Davis v. Synhorst

• Court: U.S. District Court — Southern District of Iowa
• Writing for the Court: VAN OOSTERHOUT, Circuit , STEPHENSON and McMANUS
• Citation: Davis v. Synhorst, 225 F.Supp. 689 (S.D. Iowa 1964)
• Decision Date: 14 January 1964
• Docket Number: Civ. No. 5-1289.
• Parties: Charles L. DAVIS and Arthur J. Lewis, Plaintiffs, v. Melvin D. SYNHORST, Secretary of State of Iowa, et al., Defendants.

225 F. Supp. 689

Charles L. DAVIS and Arthur J. Lewis, Plaintiffs, v. Melvin D. SYNHORST, Secretary of State of Iowa, et al., Defendants.

Civ. No. 5-1289.

United States District Court S. D. Iowa, Central Division.

January 14, 1964.

Harry H. Smith, Sioux City, Iowa, Robert F. Wilson, Cedar Rapids, Iowa, C. A. Frerichs, Waterloo, Iowa, for plaintiffs.

Evan Hultman, Atty. Gen., Wilbur N. Bump, Sol. Gen., Des Moines, Iowa, for defendants.

Before VAN OOSTERHOUT, Circuit Judge, STEPHENSON and McMANUS, District Judges.

STEPHENSON, District Judge.

This matter came on for further hearing pursuant to Order of this Court dated May 3, 1963, Davis v. Synhorst, 217 F. Supp. 492 (S.D.Iowa). In the opinion filed at that time, this Court expressed the view that the constitutional provisions providing for apportionment of the House of Representatives established by the 1904 amendment and the limitation of one senator to a county, established by the 1928 amendment "in combination prevent proportionate representation in both houses of the General Assembly, and that the constitutional provisions, as they now stand, are invidiously discriminatory and in violation of the equal protection clause of the 14th Amendment." (217 F.Supp. p. 501). However, the Court deferred opinion upon all constitutional issues then pending and withheld a decree to permit the voters of Iowa to vote on a new apportionment plan (called the Shaff Plan) which had passed two sessions of the state legislature and was scheduled for a vote of the people December 3, 1963. That vote has now been held and the Shaff Plan was rejected as follows: "no" 272,382; "yes" 190,424. The parties are now before us seeking further relief.

Plaintiffs contend that a decree should now be entered declaring that: said amendments (1904 and 1928 amendments) together with implementing legislation enacted pursuant thereto are invalid prospectively and after this date; that the invalidation of these amendments revives the sections as they existed prior to said amendments which in substance reinstates these sections as they existed in the Constitution of 1857 (Article III, Sections 34, 35, and 36, Iowa Constitution adopted in 1857), I.C.A.;¹ that if the legislature fails to reapportion the state senatorial and representative districts in accordance with these sections of the 1857 Constitution by March 1, 1964, this Court direct elections for members of the legislature to be held on an atlarge basis or in the alternative, upon the failure of the legislature to so apportion, this Court do so.

The defendants contend that: there is no revival of pre-existing state constitutional provisions after amendments thereto have been declared unconstitutional; that if said constitutional provisions (1904 and 1928 amendments) are declared unconstitutional, there would be no constitutional provisions governing apportionment of the Iowa General Assembly; that the Court should exercise the abstention doctrine and retain jurisdiction while the General Assembly initiates a new constitutional system for apportioning the legislature.

We will first consider the question of revival. Assuming this Court decrees that the 1904 and 1928 amendments in combination are invalid (we have already expressed that opinion), does that revive the constitutional provisions as they existed prior to said amendments? We do not think so.² We have found no Iowa cases where this problem arose in connection with constitutional provisions. Rules applicable to statutory construction are similar to constitutional construction. Town of McGregor v. Baylies, 19 Iowa 43, 46 (1865); Badger v. Hoidale, 88 F. 2d 208, 211, 109 A.L.R. 798 (8 Cir.1937); 11 Am.Jur. § 49 (p. 658). In Talbott v. City of Des Moines, 218 Iowa 1397, 1400, 257 N.W. 393, 395 (1934) the Court in holding a void amendment to a statute did not prevent revival of the previous statute said as follows: "If an act is repealed by an unconstitutional amendment, the former act remains in force when the unconstitutional amendment is declared void, providing this result gives effect to the Legislature's intention." The matter of legislative intent is controlling. Childs v. Shower, 18 Iowa 261, 272 (1865); Edge v. Brice, 253 Iowa 710, 718, 113 N.W.2d 755, 759 (1962). Under the circumstances existing in this case it is difficult to say that the legislature and the people in adopting the 1904 scheme of apportionment intended that upon the occurrence of subsequent shifts in population rendering this scheme unconstitutional there would be a mandatory return to the requirements of the Constitution enacted in 1857.

The 1904 Amendments (Article III, Sections 34, 35, and 36) provided for the express repeal of the same sections in the Constitution of 1857. The 1928 Amendment contained no such repealer and dealt with only one section of the apportionment provisions (Section 34) by adding thereto the words "but no county shall be entitled to more than one (1) senator." At the time the 1928 amendment was enacted Polk County had a population 3.2 times the population of the average senatorial district. Thus it can be argued that since the 1928 amendment was invalid when enacted it should now be declared invalid, and further that since representation in the house was not disproportionate at the time of enactment of the 1904 amendments and in the absence of guidance from the United States Supreme Court as to whether one house may be disproportionate, this court should now abstain from deciding the validity of the 1904 amendment. The practical results of such action would not be satisfactory. The people of Iowa have just rejected a plan whereby the senate was apportioned solely on population and the house solely on a county-area basis. The will of the people expressed by a vote on a constitutional amendment must be given serious consideration. Davis v. Synhorst, supra, 217 F.Supp. p. 500, 504. Under our Constitution the ultimate power is with the people. In Article I, Bill of Rights, Sec. 2, it is stated "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it."

In 1904 the legislature and the people had before them a complete apportionment plan. We are not considering the validity of a minor feature of that plan, but are determining whether that plan meets Federal Constitutional requirements which forbid invidious discrimination. We have already held that:

"The existing constitutional pattern for reapportionment of the house established by the 1904 amendment and the limitation of one senator to a county, established by the 1928 amendment, effectively prevent the legislature from accomplishing anything approaching proportionate representation in the respective branches of the legislature." Davis v. Synhorst, supra, 217 F.Supp. p. 501.

It is the view of the Court that Article III, Sections 34, 35, and 36 of the Iowa Constitution which have as their object and purpose the establishment of a complete apportionment plan for the selection of members of both houses of the General Assembly are inseparable. Under the circumstances of this case it is our opinion that said sections in combination are inseparable. See Smith v. Thompson, 219 Iowa 888, 894-898, 258 N.W. 190, 194-196 (1935); State ex rel. Fletcher v. Executive Council, 207 Iowa 923, 934-935, 223 N.W. 737, 742 (1929).

There are other restrictions on apportionment contained in Article III. Section 37 provides:

"When a * * * senatorial, or representative district shall be composed of two or more counties, it shall not be entirely separated by any county belonging to another district; and no county shall be divided in forming a * * * senatorial, or representative district."

Plaintiffs have not attacked the validity of this section. It is the view of the court that Section 37, in itself, is not invidiously discriminatory. Neither is it an inseparable feature of the constitutional apportionment provisions. This section has remained intact commencing with its adoption in the Constitution of 1846 (Article III, Section 32).³

REMEDY

It has been suggested on the one hand that we declare the 1857 Constitution revived. We have found there is no persuasive reason for reviving provisions of the 1857 Constitution. On the other hand it has been suggested we permit the legislature to commence action on new constitutional provisions. This should be done. But it is not enough. Steps should be taken now to remove the malapportionment that exists in the Iowa legislature. We hold that certain constitutional restrictions are prospectively invalid. The legislature should at once adopt an apportionment plan which conforms to federal constitutional requirements, and place the same in effect in time for this year's elections. New constitutional provisions can also be considered for ultimate submission to the people. If further guide lines are announced by the Supreme Court there is no reason why steps cannot be taken for the enactment of new constitutional provisions. In the meantime steps can be taken by legislative action to remedy the malapportionment that now exists. It should be emphasized we have held invalid only certain constitutional restrictions on apportionment. The many other constitutional provisions regarding the Legislative Department remain in effect. Until new constitutional provisions are adopted the legislature has the power to adopt an apportionment plan. Iowa Constitution, Article III, Section 9 provides in part as follows: "Each house * * * shall have all other powers necessary for a branch of the General Assembly of a free and independent State." The requirements of the Federal Constitution, of course, must be met in both the temporary apportionment plan and the ultimate constitutional provisions to be submitted to the people.

In the absence of further...