Brewer v. Gray

• Decision Date: 11 April 1956
• Citation: 86 So.2d 799
• Parties: A. Max BREWER and O. L. Burton, individually and as State Representatives from Brevard County, Appellants, v. R. A. GRAY, as Secretary of State, Richard W. Ervin, as Attorney General, Charles D. Stewart, Bernie C. Papy, W. H. Carmine, Jr., and Walter O. Shepard, as State Representatives, Appellees.
• Court: Florida Supreme Court

Page 799

86 So.2d 799

A. Max BREWER and O. L. Burton, individually and as State Representatives from Brevard County, Appellants, v. R. A. GRAY, as Secretary of State, Richard W. Ervin, as Attorney General, Charles D. Stewart, Bernie C. Papy, W. H. Carmine, Jr., and Walter O. Shepard, as State Representatives, Appellees.

Supreme Court of Florida, En Banc.

April 11, 1956.

Butt & Akridge, Cocoa, and Crofton, Wilson & Brewer, Titusville, for appellants.

Richard W. Ervin, Atty. Gen., and Howard S. Bailey, Asst. Atty. Gen., for appellees.

THORNAL, Justice.

Appellants Brewer and Burton who were plaintiffs below appeal from a decree of the Chancellor sustaining the constitutionality of Chapter 31378, Laws of Florida, Extraordinary Session 1955, which reapportioned membership of the House of Representatives of the Florida Legislature.

The question before us on appeal and which was ruled on by the Chancellor below is whether Chapter 31378, supra, which reapportioned the membership of the House of Representatives of the State Legislature is unconstitutional or at least inoperative until the Legislature reapportions the State Senate in accordance with the requirements of Section 3, Article VII, of the Florida Constitution, F.S.A. No Act has yet been passed by the 1955 Legislature reapportioning the State Senate.

By Chapter 31378, supra, the ninety-five members of the House of Representatives were apportioned among the several counties in accordance with the mathematical formula governing the House as set forth in Section 3, Article VII, Florida Constitution. The ultimate effect of the Act so far as these parties are concerned was to reduce representation in the House from two members each to one member each for Brevard and Lee Counties and simultaneously to increase representation in the House from one member each to two members each for Monroe and Okaloosa Counties. The apportionment was stated to be based on the 1950 Federal Census. Appellants Brewer and Burton presently represent Brevard County in the House of Representatives. Appellees Carmine and Shepard represent Lee County. Appellee Stewart represents Okaloosa County and appellee Papy represents Monroe.

In holding the Act under attack to be constitutional and operative in accordance with its provisions, the Chancellor stated:

'The existence of two duties (a) to reapportion the Senate and (b) to reapportion the House of Representatives, does not make the performance of one duty ineffectual until the other has been accomplished unless it is clear from the Constitution that this was the intent of the people. I cannot find that intent clear in the Constitution.'

We hold that he ruled correctly and his decree must, therefore, be affirmed.

It is appropriate to consider certain basic principles that guide us to our conclusion. We have separated Article VII, Section 3, of the Florida Constitution into its four component sentences for convenience of analysis, and quote the same as follows:

'The Legislature that shall meet in regular session A.D. 1925, and those that shall meet every ten years thereafter, shall apportion the Representation in the Senate, and shall provide for thirty-eight (38) Senatorial Districts, such Districts to be as nearly equal in population as practicable, but no county shall be divided in making such apportionment, and each District shall have one Senator; and, at the same time, the Legislature shall also apportion the Representation in the House of Representatives, and shall allow three (3) Representatives to each of the five most populous counties, and two (2) Representatives to each of the next eighteen more populous counties, and one Representative to each of the remaining counties of the State at the time of such apportionment.

'Should the Legislature fail to apportion the Representation in the Senate and in the House of Representatives, at any regular session of the Legislature at any of the times herein designated, it shall be the duty of the Legislature or Legislatures succeeding such regular session of the Legislature, either in special or regular session, to apportion the Representation in the Senate and in the House of Representatives as herein provided. The preceding regular Federal or regular State Census, which ever shall have been taken nearest any apportionment of Representatives in the Senate and in the House of Representatives, shall control in making any such apportionment. In the event the Legislature shall fail to reapportion the representation in the Legislature as required by this amendment, the Governor shall (within thirty days after the adjournment of the regular session), call the Legislature together in extraordinary session to consider the question of reapportionment and such extraordinary session of the Legislature is hereby mandatorily required to reapportion the representation as required by this amendment before its adjournment (and such extraordinary session so called for reapportionment shall not be limited to expire at the end of twenty days or at all, until reapportionment is effected, and shall consider no business other than such reapportionment.)' (Emphasis added.)

Appellants rely upon the language emphasized to support their contention that the effectiveness of the reapportionment of the House of Representatives is contingent upon reapportionment of the Senate.

The statute under attack comes to this court clothed with a presumption of validity. One who challenges the constitutionality of an Act of the Legislature must clearly demonstrate its invalidity. All doubts are resolved in favor of the constitutionality of legislative action and as between two possible theories of interpretation, the courts are bound to adopt the one which results in upholding the Act if such interpretation is consistent with reason. See Ball v. Branch, 154 Fla. 57, 16 So.2d 524.

The duty imposed upon the Legislature to apportion representation in the Legislative branch of the government is political and administrative. It involves the exercise of judgment and discretion within the orbit prescribed by the organic law. It is a governmental function in the sense that it is commanded by the Constitution pursuant to the responsibility of providing for the actual structure of the government itself. The Florida Constitution mandatorily places upon the Legislature the duty to take the initiative to apportion representation in both Houses of the Legislature in accordance with the constitutional requirements.

It is clear from an examination of the second and fourth sentences of Article VII, Section 3, quoted above, that this is a continuing duty. See Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914; Parker v. State, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119, 18 L.R.A. 567; and 11 Am.Jur. Constitutional Law, Sec. 70, p. 688.

Under our democratic system equality of representation is essential to the preservation of Democracy itself. The thought is well expressed by the Supreme Court of Oklahoma in Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 569, from which we quote as follows:

'* * * The principle of equality of representation lies at the very heart of representative government. 18 Am.Jur. 192, #17. This principle was enjoined upon the Legislature by the cited constitutional provisions. At the ballot box, in a representative government, each citizen is supposed to be, and should be, the equal of every other citizen, and all are entitled to approximately an equal voice in the enactment of laws through elected Representatives. * * *'

Despite the importance of this legislative responsibility and despite the fact that the provisions of our Constitution are clearly mandatory, we are nevertheless forced to the conclusion that the responsibility rests with the Legislature and not with this court. The Legislature is a coordinate branch of the government and even though the performance of a duty is required by the Constitution, the courts, being another coordinate...