Block v. Allen

• Decision Date: 06 February 1967
• Docket Number: No. 5--4210,5--4210
• Citation: 411 S.W.2d 21,241 Ark. 970
• Parties: Mark BLOCK, Appellant, v. Ben ALLEN et al., Appellees.
• Court: Arkansas Supreme Court

Page 21

411 S.W.2d 21

241 Ark. 970

Mark BLOCK, Appellant, v. Ben ALLEN et al., Appellees.

No. 5--4210.

Supreme Court of Arkansas.

Feb. 6, 1967.

Carl Langston and John Langston, Little Rock, for appellant.

Robinson, Thornton, McCloy & Young, Little Rock, for appellees.

BYRD, Justice.

This litigation arises as a result of the 'one man, one vote' decisions of the United States Supreme Court, ¹ and the case of Yancey v. Faubus, 238 F.Supp. 290 (E.D.Ark.1965). Appellant Mark Block, a qualified voter, has brought this declaratory judgment action against the five Senators of the eighteenth senatorial district to determine whether the Senate must be divided into two classes by lot in accordance with Section 6 of Amendment 23 to the Constitution of the State of Arkansas. Appellees, Ben Allen, Max Howell, Dan Sprick, Joe Ford and Oscar Alagood, being the five Senators of the eighteenth senatorial district, filed a demurrer to the complaint which the trial court sustained.

In sustaining the demurrer, the trial court held that Amendment 23, Section 6 of the Constitution of the State of Arkansas ² was not applicable. While we agree that the demurrer should have been sustained, we do not adopt the theory of the trial court.

Appellant contends that the apportionment made by The Board of Apportionment following the cases of Yancey v. Faubus, supra, and Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965), is but an apportionment following the 1960 federal census, and that under Amendment 23, Section 6 the Senate must be divided into two classes by lot. Appellant's theory is that Amendment 45 ² has been voided in its entirety by the 'one man, one vote' decisions, since the sole purpose of Amendment 45 was to freeze the senatorial apportionment existing at the time of its adoption in 1956. Appellees first take the position that Amendment 45 is controlling and that under that amendment a Senator is elected for a term of four years. For their alternative position, appellees contend that even if we should decide that Amendment 23 is the controlling law, by virtue of the provisions of Section 4 thereof the Senate will not be required to divide itself into two classes by lot until after an apportionment is made following a federal census.

The historical background out of which this problem arose is hereinafter set out to give a better understanding of the problem involved.

The 1874 Constitution of Arkansas, Art. VIII, § 2, provided that the legislature should from time to time divide the state into convenient senatorial districts, having not more than 35 nor less than 30 Senators. Article V, § 3 provided that at the first session the Senators should divide themselves into two classes by lot, in which case the first class would hold office for two years only but thereafter all Senators would be elected for four-year terms.

In 1936, Amendment 23 to the Constitution of Arkansas was adopted. This amendment, providing for 35 Senators, set up a Board of Apportionment, consisting of the governor, secretary of state, and attorney general. The Board of Apportionment had the imperative duty to make apportionment of the representatives and Senators in accordance with population as shown by the federal census within 90 days after January 1, 1937, and thereafter on or before February 1 immediately following each federal census. Section 6 of this amendment provided that at the next general election following any such apportionment, the Senators and representatives should be elected in accordance with the apportionment, and furthermore, that the Senate at the first regular session succeeding any apportionment so made '* * * shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder.' This amendment also prohibited the division of a county in the formation of senatorial districts.

As far as the problem here is concerned, Amendment 23 was before this court twice following the 1940 decennial census. No change was made in any senatorial district following the 1940 census, and in Bailey v. Abington, 201 Ark. 1072, 148 S.W.2d 176, 149 S.W.2d 573 (1941), and Butler v. Democratic State Comm., 204 Ark. 14, 160 S.W.2d 494 (1942), we held that where no change was made in the geographical boundaries of any senatorial district, it was not necessary to elect an entirely new Senate nor for the Senate to divide itself into two classes by lot as provided in Section 6 of the amendment. We there held, however, that if there was any change in any senatorial district following a decennial census, an entirely new Senate must be elected at the next general election, and that at the first regular session following such election it would be necessary for the Senate to divide itself into two classes by lot as provided in Amendment 23, Section 6.

Following the 1950 decennial census, senatorial apportionment was again before this court in Smith v. Board of Apportionment, 219 Ark. 611, 243 S.W.2d 755 (1951), and Pickens v. Board of Apportionment, 220 Ark. 145, 246 S.W.2d 556 (1952). These two cases were direct appeals from the action of The Board of Apportionment pursuant to Amendment 23, Section 5, which confers original jurisdiction on this court in such matters.

The 1950 reapportionment and the subsequent division of the Senate into two classes by lot, for the purpose of the two-and four-year term provisions of Section 6 of Amendment 23, were not popular with members of the Senate. The Senators who ostensibly were elected to a four-year term in 1950, and some whose districts were not affected, found themselves running for office again in 1952, and some of them subsequently found themselves running for office again in 1954 because of the 'division into two classes by lot' required by Section 6 of the amendment.

In 1956 the problem of apportionment was temporarily solved by the passage of Amendment 45 to the Constitution of Arkansas. By this amendment the senatorial districts were frozen in the manner set out in Pickens v. Board of Apportionment, supra, and the Senate was removed from the jurisdiction of The Board of Apportionment. Following the 'one man, one vote' decisions of the United States Supreme Court, that portion of Amendment 45 which froze the senatorial districts was declared void by a three-judge federal court in Yancey v. Faubus, supra.

Since the 'one man, one vote' decisions voided so many sections of our Constitution, the decision by this court in Faubus v. Kinney, supra, was expedited through the courts to get a judicial determination to see if the portions of Amendment 45 which established 100 members in the House of Representatives and 35 members in the Senate, were still valid and, if so, whether the apportionment ordered by the federal court in Yancey v. Faubus, supra, should be made by the legislature or by The Board of Apportionment. We there held that the portions of Amendment 45 which provided for 100 members in the House of Representatives and 35 members in the Senate were still valid and that The Board of Apportionment set up thereunder was the proper body to reapportion the legislature as directed by the federal court in Yancey v. Faubus, supra.

Following Faubus v. Kinney, supra, the Board of Apportionment, pursuant to the directions of Yancey v. Faubus, supra, reapportioned the state upon the basis of 'one man, one vote,' but in doing so left unaffected the districts of nine Senators who had ostensibly been elected to a four-year term in 1964. In Catlett v. Jones, 240 Ark. 101, 398 S.W.2d 229 (1966), we held that these nine Senators could serve out the remainder of their four-year terms without standing for re-election in 1966.

While there is logic and apparent merit in appellees' contention that we cannot hold Section 6 of Amendment 23 applicable at this session if we follow our previous decisions--i.e., Bailey, Butler, and Catlett, supra--we do not at this time find ourselves in a position to make a final determination upon the merits. There is an obvious defect in the parties defendant, since only five members of the Senate are made parties to this declaratory judgment action. See Ark.Stats.Ann. § 34--2510 (Repl.1962), which provides as follows:

'Parties.--When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. * * * (Acts 1953, No. 274, § 10, p. 802.)'

Consequently, the decree of the trial court will be affirmed upon the ground that the demurrer should have been sustained because of the defect in the parties defendant.

The gravity of this defect is pointed up by reason of the fact that any decision as to these five members could not control the action of the Senate. The constitutional provision sought to be invoked would require action by the Senate, not individual Senators. Thus, no effective relief could have been granted to either party in this case.

Affirmed as modified.

HARRIS, C.J., and FOGLEMAN, J., concur.

AMENDMENT NO. 23

Sec. 1. Board of Apportionment created--Powers and duties.--A board to be known as 'The Board of Apportionment,' consisting of the Governor (who shall be Chairman), the Secretary of State and the Attorney General is hereby created and it shall be its imperative duty to make apportionment of representatives and senators in accordance with the provisions hereof; the action of a majority in each instance shall be deemed the action of said Board.

Sec. 2. One hundred members in house of representatives--Apportionment.--The house of representatives shall consist of one hundred members and each county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as...