Armstrong v. Mitten

• Decision Date: 02 July 1934
• Docket Number: 13553.
• Citation: 95 Colo. 425,37 P.2d 757
• Parties: ARMSTRONG, Secretary of State, v. MITTEN et al. (JAMES, Intervener).
• Court: Colorado Supreme Court

37 P.2d 757

95 Colo. 425

ARMSTRONG, Secretary of State, v. MITTEN et al. (JAMES, Intervener).

No. 13553.

Supreme Court of Colorado, En Banc.

July 2, 1934

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Proceeding under the Declaratory Judgment Act by O. L. Mitten and another against Charles M. Armstrong as Secretary of State of the State of Colorado, wherein John P. James intervened. To review a judgment defendant brings error.

Affirmed.

HILLIARD BOUCK, and HOLLAND, JJ., dissenting.

Paul P. Prosser, Atty. Gen., Charles Roach, First Asst. Atty. Gen., and Pierpont Fuller, Jr., Asst. Atty. Gen for plaintiff in error.

Samuel Chutkow and Noah A. Atler, both of Denver, Omar T. Mallory, of Fort Morgan, Robert Schaper, of Limon, and James D. Parriott and Frederick P. Cranston, both of Denver, for defendants in error.

E. L. Regennitter, of Idaho Springs, Clifford H. Stone, of Gunnison, Albert L. Moses, of Alamosa, Frank Delaney, of Glenwood Springs, and John M. Boyle, of Salida, amici curiae.

BUTLER Justice.

This is a proceeding under the Declaratory Judgments Act. The petitioners sought to have an initiated measure, adopted by the people and appearing in the Session Laws of 1933 as chapter 157, p. 811, declared valid, and to have a legislative act, appearing in said Session Laws as chapter 156, p. 803, declared void. Both acts relate to legislative reapportionment. The trial court upheld the contention of the petitioners.

Section 45 of article 5 of the state Constitution is as follows: 'The general assembly shall provide by law for an enumeration of the inhabitants of the state, in the year of our Lord 1885, and every tenth year thereafter; and at the session next following such enumeration, and also at the session next following an enumeration made by the authority of the United States, shall revise and adjust the apportionment for senations and representatives, on the basis of such enumeration according to ratios to be fixed by law.'

Section 47 of article 5 is as follows: 'Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district.'

The last enumeration of the inhabitants of the state was the United States census of 1930. The General Assembly, which met in 1931, having failed to revise and adjust the apportionment, the people, in 1932, adopted the initiated measure referred to above. In 1933 the General Assembly passed the reapportionment act already referred to.

The initiated act provides that the General Assembly shall consist of 100 members, of whom 35 shall be members of the Senate and 65 members of the House of Representatives. It establishes the following ratios for the apportionment of Senators and Representatives: One Senator for each senatorial district for the first 17,000 of population, and one additional Senator for each additional 35,000, or fraction over 32,000; one Representative for each representative district for the first 8,000, and one additional Representative for each additional 19,000, or fraction over 17,000. It then divides the state into senatorial and representative districts, and prescribes the number of Senators to which each senatorial district shall be entitled, and the number of Representatives' to which each representative district shall be entitled. The ratios fixed in the initiated act and in the legislative act are the same. The difference between the two acts consists in the manner in which they redistrict the state and designate the number of senators and representatives for the several districts.

1. The Legislative Act.

Assuming, but not deciding, that under section 47, a general redistricting of the state may occur more frequently than once after each census, the redistricting must be done with due regard to the requirement that representation in the General Assembly shall be based upon population. The legislative act in question is void because it violates section 45 of article 5 of the Constitution, which requires the reapportionment to be made on the basis of population, as disclosed by the census, and according to ratios to be fixed by law. The ratios fixed by both acts are the same, though they are effective by virtue, not of the legislative act, but of the initiated act. It is clear that ratios, after having been fixed under section 45, supra, cannot be changed until after the next census.

The legislative act attempts to confer upon some districts a representation that is greater, and upon others a representation that is less, than they are entitled to under the Constitution.

A glance at the senatorial districts reveals the following situation: According to the census and the established ratio, the Denver district is entitled to eight Senators. The legislative act gives it only seven Senators, thereby depriving it of one Senator, in plain violation of the Constitution. Rio Grande, Sagauche, and Mineral counties are grouped together as the Fifteenth senatorial district; and although their combined population is less than 17,000, the district is given one Senator, although it would require the addition of at least one more county to give it a population sufficient to entitle the district to one Senator. The same situation exists in the Eighteenth senatorial district, which is given one Senator, although the combined population of its constituent counties is less than the population sufficient to entitle the district to one Senator. And the Twenty-First senatorial district is in precisely the same situation.

Turn now to the representative districts. According to the census and the established ratio, the Denver district is entitled to fifteen Representatives, but the legislative act gives it only twelve, thereby depriving it of three Representatives, in plain violation of the Constitution. Hinsdale, Mineral, and Archuleta counties constitute one district, which is given one Representative, notwithstanding the fact that the combined population of the counties is less than that required to entitle the district to one Representative. And the same is true of the district composed of Gilpin and Clear Creek counties; and of the district composed of Park and Teller counties; and of the district composed of Eagle and Pitkin counties; and of Gunnison county, which constitutes one district.

It may be noted that, in marked contrast to the legislative act, each district created by the initiated act is composed of counties having a total population sufficient to entitle the district to representation.

That part of the legislative act attempting to redistrict the state and to apportion Senators and Representatives to the several districts violates the Constitution, not in one instance only, but in many instances. It is so honeycombed with unconstitutional provisions as to render it void. That part of the act attempting to fix ratios is inoperative, because the ratios were fixed in the initiated act, and, when once fixed, must remain until after the next census. That part of the legislative act, however, is harmless, as it does not attempt to change the ratios fixed in the initiated act.

The repeal provision of the legislative act falls with the rest of the act. It was the purpose of the General Assembly to repeal the initiated act so that its own reapportionment act would be an effective substitute therefor. It is clear that it did not intend the repeal to be operative except in the event that its own act should be held to be valid. The legislative act also purports to repeal the apportionment act of 1913, being sections 20, 21, 22, 23, 24, and 25 of the Compiled Laws. The last reapportionment act prior to the act of 1913 was based upon the census taken in 1900--thirty-four years ago. It would be impossible to apply such a reapportionment act at the present time. New counties have been created, county boundaries have been changed, and population not only has increased but has shifted greatly. It cannot be supposed that the General Assembly, even if it possessed the power to do so, intended to restore the old apportionment act, and thereby create the chaotic condition that would result. It is sufficient to say, however, that such an attempt, if made, could not succeed. The initiated act repealed the act of 1913 and all prior reapportionment acts, and a repeal of the initiated act would not revive the prior acts. C. L. § 6518.

We hold that the legislative act of 1933, appearing in the Session Laws of that year as chapter 156, p. 803, is unconstitutional and therefore void.

2. The Initiated Act.

Several objections to the validity of the initiated act are presented to us for consideration.

(a) We do not agree with the contention that the people...