Jones v. Freeman
| Decision Date | 12 October 1943 |
| Docket Number | 31322. |
| Citation | 146 P.2d 564,193 Okla. 554,1943 OK 322 |
| Parties | JONES v. FREEMAN, Speaker of House of Representatives, et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 8, 1944.
Syllabus by the Court.
1. In order to determine the ratio for members of the House of Representatives the whole population of the state is to be divided by the figure 100. Const. Art. V, Sec. 10(c).
2. No county having a population of less than half a ratio is entitled to be a separate representative district, but must be attached to a county adjoining it and become a part of such representative district. Const. Art. V, Sec. 10(g).
3. Each county having as much as half a ratio is entitled to one Representative. Const. Art. V, Sec. 10(d).
4. No county shall ever take part in the election of more than seven Representatives. Const. Art. V, Sec. 10(d).
5. In districting the state for senatorial purposes, the state must be divided into 44 senatorial districts, except that when a county is entitled to more than two Senators the number of Senators may be increased above 44 by such additional number. But one Senator may be elected from any senatorial district created by a senatorial apportionment act, except where a county is entitled to three or more Senators, in which event the additional Senators may be elected from separate districts, from other districts, or at large by the voters of the county as the Legislature may direct, so long as substantial equality prevails. All senatorial districts shall consist of contiguous territory, shall be in as compact form as practicable, and shall contain as near as may be an equal number of inhabitants, subject to the qualification that no county shall be divided except where it is entitled to two or more Senators, and no town, and no ward in a city when constituting only one voting precinct, shall be divided in the formation of a senatorial district. Const. Art. V, Secs 9(a), 9(b).
6. Except as otherwise provided therein, the Constitution makes it the duty of the Legislature, in enacting legislative apportionment acts, to apportion representation in the two Houses of the Legislature on the basis of substantial equality.
7. Constitutional provisions are mandatory unless it appears from the express terms thereof, or by necessary implication from the language used, that they are intended to be directory only.
8. The provisions of the Oklahoma Constitution for enacting legislative apportionment acts are mandatory.
9. It is the mandatory duty of the Legislature to district the state for senatorial purposes and to apportion the members of the House of Representatives among the counties of the state at the first session of the Legislature after each Decennial Federal census, but if it fails to do so at said session, the duty to do so at the succeeding session or sessions continues until valid apportionment acts are passed. Const. Art. V Secs. 9(a), 10(b).
10. Under Art. VII, Sec. 2 of the Constitution, the Supreme Court has origina jurisdiction of an action to test the constitutionality of legislative apportionment acts and may enforce its judgment by any of the appropriate writs therein mentioned, and such jurisdiction is not affected by the provisions of Art. V, Sec. 10(j) of the Constitution.
11. Any citizen of the state is entitled to maintain an original action in the Supreme Court, under authority of Art. VII Sec. 2 of the Constitution, to test the constitutionality of legislative apportionment acts and to enforce the judgment in such case by the proper writ.
12. The duty to provide for legislative apportionment is legislative in nature, and the Supreme Court may not, in an original action to test the constitutionality of any such apportionment act, make the apportionment.
13. The Supreme Court may not compel the Legislature to perform its mandatory duty to pass proper and timely legislative apportionment acts.
14. Each House of the Legislature is the sole judge of the election and qualifications of its own members, and the Supreme Court may not try title to legislative offices or enjoin the payment of legislative salaries.
15. The Supreme Court will, in its discretion, refuse to issue a writ of mandamus to require elections to be held under the apportionment made by the Constitution, where to do so would result in greater inequality of representation than that provided by other laws, and where two counties, created since the adoption of the Constitution, would be wholly without representation.
Original mandamus by Jenkin Lloyd Jones against Harold Freeman, as Speaker of the House of Representatives, and others speaking to test the validity of various legislative apportionment acts enacted since the adoption of the Constitution.
Application for writ and other relief denied.
Samuel A. Boorstin, of Tulsa, for petitioner.
Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, First Asst. Atty. Gen., for respondents Shaw, Childers, Cheatham, Coogan, and Cordell in their official capacities.
Streeter Speakman, of Sapulpa, John Steele Batson, of Marietta, Tom Kight, of Claremore, and Purman Wilson, of Purcell, for respondent Harold Freeman.
This is an original action brought by petitioner, Jenkin Lloyd Jones, to test the validity of the various legislative apportionment acts enacted since the adoption of the Constitution. Petitioner alleges all of such acts to be contrary to express constitutional provisions, and seeks (unless a valid law be enacted meanwhile) to require the next election to be held under the apportionment as made by the Constitution, as well as to restrain the payment of compensation to legislators already elected under the allegedly invalid laws.
It has been stipulated that petitioner is an elector and taxpayer of Tulsa County, and that he has voted in elections held under the challenged statutes. We will take judicial notice of the population of the counties of the state as shown by each Decennial Federal census. 18 Am.Jur. 200.
By Art. V, Sec. 11 of the Constitution, the state was divided into 33 senatorial districts, 22 of them being given one senator each and 11 being given two Senators each. By Art. V, Secs. 12-16 of the Constitution, 109 Representatives were apportioned among the 75 counties created by the Constitution, each county being given at least one Representative. (Two counties, Harmon and Cotton, have been created since the Constitution was adopted). However, the framers of the Constitution intended that the legislative apportionment contained therein should serve only until 1911. They made it the duty of the Legislature at that time to enact a new apportionment law, based upon the population as ascertained by the Federal census of 1910, or in such other manner as the Legislature might direct (no other method of ascertaining population has been provided), and they also made it the duty of future Legislatures to enact apportionment laws after the taking of each succeeding decennial Federal census. Const. Art. V, Secs. 9, 10, and 11. In passing apportionment acts the principle of equality is, as a general rule, enjoined upon the Legislature, so that each voter of the state will have approximately the same power and influence in electing members of the two Houses of the Legislature, and in shaping legislation, as every other voter. Thus Art. V, Sec. 9 (a) of the Constitution, provides that at the time of each senatorial apportionment after the year 1910, the State shall be divided into 44 senatorial districts, each of which shall elect one Senator and shall "contain as near as may be an equal number of inhabitants." It further provides that the Senate shall always be composed of 44 Senators, except that such number may be increased to the extent that single counties are entitled to more than two Senators. Art. V, Sec. 9 (b), provides that districts in counties entitled to two or more Senators shall be so arranged "as to make such districts most nearly equal in number of inhabitants" consistent with the duty not to divide towns or city wards constituting only one voting precinct.
Substantial equality in apportioning the members of the House of Representatives among the counties of the state was enjoined upon the Legislature by Art. V, Sec. 10 of the Constitution except that it was provided that no county should "take part in the election of more than seven representatives", and that any county having a population equal to one-half a ratio should be entitled to one Representative. The ratio for the House of Representatives is obtained by dividing the whole population of the state by 100. Sec. 10(c). If a county has less than one-half a ratio, it must be attached to an adjoining county. The formula for equalizing the representation in the House of Representatives throughout the ten-year period is set out in Art. V, Secs. 10(d) and (e) of the Constitution. While the principle of equality is the rule, exceptions are made in favor of the less populous counties that have as much as half a ratio but not a full ratio and against the populous counties having over seven ratios. Thus under the 1940 Federal census, Oklahoma has a population of 2,336,434, making a ratio for the House of Representatives 23,364, and Major County, with a population of 11,946, is alone entitled to one Representative, unless an adjoining county is attached to it as authorized by Art. V, Sec. 10 (g), while Oklahoma County with a population of 244,159 is entitled to but seven Representatives, or one for every 34,879 of the population of the county. So in this instance, the Constitution gives each voter in Major County approximately three times as much influence on legislation passed by the House of Representatives as is...
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