberally construed, so as to effect the purpose for which they were adopted. If narrow technical construction is resorted to, it defeats the very purpose of the Constitution and deprives the people of the benefits conferred by the constitutional provision.

I think the objection to the ballot title and as to Westbrook not having authority to submit the title and bring the suit for the petitioners is purely technical and ought not, in my judgment, to be used to prevent the public from voting on this law. It is not a question of whether the law is wise or unwise, good or bad, but the question is, shall the people have a right to vote on it? I think they should.

Mr. Justice HUMPHREYS agrees with me in the views herein expressed. We think the writ prayed for should be granted.