Brown v. Saunders

• Decision Date: 11 October 1932
• Citation: 159 Va. 28
• Parties: WILLIAM MOSELEY BROWN v. PETER SAUNDERS, SECRETARY OF THE COMMONWEALTH.
• Court: Virginia Supreme Court

Page 28

159 Va. 28

WILLIAM MOSELEY BROWN v. PETER SAUNDERS, SECRETARY OF THE COMMONWEALTH.

Supreme Court of Virginia, Richmond.

October 11, 1932.

Present, All the Justices

1. UNITED STATES — Congress — Congressional Districts — Apportionment — Case at Bar. — The instant case was an original petition for mandamus. The prayer of the petition was that the Secretary of the Commonwealth be compelled to receive the notice of the candidacy of the petitioner for Congress, and all others who had filed notices as candidates at large within the sixty-day period. Petitioner asserted that chapter 23 of the Acts of 1932, dividing the State into congressional districts, was void as being in conflict with section 55 of the Constitution of 1902, and that in the absence of a valid apportionment act it was necessary that all nine members of the House of Representatives in Congress be chosen by the electors at large.

Held: That chapter 23 of the Acts of 1932 was invalid and that the mandamus should be granted.

2. UNITED STATES — Congress — Congressional Districts — Apportionment Section 55 of the Constitution of 1902 and Section 3 of the Act of Congress of August 8, 1911. — If the act of Congress of August 8, 1911, prescribing the manner of apportioning the State into congressional districts is still in effect, there is nothing in it in conflict with section 55 of the Constitution of 1902; therefore, in determining the validity of chapter 23 of the Acts of 1932, redistricting the State, any construction of the Federal Constitution, or any act of Congress, may be eliminated from consideration, and the decision on the validity of chapter 23 of the Acts of 1932 confined to the provisions of section 55 of the Constitution of 1902.

3. UNITED STATES — Congressional Districts — Constitutionality of Redistricting Act of 1932 — Wise Gigger, 79 Va. 269, Distinguished — Case at Bar. — The instant case involved the constitutionality of the redistricting act of 1932 (Acts 1932, ch. 23). The petition in Wise Gigger, 79 Va. 269, did allege that the apportionment act was repugnant to the provision of the State Constitution, which was the same as section 55 of the Constitution of 1902, but no facts were alleged to support the allegation. Neither the parties nor the court gave this question serious consideration; therefore, the Supreme Court of Appeals did not regard the decision in that case as authority for the proposition that the legislature has unlimited discretion in dividing the State into congressional districts.

4. UNITED STATES — Congress — Congressional Districts — Complaiance with Constitutional Provisions a Judicial Question. — When a State legislature passes an apportionment bill, it must conform to constitutional provisions prescribed for enacting any other law, and whether such requirements have been fulfilled is a question to be determined by the court when properly raised. If the validity of an apportionment act with respect to compliance with the constitutional requirements as to the manner of its adoption is subject to judicial review, it follows that if the provisions in question constitute limitations upon the legislative power of apportionment, then whether those limitations have been exceeded is likewise a question for judicial determination. The legal question involved is whether or not the act of the legislature is in conflict with the mandate of the Constitution.

5. UNITED STATES — Congress — Congressional Districts — Constitutionality of Acts of 1932, Chapter 23 — Constitution of 1902, Section 55. — The duty of dividing the State into districts corresponding in number to the number of representatives to which Virginia is entitled by the reapportionment act of 1929 is, in a sense, political, and necessarily wide discretion is given to the legislative body. Section 55 of the Constitution of 1902 places limitations on the discretion of the legislature, and whether or not the act in question exceeds those limitations becomes a judicial question when raised by the proper parties in a proper proceeding.

6. UNITED STATES — Congress — Congressional Districts — Equality of Representation. — For a period of more than 102 years, the principle of practical equality of representation in the House of Representatives in Congress has been the fundamental law of Virginia, and during all of that time this principle has been recognized generally in forming the congressional districts in the State. Mathematical exactness, either in compactness of territory or in equality of population, cannot be attained, nor was it contemplated in the provisions of section 55 of the Constitution of 1902. The discretion to be exercised should be an honest and fair discretion, the result revealing an attempt, in good faith, to be governed by the limitations enumerated in the fundamental law of the land. No small or trivial deviation from equality of population would justify or warrant an application to a court for redress. It must be a grave, palpable and unreasonable deviation from the principles fixed by the Constitution.

7. UNITED STATES — Congress — Congressional Districts — Constitutionality of Acts of 1932, Chapter 23 — Case at Bar. — In the instant case the constitutionality of the redistricting act of 1932 (Acts 1932, chapter 23) was in issue. The act was attacked as being invalid under section 55 of the Constitution of 1902, providing that congressional districts should be "composed of contiguous and compact territory, containing as near as practicable an equal number of inhavitants." The inequality in the districts under the act of 1932 was obvious, indisputable and excessive. The disparity in population between the largest district, the Seventh, and the smallest, the Eighth, is 152,720; between the Eighth and the Ninth the disparity in population is 140,890, and between the Second and the Fourth it is 89,736. The variation from the ratio of the population to the representatives in the four districts named is more than 55,000. There was no natural boundary, or other consideration, to justify these disparities.

Held: That the act in question was unconstitutional.

8. COURTS — Legislature — Court Substituting Its Judgment for That of the Legislature — Constitutional Law. — It is not the duty of the court to substitute its judgment for that of the legislature, but simply to declare what the law is, and to state whether or not the act is in conflict with the constitutional requirement.

9. UNITED STATES — Congress — Congressional Districts — Where Apportionment Act Is Invalid Election Must Be at Large. — Owing to the fact that the redistricting act of 1932 was invalid, it was necessary for the electors in the State at large to select the nine members to represent the State, in the national legislature.

Original petition for a mandamus.

The opinion states the case.

Charles C. Berkeley, for the petitioner.

John R. Saunders, Attorney General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys General, for the Commonwealth.

HUDGINS, J., delivered the opinion of the court.

William Moseley Brown filed in this court an original petition for mandamus, averring that he and others, in accordance with section 154 of the Code of Virginia, sixty days before the 8th of November, 1932, filed notices with the Secretary of the Commonwealth, announcing themselves candidates at large in the State for the House of Representatives in the Congress of the United States; that the Secretary of the Commonwealth refused to accept such notices, basing his refusal on the ground that the law of Virginia required such offices to be filled by the electors in the different districts, and not by the electors at large; that by the act of June 18, 1929, Congress made provision for the taking of the fifteenth decennial census, and in the act declared that the number of representatives should not be increased, but they should be reapportioned to the States in proportion to the population as found by that census; that under this apportionment Virginia lost one congressman; that as a result of this fact it became the duty of the General assembly of 1932 to divide the State into nine congressional districts, instead of ten, and that chapter 23 of the Acts of 1932 did divide the State into nine congressional districts, but that the entire act is void because the apportionment was not made in accordance with section 3 of the act of Congress of August 8, 1911 (2 U.S.C.A. ¶ 3), and section 55 of the Constitution of Virginia; that in the absence of a valid apportionment act it is necessary that all nine members of the House of Representatives in Congress be chosen by the electors at large. The prayer of the petition is that the Secretary of the Commonwealth be compelled to receive the notice of the candidacy of William Moseley Brown, and all others who have filed notices as candidates at large within the sixty day period, and that he be required to cause the names of such candidates to be printed on the official ballots to be used at all the precincts and polling places in the State for the general election to be held on Tuesday, November 8, 1932, and that the names of no candidates for membership in the House of Representatives who have failed to file such notices be printed on said ballots.

To this petition the Attorney General, acting for and in behalf of the Secretary of the Commonwealth, filed a demurrer, stating that the petition is insufficient for two reasons: (1) Because the reapportionment and redistricting of the State into congressional districts is a legislative matter, and the act of the General Assembly in so doing is not subject to judicial review; (2) that even if the act in question is subject to review by the court, it is valid because it is a reasonable and proper division of the State into congressional districts.

The facts admitted by the demurrer are, that the national fifteenth decennial census shows that in 1930 the population of...