Latting v. Cordell , 197 Okla. 369 ( 1946 )

This is an original action brought by petitioner, Wm. F. Latting, against J. Wm. Cordell, secretary of the State Election Board of Oklahoma, and Elmer Hale, chairman of the State Election Board of Oklahoma, and T.J. Lucado, member of the State Election Board of Oklahoma, respondents, to require respondents to cause his name to be printed upon the official ballots for the general election to be held in November, 1946, as the nominee of the Democratic party for the office of State Senator from Tulsa county.

In order to determine the petitioner's right to the writ of mandamus it is necessary for this court to construe the pertinent constitutional provisions of this state, which are sections 9, 9(a), 9(b), 10(i), 10(j), and 11 of article 5. They are as follows:

"Sec. 9. The Senate, except as hereinafter provided, shall consist of not more than forty-four members, whose term of office shall be four years: Provided, That one senator elected at the first election from each even numbered district shall hold office until the fifteenth day succeeding the regular state election in Nineteen Hundred and Eight, and one elected from each odd numbered district at said first election, shall hold office until the fifteenth day succeeding the day of the regular state election in Nineteen Hundred and Ten: And Provided further, That in districts electing two senators, the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term.

"9(a). At the time each senatorial apportionment is made after the year Nineteen Hundred and Ten the State shall be divided into forty-four districts to be called senatorial districts, each of which shall elect one senator; and the Senate shall always be composed of forty-four senators except that in event any county shall be entitled to three or more senators at the time of any apportionment such additional senator or senators shall be given such county in addition to the forty-four senators and the whole number to that extent. Said districts shall be numbered from one to forty-four, inclusive, and each of said districts shall contain as near as may be an equal number of inhabitants, such population to be ascertained by the next preceding Federal census, or in such manner as the Legislature may direct, and shall be in as compact form as practicable and shall remain unaltered until the next decennial period, and shall at all times consist of contiguous territory.

"9(b). No county shall ever be divided in the formation of a Senatorial district except to make two or more Senatorial districts wholly in such county . . .

"10(i). Ascertaining the ratio of representation according to the Federal census, or such other enumeration as the Legislature may provide, . . . and apportioning the Senators, shall be done by the Legislature and be presented to the Governor for his approval in the same manner as other bills which may be passed by the Legislature.

"10(j). An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, . ..

"11. Until the apportionment is made by the Legislature after the next Federal decennial census, the State, except as otherwise provided, shall be divided into thirty-three senatorial districts, each of which shall be composed of the counties as named, shall be numbered and elect senators as follows, namely: . . . Fourteenth, Canadian and Oklahoma, two senators; . . . Thirty-first, Tulsa and Washington, one senator; . . ."

At present Tulsa county has but one State Senator. The 1940 Federal decennial census gives Oklahoma a population of 2,336,034, and Tulsa county a population of 193,363, and it is conceded that if and when a proper senatorial apportionment act is enacted as contemplated by the Constitution, the people of Tulsa county will be entitled to nominate and elect three Senators. See Jones v. Freeman, 193 Okla. 554, 146 P.2d 564. Tulsa county would also have been entitled to three Senators had the 1930 Federal decennial census been considered and acted upon by the Legislature.

The Legislature has, however, failed to pass a proper apportionment act since statehood and to date the Legislature has made provisions for the election of only one Senator from Tulsa county.

Petitioner states that the blame for Tulsa county's inadequate senatorial representation is squarely and solemnly at the door of the Legislature, which has refused to reapportion the state after each decennial Federal census it is required to do by the Constitution. With this statement we fully agree, and unhesitatingly state the Legislature should abide by and follow the Constitution in this respect.

The petitioner argues that the question now before us does not relate entirely to legislative reapportionment and that the case of Jones v. Freeman, supra, is not decisive of the issue. With this we agree. All parties agree that the issue must be decided upon the construction of the exception clause in section 9(a) of article 5, supra, and a determination of whether such clause is a self-executing provision. If it is self-executing, it is our duty to enforce it in the absence of legislation on the subject. A provision is self-executing when it can be given effect without the aid of legislation and there is nothing to indicate that legislation is contemplated to render it operative, and when there is a manifest intention that it should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed. 16 C.J.S. pg. 98, sec. 48. Does it indicate that it was intended as a present enactment, complete in itself, or does it contemplate subsequent legislation to carry it into effect? 11 Am. Jur. pg. 690, sec. 73; Ex parte Wagner, 21 Okla. 33, 95 P. 435.

It is a universally recognized rule of construction that, in ascertaining both the intent and general purpose, as well as the meaning, of a Constitution or a part thereof, it should be construed as a whole. As far as possible, each provision should be construed so as to harmonize with all the others, yet with a view to giving effect to each and every provision in so far as it shall be consistent with a construction of the instrument as a whole. 16 C.J.S. pg. 62, sec. 23, citing cases from practically every state in the Union, including Finerty v. First Nat. Bank, 92 Okla. 102, 218 P. 859.

With the foregoing rules for constitutional construction in mind, we shall now analyze the wording of our Constitution to determine the thought in the minds of the framers of our Constitution with reference to whether the provision in question is self-executing.

It will be noted that throughout the pertinent parts of article 5, supra, the framers of the Constitution were addressing themselves to the Legislature. In section 9 it is said, "And Provided further, That in districts electing two senators, the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term."

In section 9(a), the section which contains the exception clause in controversy, the following language is noted: "and the senate shall always be composed of forty-four senators, except that in event any county shall be entitled to three or more senators at the time of any apportionment such additional senator or senators shall be given such county in addition to the forty-four senators and the whole number to that extent." The following language is also used: "Said districts shall be numbered from One to Forty-four, inclusive, and each of said districts shall contain as near as may be an equal number of inhabitants, such population to be ascertained by the next preceding Federal census, or in such manner as the Legislaturemay direct . . ."

Section 9(b) provides in part, as follows: "No county shall ever be divided in the formation of a senatorial district except to make two or more senatorial districts wholly in such county. . . ."

Section 10(i) provides: "Ascertaining the ratio of representation according to the Federal census, or such other enumeration as the Legislature may provide, . . . and apportioning the senators, shall be done by the Legislature . . ."

Section 10(j) provides: "An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen. . . ."

Section 11 provides: "Until the apportionment is made by theLegislature after the next Federal decennial census . . ."

Again referring to section 9(a), we construe the language "at the time of any apportionment" as referring to the "senatorial apportionment" mentioned in the first line of said section, which apportionment was a duty delegated to the Legislature to make after the Federal decennial census of 1910, 1920, 1930, and 1940.

We are of the opinion that from the language used in the foregoing excerpts, the framers of our Constitution had no thought in mind other than to delegate the duties of apportionment solely to the Legislature. Throughout the whole article neither the court nor any other governmental agency is mentioned except to say that any act of apportionment shall be presented to the Governor for his approval and that an apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, under such rules and regulations as the Legislature may prescribe.

It has been the general thought of the people of this state since the adoption of our Constitution that the sections involved herein were addressed solely to the Legislature insofar as apportionment acts are concerned. As proof of the correctness of this thought we are reminded that since 1910 Oklahoma county would have been entitled to two or more senators had the clause in question been thought by anyone to be self-executing, and Tulsa county would have been entitled to two or more senators since 1920. Until the present action was filed the question now before us was never raised. This acquiesecence cannot justify a particular holding in this case, but the long and continued interpretation of the Constitution by such acquiescence is an aid in removing doubt as to the meaning of such constitutional provisions as intended by the framers thereof, Smiley v. Holm, 285 U.S. 355, 76 L.Ed. 795.

The purpose and intent of the framers of the Constitution in the insertion of the exception clause in question would be helpful in our determination of the question. However, our independent search through the proceedings of the Constitutional Convention, as pertains to the present question, has revealed nothing that would throw any light on the question.

We are of the opinion that the purpose of the exception clause was to increase the number of Senators in the more populated counties so that the larger counties could be given the number of Senators to which they were entitled without reducing the number of Senators to which the other parts of the state were entitled. See In re Dowling, 219 N.Y. 44,113 N.E. 545.

We are of the view that the wording of the portions of the Constitution under consideration is clear and unambiguous and under the law the object of construction applied to a Constitution is to give effect to the intent of its framers, and of the people adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. Shaw v. Grumbine, 137 Okla. 95, 278 P. 311.

The petitioner argues that the sections of our Constitution now before us had their origin from the provisions of the New York Constitution of 1894. (This is true; Jones v. Freeman, supra.) Petitioner further argues that the "exception clause" which we have under discussion was not a part of the New York Constitution. Petitioner then says that the "exception clause" is peculiar to Oklahoma and that the framers of our Constitution were familiar with the fact that abuses had grown up under the New York Constitution and that it was "natural and inescapable that they would seek to place a provision in the Oklahoma Constitution which would prevent a repetition of the New York tragedy." The foregoing argument is based on an incorrect hypothesis. Petitioner has evidently overlooked a similar exception clause in section 4, article 3, of the New York Constitution of 1894, said clause being as follows! ". . . except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole number of senators shall be increased to that extent."

The above clause was considered by the Supreme Court of New York in the case of Burns v. Flynn, Secretary of State, et al.,155 Misc. 742, 281 N.Y.S. 494, and affirmed on appeal by the Court of Appeals of New York in Burns v. Flynn, Secretary of State, et al., 268 N.Y. 601, 198 N.E. 424. In that case a writ of mandamus was sought to command the Secretary of State to certify to the Board of Elections that the citizens of Queens county should elect four (instead of two) State Senators, and require him to prepare ballots and conduct the election primaries so that the citizens of Queens county should have the right to vote for and elect such officers. The writ was denied on the theory that the matter of apportionment of representatives in the State Senate was a duty committed exclusively to the Legislature and not to the courts. In said case the following language was used:

"This court cannot do that which the Legislature has failed to do . . . It may well be that the Legislature has failed to function in respect to apportionment of Senators and Assemblymen, but such failure on the part of that legislative body to act certainly does not give this court power to order an apportionment or assignment of legislative representatives."

It might be interesting to note that in 1943 the New York Legislature enacted a valid apportionment statute which gave to Queens county the four Senators to which it was entitled, and increased the total number of Senators to be elected to 56. See In re Fay, 291 N.Y. 198, 52 N.E.2d 97.

We are in accord with the holding in Burns v. Flynn, supra.

Since this particular question has probably never been called to the attention of the Legislature, it is assumed that that body will do its duty in the matter at the first opportunity. However, as pointed out in the case of Jones v. Freeman, supra, the people may initiate a bill to cure the present situation, or they may follow the example of a number of other states and amend the Constitution so as to guarantee a proper apportionment of the state for legislative purposes.

Writ denied.

GIBSON, C. J., HURST, V.C.J., and OSBORN, BAYLESS, WELCH, CORN, and ARNOLD, JJ., concur. RILEY, J., dissents.