David Newbern, Justice.
The respondent, W.J. “Bill” McCuen, Secretary of State, certified a proposed constitutional amendment to be placed on the ballot in the coming general election. The petitioners, John Finn and Don Elliott, on behalf of themselves and others similarly situated, and an organization known as Citizens Against Legalized Lottery ask that we review Mr. McCuen’s action in accordance with Ark. Const, amend. 7. They contend that the ballot title is insufficient and misleading and that certain signatures which were counted among those needed to place the initiated amendment on the ballot should not have been counted and thus the petition to have the proposed amendment placed on the ballot should not have been approved by Mr. McCuen. Mr. Marcus Halbrook has intervened on the side of these petitioners. These parties will be referred to collectively as “CALL.”
The petition for review is opposed by Mr. McCuen and by Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and an organization known as Arkansans for Legalized Lottery who have joined in Mr. McCuen’s position by way of intervention. We also have received a brief joining the respondent’s position from the Campaign Ethics Committee as amicus curiae.
Mr. McCuen has moved for the dismissal of the original action on the ground that it is untimely because it was not brought within a time prescribed by Ark. Code Ann. § 7-9-107(e)(B)(i) and (ii) (Supp. 1989). The motion is overruled because we find that the statute poses an unconstitutional bar to our hearing this case. On the merits of the challenge to the proposed amendment, we agree with CALL’S contention that the ballot title is insufficient. The petition for review is thus granted, and we enjoin the secretary of state from placing the proposal on the ballot for the coming general election.
Walker, Batch, Rice, and a person named Simmons, who is now deceased, petitioned to have placed on the ballot an amendment to the Arkansas Constitution to authorize a state lottery and legalize bingo. They chose to follow the provisions of § 7-9-107 (e) which gives the sponsor of a statewide initiative the choice of seeking an early approval by the attorney general of the popular name and ballot title of the proposed amendment. Subsection (e)(1)(A) requires the secretary of state to certify the popular name and ballot titles certified to him by the attorney general and to publish them in a newspaper with statewide circulation along with the entire proposed amendment. That same subsection requires the publication to include a notice informing the public of the certification “and the procedure herein identified to govern any party who may contest such certification before the Supreme Court.”
Subsection (e)(1)(B) of the statute provides in part: “(i) Any legal action against such certification shall be filed with the Supreme Court within forty-five (45) days of the Secretary of State’s publication; (ii) No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court.”
The attorney general approved the popular name and ballot title on the proposed amendment after amending them, as is permissible in accordance with subsection (b) of the statute. The secretary of state, Mr. McCuen, published the proposal. CALL did not bring its challenge, however, until more than forty-five days had passed. It chose instead to wait until the secretary of state had certified the petition with respect to popular name, ballot title, and the number of signatures necessary to have it placed on the ballot.
1. The motion to dismiss
a. Declaratory or direct relief
If the statute requiring that a challenge to the certification of the popular name and ballot title be made within 45 days of publication governs, we must grant the motion to dismiss. CALL contends the statute is unconstitutional and thus should not govern. Mr. McCuen contends we have no authority to consider the constitutionality of the statute because we are limited by Amendment 7 to the issue of the sufficiency of the petition to have the proposed amendment on the ballot. It is argued that we are being asked to give a declaratory judgment on the question of the constitutionality of the statute and that we have no jurisdiction to do so.
We reject the argument that CALL is seeking declaratory judgment on the constitutionality of the statute. This is an original action to determine the sufficiency of a petition to have a matter placed on the ballot. The statute has been asserted as a bar to the action, and CALL has responded that the statute is not a bar as it is unconstitutional. The issue of the validity of the statute is thus before us in this original action which does not seek declaratory relief but rather seeks a direct remedy. See Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980), in which we noted that declaratory relief may not be sought where the issue is pending in other litigation, and UHS of Arkansas, Inc. v. Charter Hospital of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988), where we contrasted seeking declaratory relief with “ordinary” litigation. See also Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), in which, by mentioning that no constitutional challenge had been made to a statute facilitating the operation of Amendment 7 we implied that such a question could have been raised.
By providing that an action challenging an early determination of the sufficiency of the popular name and ballot title of a proposed amendment “shall be filed” here within 45 days of publication and that such a challenge may not be filed unless it is done within that 45 day period, the statute has the effect of permitting and, as in this case requiring, that the challenge occur prior to a determination that there are sufficient signatures to have the initiated amendment placed on the ballot. The validity of the statute is directly in issue.
b. Amendment 7
Our jurisdiction to entertain this original action is granted by Ark. Const, amend. 7 which provides in pertinent part: “Sufficiency—The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” The issue we must decide here is whether the words granting us the power to review the secretary of state’s decision of the “sufficiency of all . . . petitions” as used in the amendment means we may review a decision of the secretary of state that one aspect of a petition is sufficient without having all aspects of the petition in question before us. That is, may we review the popular name and ballot title certifications with respect to a petition which has not been certified as having a sufficient number of signatures to be placed on the ballot? We have clearly held that our authority under Amendment 7 is to review only petitions certified by the secretary of state as sufficient in all respects.
c. The cases
In Rambo v. Hall, 195 Ark.
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David Newbern, Justice.
The respondent, W.J. “Bill” McCuen, Secretary of State, certified a proposed constitutional amendment to be placed on the ballot in the coming general election. The petitioners, John Finn and Don Elliott, on behalf of themselves and others similarly situated, and an organization known as Citizens Against Legalized Lottery ask that we review Mr. McCuen’s action in accordance with Ark. Const, amend. 7. They contend that the ballot title is insufficient and misleading and that certain signatures which were counted among those needed to place the initiated amendment on the ballot should not have been counted and thus the petition to have the proposed amendment placed on the ballot should not have been approved by Mr. McCuen. Mr. Marcus Halbrook has intervened on the side of these petitioners. These parties will be referred to collectively as “CALL.”
The petition for review is opposed by Mr. McCuen and by Robert G. Walker, Winfred W. Batch, Clarence J. Rice, and an organization known as Arkansans for Legalized Lottery who have joined in Mr. McCuen’s position by way of intervention. We also have received a brief joining the respondent’s position from the Campaign Ethics Committee as amicus curiae.
Mr. McCuen has moved for the dismissal of the original action on the ground that it is untimely because it was not brought within a time prescribed by Ark. Code Ann. § 7-9-107(e)(B)(i) and (ii) (Supp. 1989). The motion is overruled because we find that the statute poses an unconstitutional bar to our hearing this case. On the merits of the challenge to the proposed amendment, we agree with CALL’S contention that the ballot title is insufficient. The petition for review is thus granted, and we enjoin the secretary of state from placing the proposal on the ballot for the coming general election.
Walker, Batch, Rice, and a person named Simmons, who is now deceased, petitioned to have placed on the ballot an amendment to the Arkansas Constitution to authorize a state lottery and legalize bingo. They chose to follow the provisions of § 7-9-107 (e) which gives the sponsor of a statewide initiative the choice of seeking an early approval by the attorney general of the popular name and ballot title of the proposed amendment. Subsection (e)(1)(A) requires the secretary of state to certify the popular name and ballot titles certified to him by the attorney general and to publish them in a newspaper with statewide circulation along with the entire proposed amendment. That same subsection requires the publication to include a notice informing the public of the certification “and the procedure herein identified to govern any party who may contest such certification before the Supreme Court.”
Subsection (e)(1)(B) of the statute provides in part: “(i) Any legal action against such certification shall be filed with the Supreme Court within forty-five (45) days of the Secretary of State’s publication; (ii) No such action filed later than forty-five (45) days following publication shall be heard by the Supreme Court.”
The attorney general approved the popular name and ballot title on the proposed amendment after amending them, as is permissible in accordance with subsection (b) of the statute. The secretary of state, Mr. McCuen, published the proposal. CALL did not bring its challenge, however, until more than forty-five days had passed. It chose instead to wait until the secretary of state had certified the petition with respect to popular name, ballot title, and the number of signatures necessary to have it placed on the ballot.
1. The motion to dismiss
a. Declaratory or direct relief
If the statute requiring that a challenge to the certification of the popular name and ballot title be made within 45 days of publication governs, we must grant the motion to dismiss. CALL contends the statute is unconstitutional and thus should not govern. Mr. McCuen contends we have no authority to consider the constitutionality of the statute because we are limited by Amendment 7 to the issue of the sufficiency of the petition to have the proposed amendment on the ballot. It is argued that we are being asked to give a declaratory judgment on the question of the constitutionality of the statute and that we have no jurisdiction to do so.
We reject the argument that CALL is seeking declaratory judgment on the constitutionality of the statute. This is an original action to determine the sufficiency of a petition to have a matter placed on the ballot. The statute has been asserted as a bar to the action, and CALL has responded that the statute is not a bar as it is unconstitutional. The issue of the validity of the statute is thus before us in this original action which does not seek declaratory relief but rather seeks a direct remedy. See Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980), in which we noted that declaratory relief may not be sought where the issue is pending in other litigation, and UHS of Arkansas, Inc. v. Charter Hospital of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988), where we contrasted seeking declaratory relief with “ordinary” litigation. See also Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), in which, by mentioning that no constitutional challenge had been made to a statute facilitating the operation of Amendment 7 we implied that such a question could have been raised.
By providing that an action challenging an early determination of the sufficiency of the popular name and ballot title of a proposed amendment “shall be filed” here within 45 days of publication and that such a challenge may not be filed unless it is done within that 45 day period, the statute has the effect of permitting and, as in this case requiring, that the challenge occur prior to a determination that there are sufficient signatures to have the initiated amendment placed on the ballot. The validity of the statute is directly in issue.
b. Amendment 7
Our jurisdiction to entertain this original action is granted by Ark. Const, amend. 7 which provides in pertinent part: “Sufficiency—The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” The issue we must decide here is whether the words granting us the power to review the secretary of state’s decision of the “sufficiency of all . . . petitions” as used in the amendment means we may review a decision of the secretary of state that one aspect of a petition is sufficient without having all aspects of the petition in question before us. That is, may we review the popular name and ballot title certifications with respect to a petition which has not been certified as having a sufficient number of signatures to be placed on the ballot? We have clearly held that our authority under Amendment 7 is to review only petitions certified by the secretary of state as sufficient in all respects.
c. The cases
In Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 952 (1938), a petitioner sought to restrain the secretary of state from certifying a petition because the ballot title of a proposed bill to be submitted to a vote of the people was insufficient. We treated the petition as one challenging the sufficiency of the proceedings under Amendment 7. We held that “[u]ntil the Secretary of State shall have acted upon the sufficiency of the petition” the challenge was premature.
In Bailey v. Hall, 198 Ark. 815, 131 S.W.2d 635 (1939), we reviewed the ballot title of a measure to be referred to the people. In the course of that decision, we noted that the signatures on the petition were not being challenged, and it was clear that the petition had been certified by the secretary of state in all respects.
Both the Rambo case and the Bailey case can be distinguished from the situation now before us. In the Rambo case, the secretary of state had taken no action whatever, and here he had certified the ballot title when Mr. McCuen contends the challenge should have been undertaken. In the Bailey case, we did not have before us the question whether we would have had jurisdiction if only one aspect of the petition had been certified.
In Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), however, we were asked to consider an early certification of ballot title which was made prior to the certification of the signatures. We noted that the arguments there had to do with economy of the process of putting an initiated measure on the ballot. It was contended that, by allowing review of an early ballot title certification we could prevent the expense to the state of counting signatures to say nothing of the time and effort which would be expended by the parties in obtaining the signatures sufficient for certification. We held that the secretary of state had no authority to make any such partial certification and that we had no authority to review other than that granted in Amendment 7. We wrote: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures [emphasis in original].”
The only citation given for the quoted language was the Bailey case, and that was with a “See” prefix. The remainder of the opinion, however, was devoted to an explanation of the logic behind the decision:
The argument for an early decision, primarily to savé the sponsors’ time and money has another side. Should we devote the time, effort and financial resources of this court and the parties to decide an issue that may never be presented to the voters? What if the Secretary of State refuses to cooperate with a sponsor? Would we alter Amendment 7 and order him to do something clearly not required? Would a premature decision by us be binding for four, six or eight years? . . . Our existing procedure does have a distinct advantage: it keeps us all honest. Sponsors know it is to their advantage to present an honest title so it will not be stricken at the last minute and we know that we are not rendering merely an advisory opinion which may become moot. We know our decision counts and we will be accountable for it. Any other course would discourage both honesty and responsibility; sponsors would be inclined to offer a misleading ballot title that might pass unnoticed and we would be deciding the case in the abstract [289 Ark. at 45, 709 S.W.2d at 79.]
While our judgment may have been short on citation of precedent, it clearly was not solely based on the Bailey citation but was a considered, reasoned decision of the six justices participating. It was a principled interpretation of Amendment 7 which we are unwilling to overturn.
The only meaningful distinction between the case before us now and the Scott case is, of course, the statute authorizing the secretary of state to make the early certification of the ballot title and providing for our review of it prior to the certification of the signatures. Given our very explicit statement of the limits on our jurisdiction under Amendment 7 in the Scott case, we must hold that any statute which purports to confer on us the power to review an initiative petition which has not been certified as to the popular name, ballot title, and signatures constitutes an unlawful and unconstitutional expansion of our jurisdiction.
The main case cited by Mr. McCuen and the intervenors supporting his position is Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). That case involved Act 195 of 1943 which was the precursor of Act 280 of 1989. Act 195 apparently was the general assembly’s first attempt at economizing in the initiative and referendum area. It required that the sponsors obtain an attorney general opinion as to the sufficiency of ballot title prior to circulating an initiative referendum petition for signatures. Act 280, which apparently was passed in response to our decision in the Scott case, was an addition containing the statutory subsections in question in this case, that is, the ones purporting to permit the early certification by the secretary of state and review by this court of ballot title and popular name. Act 195 provided for determination by the attorney general of the sufficiency of the ballot title and provided for relief in this court if the attorney general refused to act. We approved Act 195, holding that it was not an unwarranted restriction on Amendment 7.
The issue in the Washburn case was whether the refusal of the secretary of state to certify a referendum was proper in view of the fact that it had no popular name or ballot title. We were not concerned with the provision in Act 195 for relief in this court in the event the attorney general refused to act. We only held that the secretary of state’s refusal to certify the petition was proper and that the provisions of Act 195 for involving the attorney general in the secretary of state’s decision as to the sufficiency of the petition was not a violation of Amendment 7. The case presents no help in the resolution of the case before us now. It certainly does not run contrary to our strong language and holding in the Scott case.
We hold that § 7-9-107(e)(B)(i) and (ii) are unconstitutional because they purport to permit this court to review a decision of the secretary of state with respect to the ballot title portion of a petition, and the only authority given this court by Amendment 7 is the authority to review the secretary of state’s certification of a “petition” which includes both the ballot title and the signatures. In this case, the certification of the secretary of state may be reviewed because it is complete.
2. The ballot title
Having concluded that we are not barred from reviewing the merits of the secretary of state’s decision with respect to the ballot title, we proceed to do so, and we find the ballot title which has been approved by both the attorney general and the secretary of state is insufficient.
We are liberal in construing Amendment 7 and determining sufficiency of a ballot title. Dust v. Reviere, 277 Ark. 1, 638 S.W.2d 663 (1982). However, if information not given by a ballot title would “give the elector ‘serious ground for reflection’ it must be disclosed.” Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988).
We have no quarrel with the popular name of the proposed amendment which is “STATE LOTTERY, BINGO AND STATE LOTTERY COMMISSION AMENDMENT.” The ballot title is as follows:
An Amendment to Article 19, Section 14 of the Arkansas Constitution of 1874; to authorize a state lottery and legalize bingo; to form the State Lottery Commission which shall develop, implement and operate the lottery; to provide net revenues to benefit public education (including higher education); to develop a mechanism to grant or reject requests to operate bingo in the State of Arkansas.
In Dust v. Reviere, supra, we enjoined the secretary of state from placing on the ballot a proposed constitutional amendment which would have created a “new government entity, the Ratepayers Utility Board.” We found the ballot title misleading in two respects. First, it provided the purpose of the act was to “represent and advocate the interests of residential and small business utility customers.” The proposed act provided for appointments of persons by various state officials from various fields of endeavor. For example, the lieutenant governor was to appoint one from “at least three nonprofit consumer organizations having statewide membership.” We decided the ballot title was insufficient because it did not inform the voter of “the interests of the seven people who will direct that Board and this is an important fact since their interests may not necessarily coincide with those of the majority of the residential and small business customer.”
Here, the ballot title does not reveal the fact that the proposed amendment actually names the persons to occupy the initial board positions. The proposed amendment provides that Walker, Batch, Rice, and the now-deceased Simmons are to be four of the five members of the board. To say the least, it is remarkable, if not unique, in our experience to find initial board members, either the quick or the dead, named in a proposal for a constitutional amendment creating a powerful arm of state government. We cannot resist analogizing to elections to public office. The electors are being asked to elect at least three people to important positions without being informed of that fact in the ballot title. Not only are the voters not to be informed in the ballot title of the names or interests of these prospective board members, they are not even being told that named persons will become the board.
The second reason given in the Dust case for holding the ballot title there insufficient was that the new proposed Ratepayers Utility Board was to be a new government entity subject to no check or control by any existing branch of government, and the voters were not being informed of that fact. We held that such a title tended to be misleading and not free from partisan coloring.
The proposed amendment in this case makes no mention whatever of any legislative, judicial, or executive department. The board to be created is to run the lottery operation without any known check from any other branch of government. In the Dust case, we wrote: “the voter has a right to know when a new entity or department of government is created that will not be subject to existing constitutional controls granted to [the legislature].”
In Hobson v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958), we were presented with a similar, although more troublesome, proposed amendment and ballot title. The ballot title referred to “states’ rights” which, we wrote, was an appealing phrase, much like helping education in this case and helping the “aged and blind” in Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936). The ballot title, however, did not address the portions of the proposed amendment which would have made a “State’s Rights Commission” totally independent of the other branches of government. We wrote:
The Commission, created by Article I of the measure, consists of twelve members. Sections 5 and 6 of this article destroy the system of checks and balances that has characterized our government since its birth. Section 5 provides that no court shall be empowered to enjoin the Commission from performing the duties set out in the amendment. Those duties, however, are not clearly defined. By § 7 the Commission is invested with the duty and the power to “perform any and all things deemed necessary and proper” to protect the sovereignty of the several states and to resist the usurpation of the rights reserved to the states. Within the vague limits of this clause it is difficult to conceive of any power — legislative, executive, or judicial — that the Commission might not lay claim to. The ballot title, it may be observed, does not even mention the powers of the commission, much less does it give a hint of their unlimited scope [229 Ark. at 418-419, 316 S.W.2d at 187].
While the proposed lottery amendment does not contain provisions, like the ill fated states’ right proposal, setting the commission free of all checks and balances, it contains nothing on the subject. It provides for the administration of the lottery and bingo by the proposed commission, period. The proponents have submitted an affidavit to the effect that they will seek an implementing legislative package, but that is not in the proposed amendment and, as far as we know, would not bind the proponents if the voters passed the proposed amendment. Again, if there were disclosure of these facts in the ballot title, voters would be given ample cause to pause and reflect before approving or disapproving the proposal.
Clearly, if the voters were made aware not only that, by voting for the proposed amendment they were creating an ostensibly autonomous board to handle what could become huge amounts of state money and naming persons to that board, they would have cause to pause and reflect. Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988). The ballot title is insufficient.
In view of our decision on the merits of the ballot title, we need not consider the question raised about the validity of signatures counted after Mr. Simmons’s death.
The secretary of state is enjoined from placing the proposed State Lottery, Bingo and State Lottery Commission Amendment on the election ballot for the November 6,1990, general election. The mandate implementing the opinion shall issue immediately. Any votes cast in the general election of 1990 on the proposed amendment which is the subject of this opinion will not be counted.
.Price, J., concurs. Dudley, Hays, and Glaze, JJ., dissent.