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Dissenting Opinion
McFaddin

ED. F. MCFADDIN, Associate Justice (dissenting). I find myself unable to agree with the majority opinion, because I am thoroughly convinced that the sponsors of the proposed Act failed to comply with the clear requirements contained in Amendment No. 7 to the Constitution relating to the publication of the proposed Act thirty days before filing. Here is the said provision in the Constitution:

"Initiative—The first power reserved by the people is the initiative. . . . Initiative petitions for State-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation. . . ." (Emphasis supplied.)

The Constitution says that at least thirty days before the petition is filed the proposed measure shall have been published in a newspaper. On June 5, 1960 the proposed measure was published; on June 27, 1960 the petition was filed; and that is twenty-two days after publication and not thirty days. Twenty-two does not equal thirty: that is the basis of my dissent.

I say the petition was filed on June 27th, and such is the record before us. Under the provisions of Amendment No. 7 the sponsors of a proposed initiated measure were required to file signatures of 8% of the legal voters. That would mean 22,950 signatures were required on this petition. On June 27th the sponsors of the measure filed a petition containing 40,103 signatures, and the Secretary of State on June 27th (in keeping with § 2-210 Ark. Stats.) notified the sponsors as follows: "I have examined your petition and according to our count you have 40,013 signatures. Since 22,950 signatures are required for an initiated act, this is to advise you that your petition has met this requirement. . . ."

What was that filing date? The answer is, June 27, 1960, because on that date the certificate was issued by the Secretary of State and the filing was complete. Anything occurring after that date is mere surplusage. The present lawsuit was filed in this Court on September 7, 1960; and one of the attacks against the measure was the failure to comply with the thirty-day publication requirement. Under date of September 20, 1960 (thirteen days after the filing of this suit in this Court), the Secretary of State issued a certificate reading: "This is to certify that the sponsors of the proposed initiated act, which has for its popular name, 'Arkansas Minimum Wage and Overtime Act', completed the filing of their petitions on the 7th day of July, 1960 when they filed petitions containing 1057 signatures proposing said measure. Dated this 20th day of September, 1960." So, after this lawsuit was filed in this Court, the sponsors went back to the Secretary of State and obtained a certificate that on July 7th 1057 additional signatures had been filed; and the sponsors say that this 1057 additional signatures filed on July 7th "completed the filing", and made the "substantial compliance" to be on that day. I cannot follow such reasoning: the Secretary of State had already issued a certificate on June 27th, as required by § 2-210 Ark. Stats., that the petition had been filed on June 27th. The filing on July 7th was entirely an afterthought, just as was the September 20th certificate from the Secretary of State, which was obtained by the sponsors after this lawsuit had been filed, and which was brought into the record by amendment to the sponsors' original answer. If the July 7th filing of 1057 additional signatures had been required by law, then the Secretary of State (under § 2-210, Ark. Stats.) was obligated to issue his certificate of that filing within fifteen days from July 7th; and the Secretary of State is too careful an official to have failed to comply with § 2-210, Ark. Stats. He would have issued a certificate within fifteen days of July 7th (rather than on September 20th) if anyone had thought that July 7th was the filing date. It is crystal clear that the July 7th filing has been seized on by the sponsors as a crutch to support a broken limb July 7th cannot have been a date of "substantial compliance" because the whole filing had been completed and certified on June 27th.

As to why Constitutional Amendment No. 7 required that the publication of the measure must be thirty days before the filing, I do not know. Some say that the purpose of the thirty-day publication requirement prior to filing was to inform the voter, rather than the signer, of the proposed measure. Such an argument is making a surmise to be stronger than plain words. I do know that this provision of thirty days publication is in the Amendment No. 7; and its presence is quite commanding. Arkansas originally adopted[1] the Initiative and Referendum by a Constitutional Amendment in 1909, which is not the present Amendment No. 7. Nowhere in the said 1909 Initiative and Referendum Amendment was there any requirement of thirty days publication before filing. At the General Election in November, 1920 there was adopted by the people our present Amendment No. 7; and in our present Amendment No. 7 there appears, for the first time, the provision requiring the publication of the proposed measure to be thirty days before the filing of the petition. The point I am making is, that this language was put into the amendment deliberately and after we had operated under a previous Initiative and Referendum Amendment for a number of years. So it must have been thought that there should be publication before the proposed petition was filed. The framers of the Constitutional Amendment said thirty days; I cannot make twenty-two days equal thirty days.

In tax sales we have repeatedly held that when a statute states a number of days for publication such provision is mandatory. In McWilliams v. Clampitt, 195 Ark. 908, 115 S.W.2d 280, the statute required the notice to be published weekly for two weeks before the sale. Notice was published on June 1st and June 8th and the sale was held on June 12th. The Court found that the notice was published for only eleven days, and held the sale was, therefore, void. Some of the other tax sale cases holding the time of publication to be mandatory are: Laughlin v. Fisher, 141 Ark. 629, 219 S.W. 199; and Thweatt v. Howard, 68 Ark. 426, 59 S.W. 764. In 82 C.J.S. 235 the general holdings are summarized: "Constitutional and statutory provisions with respect to the publicity which must be given initiative and referendum measures are mandatory; . . ."

The sponsors say that the filing on July 7th was "substantial compliance"; but there is another rule of law which says that before an election the provisions of the election law are mandatory, even though after the election they may be held merely directory. Orr v. Carpenter, 222 Ark. 716, 262 S.W.2d 280; and Horn v. White, 225 Ark. 540, 284 S.W.2d 122. We are now considering this case before the election; and in that situation the thirty-day provision for publication is mandatory. It has not been complied with in this case.

Therefore, I respectfully dissent.

 

 
  1. The 1909 Initiative and Referendum Amendment is listed as Amendment No. 10 to the Constitution and may be found on pages 121 and 122 of Kirby & Castle's Digest of 1916, and on pages 1239 and 1240 of the Acts of the Legislature for the year 1909. It may also be found listed as Amendment No. 7 on pages 131 and 132 of Crawford & Moses' Digest of 1921. To provide procedural matters for the 1909 Amendment, the Arkansas General Assembly of 1911 adopted Act No. 2 of the Extraordinary Session that convened on May 22, 1911 (see pages 582 et seq. of the printed Acts of 1911).