concurring. I concur in the results reached by the majority but for a different reason. The language relating to the qualifications and appointment of members of the State Highway Commission is found in § 2 of Amendment 42 to the Constitution of the State of Arkansas. The language is as follows:
Within ten days after the convening of the General Assembly of the State of Arkansas in the year 1953, the Governor, by and with the advice and consent of the Senate, shall appoint five persons who are qualified electors of the State to constitute the State Highway Commission for terms of two, four, six, eight and ten years respectively. The terms of the persons so appointed shall be determined by lot. The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District. . .
The language above-quoted is clear and simple to the effect that no two commissioners shall be appointed from any single congressional district. At the time Amendment 42 was adopted and went into effect, the state had six congressional districts. Therefore, there was no problem in appointing five members with no two being qualified electors of the same district. The same would hold true when the state was reduced to five congressional districts following the 1960 federal census. However, it was not known, and could not reasonably have been anticipated, that in 1970 the state would be reduced to four congressional districts. When the state was reduced to four districts then it was no longer possible to comply with the mandatory requirement that no two commissioners should be qualified electors of the same district. Therefore, it is obvious to me that the intent of the wording in the amendment was to freeze the number of districts at six. By giving Amendment 42 this interpretation it becomes obvious that there would never be a conflict with having more commissioners than there were congressional districts.
It is argued that Amendment 35 was the same type of amendment relating to the Game and Fish Commission. The qualifications in Amendment 35 are as follows:
Commissioners shall have knowledge of and interest in wildlife conservation. All shall be appointed by the Governor. The first members of the Commission shall be appointed by the Governor for terms as follows: one for one year, one for two years, one for three years, one for four years, one for five years, one for six years and one for seven years. Each Congressional District must be represented on the Commission.
From a plain reading of Amendment 35 it would not matter how many congressional districts existed in the state of Arkansas, so long as there were no more than seven and that each district would be represented on the commission. There is no prohibition against more than one commissioner residing in the same district. This subject was treated in the case of Drennen v. Bennett, Attorney General, 230 Ark. 330, 322 S.W.2d 585 (1959). The complaint in that case alleged that one district did not have a representative on the Game and Fish Commission. However, Dr. J. H. Burge of Lake Village was serving as a member at large and resided in the district which claimed not to have a representative. In Drennen, the court stated:
The fact that Dr. Burge was and is designated as “member at large” does not gainsay the fact that he resides in the present 6th Congressional District.
Therefore, the court held that each congressional district was at that time represented by a member on the commission. I concur with the reasoning in that holding. The court rejected the argument that the amendment, in stating that each congressional district must be represented, meant the districts as they existed in 1945. It was completely unnecessary to rule on this contention because the court had already properly disposed of the argument presented by the appellants.
The difference in Amendment 35 and Amendment 42 is that the latter states that no two commissioners shall be appointed from any single district. The only way this could possibly be done is to treat the districts as being frozen at the time the amendment became effective or, in any event, not to allow the number of districts to be reduced below five. Amendment 35 allowed more than one member from each district but required that there be at least one member from each district. Amendment 42 prohibits two commissioners serving who are qualified electors of the same district. There is no mention of domicile or residence in this amendment. The proof is clear and unequivocal that Patsy Thomasson was and is a qualified elector of a different district from that of Commissioner Pritchett. However, there must be no other members who are commissioners from the same present congressional district. In order to avoid further litigation I would simply hold that the districts from which the commissioners are to be appointed were frozen as of 1953. If the authors of Amendment 42 had meant to hold highway commissioners to the same standard in qualificiations as game and fish commissioners, they would have used the same language as in Amendment 35.