The Honorable Mike Todd State Senator 333 W. Court Street Paragould, Arkansas 72450
Dear Senator Todd:
This is in response to your request for an opinion on the following question:
Section 2 of Amendment 42 to the Arkansas Constitution provides that the Commissioners for the State Highway Commission are to be appointed from the State at large. There is a provision that no two (2) Commissioners shall be appointed from any single Congressional District. Since the State only has four (4) Congressional Districts, how can a fifth Commissioner be appointed without that Commissioner being from the same Congressional District of one of his fellow Commissioners?
The answer to your question is that he cannot. If five Commissioners are to be appointed and there are only four Congressional Districts, it is impossible to comply with a provision which requires that no two Commissioners be appointed from the same district.
This problem was discussed in White, Governor v. Hankins,276 Ark. 562, 637 S.W.2d 603 (1982), a case in which the plaintiff argued that a newly appointed Commissioner was ineligible because there was already a commissioner from his district. The court upheld the appointment and noted:
Arkansas presently has four Congressional Districts and five Highway Commissioners. As the legislature has recently recognized, it would be impossible to comply strictly with 2 of Amendment 42 requiring that no two members be from the same district, inasmuch as two members of the Commission would certainly have to be residents of the same district. See [A.C.A. 27-65-104] and the preamble of the Act. . . . The prohibition against two members serving from the same district cannot control here; that provision, of course, is not stricken and will be effective if Arkansas were to have five or more Congressional Districts. 276 Ark. at 566-567.
The statute to which the court refers, A.C.A. 27-65-104, provides in pertinent part that:
Appointments to the commission shall be made so as to assure that, at the earliest possible date, the commission shall be composed of one (1) member from each of the four (4) congressional districts and one (1) member from the state at large.
Thus, both the court and the legislature have acknowledged that because of the reduced number of congressional districts in Arkansas, literal compliance with Amendment 42, Section 2 cannot be had.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb