dissenting. For the reasons hereafter set forth and explained, I cannot agree with the majority opinion.
1. I do not feel bound, as the majority seems to be, by the opinion in the Shaw case. My reasons for this are found in the opinion itself, as a few references will demonstrate. (a) The opinion mentions five separate formulas by which an apportionment can be made and then quotes (from Huntington) as follows:
“ ‘To meet realistically the actual situation in Congress when an apportionment bill is up for debate, the emphasis is shifted from the process of computation to the test of fairness which the .final result would satisfy. The fairness of the final result, not the technical process of achieving this result, is regarded as the important thing.’ ” (Emphasis added.)
(b) Again, the opinion states:
“It is not our purpose to assert that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made. We have given earnest consideration to discussions by authorities who have been classed as experts. That the method of major fractions and equal proportions give uniform results when applied to Arkansas is significant. ’ ’
(c) A careful study of the opinion convinces me it merely means to hold that the “equal proportions” formula reached the correct result when applied to the distribution of population in Arkansas at that particular time, and that it was adopting that particular formula to reach a correct decision in that particular case. That conclusion comports completely with the eminent authority quoted in the opinion (set out above) to the effect that the final result and not the process by which it is reached is the important thing.
2. The Shaw opinion recognizes five expert formulas for apportioning purposes. It is conceded they all do not reach the same results when applied to the same essential figures. It must therefore be conceded they are not all infallible. It is also conceded that absolute equality cannot be achieved. That is why Article 8, Section 2 of the Constitution directs the Board of Apportionment to distribute the members equally “as nearly as practicable ’ ’.
3. Not only would I affirm the allotment made by the Board because I cannot say it abused its discretion, but, in my judgment, the attached exhibit (for lack of a better name, called “Quotient Assignment Table”) proves the Board’s allotment meets the “test of fairness”. A brief explanation of the Table will help to understand how the results reached therein were attained.
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It is agreed by all that 25 members of the House are to be divided among the 16 counties shown in the table. The 16 counties have been selected because no one contends any other county (all smaller than Poinsett) is entitled to more than the one representative which is assigned to it by the Constitution.
I have chosen, for clarity, to have each letter of the alphabet (except Z) represent one of the 25 House members to be allotted, and the process was to allot one member at a time with A representing the first allotment, B the second, and so on through Y. Column 3 (on the table) shows the constitutional allotment of one member to each of the 16 counties. The first member, represented by A (shown in column 4), will of course go to Pulaski County since its population exceeds that of any other county. This results in Pulaski County having 2 members, and that in turn results (242,980 divided by 2) in each member representing 121,490 people — shown in column 5; Member B (column 6) will automatically go to Pulaski County for the reason previously stated, and this means (242,980 divided by 3, the number of members) that each member will represent 80,993 (column 7); Member C (column 8) must go to Jefferson County because it has 81,373 population (and 1 member) and is the only county with a population exceeding Pulaski County (where 1 member represents 80,993). The other members (D to Y) are alloted (as shown by the table) one at a time to the counties having the largest population being represented by a single member of the House. The result is that the total number of members allotted to each of the 16 counties (column 20) is exactly the same as the number allotted by the Board (column 21). Whether the above method is called the “smallest divisors” method or is called by any other name, it is mathematically sound, it is practicable, it proves itself step-by-step, and it reaches a fair result. Moreover, it will reach the same fair result in every instance regardless of the number of representatives, the number of counties, the increase or decrease in population, or the shifts in population among the counties.
It seems axiomatic that the only fair and logical way to determine the number of people represented by a single member of the House in any given county is to divide the number of people by the number of members allotted to that county. That is the basis of the method I have chosen, but it is not the basis of the method chosen by the majority. The difference between the results in the two methods can be demonstrated by using Pulaski County with a population of 242,980, dividing by 2, 3, and 4 members:
2 3 4
This method 121,490 80,993 60,290
Majority Method 170,086 99,196 70,143
The same disparity holds true for all 16 affected counties.
I cannot conscientiously say, therefore, that the Board abused its discretion in making the allotments.