White v. Hankins

Frank Holt, Justice. The issue in this case is whether the appellant Governor Frank White’s appointment of appellant Raymond Pritchett, confirmed by the senate, to the Arkansas State Highway Commission was contrary to Amendment 42, Ark. Const. (1874), which provides “that no two Commissioners shall be appointed from any single Congressional District.” Shortly after the appointment appellee sought a declaratory judgment that Patsy Thomas-son, an existing member of the Commission, and Raymond Pritchett were both residents of Pulaski County or the same Congressional District. The appellee later filed a motion for summary judgment together with a discovery deposition of Thomasson, a copy of her voter registration card from Cleveland County, an affidavit showing the exercise of her voting rights in that county, her appointment showing her address as Rison, Cleveland County, maps showing the existing Congressional Districts (6) when Amendment 42 became effective in 1952, and the present Congressional Districts (4) following the 1970 census. The appellee took a voluntary nonsuit as to Thomasson. The appellants resisted the motion for summary judgment alleging that factual matters remained in dispute and a hearing on the merits was necessary. Also, they sought dismissal of the action. The trial court granted appellee’s motion for summary judgment, holding that Pritchett and Thomasson were both residents of Pulaski County, which is located in the old (1951) Fifth Congressional District; therefore, Pritchett’s appointment is null and void inasmuch as it contravenes Amendment 42 which was enacted in 1952. The court considered the Congressional Districts, six in number in 1951, “frozen” by that amendment. Hence this appeal. Appellants first contend the appellee lacked standing to bring this action as he has shown no injury in fact nor alleged grounds sufficient to show he is the proper party to bring this action. Appellee’s complaint states: “The Plaintiff claims standing to seek this declaration as a citizen and taxpayer of the state and as a resident of Northeast Arkansas who is now deprived of representation on the Arkansas State Highway Commission as a result of Governor White’s appointment of Raymond Pritchett to that body.” He further alleged that he was a resident of Independence County which placed him in the old (1951) Second Congressional District and that he (his Congressional District) is without representation. He did not allege nor does he contend that he is entitled as a matter of right or law to have a Commissioner from his Congressional District — he merely argues that he has standing as a citizen and taxpayer to object to the improper appointment of Pritchett. The trial court agreed stating that as a taxpayer, appellee had a right pursuant to Art. 16, § 13, Ark. Const. (1874), to challenge the appointment of Pritchett, who, as a Commissioner, would be responsible for spending tax dollars levied on the people of this state. Art. 16, § 13 provides: Any citizen of any county, city, or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever. In Green v. Jones, 164 Ark. 119, 261 S.W. 43 (1924), we held that under Art. 16, § 13, that each citizen and taxpayer has an interest, where his pecuniary or property rights are involved, in seeing that no administrative board shall discharge its duties in a manner violative of the statute creating it. We feel this reasoning is applicable here. It is clear that the State Highway Commission is entrusted with the authority and responsibility, among other things, of spending large sums of state funds. Therefore, the trial court correctly held that appellee has standing to challenge the appointment. We next consider and agree with appellants’ contention that the trial court erred in holding that Amendment 42 requires selection of highway Commissioners on the basis of the 1951 Congressional Districts. The trial court’s interpretation of Amendment 42 would require a finding that it was intended to “freeze” the six 1951 Congressional Districts as the relevant boundaries for the selection of Highway Commissioners. Amendment 42 § 2 provides: Within ten days after the convening of the General Assembly of the State of Arkansas in the year 1953, the Governor, by and with the advice and consent of the Senate, shall appoint five persons who are qualified electors of the State to constitute the State Highway Commission .... The Commissioners to be appointed from the State at large; provided, however, that no two Commissioners shall be appointed from any single Congressional District. The Highway Commission established by Amendment 42 is, in a large measure, patterned after the Game and Fish Commission which was established by Amendment 35. Both use Congressional Districts as a criterion in the selection of Commissioners. Congressional Districts are known to change with population fluctuation, and their use insures a periodically updated rough balance of population and geographical considerations. In construing a similar provision in Amendment 35, which is self-executing as is Amendment 42, we said in Drennen v. Bennett, Atty. General, 230 Ark. 330, 322 S.W.2d 585 (1959): In the oral argument before this Court, appellant made the contention — not contained in the pleadings —that when Amendment No. 35 was adopted in 1944 it ‘froze’ the Congressional Districts insofar as the Amendment No. 35 was concerned. That is to say, appellant argued that the words, ‘Each Congressional District must be represented on the Commission’, meant that each Congressional District as Congressional Districts were constituted in 1945 must be represented on the Commission. We think such contention is unsound for at least two good reasons of statutory construction. In the first place: constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that such operation was intended (16 C.J.S. 121). If the framers of Amendment No. 35 had intended to say what the appellants now claim, then the framers of the Amendment would have said, ‘Each Congressional District as now constituted must be represented on the Commission’. The failure to place the italicized words in the Amendment shows the fallacy of the appellants’ argument. Secondly: we know that when Amendment No. 85 was adopted, there had been, theretofore, a series of Acts changing the Congressional Districts in Arkansas; and if the framers of the Amendment had intended that the Congressional Districts could not be changed, insofar as Amendment No. 35 was concerned, they would have been obliged to say so. By the Act of January 3, 1853, Arkansas was divided into two Congressional Districts; by the Act of April 24, 1873, there were four Congressional Districts; by the Act of March 23,1883, there were five Congressional Districts; by the Act of April 9,1891, there were six Congressional Districts; and by the Act of May 23,1901, there were seven Congressional Districts. So, with a long history of changes in Congressional Districts, it was certainly clear that Congressional Districts would continue to be changed as population requirements rendered such changes necessary or advisable. So the Amendment No. 35 did not ‘freeze’ the Counties comprising the various Congressional Districts. We feel this reasoning is controlling here and hold that Amendment 42, § 2, did not “freeze” the Congressional Districts as they existed in 1951, but rather it reflects a method and desire of the framers to insure equal representation of the Highway Commission from all parts of the state with an odd number (to avoid tie votes) constituting that membership. Historically, they were aware of the fluctuation in the number of Congressional Districts following each census or every ten years. If they had intended that the Congressional District boundaries be inflexible, even though they historically change, the drafters could have said so or used another method such as dividing the state into geographical areas, which would not be subject to changing boundaries. Arkansas presently has four Congressional Districts and five Highway Commissioners. As the legislature has recently recognized, it would be impossible to comply strictly with § 2 of Amendment 42 requiring that no two members be from the same district, inasmuch as two members of the Commission would certainly have to be residents of the same district. See Ark. Stat. Ann. § 76-201.1a (Repl. 1981) and the preamble of the Act. We take judicial notice of the fact that as the present Commission is constituted all four districts are represented regardless of whether Thomasson is considered to be from Pulaski or Cleveland County. The prohibition against two members serving from the same district cannot control here; that provision, of course, is not stricken and will be effective if Arkansas were to have five or more Congressional Districts. Since one district of the present four Congressional Districts must always have two of the five members of the Commission, it is irrelevant whether Thomasson is or is not a qualified elector from Pulaski or Cleveland County. Therefore, the appointment of appellant Pritchett is permissible. Reversed and dismissed. Purtle, J., concurs. Hays, J., dissents.