Rockefeller v. Smith

• Decision Date: 05 May 1969
• Docket Number: No. 5--4866,5--4866
• Citation: 440 S.W.2d 580,246 Ark. 819
• Court: Arkansas Supreme Court
• Parties: Winthrop ROCKEFELLER, Governor, et al., Appellants, v. Ed Faver SMITH et al., Appellees.

Page 580

440 S.W.2d 580

246 Ark. 819

Winthrop ROCKEFELLER, Governor, et al., Appellants, v. Ed Faver SMITH et al., Appellees.

No. 5--4866.

Supreme Court of Arkansas.

May 5, 1969.

Rehearing Denied June 2, 1966.

Joe Purcell, Atty. Gen., Tom Tanner, Henry Ginger, Asst. Attys. Gen., Little Rock, for appellants.

Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellees Paragould.

Kirsch, Cathey & Brown, for appellee Greene County and Reed, County Judge.

FOGLEMAN, Justice.

Appellants in this case constitute The Board of Apportionment of the State of Arkansas created by Amendment No. 45 to the Constitution of Arkansas. Appellees consist of citizens and residents of Pulaski, Jackson, Hempstead, Lonoke and Searcy Counties, a member of the Republican Party of Arkansas, Greene County and negro electors and small wage earners of Pulaski County. Some of them became parties by intervention. The same relief was sought by all of the appellees. They prayed that the reapportionment plan filed by appellants with the Secretary of the State of Arkansas and the United States District Court on July 15, 1965, be declared unconstitutional and void. They also asked that the appellants be granted a reasonable time within which to adopt a reapportionment plan in conformity with constitutional requirements by subdividing multi-membered districts and that the Pulaski Circuit Court subdivide these districts if The Board of Apportionment failed to act within a reasonable time. By demurrer appellants raised a question as to the jurisdiction of the court over the subject matter of the action. The demurrer was overruled and, after hearing evidence, the circuit court found in favor of the appellees and entered a judgment directing appellants to make a study of the present apportionment system and to redistrict where they found areas not appropriately subdistricted to insure distribution of legislators in a fair and representative manner.

The trial court specifically ordered: that the senatorial district composed of Pulaski and Lonoke Counties be redistricted so as to assure that the voting strength of any political, racial, economic or geographically cohesive group is not minimized or canceled; and that the house district composed of Craighead and Greene Counties, that composed of Searcy, Marion and Pope Counties, and that composed of Newton and Johnson Counties be redistricted in the same manner. The trial court directed that The Board of Apportionment in all cases effect a redistricting which would create single-member districts unless valid and compelling reasons exist which require the creation of multimember districts in certain areas. The court's direction to the board required reapportionment on the basis of the 1960 census figures, but it is not clear whether the court intended that this reapportionment be the basis for use in the election of 1970 with adjustments being made on the basis of preliminary federal census figures as a compliance with § 4 of Amendment No. 45 or whether there should be a reapportionment on this basis for the elections of 1970 and that an additional apportionment be made on the basis of the final census figures by February 1, 1971. The trial court's memorandum opinion, in stating the principles to be followed by The Board of Apportionment, indicated that floterial districts should be composed of a combination of relatively small counties, rather than having some of these counties attached to larger counties and that traditionally Republican counties be grouped together, rather than attached to more populous counties.

Many interesting and forceful arguments for single-member districts are advanced by appellees. In view of the fact that we find that the trial court was without jurisdiction in this matter, no useful purpose would be served in dwelling upon these arguments. It is sufficient to say that some of them would be more appropriately directed to The Board of Apportionment. We note that many of them have already been rejected as a basis for holding Congressional District reapportionments unconstitutional in the recent cases of Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535, both decided on April 7, 1969.

Section 5 of Amendment 45 reads:

'Original jurisdiction (to be exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of this State (a) to compel (by mandamus or otherwise) the Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the Board in making...