dissenting. The majority opinion completely ignores specific provisions of our State Constitution and also the history of apportionment in Arkansas. I am convinced that in so doing the opinion is erroneous. Having this view, I am dissenting and setting forth herein the grounds on which I rely.
Amendment No. 23 to our State Constitution, adopted in the General Election of 1936, created for the first time “The Board of Apportionment.” That Amendment authorized the Board to fix thirty-five senatorial districts and to divide one hundred representatives among the seventy-five counties. The Amendment gave certain limited powers to this Court. First, it empowered this Court to compel (by mandamus) the Board to perform its duties. Second, it authorized this Court “to revise any arbitrary action of or abuse of discretion by the Board in making any such apportionment.”
Amendment No. 23 was the source of litigation in the case of Shaw, Autry & Shofner v. Atkins, Governor, 202 Ark. 856, 153 S. W. 2d 415, in which this Court stated;
“It is not onr purpose to assert that all possible methods of computation have been tested, or to say that in certain circumstances related to population gains or losses a more equitable apportionment could not be made. ’ ’
Following the Shaw case (in which this Court so clearly recognized the powers of The Board of Apportionment to use various methods of apportionment) the voters again amended our State Constitution by the adoption in the 1956 general election of Amendment No. 45. This Amendment made two changes and only two. First, it divested The Board of Apportionment of the power to apportion senators. Second, it froze permanently the senatorial districts then existing. No additional powers were given nor taken from The Board or this Court.
This review brings us to the case now before the Court wherein the majority has concluded that only one method of apportionment may be used by The Board; that method being the Method of Equal Proportions and the majority relies upon the Shaw case for its authority. Actually, a study of the Shaw case reveals that three out of five modern accepted mathematical methods of apportionment when applied to the Arkansas census considered in the Shaw case produced the same results.
The table showing these mathematical computations is contained in the Shaw opinion. Methods known as the Method of Harmonic Mean, the Method of Major Fractions and the Method of Equal Proportions, all produced the same results. The majority view is that the Shaw case approved only one method (the Method of Equal Proportions) and held that only that method could be used by The Board. In my opinion, the Shaw case says no such thing and cannot be reasonably construed to lay down such an arbitrary and rigid formula for apportioning members of the House of Representatives.
The majority opinion robs The Board of Apportionment of its discretionary powers and in effect constitutes this Court a super Board of Apportionment, all of which I feel is contrary to the Constitution and contrary to the will and intent of the voters of Arkansas when, they adopted Amendment No. 45.
I refer again to the above statement taken from the Shaw case in which this Court clearly and definitely recognized the discretionary powers of The Board and The Board’s right to use various methods of apportionment, depending on the circumstances relating to population gains or losses.
Acting to carry out their duties as members of The-Board of Apportionment, Governor Orval E. Faubus, Secretary of State Nancy Hall and Attorney General Frank Holt took valuable time from the heavy responsibilities of their offices (especially at a time when the General Assembly was in session) for the purpose of studying all recognized and accepted methods of apportionment as applied to the official census of Arkansas-for 1960. They found that all five such methods produced different results, whereas three out of the five had methods producing the same result when applied to the census of 1940. These three Constitutional Officers of our State adopted the method known as the Method of Smallest Divisors and they performed their duties by filing their report before February 1, 1961, as directed by the Constitution.
In order to revise the report of The Board, the-majority holds that these three officials were arbitrary in their action. This opinion I cannot share because their very action and devotion to duty, in my opinion, demonstrates beyond any question that these officials were not arbitrary in making the apportionment set out in their report. The charge of arbitrary action is serious and is one in which I cannot and will not join when, as in this case, there is no evidence to sustain such a charge.
I want to emphasize that we are not called upon to decide wdiether The Board’s report is correct or whether we would have reached a different conclusion if we had constituted The Board of Apportionment in the first instance. The people (through Amendments 23 and 45) reposed the duty to apportion in The Board of Apportionment and not in this Court. This is the duty the majority opinion usurps. In the case of Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, this Court said:
“We are not called on to decide primarily whether or not the decision of The Board was correct. The lawmakers have placed that authority in The Board of Control, and it would be clearly an encroachment by the Courts beyond the authority of another Department of Government to undertake to substitute the Judgment of the Judges for that of the members of the tribunal vested with authority to manage the Institutions of the State.”
Also in the case of Department of Public Utilities v. Ark. La. Gas Co., 200 Ark. 983, 142 S. W. 2d 213, we said:
“. . . if the Department’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the Courts to permit it to stand, even though they might disagree with the wisdom of the order. In such a case our Judgment will not be substituted for that of the Department. ’ ’
Many times this Court has held that the General Assembly, acting within constitutional limitations, is the sole judge of the wisdom, expediency and necessity of legislation. Williams v. Parnell, 185 Ark, 1105, 51 S. W. 2d 863; Gentry v. Harrison, 194 Ark. 916, 110 S. W. 2d 497.
Arbitrary is a strong word and it has been defined by the Supreme Court of the United States in United States of America, Petitioner, v. Carmack, 329 U. S. 230, 67 S. Ct. 252, 91 L. Ed. 209 as follows:
“ ‘Arbitrary’ is defined by Funk & Wagnalls New Standard Dictionary of the English Language (1944), as ‘1. . . .; without adequate determining principle; . . .’and by Webster’s New International Dictionary, 2d ed. (1945), as ‘2. 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; . . . ’
“ 'Capricious’ is defined by Webster’s New International Dictionary, 2d ed. (1945), as ‘2. . . .; apt to change suddenly; freakish; whimsical; humorsome.’ Cf. Fox Film Corp. v. Trunbull (DC) 7 F. 2d 715, 727; Puget Sound Power & L. Co. v. Public Utility Dist. (CCA 9th Wash,) 123 F. 2d 286, 290, writ of certiorari denied in 315 US 814, 86 L. ed. 1212, 62 S. ct. 798; United States v. Eighty Acres of Land (DC Ill.) 26 F. Supp. 315, 319.
‘' See also, United States v. Certain Parcels of Land (DC Md) 30 F. Supp. 372, 379; United States v. Parcel of Land (DC Del.) 32 F. Supp. 718, 721.”
How can the majority say that the Board has acted arbitrarily when The Board has selected one of the five-modern accepted mathematical formulas used in apportionment. I do not think that The Board is limited to these five formulas and I base my opinion on the fact that one must concede that a time could come when under any or all of the five presently accepted and recognized mathematical formulas used in apportionment one county could claim all twenty-five of the extra members of the House of Representatives. Such a situation cannot be contemplated by Amendment No. 45 because it uses the plural ‘‘more populous counties”. To continue with the discussion of arbitrary action, courts generally hold that administrative agencies cannot be found guilty of such action where there is room for two opinions and action is exercised honestly and upon due consideration. Smith v. Hollenbeck, 48 Wash. 2d 461, 294 Pac. 2d 921, Lillions v. Gibbs, 47 Wash. 2d 629, 289 Pac. 2d 203.
In the case before this Court, there is not only room for two opinions, there is room for a minimum of five opinions because there are five accepted and recognized mathematical methods of apportionment, and, in my opinion, I would aadd at least one other method because Amendment No. 45 to our State Constitution does not limit the Board to these five methods.
As I have already stated with citations above, this Court has refused to substitute its judgment for that of State Boards or Commissions and it has refused to strike down legislation merely because it did not agree with the wisdom of the General Assembly. I contend that this Court should refuse to revise the report of The Board of Apportionment because in so doing the 'Court substitutes its judgment for The Board’s judgment. Such action by the Court is wrong and amounts to the usurpation by the Court of powers vested in the Governor, the Secretary of State and the Attorney General by the people of Arkansas.
Whether I agree or disagree with the result set forth in The Board’s report is of no consequence because I have no right to substitute my judgment for the Board’s judgment.
The important issue and the only issue in this case is whether Orval E. Faubus, Nancy Hall and Frank Holt took arbitrary action or abused their discretion and I emphatically and without equivocation say that they did not.
In McCaa Chevrolet Company v. Bounds, Administrator, 207 Ark. 1043, 183 S. W. 2d 932, this Court said:
. . A court is not at liberty to read something into the law that was not put therein by its framers, even if such a course may seem necessary in order to prevent an apparently unjust result in the case being considered. ’ ’
This same rule would apply in construing the Constitution. Even if the majority disagrees with the result reached by The Board of Apportionment, the majority still has no right to read something into Amendment No. 45 that is not there. The majority, in effect, tells the Governor, the Secretary of State and the Attorney General in future apportionment cases that their function is the performance of a mere ministerial duty of applying a mathematical formula and that they nave no discretion and cannot exercise any judgment in formulating a report on apportionment which they deem to be just and fair and in the best interests of the people of Arkansas. These are three public officials who must answer to the people of Arkansas at the polls each two years. I do not believe and cannot understand why it would be necessary to take the time of the Governor, the Secretary of State and the Attorney General to consider and pass their judgment upon a matter if it is one in which only one conclusion can be reached and that conclusion is the result of a mathematical formula. Such a procedure and requirement would be ridiculous and I do not believe that the people of Arkansas intended that this Court would have the power to bring about such a situation when the people enacted Amendments Nos. 23 and 25 to our Constitution.
I would affirm the report of The Board of Apportionment and would commend the three state officials involved for their prompt and considerate discharge of the duties imposed upon them by these provisions of the Constitution of our State.
In re Briefing of Criminal Case :
Per Curiam
For many years it has been the rule of this Court that in felony cases we will examine all alleged errors in the Motion for a New Trial, regardless of whether all of the alleged errors are argued by appellant on appeal. Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623. The Attorney General has, therefore, felt it his duty to brief all assignments of error in the Motion for a New Trial, notwithstanding, it was obvious that many such alleged errors had no merit.
This procedure has placed an undue burden on the Attorney General and it is not required in a fair administration of the criminal laws. Therefore, in the future, in a non-capital felony case, the Attorney General will be required to brief only those points argued by appellant and such other points as may appear to the Attorney General to have merit. If no brief is filed on behalf of the appellant in a non-capital felony case, the Attorney General will brief those assignments of error in the Motion for a New Trial that may appear to be beneficial to the appellant. In all capital cases the Attorney General will brief all issues raised by an objection made by the defendant.