Shaw v. Adkins, s. 4-6357-4-6376.

• Decision Date: 14 July 1941
• Docket Number: Nos. 4-6357-4-6376.,s. 4-6357-4-6376.
• Citation: 153 S.W.2d 415
• Parties: SHAW et al. v. ADKINS, Governor, et al.
• Court: Arkansas Supreme Court

Page 415

153 S.W.2d 415

SHAW et al. v. ADKINS, Governor, et al.

Nos. 4-6357-4-6376.

Supreme Court of Arkansas.

July 14, 1941.

Consolidated original actions in mandamus by Nabors Shaw, by L. H. Autry and another, and by Girard P. Shofner, against Homer M. Adkins, Governor, and others, constituting a Board of Reapportionment, for review of reapportionment of representatives, wherein Royce Weisenberger intervened.

Findings of the Board of Reapportionment revised in part.

R. Nabors Shaw, of Marked Tree, W. Leon Smith, of Blytheville, and Girard P. Shofner, of Little Rock, for petitioners.

Marcus Fietz, of Jonesboro, J. Graham Sudbury, of Blytheville, L. C. B. Young, of Osceola, and Shane & Fendler, of Blytheville, for Mississippi county interveners.

Royce Weisenberger, James H. Pilkinton, and E. F. McFaddin, all of Hope, for Hempstead county intervener.

GRIFFIN SMITH, Chief Justice.

Original actions, authorized by Amendment No. 23 to the state Constitution, were filed by Nabors Shaw, of Poinsett county; L. H. Autry and J. Lee Bearden, of Mississippi county; and Girard P. Shofner, of Pulaski county. Each named the Governor, Secretary of State, and Attorney General, as respondents. It was alleged in the petitions that these officers, who constitute a board of reapportionment, erred in the result certified to the Secretary of State January 21, 1941.

In Cause No. 6357 — Shaw v. Adkins, et al. — it is asserted that Poinsett's population of 37,670 exceeds that of either White Benton, St. Francis, Hempstead, Miller, or Lonoke county, each of which was given two representatives, while but one was assigned to Poinsett.

Cause No. 6358 — Autry et al. v. Adkins, et al. — alleges that in assigning two representatives each to Benton, Craighead, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White counties, and in assigning but three to Mississippi county, the board acted arbitrarily and in disregard of the county's population of 80,217. James Terry and Harry W. Haines, and twenty-seven other citizens of Mississippi county, intervened in Cause No. 6258. They adopted the Autry-Bearden complaint and made other allegations.

In Cause No. 6376 — Shofner v. Adkins, et als. — it is alleged that Pulaski county, with a population of 156,085, is entitled to eight representatives instead of seven as assigned by the board.

Royce Weisenberger intervened in all three cases and seeks to show that under any method of reapportionment Hempstead county is entitled to two representatives, as now assigned.

The board of apportionment assigned to each of the following counties one representative: Arkansas, Ashley, Baxter, Boone, Bradley, Calhoun, Carroll, Chicot, Clark, Clay, Cleburne, Cleveland, Columbia, Conway, Crawford, Cross, Dallas, Desha, Drew, Faulkner, Franklin, Fulton, Grant, Greene, Hot Spring, Howard, Independence, Izard, Jackson, Johnson, LaFayette, Lawrence, Lee, Lincoln, Little River, Logan, Madison, Marion, Monroe, Montgomery, Nevada, Newton, Ouachita, Perry, Pike, Poinsett, Polk, Pope, Prairie, Randolph, Saline, Sevier, Scott, Searcy, Sharp, Stone, Van Buren, Woodruff, and Yell.

To each of the following counties two representatives were given: Benton, Craighead, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White.

To each of the following counties three representatives were assigned: Jefferson, Mississippi, Sebastian, and Union.

Pulaski county was given seven representatives.

The board adopted 19,492 as the basis of population for representative.¹

Amendment No. 23 required the board to make its first apportionment within ninety days from January 1, 1937, and "* * * thereafter, on or before February 1 immediately following each Federal census, said Board shall reapportion the State for both Representatives and Senators² * * *."

Section two of the amendment provides that the house of representatives shall consist of 100 members. Each county existing at the time of apportionment shall have at least one representative, and "* * * the remaining numbers shall be equally distributed (as nearly as practicable) among the more populous counties of the State, in accordance with a ratio to be determined by the population of said counties as shown by the Federal census next preceding any apportionment hereunder."

The board correctly assigned one representative to each county. Of the remaining 25, eleven went to Benton, Craighead, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White counties; eight went to Jefferson, Mississippi, Sebastian, and Union counties, and six went to Pulaski, in the proportion heretofore shown.

Was this distribution "in accordance with a ratio to be determined by the population [of the more populous counties] as shown by the federal census"?

If the problem is considered but casually the responding impression is that the "more populous counties" should be grouped in the order of their population, thus permitting familiar mathematical computations to be applied and a definite result ascertained. But it is not that simple. A somewhat similar provision of the federal Constitution³ has been productive of arithmetical and algebraic perplexities since Daniel Webster's plan of 1832 proved to be unworkable in practice because it did not always give the right total.⁴

According to Professor Huntington (see footnote No. 4), a mathematical study of the problem made in 1921 showed that there are five methods which are workable, and which avoid what the author referred to as the "paradoxes." The approved concepts are: (1) Method of major fractions. (2) Method of equal proportions. (3) Method of harmonic mean. (4) Method of smallest divisors. (5) Method of greatest divisors.

In a preliminary discussion of the five methods, Professor Huntington says:

"To meet realistically the actual situation in Congress when an apportionment bill is up for debate, the emphasis is shifted from the process of computation to the test of fairness which the final result should satisfy. The fairness of the final result, not the technical process of achieving this result, is regarded as the important thing. For example, suppose an actual apportionment bill proposes to give Alabama nine seats, Arizona one, Arkansas seven, etc., in a house of any given size (say 435). The fundamental question which Congress has to face is this: Does the distribution proposed in the bill put each state as nearly as may be on a par with every other state, or would the bill be `improved' by transferring a seat from such-and-such a state to such-and-such another state?

"To answer this question, Congress must decide what goal or aim it has in mind when discussing proposed `improvements' in a given bill. It is generally agreed that Congress, consciously or unconsciously, has had two principal aims in view: First, to equalize the `congressional districts' among the several states; and secondly, to equalize the `individual shares' among the several states. What the modern mathematical theory has done is to establish clearly the relations between these two aims and the five possible methods listed above.

"The mathematical facts are as follows: The method of smallest divisors and the method of greatest divisors fail on both these aims; the method of major fractions fails on the first aim; the method of harmonic mean fails on the second aim; the method of equal proportions achieves both aims.

"In view of these facts, the method of equal proportions was approved by two scientific bodies: The Advisory Committee to the Director of the Census, in 1921; and the National Academy of Sciences, in 1929."

Apportionment methods referred to by Professor Huntington are discussed in "Congressional Apportionment," by Laurence F. Schmeckebier. The book was copyrighted in 1941 by The Brookings Institution. At page 12 it is said: "While these methods are all mathematically correct, each one starts with a different premise and the results may be different. * * * Two of the modern methods — major fractions and equal proportions — are recognized by statute. The other three methods — harmonic mean, smallest divisors, and greatest divisors — have been discussed in committees and in the literature, but have never received statutory recognition."⁵

The problem is to divide 25 representatives among the more populous counties "in accordance with a ratio to be determined by the population of said counties." It was recognized by those who framed our Constitution that a mathematically exact division would be impossible because there are no fractional representatives; hence, in the Constitution there is authority for making the apportionment "as nearly as practicable."

First, the ratio must be ascertained. The total population of 1,949,387 divided by 100 shows this factor to be 19,494, minus. The result is termed the natural ratio. But there has been assigned to each county one representative, and 75 times 19,494 gives 1,462,050. This, taken from total population, leaves 487,337. If we divide the remainder by 25 — a number equal to the unassigned representatives — the result is 19, 494, the natural ratio.

According to Schmeckebier, no modern method of apportioning representatives uses any ratio in determining the result. A ratio, he says, is often referred to, but it is obtained after the apportionment is made from a so-called priority list. All modern methods — equal proportions, major fractions, harmonic mean, smallest divisors, and greatest divisors — assign the representatives to each state, in the case of congressional action, and to each county, in the case of state procedure, by means of priority lists, which indicate the apportionment to be made from the definite number — in Congress, ordinarily 435, and in Arkansas definitely 100. As the federal Constitution provides that one representative shall be assigned to each state, no question of priority would...