Faubus v. Kinney

• Decision Date: 17 May 1965
• Docket Number: No. 5-3649,5-3649
• Citation: 239 Ark. 443,389 S.W.2d 887
• Parties: Orval E. FAUBUS, Governor et al., Appellants, v. Clarke KINNEY, Appellee.
• Court: Arkansas Supreme Court

Page 887

389 S.W.2d 887

239 Ark. 443

Orval E. FAUBUS, Governor et al., Appellants, v. Clarke KINNEY, Appellee.

No. 5-3649.

Supreme Court of Arkansas.

May 17, 1965.

Bruce Bennett, Atty. Gen., by Farrell E. Faubus, Asst. Atty. Gen., Little Rock, for appellants.

Jim Shaver, Wynne, for appellee.

HARRIS, Chief Justice.

This opinion deals with reapportionment of the Arkansas General Assembly. On January 28, 1965, the United States District Court, Eastern District of Arkansas, Western Division, three judges sitting as the court, ¹ held that the existing apportionment of the membership of the House of Representatives and Senate of this state, and the method of apportioning the membership were constitutionally invalid and void, as contrary to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, and the Arkansas Board of Apportionment was directed to reapportion the General Assembly in a manner which would meet the requirements of the Equal Protection Clause, such reapportionment to be completed not later than June 15, 1965. ²

In the meantime, on January 6, 1965, Clarke Kinney, appellee herein, had instituted a suit in the Chancery Court of Pulaski County (Second Division), seeking a declaratory judgment as to the validity of Amendment 45 to the Constitution of the State of Arkansas. An answer was filed to this petition by appellants, and on March 17, 1965, the Chancery Court entered its decree, holding that the provisions of Amendment 45, establishing one hundred members for the House of Representatives, and thirty-five members for the Senate, were effective, standing alone, and valid, under the Constitutions of both the State, and the United States. The trial court further held that the provision of the Constitution, creating the Board of Apportionment, ³ was effective, standing alone, and that the Board is the proper authority to reapportion the General Assembly. From the decree so entered, appellants bring this appeal.

A resume of the provisions involved in in order. All of the Arkansas Constitutions have provided for periodic reapportionment of the Legislature on the basis of population. Originally the responsibility for reapportionment was placed in the Legislature, but in 1936, the electorate of Arkansas adopted Amendment 23, which created a Board of Apportionment, and placed in such Board the duty of reapportioning both Houses of the General Assembly, following each Federal census, ⁴ directing, however, that an initial reapportionment be made in 1937. Acting thereunder, the Board made the 1937 reapportionment, and also reapportioned in 1941 and 1951. Amendment 23, inter alia, provided (in Section (2) that the House of Representatives should consist of one hundred members, with 'each county existing at the time of any apportionment' to have at least one representative, with the remaining members to be equally distributed, as nearly as practicable, among the more populous counties of the state. Section 3 provided that the Senate should consist of thirty-five members, with the Board of Apportionment dividing the state into senatorial districts in such manner that each Senator would represent, as nearly as practicable, an equal number of persons; further, that each district should have at least one Senator. This amendment remained in effect until the general election of November, 1956, when Amendment 45 was adopted by the people. This amendment, which restated the provisions of Amendment 23, in large measure, made only two changes that are here pertinent. Section 3 (referring to the Senate) reiterated the provision that the Senate should consist of thirty-five members, but 'froze' the senatorial districts in accordance with the State Supreme Court decision in the case of Pickens v. Board of Apportionment, 220 Ark. 145, 246 S.W.2d 556. In other words, Section 3 of this amendment provided that the geographical composition of the districts, and the number of Senators from each district, should not be changed. In conformity with this section, the Board of Apportionment, in Section 4, was only required to apportion the membership of the House of Representatives.

There are only two questions before this court in this litigation. First, does the decision of the Federal District Court, invalidating the apportionment provided in Section 2 of Amendment 45 (referring to the House of Representatives) and invalidating the apportionment in Section 3 (referring to the Senate), also invalidate the provisions of those same sections which provide that the House of Representatives shall consist of one hundred members, and that the Senate shall consist of thirty-five members? The next question is whether the Board of Apportionment is the proper authority to apportion under the Constitution of this State.

As to the first question, the answer is 'No.' It is the contention of appellants that, since portions of the sections have been invalidated, the entire sections are likewise void and of no effect. We have held contrary to this contention many times. In Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529, this court said:

'An act may be unconstitutional in part and yet be valid as to the remainder. Many cases so hold, and the following quotation from Cooley's Constitutional Limitations appearing in the case of Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W. 77, 78, has been many times approved by this court: "* * * Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. ⁵ The point, is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained * * *."'

See also Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 327, and cases cited therein. While these particular cases referred to statutes enacted by the Legislature, the rule is the same in construing Constitutions. The rule is stated in 16 Am.Jur.2d Constitutional Law, § 42 (1964) as follows:

'The question may arise as to the effect of partial invalidity of a constitutional amendment. In accordance with the rules governing the invalidity of portions of a statute, it has been held that where part of an amendment to a state constitution is invalid because it violates the Federal Constitution, if the several parts of the amendment are separable, the valid portions may be saved, unless it is obvious that the intent of the adopters of the amendment was to accept one general scheme in an entirety, in which event, if part of the amendment falls, the whole must fall with it.'

Our cases hold likewise. In Bailey, Lt.-Gov. v. Abington, 201 Ark. 1072, 148 S.W.2d 176, this court said:

'The rules governing the construction of constitutional amendments are the same as those governing the construction of statutes.'

See also Shephered v. Little Rock, 183 Ark. 244, 35 S.W.2d 361.

We think, unquestionably, that the people would have passed the provisions in Amendment 45, fixing the House membership at one hundred members, and the Senate membership at thirty-five, irrespective of whether the other provisions (held invalid by the Federal District Court) had been contained in the sections. This is emphasized by the fact, that, not once, but twice, the people adopted constitutional amendments, fixing the House and Senate memberships at the above mentioned numbers. Those provisions are certainly not dependent upon the language in the balance of the sections, but are completely independent requirements. We hold that these provisions are valid.

As to the second issue, we likewise agree with the Chancery Court that the Board of Apportionment is the proper authority to carry out the mandate of the Federal District Court. The Federal Court, though directing the Board of Apportionment to effect a valid reapportionment of the Arkansas House and Senate that would...