Legislative Reapportionment, In re

• Citation: 374 P.2d 66
• Decision Date: 06 July 1962
• Docket Number: No. 20240,20240
• Parties: In the Matter of LEGISLATIVE REAPPORTIONMENT. Harold STEIN, etc., Petitioner, v. The GENERAL ASSEMBLY OF the STATE of Colorado et al., Respondents.
• Court: Supreme Court of Colorado

Page 66

374 P.2d 66

150 Colo. 380

In the Matter of LEGISLATIVE REAPPORTIONMENT Harold STEIN, etc., Petitioner, v. The GENERAL ASSEMBLY OF the STATE of Colorado et al., Respondents.

No. 20240.

Supreme Court of Colorado, En Banc.

July 6, 1962.

Reconsideration Denied July 12, 1962.

Charles Ginsberg, George Louis Creamer, Denver, for petitioner.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Richard W. Bangert, Asst. Atty. Gen., Donald S. Molen, Sp. Asst. Atty. Gen., for respondents.

Members of the General Assembly appearing pro se.

Charles S. Vigil, Richard S. Kitchen, Denver, for intervenors Federal Plan for Apportionment.

Fred M. Winner, Warren O. Martin, William G. Berge, Denver, amici curiae.

DAY, Chief Justice.

This matter is before the court on original proceedings seeking the issuance of a prerogative or remedial writ.

It is apparent from the prayer of the petition and from the answers to the show cause orders issued by the court pursuant to said prayer that the relief asked for is not within the constitutional powers of this court to grant. It has long been the established rule, however, confirmed by the Colorado Rules of Civil Procedure, that if the allegations of the petition are such as to invoke both the jurisdiction of the court and to entitle the petitioner, on the face thereof, to some relief, the mere fact that one misconceives his remedy will not deprive the court of jurisdiction to act.

Before proceeding, however, to a discussion of: first, the jurisdiction of the court and second, whether it is incumbent upon the court to act at this time, we wish to state at the outset that under the separation of powers doctrine we cannot and will not command the Governor to do anything, the doing of which lies within his sound discretion, and we deem his authority to call the Legislature into special session to be such prerogative. Verto Power, etc. 9 Colo. 642, 21 P. 477.

It appears from the Governor's answer that conceiving it his duty to call the matter of apportionment to the attention of the 43rd General Assembly, he twice included the matter among the subjects presented to the Legislature for consideration. He states, and we agree, that he was powerless to do more.

As to the other officers of the state, to-wit: the Secretary of State and the Treasurer, we concede, as averred in their answer, that this court cannot and should not enjoin upon them duties that they do not have under the constitution or prohibit them from exercising duties imposed upon them by the constitution. The Secretary of State has no discretion but to carry out the election laws as prescribed by statute, and the Treasurer, on vouchers properly presented to him, where appopriations have been made therefor, must make disbursements as commanded by said vouchers. Accordingly, the rule as it affects the Governor, Secretary of State and Treasurer is discharged.

1. JURISDICTION OF THE COURT

We proceed now to the question of the jurisdiction of this court over the subject matter of the petition. Petitioner has alleged facts and has referred to the constitutional provisions and statutes which in their materiality to the issues framed are either admitted or are so well known and generally accepted that the court will take judicial notice thereof. In summary, pertinent allegations are that the General Assembly has never provided for a state census; an enumeration made by the authority of the United States was last made in the year 1960; the current (43rd) General Assembly sat in the years 1961 and 1962, and it is not scheduled regularly or automatically to sit again; the matter of apportionment by the senators and representatives was brought before the General Assembly in both years, but no reapportionment act was enacted; the statutes of Colorado relating to apportionment are C.R.S. '53, 63-1-1 to 63-1-8, inclusive. There are general allegations in the petition concerning approximate population figures, later embellished in a memorandum brief under the statement of facts by actual figures taken from the official 1960 Federal census. From all that appears, both in the petition and the memorandum brief of petitioners, the parties are entitled to call these matters to the attention of the court. In at least a half dozen cases, commencing with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, the Supreme Court of the United States has made this plain. As was said recently in Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705:

'The judicial branch of the government has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights granted thereby to the people. In this sphere of activity the courts recognize that they have no power to overturn a law adopted by the Legislature within its constitutional limitions, even though the law may be unwise, impolitic or unjust. The remedy in such case lies with the people. But when legislative action exceeds the boundaries of the authority delegated by the Constitution, and transgresses a sacred right guaranteed to a citizen, final decision as to the invalidity of such action must rest exclusively with the courts. It cannot be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it the solemn duty to interpret the laws in the last resort. However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it. State v. Wrightson, supra, 56 N.J.L. [126,] at page 209, 28 A. [56,] at page 65 . The authority and the duty to act when our jurisdiction is invoked in cases like the present, in the words of Chief Justice Beasley in State v. Rogers, 56 N.J.L. 480, 615, 28 A. 726, 757, 29 A. 173 (Sup.Ct.1894), is 'so entirely established as not to be debatable.' And as the present Chief Justice said in Village of Ridgefield Park v. Bergen Co. Bd. of Taxation, 31 N.J. 420, 426, 157 A.2d 829, 832 (1960), when it is regularly invoked we cannot 'properly look the other way."

The majority opinion then went on to say:

'From the foregoing it is manifest that the triunity of our government is not invaded by acceptance of this litigation for decision. If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him. The lawmaking body cannot by inaction alter the constitutional system under which it has its own existence.'

Since it is abundantly clear that this court has jurisdiction, we come to the question: was it mandatory under the plain wording of the Constitution for the 43rd General Assembly to enact a reapportionment bill in any of the three sessions held by it?

The answer to this question lies in a reasonable interpretation of Article V, section 45 of the constitution which reads:

'The general assembly shall provide by law for an enumeration of the inhabitants of the state, in the year of our Lord 1885, and every tenth year thereafter; and at the session next following such enumeration, and also at the session next following an enumeration made by the authority of the United States, shall revise and adjust the opportionment for senators and representatives, on the basis of such enumeration according to ratios to be fixed by law.' (Italics ours)

It is the contention of the petitioner herein that the 43rd General Assembly defaulted in the duty imposed upon it by the above section in 1961 and again in 1962. If such default did occur, then this court cannot stand by and permit by inaction defiance of the constitution--any more than we can sustain affirmative action of a legislature in plain violation of the constitution. However, there is restraint imposed upon the judiciary in all constitutional questions, i. e., that the violation must appear beyond all reasonable doubt.

There is also a presumption in which the court must indulge, namely, that the Legislature has acted according to its oath to uphold the constitution unless the contrary appears beyond doubt. 'A judiciary, conscious of the sacrosanct quality of its oath of office to uphold the Constitution, cannot accept an in terrorem argument based upon the notion that members of a coequal part of the government will not be just as respectful and regardful of the obligations imposed by their similar oath. Any less faith on our part would be an unbecoming and unwarranted reflection on the Legislature.' Asbury Park Press, Inc. v. Woolley, supra.

A step by step analysis of the legislative history of 1961, 1962 as revealed in the answers filed discloses some facts which cast doubt upon whether the constitution imposed any duty on the current 43rd General Assembly now in recess sine die. From the answer of the Governor we are informed that he was not able to certify to the Legislature the enumeration of the various counties and legislative and senatorial districts until March 21, 1961, at which time he sent a message to the General Assembly then in session. We note from other available data that as of that date the 43rd General Assembly had been in session almost three full calendar months and was preparing to adjourn, which it did on April 4, 1961. It seems clear that the 1961 session then cannot be construed to be the 'session next following the enumeration' because that one was for all practical purposes past. Actually the next session was in June, 1961--an extraordinary one--lasting two days and called especially to correct some school finance legislation. One could not contend that it was mandatory under the constitution to enact reapportionment legislation at that 'next' session because of limitations in the call of the Governor which prevented any such consideration by the Assembly.

We then look at the 1962 session. Such...