Ballard v. Christian
| Decision Date | 11 March 1969 |
| Docket Number | No. 41860,41860 |
| Citation | 451 P.2d 943 |
| Parties | Hardin BALLARD, Plaintiff In Error, v. Glen CHRISTIAN, Joe Nemecek, Bruce Swanson, individually, and as County Commissioners of McClain County, Oklahoma, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The equal protection clause of the Fourteenth Amendment of the United States Constitution forbids election of local government officials from districts of disparate size, that is, of substantially unequal population.
2. Where mandamus is sought to enforce performance of a plain, definite statutory
duty, the refusal to perform such statutory duty provides sufficient grounds to authorize issuance of the writ.
3. Where it clearly appears that the county commissioners refuse to perform an official duty, or so misconceive their official power or duty that the purpose of the law will be defeated, mandamus will lie to compel them to act.
Appeal from District Court of McClain County; Joe D. Shumate, Judge.
Application for writ of mandamus to compel county commissioners to perform statutory duty of redistricting county upon basis of equal population. The trial court denied relief and petitioner appealed. Judgment reversed with directions.
James H. Ballard, Purcell, for plaintiff in error.
Murray F. Gibbons, County Atty., Purcell, for defendants in error.
The single issue is this appeal concerns reapportionment of the county commissioners' districts under provision of 19 O.S.1961 § 321.
Many procedural and jurisdictional matters are excluded, and only those facts necessary for presentation of this issue will be set forth.
Petitioner's written demand upon the county commissioners to reapportion their districts was not acted upon. Petition was filed in the district court alleging the commissioners' failure to conform to his request and petitioner's right as a citizen and taxpayer to have the county reapportioned under the laws of this state and the Constitution of the United States. Writ of mandamus was sought to compel the county commissioners to comply with their statutory duty and reapportion the county into three compact districts as equal in population as possible.
The commissioners answered alleging that reapportionment was an executive function vested within their discretion, and was not under control or jurisdiction of the district court. With the issues drawn the cause was heard.
Petitioner's proof established that under the 1960 federal census the population of the three districts of the county was:
District No. 1 2,329
District No. 2 6,709
District No. 3 3,704
Total population of county 12,742
Petitioner also showed more than three years had elapsed since the county had been reapportioned, and the commissioners' refusal to do so after notice and request.
Demurrer to petitioner's evidence was overruled and the commissioners proceeded with their defense. The Secretary of the County Election Board presented evidence to show the number of registered voters by wards in the respective commissioners' districts as of January 1, 1965, was:
DISTRICT REGISTERED VOTERS
1 1383
2 3070
3 2572
This evidence, introduced over petitioner's objection, will be commented upon later in this opinion.
The essence of two commissioners' testimony disclosed the county had been reapportioned only one time since 1946, and petitioner was the only complainant since 1958. This reapportionment was brought about by application of certain residents seeking 13 miles of roadway removed from one district and added to another. The road mileage maintained by each commissioner in his district was:
District 1 200 miles
District 2 212 to 220 miles
District 3 300 miles
This testimony reflected their opinion that existing districts comprised the most practical arrangement, althouth there was concern the road mileage could be more equally reapportioned since the monies from state government to maintain the roads for the county was divided equally among the three districts. The evidence also showed the City of Purcell, with a population of 3,729, is located in District No. 2. One commissioner's opinion was that it would not be feasible to make the city into one district, because road mileage funds could not be expended within the city except on school or mail routes.
After consideration of the matter upon briefs, the trial court advised counsel by memorandum the petition for writ of mandamus was denied. In substance, relief was denied because commissioners act pursuant to statutory authority, and as administrative boards comprise part of the executive branch of the government. State, etc. v. Board of Commissioners Creek County, 188 Okl. 184, 107 P.2d 542. The statute, 19 O.S.1961 § 321, providing for division of each county into three districts was construed in Wails v. Board of County Commissioners, Okmulgee County, 156 Okl. 165, 9 P.2d 946. Judicial construction of the statute and longstanding acquiescence therein served to give such construction the effect of legislation. The court further stated:
'Inasmuch as our Supreme Court has construed the Statute in question to give first priority to area and inasmuch as the Commissioners' districts in McClain County, are fairly equal in area, it is the opinion of this court at this time that the Board of County Commissioners of McClain County, Oklahoma, has acted in good faith and for what they thought best for the county, and that this court should not interfere with said Board in the performance of the duties of their office.'
After petitioner's motion for new trial was overruled this appeal was perfected.
Petitioner urges two propositions in this appeal. Since the second proposition is dispositive of the cause it is unnecessary to consider the first proposition, except as our holding herein inferentially may affect matters not specifically mentioned.
The second proposition urges petitioner's clear entitlement to the writ under United States Constitution, Art. XIV, and the violation of his constitutional rights by the 'invidious malapportionment' prohibited under such constitutional provision.
Commissioners contend petitioner's argument, concerning inequality in population of the three districts, is substantiated only by the 1960 census which is no longer accurate due to a change in circumstances in the third district. They then urge voter registration for 1965, as reflected in evidence, provides a more realistic basis for consideration of the population question, and is of greater probative value than the 1960 federal census.
We recognize voter registration might be circumstantial evidence that would imply a comparison ratio-wise to population. However, no contrast between the 1965 voter registration and that of 1960 was shown relative to alleged population increases in parts of the county. On the other hand, petitioner put into evidence the 1960 census which did reflect the population and there was no attempt by the commissioners to show changes in population from 1960 to 1965, except by general reference to certain changed conditions in District No. 2. In view of the trial court's...
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