(Dissenting). The majority is holding (I) that the petition for senatorial redistricting should be granted; and (II) that the cause should be remanded to the Board of Apportionment to accomplish such redistricting. I dissent from each holding and give my reasons as follows:
I. The Petition Should Not Be Granted For At Least Two Reasons.
(A) Petitioners ’ filed in this court their pleading which (1) set up the 1950 census figures of the various counties in Arkansas; (2) stated that the Board of Apportionment had failed, in the face of such figures, to redistrict senatorial districts of the State so as to give Pulaski County three senators; and (3) alleged that the Board of Apportionment “ arbitrarily declined and refused’’ to chang’e the senatorial districts as now constituted. The Board of Apportionment in its response to the petition said:
‘ ‘ They deny that in making such apportionment they acted arbitrary or abused the discretion vested in them by the Constitution, but on the contrary that they acted in good faith and to the best of their ability they discharged the duty placed upon them by the Constitution in making such apportionment.”
Thus the issue was framed as to whether the Board of Apportionment had acted arbitrarily in refusing to give Pulaski County three senators because of its population increase. What is the meaning of the word ‘ ‘ arbitrarily”? It is the adverb of the adjective “arbitrary”, which adjective Webster defines as “Despotic; absolute in power; bound by no law; fixed or arrived at through an exercise of will or by caprice without consideration or adjustment with reference to principles; circumstances, or significance; .decisive but unreasoned; . . .” In the light of these definitions, to say, that the action of the Board of Apportionment is arbitrary, is certainly a serious charge leveled by the petitioners against the Governor, Attorney General and the Secretary of State, who compose the Board of Apportionment. Certainly this court should require definite proof of such a charge before solemnly sustaining it.
And what is the only proof submitted? It is the 1950 census figures of the counties in Arkansas. So on the basis of population, alone, petitioners say they should win their case. Should they? • Constitutional Amendment No. 23 here involved says regarding senatorial reapportionment:
“The Senate shall consist of thirty-five members. Senatorial districts shall at all times consist of contiguous territory, and no county shall be divided in the formation of such districts. ‘The Board of Apportionment’ hereby created shall, from time to time, divide the State into convenient senatorial districts in such manner as that the Senate shall be based upon the inhabitants of the State, each Senator representing, as nearly as practicable, an equal number thereof; each district shall have at least one Senator.”
As I read the quoted language there are at least six factors necessarily entering into consideration when the Board of Apportionment is considering the redistricting of senatorial districts. These six factors are:
1. There must be 35 senators.
2. Districts must be composed of contiguous terrir tories.
3. No county may be divided among different districts.
4. The board must provide for “convenient” districts.
5. Representation should be based on equal population as far as practical.
6. Each district must have at least one senator.
Only one of these requirements—i. e. number 5—re-lates to population, yet, the majority of this court is holding that the one factor of population is sufficient to override the Board’s discretion on all other factors. The majority is making “arbitrary” any results reached by the Board of Apportionment which failed to use population as the main criterion in senatorial redistricting. I submit that the majority opinion is in error because it fails to give consideration to any factor except population. That is the only point on which the petitioners presented their case. They are in effect saying that Pulaski County is entitled to three senators regardless of the havoc that may be wrought in the other seventy-four counties in Arkansas.
(B) Another reason the petition should not be granted is because the petitioners have failed to-meet the burden of offering a proposed plan of redistricting better than the existing plan. The Board of Apportionment in its resolution of May 16, 1951, offering the present plan of redistricting said:
“The Board in submitting’ this Reapportionment Report, after giving the matter careful consideration, was of the opinion that the above was the most satisfactory solution and that it complies with the provisions of Amendment No. 23 to the Constitution of the State of Arkansas. ’ ’
The record before ns discloses that one member of the Board—the Secretary of State—made the following explanation, which was concurred in by the Attorney General:
. . that the matter of making an apportionment of the State for Senatorial Districts presents many more problems, and that it was a mathematical impossibility to make a completely equitable apportionment, that is to say, an apportionment in which each Senator would represent the same number of individuals, giving as an illustration that no two or more contiguous counties have a total population, based on the 1950 Federal Census, that equals the average district population of 54,557; (c) that he knew it to be a fact that certain changes could be made in existing districts to reduce the variations from the average, but that after giving due consideration to the problem, he did not believe there had been a large enough shift in population during the 1940-50 decade to warrant making any changes at this time in existing Senatorial District boundaries.”
The Governor offered a proposed plan of redistricting which was not accepted by the Board of Apportionment. In the record before us (and we try this case on the record and the evidence before us and not on extraneous matters), the only plan offered was the one offered by the Governor. The Board considered such- plan and then made its report. No one has offered into the evidence in this case any other plan. I maintain that the petitioners should have offered to this court a plan which they would have been willing to defend or else should have defended the plan that the Governor offered, which is the only plan before us except the present apportionment.
But do the petitioners do this? No. They content themselves with the bald proposition that if Pulaski County gets three senators then the petitioners are satisfied'regardless of the confusion and inequality that will result to the other seventy-four counties. Until a plan is offered by the petitioners and demonstrated to be better for the entire state than the existing apportionment then I submit that the petitioners have not made out a case; and I further submit that the court has acted in error in granting the petition with no definite plan offered.
II. The Cause Should NOT Be REMANDED To the Board of Apportionment. If, in spite of all that has been said, the majority continues to hold that there should be a reapportionment of the senatorial districts so as to give Pulaski County three senators, then I submit that this court should here and now make the apportionment and certify such results to the Secretary of State. Here is the language of Art. V of Amendment 23 to the Constitution:
“Original jurisdiction (to be exercised on application of any citizens and taxpayer) is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) The Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by The Board in making any such apportionment ; provided any such application for revision shall be filed with said Court within thirty days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board.”
The Board of Apportionment acted on May 16, 1951, as disclosed by its report in the record before us, and the Board certified to the Secretary of State the apportionment that it made. The petitioners have convinced a majority of this court that the Board acted arbitrarily. I maintain that our only duty in such a situation is for a “revision”; and the amendment says that such “revision” shall be certified by the court to the Secretary of State.
I see no authority in the amendment for the court to require the Board of Apportionment to undertake a further reapportionment. The Board has acted. The majority has found that the Board has acted, arbitrarily. It is now up to the court to make a revision. Suppose the Board of Apportionment reports to this court that it can do no better than it has done. What will the court do then ? I wait to see.
Finally, viewed from any angle this is a most important case. By its action today the Supreme Court is in effect requiring that in 1952 there must be an election in every one of the State’s senatorial districts, whereas, except for this opinion only one-half of the senatorial districts would have elections.
Respectfully but most vigorously I dissent from the majority.