(concurring). I am in accord with the court’s holding that Amendment No. 23 and action of the board of apportionment do not require that the terms of senators should have been determined by drawing lots during the regular session of the Fifty-third general assembly.
The only question for decision was whether the Pulaski chancery court erred in issuing the restraining order. We all agree that it did not; but much of the opinion is dictum, and'if intended as an indication of the court’s construction of the amendment as a whole it is misleading’.
The first paragraph of the board’s report to the secretary of state1 is:
“In compliance with the requirements of- Amendment No. 23 to the constitution of the state of Arkansas, the board of apportionment, consisting of the governor, secretary of state, and attorney general, hereby submits the following reapportionment.”2
Without referring to the apportionment of 1937, the board assigned to 59 counties one representative each, to each of eleven counties two representatives, to each of four counties, three representatives and to one county seven representatives. Nine senatorial districts include but one county each, fifteen districts are composed of two counties each, nine districts comprise three counties each, one district is made up of four counties, and one district includes five counties.
Following these apportionments it was 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.”3
Amendment No. 23 amends art. 8 of the constitution of 1874. Section 4 of art. 8 directed that tíre state should be divided into senatorial districts and that apportionment of representation to the several counties should be made by the general assembly “. . . at the first regular session after each enumeration of the inhabitants of the state by the federal or state government shall have been ascertained, and at no other time.”
It is a matter of common knowledge that the general assembly’s construction of the quoted language — that is, whether it was mandatory or discretionary — was not in harmony with the beliefs of those who initiated Amendment No. 23 and the people who adopted it. Emphasis of the amendment’s purpose is found in § 1 where it is declared the ‘‘imperative duty”4 of the board to make apportionments in accordance with provisions of the amendment.
In the majority opinion it is said: “It was the intention of the people, in adopting the amendment, to divide the state into convenient senatorial districts and to provide for the number of representatives in each county, and manifestly the reason for their using the expression ‘from time to time’ was to indicate that this apportionment should he made when, and only when, there was a change in the population so that, without a reapportionment, the senator would not represent the number specified.”
The reasoning is wrong in two respects: First, the amendment does not divide the state into districts or apportion representatives; 5 it delegates that function to the board. Secondly, the expression “from time to time ’ ’ must be read in connection with § 4 of the amendment which directs the board to reapportion “following each federal census. ”6
Section 5 of the amendment vests in the supreme court original jurisdiction to compel the board, by mandamus or otherwise, to perform its duties, and authorizes the court to revise any arbitrary action. Any “citizen and taxpayer” is given the right to proceed against the board to compel apportionment if it refuses to act, or to have its actions reviewed on the ground that discretion has been abused.7
Whether the board had before it evidence that the tabulation of census enumerations by counties had become official is not shown.8 Amendment No. 23 does not provide for apportionment until the census has been completed.
In the fifteenth paragraph of the majority opinion it is said: “There has been no reapportionment, no necessity or occasion for any; there has been no change in population that makes it necessary or advisable.”
' That there has been reapportionment seems too apparent to justify argument. The board certified there had been, and the amendment required it. No changes were made; but, with certification that ‘ ‘ the following reapportionment” had been officially made, the apportionment of 1937, ipso facto, expired.
It is a mistake to assume that change in population, and nothing else, makes reapportionment “advisable.” It is not a question of advisability, but one of constitutional demand.
Section 6 of the amendment provides that “At the next general election for state and county officers ensuing after any such apportionment, senators and representatives shall be elected in accordance therewith and their respective terms of office shall begin on January 1 next following. ”
There are now pending before this court suits from Pulaski, Poinsett, and Mississippi counties, questioning the board’s action of January 21 in apportioning representation in the lower house. If there has been no reapportionment the actions are futile. If it should be determined that the board is in error as to any of the three counties in whose behalf appeals were perfected, is it sound to say that the amendment is severable, and that in order- to conform to dictum in .the majority opinion we are at liberty to treat the board’s, action as a reapportionment of the house of representatives, but hold that as to the senate there was no. action?.. Certainly not.
The report is dated January 21, 1941.
Italics supplied.
It was also said in the report: “The basis of population from the 1940 census of Arkansas, adopted for representative, is 19,482. The basis of population from the 1940 census of Arkansas, adopted for senator, is 55,664.”
Italics supplied.
There is a limitation that the house of representatives shall consist of one hundred members and that each county shall have at least one representative; also that there shall be thirty-five members of the senate, that senatorial districts shall consist of contiguous territory, and no county shall be divided in the formation of such districts.
Section 4 required the board to make the first apportionment within ninety days from January 1, 1937; “thereafter, on or before February 1 immediately following each federal census.”
Application to have the board’s actions on revisions reviewed must be made “within thirty days after the filing of the report of reapportionment . . . with the secretary of state.”
The decennial census provided for by the act of Congress of March 3,1919 (shown as Ch. 2 of Title 13, USCA) was superseded by the act of Congress of June 18, 1929, as amended. (See Ch. 4, § 201, Title 13, Cumulative Annual Pocket Part, 1940).
The decennial census period when all reports and entries shall be . completed is three years after the first of January, 1930, and every tenth year thereafter. There is a proviso that “the tabulation of total "population by states as required for the apportion of representatives shall be completed within eight months from the beginning of the enumeration and reported by the director of the census to the secretary of commerce and by him to the president of the United States.”
[January 4, 1941, the bureau of the census issued a press release giving final 1940 population figures for Arkansas by counties and incorporated places, and on February 8 for minor civil divisions of counties in Arkansas.]