Neill Bohlinger, Associate Justice.
These are two original actions filed by the petitioners, citizens of Pulaski County and of Jefferson County, to review the 1961 reapportionment of the House of Representatives. The respondents are the members of the Board of Apportionment created by Amendment 23 to the state constitution. Citizens of Miller, Ouachita, Poinsett, and White Counties have intervened and joined in the defense of the Board’s apportionment.
Section 2 of Amendment 23, which was re-enacted by Amendment 45, provides that the House shall consist of 100 members, that each county shall have at least one representative, and that the remaining members “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 population. Section 4 of Amendment 45 requires the Board of Apportionment to reapportion the House after each federal census. Section 5 provides for original proceedings like these, in which the court may revise any arbitrary action or abuse of discretion on the part of the Board.
Bach of the seventy-five counties is entitled to one representative. The problem is that of allocating the remaining twenty-five seats among the more populous counties in the fairest possible manner.
The entire subject was carefully considered in Shaw v. Adkins, 202 Ark. 856, 153 S. W. 2d 415, which effectively settles every question presented by the cases at bar. As that opinion indicates, the theories of apportionment have been thoroughly analyzed with reference to the similar problem of allocating the seats in Congress after each census. In the Shaw opinion the late Chief Justice Grieein Smith, speaking for a unanimous court, discussed in detail the five recognized mathematical formulas for apportionment. The five methods are called that of smallest divisors, equal proportions, major fractions, harmonic mean, and greatest divisors. In the earlier case we quoted with approval this language from a treatise on the problem of apportionment:
“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 give the 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 oil 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.”
In the Shaw case, after considering all five methods,, the court approved the method of equal proportions as-the fairest known formula. We accordingly revised the 1941 apportionment to conform to the results achieved by the method of equal proportions. This precedent was followed by the Board as a matter of course after the 1950 census. In that instance the Board applied the rule of equal proportions after one of its members had explained that the apportionment of the House “presents no problem whatever” in view of the court’s decision in Shaw v. Adkins.
Between 1950 and 1960 a few counties showed an increase in population, but the State’s total population declined. In the reapportionment now under review the Board made only one change: One seat was taken from Mississippi County and was given to Miller County. In all other respects the Board continued in force the apportionment adopted in 1951.
"When the facts are studied the new apportionment appears to he domonstrahly arbitrary. For example, during the decade in question Pulaski County gained 46,295 people, but the Board gave this county no additional representation. By contrast, Miller County lost 928 people, but the Board nevertheless gave it an additional representative. It is clear that such inconsistencies as this one could be justified if, but only if, the Board was attempting to correct pre-existing inequalities in the 1951 apportionment. No such intention is suggested by the Board’s record of its proceedings, nor do the facts support that conclusion.
In fixing the 1961 apportionment the Board declared that it had chosen the method of smallest divisors because that method would “cause the fewest dislocations in the present representation of the more populous counties.” That this method does cause the fewest changes is confirmed by the following tabulation, which the parties concede to be a correct summary of the 1951 apportionment of the 25 additional seats and of the results to be achieved in 1961 by each of the five recognized methods of apportionment:
[[Image here]]
The Board was unquestionably mistaken in seeking that method of apportionment that would cause the least change in the existing representation. That point of view is contrary to the clear intention of the people in the adoption of Amendment 23. It was because the allocation had not been changed for many years and had become inequitable that the voters declared in Amendment 23 that the apportionment must be adjusted every ten years. There is implicit in Amendment 23 the conviction that a fair distribution of the people’s representatives in the House is an essential element of our system of state government. The Board of Apportionment was therefore created for the purpose of making changes, not for that of preserving the status quo. Hence the Board misconceived its own reason for existence when it consciously looked for a way of making as few changes as possible.
The Board’s selection of the method of smallest divisors cannot be reconciled with the decision in Shaw v. Adkins. There we compared the five recognized methods of apportionment and concluded that the rule of equal proportions was the most just and the most equitable of all the methods. Every argument that is now made in favor of the Board’s choice of the method of smallest divisors could have been made in favor of that same method in the Shaw case. It would be impossible for us to approve the Board’s action in this instance without overruling the decision in the Shaw case.
Counsel for the appellees call our attention to one sentence in the earlier opinion in which we disclaimed any purpose to assert “that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made.” That observation merely conceded the possibility that another formula might someday be discovered that would be superior to the method of equal proportions. The rule of smallest divisors obviously does not fall within that category, for it was known, considered, and rejected as inferior when the Shaw ease was decided.
In demonstrating the mathematical superiority of the rule of equal proportions the court used this illustration in the Shaw opinion:
‘ ‘ Lonoke County has a population of 29,802 and has two house members.
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Neill Bohlinger, Associate Justice.
These are two original actions filed by the petitioners, citizens of Pulaski County and of Jefferson County, to review the 1961 reapportionment of the House of Representatives. The respondents are the members of the Board of Apportionment created by Amendment 23 to the state constitution. Citizens of Miller, Ouachita, Poinsett, and White Counties have intervened and joined in the defense of the Board’s apportionment.
Section 2 of Amendment 23, which was re-enacted by Amendment 45, provides that the House shall consist of 100 members, that each county shall have at least one representative, and that the remaining members “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 population. Section 4 of Amendment 45 requires the Board of Apportionment to reapportion the House after each federal census. Section 5 provides for original proceedings like these, in which the court may revise any arbitrary action or abuse of discretion on the part of the Board.
Bach of the seventy-five counties is entitled to one representative. The problem is that of allocating the remaining twenty-five seats among the more populous counties in the fairest possible manner.
The entire subject was carefully considered in Shaw v. Adkins, 202 Ark. 856, 153 S. W. 2d 415, which effectively settles every question presented by the cases at bar. As that opinion indicates, the theories of apportionment have been thoroughly analyzed with reference to the similar problem of allocating the seats in Congress after each census. In the Shaw opinion the late Chief Justice Grieein Smith, speaking for a unanimous court, discussed in detail the five recognized mathematical formulas for apportionment. The five methods are called that of smallest divisors, equal proportions, major fractions, harmonic mean, and greatest divisors. In the earlier case we quoted with approval this language from a treatise on the problem of apportionment:
“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 give the 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 oil 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.”
In the Shaw case, after considering all five methods,, the court approved the method of equal proportions as-the fairest known formula. We accordingly revised the 1941 apportionment to conform to the results achieved by the method of equal proportions. This precedent was followed by the Board as a matter of course after the 1950 census. In that instance the Board applied the rule of equal proportions after one of its members had explained that the apportionment of the House “presents no problem whatever” in view of the court’s decision in Shaw v. Adkins.
Between 1950 and 1960 a few counties showed an increase in population, but the State’s total population declined. In the reapportionment now under review the Board made only one change: One seat was taken from Mississippi County and was given to Miller County. In all other respects the Board continued in force the apportionment adopted in 1951.
"When the facts are studied the new apportionment appears to he domonstrahly arbitrary. For example, during the decade in question Pulaski County gained 46,295 people, but the Board gave this county no additional representation. By contrast, Miller County lost 928 people, but the Board nevertheless gave it an additional representative. It is clear that such inconsistencies as this one could be justified if, but only if, the Board was attempting to correct pre-existing inequalities in the 1951 apportionment. No such intention is suggested by the Board’s record of its proceedings, nor do the facts support that conclusion.
In fixing the 1961 apportionment the Board declared that it had chosen the method of smallest divisors because that method would “cause the fewest dislocations in the present representation of the more populous counties.” That this method does cause the fewest changes is confirmed by the following tabulation, which the parties concede to be a correct summary of the 1951 apportionment of the 25 additional seats and of the results to be achieved in 1961 by each of the five recognized methods of apportionment:
[[Image here]]
The Board was unquestionably mistaken in seeking that method of apportionment that would cause the least change in the existing representation. That point of view is contrary to the clear intention of the people in the adoption of Amendment 23. It was because the allocation had not been changed for many years and had become inequitable that the voters declared in Amendment 23 that the apportionment must be adjusted every ten years. There is implicit in Amendment 23 the conviction that a fair distribution of the people’s representatives in the House is an essential element of our system of state government. The Board of Apportionment was therefore created for the purpose of making changes, not for that of preserving the status quo. Hence the Board misconceived its own reason for existence when it consciously looked for a way of making as few changes as possible.
The Board’s selection of the method of smallest divisors cannot be reconciled with the decision in Shaw v. Adkins. There we compared the five recognized methods of apportionment and concluded that the rule of equal proportions was the most just and the most equitable of all the methods. Every argument that is now made in favor of the Board’s choice of the method of smallest divisors could have been made in favor of that same method in the Shaw case. It would be impossible for us to approve the Board’s action in this instance without overruling the decision in the Shaw case.
Counsel for the appellees call our attention to one sentence in the earlier opinion in which we disclaimed any purpose to assert “that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made.” That observation merely conceded the possibility that another formula might someday be discovered that would be superior to the method of equal proportions. The rule of smallest divisors obviously does not fall within that category, for it was known, considered, and rejected as inferior when the Shaw ease was decided.
In demonstrating the mathematical superiority of the rule of equal proportions the court used this illustration in the Shaw opinion:
‘ ‘ Lonoke County has a population of 29,802 and has two house members. Theoretically each represents a population of 14,901. Mississippi County has a population of 80,217 and has three members. Each, therefore, represents a population of 26,739. In theory each Mississippi County member represents 11,838 more constituents than does each of Lonoke’s members, the differential being 79.4 per cent. If one member should be taken from Lonoke County and given to Mississippi [as required by the method of equal proportions], each of Mississippi’s four members would represent 20,054 persons and Lonoke’s one remaining member would represent 29,802, an absolute difference of 9,748, or 48.6 per cent, against Lonoke. The disparity difference against Mississippi County at present is much larger than the disparity against Lonoke County if the latter is reduced to one member.”
In this way the court demonstrated that the method of equal proportions effected more nearly complete abstract justice than did the apportionment adopted by the Board.
Similar calculations can readily be made in the present instance. Under the rule of equal proportions Pulaski County, with a population of 242,980, has eleven representatives, so that each theoretically represents 22,089 people. Poinsett County has a single representative for its 30,834 people. The absolute difference is 8,745, or a disparity of 39.5 per cent against Poinsett County. If one representative is taken from Pulaski and given to Poinsett the disparity is increased to 57.5 per cent against Pulaski, so that the superiority of the method of equal proportions is demonstrated. In fact, if Pulaski is reduced to eight members, which was the result of the Board’s action, the disparity jumps to 97 per cent in favor of Poinsett. (It may be observed that Poinsett County is hardly in a position to oppose the method of equal proportions. As a petitioner in the Shaw case Poinsett County gained an additional representative by reason of the court’s adoption of the rule of equal proportions. Having enjoyed the benefit of the rule for twenty years the county cannot very well insist that some other method should be adopted now that its population has declined while that of other counties has increased.)
In the Shaw case it was considered significant that the method of equal proportions and that of major fractions, the only other method to have been approved by statute, gave the same results. That is almost true in this instance as well, the single difference being that the method of major fractions would take one seat from St. Francis County and give it to Washington County. The system of comparison used in the Shaw case shows that in its result the method of major fractions produces a disparity against St. Francis of 79 per cent, while the method of equal proportions leads to a disparity against Washington County of only 68.9 per cent. Once more the latter method is shown to be preferable.
In conclusion, we find it impossible to approve an apportionment which holds that one county, having gained 46,295 in population, is entitled to no additional representation, while another county, having lost 928 in population, is to be rewarded with an added seat in the House. We adhere to the method of equal proportions because (a) Amendment 23 requires that the membership of the House be reapportioned according to population after each federal census, (b) the method of apportionment by equal proportions can be demonstrated to be the fairest of all the known methods, (c) that method has the approval of Congress and of scientific analysis, (d) that method was adopted by this court in Shaw v. Acllcins, which is a controlling precedent, (e) it was adopted and applied by the Board of Apportionment in 1951, and (f) after the court had construed the language of Amendment 23 in the Shaw case the people re-enacted the pertinent language in exactly the same form in Amendment 45. No valid argument to the contrary has been presented in these cases.
It is to be regretted that no plan has been or can ever be formulated in a situation like this that will be so mathematically balanced that no disparity will exist. But the method of equal proportion is the fairest that has yet been devised to meet the situation that confronts us here. In an effort to follow the mandate of the people, it is our duty to accept the best fixed formula proposed, be its defects what they may, rather than to leave a situation with the potentialities of the present one relying upon a rule-of-thumb sense of equity that may find expression in a Board of Apportionment in the years that follow when we know not the membership that will compose those future boards. The situation demands a clear and precise procedure as an alternative.
The Board’s apportionment will be revised to conform to the results achieved by the application of the rule of equal proportions. By this method Pulaski County, having gained 46,295 in population, is entitled to three additional representatives, and Jefferson County, having gained 5,298 in population, is entitled to one additional representative. White, Mississippi, Ouachita, and Poinsett Counties lose one seat each from the present apportionment. It is so ordered.
George Bose Smith, J., concurs. Ward and Johnson, JJ., dissent.