Jones v. Cordell, SEC. , 197 Okla. 61 ( 1946 )

I agree that Senate Bill 119, Twentieth Legislature, purporting by its title to reapportion Senatorial Districts 7 and 9, is unconstitutional and void.

The Legislature has failed since statehood to do its duty as enjoined upon it by the Constitution (art. 5, secs. 9, 10, and 11), to enact a senatorial apportionment measure. The matter was brought to the legislative attention by the Governor's message (January 2, 1945) devoted to the condition of the state; therein the Supreme Court's opinion in Jones v. Freeman et al., 193 Okla. 554, 146 P.2d 564, in part, was reiterated.

The view was expressed in the Jones-Freeman Case that the legislative dereliction would result in destruction of the legislative department of government unless it be considered that apportionment for senatorial districts existed as provided by the Constitution and unless the election of Senators be restricted to the districts so provided.

This court held in the Jones-Freeman Case that no valid legislative act since statehood existed to provide for a legislative apportionment either as to the House of Representatives or the Senate. The writer hereof was of the opinion, however, that districts for the House of Representatives were validly and legislatively apportioned and created. The majority held otherwise. The writer hereof was of the opinion that in the absence of a valid senatorial apportionment, the constitutional apportionment governed for the election of Senators. The majority held that the constitutional apportionment was temporary and had served its purpose.

But "A democratic state cannot 'surrender' sovereignty for the simple reason that it is not sovereign. Only a totalitarian or Fascist state is sovereign". Reves.

In Oklahoma, sovereignty is vested in the people, not in their servants and representatives who may be state officers.

"All political power is inherent in the people, and government is instituted for their protection, security, and benefit, and to promote their general welfare . . .". Sec. 1, art. 2, Const.

The state is based upon the pre-existing and continuing collective individual rights. State v. Hay, 126 N.C. 999,35 S.E. 459. Neither the individual's nor the collective right can be usurped or bartered away. Id.

In the former case the Supreme Court determined that the petitioner suffered a grievous wrong as to his representative right. However, the court did nothing to right the wrong; it issued no writ; it awarded no remedy. The court relied upon an assumption that the Legislature would do its duty that it had repeatedly failed to do, as to an apportionment for senatorial representation.

S.B. 119 is not a senatorial apportionment at all. It is an effort to form a more perfect district by a gerrymander for the re-election of a distinguished Senator. The act is a kind of special and local political security measure. Since the senatorial districts "shall remain unaltered until the next decennial period" this court should not consider the act as the apportionment of a senatorial district, for to do so would hamper a sufficient and valid apportionment in future. The act should be stricken down.

This court determined in the Jones-Freeman Case that petitioner's right as a legislative elector was minimized in the proportion of one-eighth to the mean or normal statewide elector's representative right.

If officers of the state abuse authority, redress is available for injuries to the private or public right. State Highway Com. v. Younger et al., 170 Okla. 614, 41 P.2d 686.

This court has heretofore determined that a Legislature was not in lawful session. Simpson v. Hill, 128 Okla. 269,263 P. 635, 56 A.L.R. 706.

This court has heretofore determined upon the eligibility of a legislative candidate. State ex rel. Cloud v. State Election Board, 169 Okla. 363, 33 P.2d 20, 94 A.L.R. 1007.

It seems to the writer hereof that prior to the election in the offing the Supreme Court should determine whether there is a Senate or whether there are holdovers as a part of a Senate and what senatorial districts, if any, exist, so that if the holdover part of the Senate does not exist within contemplation of the Constitution, an entire membership of the Senate may be elected from districts created by the Constitution. If the only valid senatorial districts are those created by the Constitution, this court should now so hold so that candidates for the Senate may be elected from those districts.

The existence or nonexistence of districts from which senatorial representatives are to be nominated and elected in the ensuing election is vital to the existence of a government republican in form. A government republican in form contemplates three departments — legislative, executive, and judicial — and as to membership in the Senate, "The district must exist before it can be represented". Prouty v. Stover (1873) 11 Kan. 235, 107 A.L.R. 218. Such is the rule in Kansas as written by Mr. Justice Brewer.

It is argued the Supreme Court cannot look beyond the action of the Senate to inquire whether Senators are legally entitled to membership because of the constitutional provision that the Legislature must canvass the returns of the elections and that each house may determine the qualifications of its own members. But what is included in the power conferred? Does the Senate's power of self-determination as to its members include the power to increase at will, membership in the Senate, or to determine membership without the necessity of districts validly created? If that is so, there is no necessity whatever for elections. Can the Senate enlarge its membership without limit? "Is it like an academy of science or a lodge of Odd Fellows, capable of indefinite expansion?" Prouty v. Stover, supra.

If so, a partisan majority may easily secure to itself the required two-thirds vote to overrule a veto by simply admitting new members. If the Senate can, without constitutional restraint, increase its membership, it can, by the same rule, decrease membership to that of an individual and provide him with an inheritable right in office that may be obtained by succession.

Failure to provide decennial statewide apportionment, joined with an act to reduce a senatorial district to a bailiwick by the process of a gerrymander, seems to provide some character of a purported right in an office that has not heretofore been recognized in American jurisprudence.

The Constitution requires a minimum of 44 senatorial districts, not only to nominate, but also to elect 44 Senators, together with an additional number of Senators as may be required by the population of any county. Article 5, sec. 9, Const.

Equality of representation in government and in all of its departments constitutes a right of the people. 14th Amend. Const. U.S.; Declaration of Independence; article 5, secs. 9, 10, Const. Okla.

Without due process rights may not be abridged by the enforcement of law. No person within the state may be denied, by administration, the equal protection of the laws. 14th Amend. Const. U.S.

The election shall be free and equal (art. 3, sec. 7, Const. Okla.) and for the purpose of legislative representation in the Senate.

"It is the duty of courts to be watchful for the constitutional rights of the citizen and guard against any stealthy encroachment thereon". Boyd v. United States,116 U.S. 616, 6 S. Ct. 524.

Since now the court strikes down the act under which is sought to elect a Senator from Kay county alone and another Senator from the counties of Alfalfa, Grant, and Major, it would seem to be in the public interest to determine also, prior to the ensuing election, the exact districts from which Senators may be elected; a failure to do so may make doubtful the future legislative product. The republican form of government, guaranteed to the state by the Federal Constitution, is imperiled. If by legislative omission of duty, the Senate, as such, has disintegrated, the Supreme Court may as well declare it, so that under the trial and error principle, the entire membership of the Senate may be accounted for from valid districts, or elected.

If, as held by the majority in Jones v. Freeman et al., supra, the constitutional apportionment was only temporary and has ceased to exist, the majority may as well declare there are now no senatorial districts and no Senators, and, of necessity, the entire membership of a Senate should then be elected from the state at large.

The majority declined to return the state to constitutionalism in the election of Senators because that would, they think, be "contrary to the best interests of the state" and "so drastic a step". However, the majority promise in future, if and when unconstitutional matters are presented to them within an undefined period of time and not acquiesced. in, to "strike down invalid laws". Neither the commonwealth nor the corporate state can be justified on the theory of fait accomplii.