Latting v. Cordell

• Citation: 172 P.2d 397,197 Okla. 369,1946 OK 217
• Decision Date: 19 August 1946
• Docket Number: 32672.
• Parties: LATTING v. CORDELL, Secretary of State Election Board, et al.
• Court: Supreme Court of Oklahoma

172 P.2d 397

197 Okla. 369, 1946 OK 217

LATTING v. CORDELL, Secretary of State Election Board, et al.

No.32672.

Supreme Court of Oklahoma

August 19, 1946

Original action for writ of mandamus brought by William F. Latting against J. William Cordell, Secretary of the State Election Board of Oklahoma, and others, to require respondents to cause petitioner's name to be printed upon the official ballot for general election to be held November, 1946, as the nominee of the Democratic Party for the office of State Senator from Tulsa County.

Writ denied.

Syllabus by the Court.

1. The object of construction, applied to a constitution, is to give effect to the intent of its framers, and of the people adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument.

2. Apportionment, under the Constitution of Oklahoma, is a duty placed on the Legislature, over which the courts have no jurisdiction.

3. The exception contained in Section 9(a), Article 5, of the Oklahoma Constitution is not self-executing.

4. Under Section 45, Article 5, of the Constitution of Oklahoma it is the duty of the Legislature to pass such laws as are necessary for carrying into effect the provisions of the Constitution.

RILEY J., dissenting.

Wm. F. Latting, pro se, and Foster V. Phipps, both of Tulsa, for petitioner.

Mac Q. Williamson, Atty. Gen., and Fred Hansen, First Asst. Atty. Gen., for respondents.

Holly L. Anderson, Samuel A. Boorstin, Frank Hickman, J. C. Pinkerton, and George H. Bowen, all of Tulsa, for Committee, Tulsa County Bar, amicus curiae.

DAVISON Justice.

This is an original action brought by petitioner, Wm. F. Latting, against J. Wm. Cordell, secretary of the State Election Board of Oklahoma, and Elmer Hale, chairman of the State Election Board of Oklahoma, and T. J. Lucado, member of the State Election Board of Oklahoma, respondents, to require respondents to cause his name to be printed upon the official ballots for the general election to be held in November, 1946, as the nominee of the Democratic party for the office of State Senator from Tulsa County.

In order to determine the petitioner's right to the writ of mandamus it is necessary for this court to construe the pertinent constitutional provisions of this state which are sections 9, 9(a), 9(b), 10(i), 10(j) and 11 of Article 5. They are as follows:

'Sec. 9. The Senate, except as hereinafter provided, shall consist of not more than forty-four members, whose term of office shall be four years: Provided, That one senator elected at the first election from each even numbered district shall hold office until the fifteenth day succeeding the regular state election in Nineteen Hundred and Eight, and one elected from each odd numbered district at said first election shall hold office until the fifteenth day succeeding the day of the regular state election in Nineteen Hundred and Ten: And Provided further, That in districts electing two senators, the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term.

'9(a). At the time each senatorial apportionment is made after the year Nineteen Hundred and Ten the State shall be divided into forty-four districts to be called senatorial districts, each of which shall elect one senator; and the Senate shall always be composed of forty-four senators, except that in event any county shall be entitled to three or more senators at the time of any apportionment such additional senator or senators shall be given such county in addition to the forty-four senators and the whole number to that extent. Said districts shall be numbered from One to Forty-four inclusive, and each of said districts shall contain as near as may be an equal number of inhabitants, such population to be ascertained by the next preceding Federal census, or in such manner as the Legislature may direct, and shall be in as compact form as practicable and shall remain unaltered until the next decennial period, and shall at all times consist of contiguous territory.

'9(b). No county shall ever be divided in the formation of a Senatorial district except to make two or more senatorial districts wholly in such county. * * *

'10(i). Ascertaining the ratio of representation according to the Federal census, or such other enumeration as the Legislature may provide, * * * and apportioning the Senators, shall be done by the Legislature and be presented to the Governor for his approval in the same manner as other bills which may be passed by the Legislature.

'10(j). An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, * * *

'11. Until the apportionment is made by the Legislature after the next Federal decennial census, the State, except as otherwise provided, shall be divided into thirty-three senatorial districts, each of which shall be composed of the counties as named, shall be numbered and elect senators as follows, namely: * * * Fourteenth, Canadian and Oklahoma, two senators; * * * Thirty-first, Tulsa and Washington, one senator; * * *.'

At present Tulsa County has but one state senator. The 1940 Federal decennial census gives Oklahoma a population of 2,336,034, and Tulsa County a population of 193,363 and it is conceded that if and when a proper senatorial apportionment act is enacted as contemplated by the constitution, the people of Tulsa County will be entitled to nominate and elect three senators. See Jones v. Freeman, 193 Okl. 554, 146 P.2d 564. Tulsa County would also have been entitled to three senators had the 1930 Federal decennial census been considered and acted upon by the legislature.

The legislature has, however, failed to pass a proper apportionment act since statehood and to date the legislature has made provisions for the election of only one senator from Tulsa County.

Petitioner states that the blame for Tulsa County's inadequate senatorial representation is squarely and solemnly at the door of the legislature which has refused to reapportion the state after each decennial Federal census as it is required to do by the constitution. With this statement we fully agree, and unhesitatingly state the legislature should abide by and follow the constitution in this respect.

The petitioner argues that the question now before us does not relate entirely to legislative reapportionment and that the case of Jones v. Freeman, supra, is not decisive of the issue. With this we agree. All parties agree that the issue must be decided upon the construction of the exception clause in section 9(a) of article 5, supra, and a determination of whether such clause is a self-executing provision. If it is self-executing it is our duty to enforce it in the absence of legislation on the subject. A provision is self-executing when it can be given effect without the aid of legislation and there is nothing to indicate that legislation is contemplated to render it operative, and when there is a manifest intention that it should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed. 16 C.J.S., Constitutional Law, § 48, p. 98. Does it indicate that it was intended as a present enactment, complete in itself, or does it contemplate subsequent legislation to carry it into effect? 11 Am.Jur. pg. 690, sec. 73; Ex parte Wagner, 21 Okl. 33, 95 P. 435, 18 Ann.Cas. 197.

It is a universally recognized rule of construction that, in ascertaining both the intent and general purpose, as well as the meaning, of a constitution or a part thereof, it should be construed as a whole. As far as possible, each provision should be construed so as to harmonize with all the others, yet with a view to giving effect to each and every provision in so far as it shall be consistent with a construction of the instrument as a whole. 16 C.J.S., Constitutional Law, § 23, p. 62, citing cases from practically every state in the Union, including Finerty v. First Nat. Bank, 92 Okl. 102, 218 P. 859, 32 A.L.R. 1326.

With the foregoing rules for constitutional construction in mind, we shall now analyze the wording of our constitution to determine the thought in the minds of the framers of our constitution with reference to whether the provision in question is self-executing.

It will be noted that throughout the pertinent parts of article 5, supra, the framers of the constitution were addressing them, selves to the legislature. In section 9 it is said: 'And Provided further, That in districts electing two senators, the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term.'

In section 9(a), the section which contains the exception clause in controversy, the following language is noted: 'and the Senate shall always be composed of forty-four senators, except that in event any county shall be entitled to three or more senators at the time of any apportionment such additional senator or senators shall be given such county in addition to the forty-four senators and the whole number to that extent.' The following language is also used: 'Said districts shall be numbered from One to Forty-four inclusive, and each of said districts shall contain as near as may be an equal number of inhabitants, such population to be ascertained by the next preceding Federal census, or in such manner as the Legislature may direct * * *.'

Section 9(b) provides in part, as follows: 'No county...