Latting v. Cordell
| Decision Date | 19 August 1946 |
| Docket Number | Case Number: 32672 |
| Citation | 197 Okla. 369,1946 OK 217,172 P.2d 397 |
| Parties | LATTING v. CORDELL, Sec. of State Election Board, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. CONSTITUTIONAL LAW - Construction of Constitution - Intent of framers and of people adopting instrument - Unambiguous provisions.
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. SAME - Apportionment is duty placed on Legislature over which courts have no jurisdiction.
Apportionment, under the Constitution of Oklahoma, is a duty placed on the Legislature, over which the courts have no jurisdiction.
3. SAME - Provision for increasing membership of Senate not self-executing.
The exception contained in section 9 (a), article 5, of the Oklahoma Constitution is not self-executing.
4. STATUTES - Duty of Legislature to pass laws necessary for carrying into effect provisions of Constitution.
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.
Application to assume original jurisdiction and for writ of mandamus by Wm. F. Latting against J. Wm. Cordell et al., constituting State Election Board. Writ denied.
Wm. F. Latting 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, Chairman of Committee, Tulsa County Bar, amicus curiae.
¶1 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.
¶2 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:
¶3 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 Okla. 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.
¶4 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.
¶5 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 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.
¶6 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. pg. 98, sec. 48. 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 Okla. 33, 95 P. 435.
¶7 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. pg. 62, sec. 23, citing cases from practically every state in the Union, including Finerty v. First Nat. Bank, 92 Okla. 102, 218 P. 859.
¶8 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.
¶9 It will be noted that throughout the pertinent parts of article 5, supra, the framers of the Constitution were addressing themselves 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."
¶10 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 . . ."
¶11 Section 9 (b) provides in part, as follows: "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. . . ."
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