Caesar v. Williams

• Decision Date: 03 April 1962
• Docket Number: No. 9158,9158
• Parties: George O. CAESAR, Plaintiff-Respondent, v. Arnold WILLIAMS, Secretary of State of the State of Idaho, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 241

371 P.2d 241

84 Idaho 254

George O. CAESAR, Plaintiff-Respondent, v. Arnold WILLIAMS, Secretary of State of the State of Idaho, Defendant-Appellant.

No. 9158.

Supreme Court of Idaho.

April 3, 1962.

Rehearing Denied May 8, 1962.

Frank L. Benson, Atty. Gen., Warren Felton, Asst. Atty. Gen., Boise, Swayne & McNichols, Orofino, William J. Dee, Grangeville, G. H. Higer, amicus curiae, Emmett, for appellant.

Richards, Haga & Eberle, Boise, Herman J. McDevitt, Pocatello, for respondent.

McFADDEN, Justice.

This action was instituted by respondent, a resident, taxpayer and qualified elector of Ada County, against appellant as Secretary of State to enjoin him from certifying to the respective county auditors the number of representatives each county will be entitled to elect at the forthcoming general election, (in November 1962) pursuant to the requirements of I.C. § 67-203 (as amended S.L.1951, ch. 60, sec. 1). Respondent contends that the amendment of I.C. § 67-203, by S.L.1951, ch. 60, § 1, is unconstitutional, as is the previous enactment, S.L.1941, ch. 87, § 1. He contends that S.L.1933, ch. 75, § 1, is the only constitutional enactment under which appellant can act. Respondent, in the district court, also sought mandate to require the Secretary of State to make such certification to the respective county auditors of the number of representatives to be elected, solely on the basis of the 1933 act.

In his complaint, respondent alleges that neither the 1951 act, nor the 1941 act, provides substantially equal representation for the people of Ada County and of certain other populous counties, for the reason that each such enactment establishes an excessively high minimum number of persons per representative; and an excessively low minimum number of persons for the next additional representative, which is but a small percentage of the whole minimum number established for the first representative; that on the basis of the 1960 U. S. census, the 1951 and 1941 amendments are arbitrary and capricious, and result in 15.2% of the population of the State, residing in 22 counties each of a population of 8,500 or less, having 35% of the representation of the house of representatives.

Appellant in his answer, generally denied the allegations of unconstitutionality of the enactments in question, and prayed that the court declare the action as one for declaratory relief, and determine under which act appellant should perform his statutory duties.

In answer to interrogatories and request for admissions, appellant admitted the correctness of the figures reflected in the 1960 census, (attached as an exhibit to respondent's complaint); and that under the 1960 census, on the basis of the 1951 enactment, appellant could certify a total of 63 representatives for the entire state (6 for Ada County). The 1933 act, on the basis of the 1960 census, would increase the total representatives to 79 (with 9 apportioned to Ada County).

The trial court, upon disposition of respondent's motion for judgment on the pleadings, treated as a motion for summary judgment, entered finding of fact generally finding that the 1951 and 1941 enactments as applied to the 1960 census, result in arbitrary, capricious and substantially unequal representation in the house of representatives of the more populous counties, in comparison to the less populous counties of the state; and in its conclusions of law, the court concluded that the 1951 and 1941 enactments are unconstitutional, but that the 1933 enactment should control in that it affords more equal representation than the other two acts, and constituted the last valid and constitutional apportionment act. In its judgment, the court required certification by appellant on the basis of the 1933 act.

This appeal resulted, the notice of appeal having been signed and regularly filed by one of appellant's resident attorneys. Respondent moved to dismiss the appeal challenging its validity on the ground that it is not signed either by the appellant personally, or by an authorized member of the attorney general's staff.

This Court is cognizant of the provisions of I.C. § 67-1401 which specifies some of the duties of the attorney general. The right of the attorney general to appear has not been questioned and we are not here concerned with any reason why he did not participate in this appeal. The record discloses that a member of the attorney general's staff represented appellant in the district court; also, that this appeal was taken with the full knowledge of the attorney general in that he, through a member of his staff, specifically requested in writing that the attorneys representing appellant, be substituted for the attorney general, as attorneys of record for appellant on this appeal.

No contention of usurpation of the rights or power of the attorney general by appellant's present counsel is even inferred, and we are not here concerned with any question as to whether the attorney general properly delegated his power or authority to appear herein. Both the appellant and the attorney general were personally present during the oral presentation of this appeal. The attorneys representing appellant are members in good standing of the Idaho State Bar who have appeared as members of the Bar and in no other capacity, at the request of appellant and without cost to the State of Idaho. The motion to dismiss is without merit and is denied.

Appellant by his specifications of error challenges the right of the trial court to assume jurisdiction of the cause, and claims error committed by the court in declaring that the 1933 enactment is the last valid apportionment act.

Concerning the first specification of error, appellant, in questioning the right of the trial court to assume jurisdiction of the case, relies primarily on Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, a case which originated in Illinois. Courts of various other states have recognized their jurisdiction to deal with apportionment statutes. Parkinson v. Watson, 1955, 4 Utah 2d 191, 291 P.2d 400; Brooks v. State, 1904, 162 Ind. 568, 70 N.E. 980; Brown v. Saunders, 1932, 159 Va. 28, 166 S.E. 105; Stiglitz v. Schardien 1931, 239 Ky. 799, 40 S.W.2d 315; State ex rel. Thomson v. Zimmerman, 1953, 264 Wis. 644, 60 N.W.2d 416, 61 N.W.2d 300; Asbury Park Press, Inc. v. Woolley, 1960, 33 N.J. 1, 161 A.2d 705; State v. Cunningham, 1892, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; In re Sherill, 1907, 188 N.Y. 185, 81 N.E. 124; Attorney General v. Secretary of the Commonwealth, 1940, 306 Mass. 25, 27 N.E.2d 265; Donovan v. Holzman, 1956, 8 Ill.2d 87, 132 N.E.2d 501; 16 C.J.S. Constitutional Law § 147, pp. 708-709.

In the most recent opinion of Baker v. Carr, released March 26, 1962, 82 S.Ct. 691, the Supreme Court of the United States recognizes that it is within the province of the courts to inquire into the validity of apportionment statutes of the respective states to determine whether there has been an infringement on the rights of the citizens by reason of improper or unlawful apportionment. The special concurring opinion of Mr. Justice Stewart most specifically points out that the decision--Baker v. Carr--decides only three things and no more:

'(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.'

This action is one within the jurisdiction of the trial court and appellant's contention in this regard is without merit.

Appellant urges that this action should not be maintained by reason of the long delay in attacking the apportionment act, citing State ex rel. Mills v. Howell, 93 Wash. 257, 159 P. 777, Adams v. Bosworth, 126 Ky. 61, 102 S.W. 861, 10 L.R.A., N.S., 1184; In re Reynolds, 202 N.Y. 430, 96 N.E. 87; Pepole ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N.E. 307. However, we deem the announcement by the Supreme Court of New Jersey in the case of Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705, 706, as the preferable rule, succinctly stated in the syllabus as follows:

'Acquiescence for no length of time can legalize a clear violation of duty where the people have plainly expressed their will in the Constitution and have appointed judicial tribunals to enforce it.'

Delay alone is no basis for refusing to consider the merits of this matter, for otherwise, under future changing circumstances any claimed rights of a person situate as respondent, could never be protected, merely because he did not immediately act.

This court, under Idaho Const. Art. V, § 9, has jurisdiction to review, upon appeal, decisions of the district courts. This action is not one of original jurisdiction, but is here by appeal from the decree of district court. Thus, before this court is the sole question, whether the trial court's decree is correct. The answer to this question hinges upon whether S.L.1951, ch. 60, § 1, and S.L.1941, ch. 87, § 1, are unconstitutional, no question being presented as to the constitutionality of S.L.1933, ch. 75, § 1, nor S.L.1917, ch. 165. Hereinafter are set forth the legislative enactments under decision or salient portions therefrom.

S.L.1917, ch. 165 provides:

'Section 25. The apportionment of the houses of the Legislature is and shall be as follows:

'Each county in the State of Idaho and any county which may hereafter be created shall constitute a senatorial district and shall elect one senator.

'The several counties shall elect members of the House of Representatives as follows: Each county shall elect one representative for each 2,500 votes and remaining fraction thereof amounting to 1,000 votes or more cast in said county at the last general election, based on the total vote cast for all candidates for Governor: Provided, That there shall be at least one representative...