Griffin Smith, Chief Justice.
This is an original proceeding under Amendment No. 23 to the Constitution. See Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072,148 S. W. 2d 176,149 S. W. 2d 573; Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 153 S. W. 2d 415; Butler v. Democratic State Committee, 204 Ark. 14, 160 S. W. 2d 494. Only the House of Representatives was involved in the Shaw case.
Clyde E. Smith and Floyd H. Fulkerson, Jr., are citizens and taxpayers of Pulaski county. Their contention is that the Thirteenth senatorial district, composed of Pulaski county alone, is discriminated against in that it has but two senators. The Federal census for 1950 gives a population total of 196,685, an increase of 40,600 since 1940, or 26.01%. For the state as a whole the population is 1,909,511—a loss of 39,876 during the decennial period. Before the. official figures for 1950 had been certified a citizen-taxpayer suit was brought against the Board, but this court held that the action was premature. Carpenter v. Board of Apportionment, 218 Ark. 404, 236 S. W. 2d 582.
In the controversy now before us two members of the Board—the Attorney General and the Secretary of State—felt that when all difficulties incidental to reapportionment were considered, such as territorial'area of counties, convenience of electors when a grouping for district purposes is made, etc., no fairer plan than the present setup could be devised. The Governor as a memher of the Board took the position that present population extremes were too great to justify inaction, hence the equalities contemplated by the Constitution, as amended, were of a nature overriding the secondary considerations his co-members had in mind. The Governor’s suggested rearrangement was not satisfactory to the majority, therefore redistricting as an accomplished fact, but without change of any kind, was certified.
This procedure had the effect of leaving the Thirteenth district under-represented from a numerical standpoint by a percentage equation of 80.26. Inequalities in other districts will be referred to.
The decisions construing Amendment No. 23 to which attention has been called mention the political reasons underlying popular action in adopting the Amendment.
The comprehensive measure affecting senatorial districts prior to 1937 was Act 129 of 1901, p. 201. Under the reorganization there effectuated the First district included Clay, Greene, and Craighead counties.1 Section 2 of Art. 8 of the Constitution of 1874 was a mandate to the legislature to divide the state into convenient districts from time to time in such manner that the senate would be based upon the state’s adult population, each senator as nearly as practical to represent an equal number of male inhabitants.2 The districts were created, temporarily as it was then thought, until the population of counties as reflected by the Federal census of 1880 should become available as the basis of a better plan.
Amendment No. 23 imposes upon the Apportionment Board the imperative duty of making assignments of senators to districts as created. ' Section 3 fixes membership of the senate at 35. Districts shall consist of contiguous territory, but a county must not be divided. With these limitations upon the one hand and affirmative mandates upon the other, the state is to be divided into convenient districts “. . . in such manner that the senate shall be based upon the inhabitants of the state, each senator representing, as nearly as practicable, an equal number thereof, [and] each district shall have at least one senator.” It will be noted that some of the language of the Amendment is so harmonious with certain expressions in § 2 of Art. 8 of the Constitution of 1874 as to suggest that the phrasing was copied.
When the reapportionment Act of 1901 was adopted the state’s population was 1,311,564. Pulaski and Perry counties were combined as the Tenth district and given two senators. The result was that there were 34 districts with 35 senators. Had it been possible to arrange the districts on an equal population basis, each would have included 37,473, minus; but, then as now, exact apportionment was impossible without dividing counties.
From 1901 until after the adoption of Amendment No. 23 in 1936,3 nothing effective looking to equal senatorial representation was done; but, with the Amendment as a current mandate from the people, and with a population increase of 542,918 during the thirty years from 1900 to 1930,4 the reapportionment as it existed in 1941 when the Bailey-Abington decision was handed down was the subject of legislative controversy and judicial determination—that is, the senatorial reapportionment of 1937 based on the 1930 Federal census was permitted to stand, irrespective of changes shown by the 1940 enumeration.
'In the reshuffle of 1937 District No. 1 was created by combining Benton and Carroll counties in the northwestern corner of the state, as distinguished from District No. 1 established in 1901 by joining Clay, Greene and Craighead counties in the northeastern area. The 1901 and 1950 districts, with the population of each, are shown in comparative parallel columns :
1901
Dist. PopuNo. Counties lation
1. —Greene, Clay, Craig-head ............ 52,370
2. —Randolph, Lawrence, Sharp ______________________ 45,846
3. —Marion, Boone,' Newton ---------------------------- 40,311
4. —Johnson, Pope____________ 39,163
5. —Washington alone______ 34,256
6. —Independence, Stone.. 30,657
7. —Cross, Woodruff________ 27,355
8. —Yell, Logan ________________ 43,313
9. —Saline, Hot Spring, Grant ______________________ 33,541
10. —Pulaski, Perry __________ 70,473
11. —Jefferson alone __________ 40,972
12. —Lonoke, Prairie.......... 34,419
13. —Arkansas, Monroe .... 29,789
14. —Lee, Phillips ______________ 45,970
15. —Ashley, Chicot............ 34,262
16. —Lincoln, Cleveland, Dallas______________________ 36,527
17. —Drew, Desha______________ 30,962
18. —Bradley, Union__________ 32,146
19. —Calhoun, Ouachita____ 29,431
20. —Hempstead, Nevada .. 40,710
21. —Columbia, Lafayette, Miller ------------- 50,229
22. —Little River, Sevier, Howard ................. 44,146
23. —Fulton, Izard, Baxter 35,721
24. —Carroll, Madison........ 38,712
25.
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Griffin Smith, Chief Justice.
This is an original proceeding under Amendment No. 23 to the Constitution. See Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072,148 S. W. 2d 176,149 S. W. 2d 573; Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 153 S. W. 2d 415; Butler v. Democratic State Committee, 204 Ark. 14, 160 S. W. 2d 494. Only the House of Representatives was involved in the Shaw case.
Clyde E. Smith and Floyd H. Fulkerson, Jr., are citizens and taxpayers of Pulaski county. Their contention is that the Thirteenth senatorial district, composed of Pulaski county alone, is discriminated against in that it has but two senators. The Federal census for 1950 gives a population total of 196,685, an increase of 40,600 since 1940, or 26.01%. For the state as a whole the population is 1,909,511—a loss of 39,876 during the decennial period. Before the. official figures for 1950 had been certified a citizen-taxpayer suit was brought against the Board, but this court held that the action was premature. Carpenter v. Board of Apportionment, 218 Ark. 404, 236 S. W. 2d 582.
In the controversy now before us two members of the Board—the Attorney General and the Secretary of State—felt that when all difficulties incidental to reapportionment were considered, such as territorial'area of counties, convenience of electors when a grouping for district purposes is made, etc., no fairer plan than the present setup could be devised. The Governor as a memher of the Board took the position that present population extremes were too great to justify inaction, hence the equalities contemplated by the Constitution, as amended, were of a nature overriding the secondary considerations his co-members had in mind. The Governor’s suggested rearrangement was not satisfactory to the majority, therefore redistricting as an accomplished fact, but without change of any kind, was certified.
This procedure had the effect of leaving the Thirteenth district under-represented from a numerical standpoint by a percentage equation of 80.26. Inequalities in other districts will be referred to.
The decisions construing Amendment No. 23 to which attention has been called mention the political reasons underlying popular action in adopting the Amendment.
The comprehensive measure affecting senatorial districts prior to 1937 was Act 129 of 1901, p. 201. Under the reorganization there effectuated the First district included Clay, Greene, and Craighead counties.1 Section 2 of Art. 8 of the Constitution of 1874 was a mandate to the legislature to divide the state into convenient districts from time to time in such manner that the senate would be based upon the state’s adult population, each senator as nearly as practical to represent an equal number of male inhabitants.2 The districts were created, temporarily as it was then thought, until the population of counties as reflected by the Federal census of 1880 should become available as the basis of a better plan.
Amendment No. 23 imposes upon the Apportionment Board the imperative duty of making assignments of senators to districts as created. ' Section 3 fixes membership of the senate at 35. Districts shall consist of contiguous territory, but a county must not be divided. With these limitations upon the one hand and affirmative mandates upon the other, the state is to be divided into convenient districts “. . . in such manner that the senate shall be based upon the inhabitants of the state, each senator representing, as nearly as practicable, an equal number thereof, [and] each district shall have at least one senator.” It will be noted that some of the language of the Amendment is so harmonious with certain expressions in § 2 of Art. 8 of the Constitution of 1874 as to suggest that the phrasing was copied.
When the reapportionment Act of 1901 was adopted the state’s population was 1,311,564. Pulaski and Perry counties were combined as the Tenth district and given two senators. The result was that there were 34 districts with 35 senators. Had it been possible to arrange the districts on an equal population basis, each would have included 37,473, minus; but, then as now, exact apportionment was impossible without dividing counties.
From 1901 until after the adoption of Amendment No. 23 in 1936,3 nothing effective looking to equal senatorial representation was done; but, with the Amendment as a current mandate from the people, and with a population increase of 542,918 during the thirty years from 1900 to 1930,4 the reapportionment as it existed in 1941 when the Bailey-Abington decision was handed down was the subject of legislative controversy and judicial determination—that is, the senatorial reapportionment of 1937 based on the 1930 Federal census was permitted to stand, irrespective of changes shown by the 1940 enumeration.
'In the reshuffle of 1937 District No. 1 was created by combining Benton and Carroll counties in the northwestern corner of the state, as distinguished from District No. 1 established in 1901 by joining Clay, Greene and Craighead counties in the northeastern area. The 1901 and 1950 districts, with the population of each, are shown in comparative parallel columns :
1901
Dist. PopuNo. Counties lation
1. —Greene, Clay, Craig-head ............ 52,370
2. —Randolph, Lawrence, Sharp ______________________ 45,846
3. —Marion, Boone,' Newton ---------------------------- 40,311
4. —Johnson, Pope____________ 39,163
5. —Washington alone______ 34,256
6. —Independence, Stone.. 30,657
7. —Cross, Woodruff________ 27,355
8. —Yell, Logan ________________ 43,313
9. —Saline, Hot Spring, Grant ______________________ 33,541
10. —Pulaski, Perry __________ 70,473
11. —Jefferson alone __________ 40,972
12. —Lonoke, Prairie.......... 34,419
13. —Arkansas, Monroe .... 29,789
14. —Lee, Phillips ______________ 45,970
15. —Ashley, Chicot............ 34,262
16. —Lincoln, Cleveland, Dallas______________________ 36,527
17. —Drew, Desha______________ 30,962
18. —Bradley, Union__________ 32,146
19. —Calhoun, Ouachita____ 29,431
20. —Hempstead, Nevada .. 40,710
21. —Columbia, Lafayette, Miller ------------- 50,229
22. —Little River, Sevier, Howard ................. 44,146
23. —Fulton, Izard, Baxter 35,721
24. —Carroll, Madison........ 38,712
25. —Crawford, Franklin .. 38,665
26. —Searcy, Cleburne, Van Burén, Conway 52,608
27. —White, Faulkner________ 45,644
28. -—Sebastian alone__________ 36,935
29. —Poinsett, Jackson, Mississippi ____________ 41,792
30. —Clark, Pike ________________ 31,590
31. —Garland, Montgomery 28,217
32. —Crittenden, St. Francis ____________________________ 31,686
33. —Scott, Polk_________________ 31,535
34. —Benton alone ______________ 31,611
1950
Dist. PopuNo. Counties lation
1. —Benton, Carroll__________ 51,320
2. —Washington, Madison 61,713
3. —Crawford, Franklin, Johnson ........ 51,223
4. —Sebastian alone .... 64,202
5. —Scott, Polk, Logan____ 44,499
6. —Howard, Sevier, Little River........... 37,325
7. —Boone, Marion, Baxter, Newton, Searcy 55,661
8. —Pope, Yell . ......... 37,348
9. —Hempstead, Pike, Montgomery __________ 41,792
10. —Miller, Lafayette ----- 45,817
11. —Fulton, Izard, Stone, Van Burén, Cleburne ___________ 47,976
12. —Faulkner, Conway, Perry ................... 49,404
13. —Pulaski alone ....... 196,685
14. —Garland, Saline 70,918
15. —Hot Spring, Clark, Grant ........... 54,203
16. —Ouachita, Dallas, Cleveland .. 54,423
17. —Nevada, Columbia .... 43,551
18. —Union alone............ 49,686
19. —Randolph, Sharp, Lawrence ______ 46,284
20. —Independence, Jackson .....—......... 49,400
21. —White, Woodruff________ 56,997
22. —Lonoke, Prairie......... 41,046
23. —Jefferson alone _________ 76,075
24. —Arkansas, Monroe 43.205
25. —Desha, Lincoln ________ 42,234
26. —Calhoun, Bradley, Drew . 41,078
27. —Ashley, Chicot______ 47,966
28. —Clay, Greene . ________ 55,823
29. —Craighead alone ..... 50,613
30. —Mississippi alone ______ 82,375
31. —Poinsett, Cross ..... 64,068
32. —Crittenden alone________ 47,184
33. —St. Francis, Lee________ 61,163
34. —Phillips alone ___________ 46,254
Although the petitioners are citizens of Pulaski county and the Thirteenth senatorial district, the objections they offer to the Board’s plan of reapportionment without change is in a sense state-wide. The basis for apportionment is a district, but the senator [or senators] from that district represents all of the people. If this were not true block voting responsive to area interests would militate against the welfare of the commonwealth as a whole.
The census for 1950 shows that equal representation could be attained only if each senator’s assigned population were l/35th of 1,909,511—that is, 54,557. Some of the districts, notably the 15th and 16th, are affected by mathematical inequalities of less than one percent. Thus, the 15th district (Hot Spring, Clark, and Grant counties) has a population of 54,203, a deviation of 354 from the standard, or .65%. The 16th district (Ouachita, Dallas, and Cleveland) is even closer, the differential being one-fourth of one percent.
The 7th district (Boone, Marion, Baxter, Newton, and Searcy) comes next and is within 2.02% of the standard. It is followed by the 28th (Greene and Clay), with a variant of 2.32%. Next is the 1st (Benton and Carroll) with 5.93%, followed by the 3d (Crawford, Franklin, and Johnson), with 6.11%; the 21st (White and Woodruff) with 4.47%; the 29th (Craighead comdy alone) with 7.23%; the 12th (Faulkner, Conway, and Perry) with 9.45%, and the 20th (Independence and Jackson), also with 9.45%. Some of the other districts showing over or under variants of more than 20% are: The 30th (Mississippi county alone),.under-represented by 50.99% ; the 23d (Jefferson county alone), under-represented 39.44% ; the 14th (Garland and Saline) under-represented 29.99%; the 6th (Howard, Sevier, Little River), overrepresented 31.59% ; the 8th (Pope and Yell) over-represented 31.54%. Other districts over-represented more than twenty percent are: The 22d (Lonoke and Prairie), 24.76% ; the 26th (Calhoun, Drew, and Bradley), 24.71% ; the 9th (Hempstead, Pike, Montgomery), 23.40%; the 25th (Desha and Lincoln), 22.59%; the 24th (Arkansas and Monroe), 20.81%, and the 17th (Nevada and Columbia), 20.17%.
In the Butler case Mr. Justice Frank G. Smith recognized what is now argued by the respondents—that the Amendment does not require geographical changes after each census; but, says the opinion, the people’s mandate does compel redistricting with rearrangements “. . . if shifting population makes that action necessary [in order] to afford just, eq%iitable, and equal representationThe primary reason given by the Board’s majority for not recognizing Pulaski county’s claim to a third senator, if it is to remain a separate district, is that shift in population alone during the preceding decade did not warrant disarrangement of other districts.
An examination of this argument from a population standpoint gives this result: In 1940 Pulaski’s population was 156,085. The census gave the state 1,949,387, hence the nearest possible basis for a thirty-fifth representation would be 55,697. It follows that at that time the two senators were assigned to a district with 44,691 more people than the mathematical equity suggested, and that each had an overburden of 22,346 if the matter should be considered from a personnel standpoint. Now this non-representation has grown to 87,571, or 43,786 per senator. But this is not all. Three times the mathematical average of 54,557 would account for a population of but 163,671. So, if a third senator is added there will still be 33,014 above the mathematical standard, or 65,561 per senator.
The contention that other considerations contemplated by Amendment No. 23 outweigh the population factor is one that can always be.made, and this argument, if conclusive, might forever defeat the clear intention of those who framed the Amendment and the people who adopted it. If an under-representation of eighty percent does not supply the factor emphasized in Butler’s case, then ninety percent, or even a hundred percent, could with reason as relatively applicable be urged in derogation of redistricting.
We conclude that the citizens’ petition is meritorious and that the Thirteenth district must- be assigned a third senator.
The final question is whether the work should be done by this court or the Board. Section 4 of the Amendment directs the Board to reapportion following each Federal census. Section 5 authorizes mandamus to compel the Board to act. Quite clearly this court has the power (in view of the holding in the Butler case that there could be reapportionment without change) to perform the work necessary to revision; but the Board, acting’ both administratively and legislatively, is primarily charged with that dut3r. We therefore reverse aud remand, with directions to the Board to make an apportionment allowing Pulaski county—or the district of which it is made a part—at least three senators. In accomplishing this end the Board has, of course, the right to make such other changes as an equitable distribution into correctly-created districts may demand.
It is further directed that 'reapportionment be completed on or before February 1, 1952.
Mr. Justice McFaddin and Mr. Justice Millwee dissent.