*1 29 legislation give We hesitate to a construction producing this anomalous result unless construction plainly required. opinion, In this construction our required, is not warranted, not but is not as this was amendatory purpose, nor is it the effect, act. litigant prevailing’ If the desires to invoke the aid appeal of the court from which the came to enforce the judgment, he must file the mandate that court within amendatory twelve months, § as limited and the judgment act. But the failure so to do does not annul the contrary, decree this court. § On the amend- atory provides act of 1929 that “such decision shall be years carried into effect within ten from the rendition of judgment, judgment and not thereafter.” The could not be carried into if effect the failure to have mandate power issued within twelve months rendered void. The therefore judgment, inheres in this court to enforce its whether the mandate issued or and the not, motion is therefore overruled.
Shepard v. McDonald.
4-3181 Opinion April delivered 1934. petitioner. Lasley, for
Lee Trieber Miles *2 Attorney Gen- & Norwood, Hal L. Fhrman, Owens respondent and Assistant, for eral, and Robert F. Smith, interveners. Loughborough, Hemingway,
Rose, Cantrell <& amici curiae. of proceeding a continuation This C. J. Johnson, wherein Shepard Ark.
the case of McDonald, v. agreed between specifically “It been we said: has ques- respondent petitioner counsel case sufficiency instant ballot title tion of questions jurisdictional for decision until the reserved decide not here do we been determined. Therefore ’’ sufficiency title, etc. of ballot or discuss de- question expressly for future reserved The thus proceed to its presented, we now here termination is determination. peti- referendum with the
The ballot title submitted as tion is follows: the State of this abolish
“The act is people; to create a new of elected Board Education appointed Governor; State Board of Education Superintendent of In- Public create the office of State repeal of the ‘school certain sections and to struction; regular meeting for the State fix a time law’ which requires to serve board said Board Education without remuneration.” 184 Ark. S. W.
In v. McDonald, Westbrook sufficiency (2d) ballot title to the 231, in reference petition we stated the rule to refer, submitted with enough complete title should be follows: “The ballot scope convey intelligible import idea of the ought from be free mislead- law, amplification, tendency, omission, ing whether ’’ coloring. partisan fallacy, no it must contain enough to is broad be all in- The thus stated rule enough ample afford relief in all and flexible clusive citing reaffirm it without therefore we cases, meritorious discussing other jurisdictions, authorities from only question presented The here does the ballot is, title under consideration fall within or without the rule stated? phrase
The first contains submitted following: people.” pur- “elected pose partisan the use- these words lend color was to position by. petitioners. to the assumed It was and is wholly immaterial whether or not the board abolished appointive. Legislature plenary elective or has power to create and abolish such boards and commissions. phrase
The second of the submitted title is likewise partisan emphasis placed upon and colored. The undue *3 by “appointed the Governor” does not add to or detract from the merits or demerits of the act. phrase partisan,
Not is this colored and it but misleading only. is and contains a half truth The act [Board provides that the new State of Education shall be appointed by the Governor with the advice and of consent appears the Senate. Thus it of elective Senate part parcel appointive power, the is a State of the skillfully by proponents but is this the of withheld the petitions. referendum phrase
The third of the submitted title is likewise partisan, misleading. provides, colored and It “to Superintendent create office of the State of Public In- language partisan struction.” This colored be- super- cause it withholds from the voters the fact that the by people, intendent is to be elected of vote the and this, emphasis just face of fact that the the undue has been placed the facts that the “abolished board is elected by people,” by “appointed and that the new board is important it the Governor.” If were to advise the voters by people, board that the old was elected and that appointed by the new board would the Governor, cer- tainly equally important it advise the voters that superintendent people. be elected phrase third of
The the submitted title is mislead- impression ing because creates that newa office, superintendent public being of of instruction, is created. past fifty years, officehas been in existence for the This ap- years operating although, past under few of pellation effect of of Education. Commissioner language employed is to substitute for that' Superintendent of Instruction officeof Public this existing law, under of Education Commissioner con- title instead been reflected should have as was done. verse, phrase submitted
The fourth and last repeal sections certain follows: “And title as meeting regular time of law’ ‘the school which fix a requires board to said Board of State Education par- misleading, likewise serve remuneration” is without misleading fact is because and colored. tisan of Education Board abolished members State meetings attending expenses actual while do receive partisan and colored It is Board Education. are members or not such it is immaterial whether because conveyed sought compensated. to be inference employed language that the new thus the use appointed the Gov- of Education to be State Board compensation is not the fact. when such ernor will receive importance language employed in the title is If the thus they equal importance that to the directly voters, was *4 of Education that the new State Board advised appointed would likewise be re- the Governor to be quired without remuneration. serve phrase appears that each sentence
Thus it proposed misleading, parti- title is either colored squarely pro- san, and that each and all within the falls supra. case, in cited announced the Westbrook hibition language pro- argued that the contained is posed cannot be considered as mis- true, therefore title withholding partisan. leading, The willful colored equally reprehensible as as the material fact mis- a fully recognized material fact. This of a was statement just case referred to. There we had in the Westbrook proposed title as follows: under consideration granting appli- permit decrees of divorces “To period in the State for a have resided who cants phrase and sentence of word, Each this three months.” literally yet ballot title held it was we true, misleading directly because it did not the voters advise applicants that it necessary would be for divorces legal to establish in addi- evidence a cause for divorce tion to the three it defi- months’ residence. Thus nitely appears that this contention decided and de- adversely respondent’s termined here. contention Our conclusion is that the submitted ballot therefore, prohibition the instant case falls within the Westbrook case and is insufficient. filing
After the of this E. suit, one G-reene al. W. et permitted theory they were to intervene offering part parcel petition were as a for ref- supplemental erendum a and substituted ballot title. Prior to the however, submission of this interven- cause, requested permission ers intervention. withdraw said right have We concluded that interveners supple- said withdraw intervention and substituted or n passes question mental ballot Therefore out this of the case. respond-
It follows from what we have said Secretary of have denied ent, McDonald, State, should insufficiency petition because of referendum, title submitted his actions therewith, the ballot quashed, peremp- submitting referring same is tory prohibition in behalf of writ of awarded petitioners. Mehaeey McHaney dissent.
Justices Smith, majority opinion (dissenting). J., If the Smith, W. 184Ark. 44 S. case McDonald, Westbrook v. requirements (2d) construing 231, was critical Referendum in matter Initiative and Amendment sufficiency of the ballot was said of it in opinion dissenting in that then the case, *5 opinion hypercritical in the instant case same respect. may. approved If those ballot titles be which are above and immune from criticism, the amend- ment has lost its value in both initiative and referendum ballot features, as titles must be in submitted either case. beyond contemplation comprehension It is or
34 fully exact what title advise the voter ballot majority for the vote is cast if be state law will ’’ ‘‘ legislation, the amend- the measure which called a, equally applied, it be would ment. If test is to be such important of the law the state the elector what to advise proposed majority not cast vote is will be if the measure. referred to hereinafter 1933,
Act Acts of 78 sought in several amends, referred, to act here be 78, hereinafter particulars, 1931, of the Acts of 169 attempted Suppose it been to had as act 169. referred to pre- a title ever be How could ballot refer this act 169? pared majority tests to which could meet the which relating subjected-the to act 78? have here page from extends sections, 198 of Act consists repeals pag'e of 320 sec- in the Acts 1931. to Digest and 8 of of & Moses’ sections tions Crawford repeals separate Kirby’s Digest, amends 19 either Assembly. kind of a ballot What acts the General employed or devised which would advise the title could be elector, when he saw the ballot which he was bewildered changes cast, what the effect these would about be? pro- general election law It must be remembered occupy be allowed that: “No elector shall booth vides longer compartment voting for the & minutes.” time than five Moses’ Section Crawford length Digest. times that time would Several required synopsis to read even a of act even be though any ques- voter was not interested other being tion voted on or candidate for office. suggestions all such is that the Initia- The answer to contemplate Amendment does not Referendum tive and the certainty particularity be objections meet which the have found to requirement the ballot title here submitted. the the petitions, filing “at time amendment is that petitioners on be used the ballot shall exact title to petition.” Now, with submitted as was said supra: ballot title case, the Westbrook “The should be convey complete enough intelligible idea of the scope import ought law, *6 amplifica- tendency, misleading free from whether of fallacy, parti- tion, of omission, or of and mnst contain no coloring.” requirements in most cases san These could by given employing he met as a ballot title the same legislation by Assembly. rule, to The same General applies legislation based alike to same reason, by people. or It initiated or referred to the measures permit proponents would not fair to of an initiated give act it to a title was calculated to deceive the vote, elector when he came to and induce him, reason misleading title, to vote for the nor measure; permit opponents be fair to it of the measure who people, encompass had caused it to referred to the to misleading ought its defeat convey reason a intelligible scope import idea of the tendency, misleading without law, and should partisan having coloring contain no that effect. holding test, under this it to me that
Now, occurs ballot title insufficient case, defective Westbrook and. supra, justification holding affords no for the ballot suggested in the instant case. There title insufficient title read as follows: “Referendum of the act of the Legislature amending of 1931, § 3505 of Crawford & Digest of the Moses’ laws State Arkansas so as permit granting applicants of decrees divorce to period only for who have resided the State three sought act there months.” The to be referred did permit granting applicants of decrees of divorce to period who had resided months, the State three thought and the unfair mislead- ing to state. What the act did—and all so did—-was previously year— shorten the time—which had been a during having which one must reside this State before right sue a divorce in the courts of this State. Unlike that the ballot title in the instant case con- no misstatement of a fact, tains and there is no omission amplification partisan coloring- calculated or in- my opinion. mislead, tended of the-
The first statement ballot title here under “The review that to abolish the people.” And of Education elected State Board *7 it is. so repeals 8 and 3, 6, §§
The first section of Board a State 169 created 3 of act 22 of act 169. Section composed from each Con- member of one Education, of provided by the that gressional § á district, by qualified of electors elected the “shall be members regular Congressional annual school at' district each election.” Congres- each electors of Avords,the In other they that are so member, own elect their district sional elected by people. “to create title is of the ballot second statement
The by appointed Education Gov- Board of a new State ” And fol- 2 of act 78 reads as it is. Section so ernor. Education as iioav consti- 'Board of “The State lows: hereby hereby by and there is abolished, laAVis tuted composed be of Education to of a Board created State by appointed by be Governor members to seven means, of the Senate.” This consent the advice with by appointment made the Governor course, of by as stated in the Senate, and, be confirmed must appointments the Governor, are made title, ballot appointments reason, made are if, for appointments. makes other confirmed, appointing Governor power in the Governor. abides beg suggest again, I that if such mat- mere But, must be recited in the ballot as detail that con- ters of appointment must made the Governor difficult, im- then it Avillbe if not Senate, firmed prepare practical possible, title. employ length title of such
not be despair, intricacy disgust, if not the to cause of prepare five minutes he is allowed to elector in the the and cast his appears ballot. This statement me to be objections applicable equally to other made to the bal- lot purpose stated ballot title “To third Superintendent of of office State Public In-
create paragraph it is. The first § And so struction.” office “The as folloAvs: Commissioner act 78 reads hereby of State office and the Education abolished hereby Superintendent created.” of Public Instruction title to in the ballot The fourth is stated fixes repeal Law “To certain of the School sections regular meeting Board of Edu- for the time requires re- without to serve cation, and said board part, as reads, in muneration.” 6 of act 169 Section shall meet Board of Education follows: “The State annually Monday September on the second and shall also Education, office Commissioner Monday regular quarterly meetings second on the hold expressly This section is March, and December, June.” *8 repealed by in the ballot 78, act as stated by expressly repealed of act is 169,
Section 8 which provided act “The members of State Board 78, that: other remuneration, of Education serve without shall meetings expenses attending while than their actual purpose 4th statement of the Board,” so that the literally except appearing in is the act the ballot title true, Board of Education under attend- that the members the State expenses allowed actual while act 169 were their ing meetings Being of the board. allowed this and noth- may questioned ing it well be whether the board more, any They were to receive remuneration. were members paid nothing were allowed services, for their and meetings expenses attending perform incurred while unremunerated duties. This must be their otherwi.se de minimis. may may wholly unimportant not
Now, it whether the board is- administer educational appointed, elected or of the State is the ma- affairs opinion, say say. my jority our function not, It is when the number of difference, is no electors that there required by the constitutional amendment to invoke its retaining so, for the have done elective aid, appointive than an board. rather partisan that the ballot title is colored,
It is said from the voters it withholds the fact that the because provided Superintendent of Public Instruction, for State by people, by 78, to he elected because it had peo- is elected “abolished board that the stated “appointed the Gov- pie,” board new whereas ernor.” appears me majority opinion what furnishes is, objection, that satisfactory answer this to be a Instruction Superintendent Public office history this the educational innovation in was not an fifty more than an office had had such State. We abol- until it was years; 1875, December since fact, recent during legislation, all of which school ished officers elected as other time that officialhad been Digest. & Moses’ Crawford were elected. Section recited, as the had However, say of this re-creation have that done, during former its it had been officeit be filled as might objected that the statement been existence, partisan colored, accurate, was but “Immediately provides that: § that 3 of act reason the State force, act has taken effect and is after this Board of Education herein created shall elect a State Superintendent Instruction, who serve of Public shall general until his next election successor until the duly qualified.” elected imagined prepare could it be one
Can objection title to which no could found, ballot which *9 approved by persons all be who considered impracticable, contrary, impos- if it? the On except very simple legislation, in matters of sible, to ad- exact vise the elector what the state the law will be rejected adopted measure been or after the has the people, requirement imposed and no such should be if the produce Initiative Referendum Amendment is to the anticipation expectation results, the in- of which adoption. duced its majority nothing have said about the substitute anticipation which
ballot title
was submitted in
of the
rejection
possible
original
along
title submitted
petition,
with the
and I shall not, therefore, consider its
sufficiency,
my opinion,
original
in
as,
the
title was suf-
say
But I feel constrained to
expressly
that it
ficient.
opinion
former
held in the
this case to which the ma-
opinion
jority
refers,
the
is part
that
ballot title
petition. Shepard
The amend-
v.
Prior provision because amendment, invoke this sion to contrary, not been held insufficient. On had title Secretary He must sufficient. held it opinion, majority hold the ballot now, under opportunity being amend, true, this and, insufficient, provides amendment itself for afforded. respectfully author- dissent am most
I therefore say Mehaepy MoHaney concur that ized to Justices expressed. views here agree (dissenting). J., do not with I Mehaffy, holding insufficient be- title is misleading, partisan, that it is cause it is colored or any other reason. I wrote a insufficient or defective for opinion dissenting McDonald, the case of Westbrook v. in which reviewed and do not deem authorities, I I necessary again. to review all The dis- those authorities opinion senting may in case be found in Westbrook beginning page (2d) at S. 331. Ark., W. opinion dissenting Mr. in his in this Justice Smith, prohibits ease, has called attention to the law which compartment occupying from elector a booth voting longer time than five minutes. During State, time, the voter must cast vote for Ms county township district, officers. It would be un- to, expect any voter, time, reasonable within that *10 any study except anything titles or else, time ballot simply to cast his vote. petition provides law when' a that, is filed to any people, to the
refer act there must filed with be petition copy only exact not but of the act only purpose
itself, and the useful title is of the ballot identify to enable the voter to filed in that with the act Secretary published office, State’s or the one newspapers. entirely It would be unreasonable to expect study in five voter, minutes, the ballot any purpose identify other than to it with the act supposed which he is to have read. simply provides
The Constitution that the exact title petitioners, used on the ballot shall be, sub- petition. sug- mitted with the There is no intimation or gestion in the Constitution or the law toas what the title shall contain. might prepared I have no doubt that a ballot title lawyers, they each of a dozen and that all be prepare
different, and I submit that no one could a ballot every agree title that one would was correct. are Voters expected, get within five minutes, information they about the of an merits act and decide whether want against itthey supposed to vote for or are have that knowledge they go before into the booth to vote. That is requires copy the reason that the law an exact of the act petition, to be filed with the and that is the reason that required published every county to be in the get for four months. The voters their information purpose as to the of the act from the act itself, and not from ballot title.
I think the decisions of this court annulled providing amendment to the Constitution for referen- dum. It should not be that the ballot title be such that the voters could learn the and effect of the act from it. It should be such as identifies Secretary it with the act filed in of State’s officeand published county. each do I not believe that law- yer prepare could a ballot title that some one would not object to. Supreme Oregon, Court of in discussing
title, said: nothing
“There is in the Constitution as amended implying appears that the full title as appear measure shall the ballot, nor does the act require. provided under consideration so The method *11 adequate identify is on bill, as indicated the bal- proposed lot, with the measure on file in the office Secretary ap- State, full title and text of which pear pamphlets, copy of which, under the law in option at force the time the local law was voted on, was presumably in the. of each hands voter. The method then improved upon, use, since was, is, anal- ogous legislative proceeding assembly. to the before voting There, before the roll call for on a meas- presiding ure had, is officer announces that are “We (or Senate) about to vote on House Bill No. 104, what- may ever number the bill which have, number as thus announced identifies the bill to be voted with the printed bill on the desk each member. True, the title previously pre- read, as entire bill, is the so previously by sumed to have been read each voter under system. the initiative only question,
“The
then, to determine is, Does the
designated
title as
and used on the ballot come within
purview
sup
the
plemented
of the Constitution as amended and
* **
the act of 1903?
think it
As
We
does.
legislative
above
stated,
title of a. bill before the
as
sembly
to be read with the measure to be
upon,
presumed
appear
voted
and the full title is
thereon. This method under the initiative would be im
practicable
length
;
as manifest from
for,
of the title
many
of the act under consideration, if
measures should
print upon
time,
be submitted to the
at
voters
one
require
ballot a full title to each would
the ballot to con
many pages
printed
tain
matter,
cumbersome
plainly
recognize
was
method
intended to be avoided. To
by appellant
very pur
invoked
rule
would defeat the
pose contemplated adoption
in our fundamental
direct,
system lawmaking.
additional,
of our
laws
system provided,
obviously
as above
considered,
place
employed
designed
take the
Legis
accomplishes lature, same result.” State v.
Langworthy,
104 Pac.
Ore.
lot of State Attorney appears General, it parties with the complied law. submitting’ proposition with *12 Attorney General, prepared the The ballot title was parties attorney conjunction for the acting’ in with the gist the submitting proposition, the of and contains the any argument either statement measure, without against protestant no substitute offered has it. The prepared sec filed, as for the one title No. State 30, Referendum Petition In Re tion 3377.” Pac. 91, 500. No. 94. 71 Okla. 175 Question protestants substitute offered no here have the defective, title is court offers none. If the and the fair that either it seem to be then would holds, prepare protestants title that should or the court the especially in true this case That is would be sufficient. Secretary is com- of State decision, since the because, but pelled insufficient; the ballot title is to hold that provides holding, the law that he makes that whenever opportunity given parties to be notified and shall amend. accomplished by amending, if the could be
What title is to be attacked with or substituted ballot amended that be held sufficient? If no reason believe will people prepare title, a substitute ballot would court permitted to vote on the act con- then be and the would providing amendment for referendum would stitutional ineffective. The of made amendment not be public permit vote on measures this; like was held insufficient title is the court, if the ballot certainly tell them what abe suffi- court cient ballot Ry. the case v. Duluth
In State & N. 102 M. Co., 897, N. W. was 26, 112 claimed that the did Minn. prior provisions repeal Supreme statutes. perfectly said: “It Minnesota obvious Court from reading this statute, sowe hold, mere that it repeal did all intended classifications of rail was companies matter of taxation,” etc. road Wagoner City v. case LeGrande, In 89 Ore. discussing court, 305, Pac. that the title the act think is sufficient. “We said: expressly attention “The ballot title directed authorizing assessments. amendment to the charter these v. It Langworthy, announced was sufficient within the rule 424. The amended 104 Pac. Ore. complaint the charter admits that the election at which regularly adopted duly held. It follows was every copy of from voter received a this admission arguments, if the official amendment with any, against adoption. must assume that for and its We intelligently, nothing and there is the electors voted impeach validity of their action.” the record to every published in must be the act In this State opportunity right county, every and an voter has a *13 Oregon court, we must as- said the and, to as it', read intelligently. they will vote sume that wrong and be case is think the I Westbrook should clearly not this case be done, if that is can but, overruled, my judgment, distinguished, from the Westbrook case, title should be held so to sufficient, and this question. permit people to vote on the If, however, the prepare the court should insufficient, title is the ballot approval, peo- its to the end that meets with one that may permitted ple to vote on act. this court said: North Dakota
The must be made between the ‘ballot title’ “Distinction question upon. to be voted statement misleading. title’ not It ‘ballot does not question merely purport a statement to be is—it improved. possible may it could be It is way may only way label others but it; the. labeled petition stated at the time the have been was cir- it could Bill No. 100,’ and, as ‘Senate was addition, culated any misunderstanding pro- it stated prevent this bill * * * per gallon. 4 cents tax Strenuous vided form of to the title,’ made ‘ballot objection as if manner which the electors will be constitutes this contents law referred.” apprised of the Schu- N. D. N. Byrne, 237 W. 741. v. macher signed peti- 25,000 than voters because more case this In yet, referendum, leaders of tion prepare a ballot title in the man- movement failed prepared, these have been thinks it should ner this court more than permitted 25,000' are not voters duty Secretary it whose of State, referred. thought sufficient; pass was it title, on the ballot thought members three sufficient, it petitioners it think is sufficient. of this court opinion about such difference there is think I when be resolved is, whatever doubt, thereby people enabling the ballot favor measure. on this vote Kumpures. v.
Poulas 4-3440 April Opinion delivered 1934. *14 appellant. T. Coulter Coulter, P. Oliver appellee. Bradley, & Brown brought by appellant This suit was J. Humphreys, municipal appellee against court of Little Bock to principal and interest, $108.94 $300 recover a total of out of a series of rent four notes executed $408.94,