Mikell v. Rousseau, 385
| Citation | 123 Vt. 139,183 A.2d 817 |
| Decision Date | 19 July 1962 |
| Docket Number | No. 385,385 |
| Parties | William E. MIKELL v. Robert J. ROUSSEAU, Clerk, Chittenden County Court, Alma F. Sherwin, Clerk, Addison County Court, Bertha V. Miles, Clerk, Orleans County Court, Francis E. Cannon, Clerk, Rutland County Court, Austin T. Foster, Intervenor, Emory A. Hebard, Intervenor, State of Vermont, Intervenor. |
| Court | United States State Supreme Court of Vermont |
Edmunds, Austin & Wick, Burlington, for petitioner.
Leary & Leddy and Clarke A. Gravel, Burlington, for Chittenden County Clerk.
Lee E. Emerson, Barton, for Orleans County Clerk.
O'Neill, Delany & Valente and Bloomer & Bloomer, Rutland, for Rutland County Clerk.
Austin T. Foster, Intervenor, pro se.
Charles J. Adams, Atty. Gen., for the State.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The Constitution of the State of Vermont directs the General Assembly to make a new apportionment of the state Senators to the several counties after the taking of each census of the United States, or after the taking of a special census by the State for apportionment purposes. Following the 1960 census, measures to accomplish this were introduced in the 1961 General Assembly, but the two branches failed to agree and reapportionment was not carried out. This litigation followed.
The action was brought by William E. Mikell, a citizen of Chittenden County, and took the form of a declaratory judgment proceeding asking that No. 2 of the Public Acts of 1941, now 17 V.S.A. § 1881, be ruled unconstitutional as a basis for the election of state Senators in 1962. The petition joined the clerks of Addison, Chittenden, Orleans, and Rutland counties, in their official capacities as parties. Austin T. Foster and Emory A. Hebard of Orleans County were granted leave to intervene. The Chancellor was asked to enjoin the defendant county clerks from printing or distributing ballots and from carrying out other duties pertaining to the primary and general elections for state Senators in 1962 until the General Assembly accomplished reapportionment.
The following decretal order was entered:
'UPON CONSIDERATION of the Findings of Fact filed in said cause on February 16, 1962, and the exhibits, it is hereby ADJUDGED, ORDERED and DECREED:
'1) That the apportionment of the thirty (30) Constitutional State Senators among the fourteen (14) Counties shall be as follows: Addison, 2; Bennington, 2; Caledonia, 2; Chittenden, 5; Essex 1; Franklin, 2; Grand Isle, 1; Lamoille, 1; Orange, 1; Orleans, 2; Rutland, 3; Washington, 3; Windham, 2; Windsor, 3.
'2) That the Petitionees Robert J. Rousseau, as Clerk of Chittenden County Court, and Francis E. Cannon, as Clerk of Rutland County Court, each in his official capacity as such Clerk and each in his official capacity as Clerk of the respective Counties of Chittenden and Rutland, and their successors in such Office or Offices, be and each is hereby restrained and enjoined from causing to be printed and distributed written ballots of any kind or nature designed for use in a primary nomination contest for State Senator in the Counties of Chittenden and Rutland, or for use in the general election for State Senator in said Counties of Chittenden and Rutland for and during the calendar year 1962 or until such time as the General Assembly of the State of Vermont, by the enactment of necessary, proper and appropriate legislation, has apportioned the thirty (30) Constitutional State Senators in accordance with Paragraph One of this order, or until further order of Court.
'3) Said Clerks of Chittenden and Rutland County, Rousseau and Cannon, are further restrained and enjoined from issuing or delivering or from causing to be issued or delivered Certificates of Nomination or Election for a State Senator within and for their respective counties of Chittenden and Rutland to any person or persons until such time as the thirty (30) Constitutional State Senators shall have been apportioned in accordance with Paragraph One of this order or until further order of Court.
'Counsel has urged many mathematical methods of legislative apportionment. It is the Court's feeling that regardless of the name by which a method may be known or called, regardless of the use that may have been made of it in past decades, regardless of its historical significance, resort should not be had to such method if the use of it is to result in a malapportionment or a greater disparity of Senatorial representation rather than an apportionment 'as near as may be in ratio of population.'
'Petitioner's Petition is hereby dismissed as to Petitionee Alma F. Sherwin, Clerk of Addison County Court and Addison County, and Petitionee Bertha V. Miles, Clerk of Orleans County Court and Orleans County. * * *.'
The decretal order released all the parties of taxable costs.
The right of the people of this State to fair representation in the Senate chambers is at stake in this litigation. It poses grave questions concerning every citizen's right to just and adequate representation in government under the State Constitution. The jurisdiction in this case, and, since the handing down of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, (1962), is beyond question. The capacity of the petitioner, as a citizen and voter of Chittenden County, to maintain the suit is not attacked.
The appellants challenge only one aspect of the facts of this controversy as stated by the Chancellor. The defendant Rousseau assigns error in the failure of the court to specifically state the history of the constitutional process establishing the Senate and historical methods employed by the legislative branch in accomplishing the apportionment of the Senate in the period from 1850 to 1941.
The failure of the Chancellor to comply with the appellants' requests to find the historical facts does not remove them from consideration. Constitutional history, though not controlling, is the constant and proper concern of all branches of government in testing the limits of authority and the nature of duties imposed by the fundamental law. If there was a shortage in the Chancellor's failure to find as requested, the error, if any, was harmless.
The following table shows the official United States census figures for 1940, 1950 and 1960, and the number of persons represented per Senator as apportioned under 17 V.S.A. § 1881.
Census per Census per Census per
Senator Senator Senator
Addison 17,944 8,972 19,442 9,721 20,076 10,038
Bennington 22,286 11,143 24,115 12,057 25,088 12,544
Caledonia 24,320 12,160 24,049 12,025 22,786 11,393
Chittenden 52,098 13,024 62,570 15,642 74,425 18,606
Essex 6,490 6,490 6,257 6,257 6,083 6,083
Franklin 29,601 14,800 29,894 14,947 29,474 14,737
Grand Isle 3,802 3,802 3,406 3,406 2,927 2,927
Lamoille 11,028 11,028 11,388 11,388 11,027 11,027
Orange 17,408 17,408 17,027 17,027 16,014 16,014
Orleans 21,718 10,859 21,190 10,595 20,143 10,071
Rutland 45,638 11,409 45,905 11,476 46,719 11,679
Washington 41,546 13,848 42,870 14,290 42,860 14,287
Windham 27,850 13,925 28,749 14,374 29,776 14,888
Windsor 37,862 12,620 40,885 13,628 42,483 14,161
Following the 1940 United States Census, the General Assembly passed the apportionment statute, No. 2 of the Public Acts of 1941. This statute has remained unchanged and provides:
'Counties may elect senators as follows: Addison, two; Bennington, two; Caledonia, two; Chittenden, four; Essex, one; Franklin, two; Grand Isle, one; Lamoille, one; Orange, one; Orleans, two; Rutland, four; Washington, three; Windham, two; Windsor, three.'
Between 1951 and 1961 the Vermont General Assemblies have considered reapportionment bills, but have failed to enact any change in the 1941 apportionment. In the 1961 session of the General Assembly the House of Representatives and the Senate became deadlocked and the Legislature adjourned without reapportioning the Senate.
The petitioner does not claim that the 1941 act was invalid at the time of its adoption. He contends, however, that the 1960 census shows such an increase in the number of inhabitants in Chittenden County, and changes in some other counties, as to entitle this county to a minimum of five or a maximum of six Senators, as required by the Vermont Constitution. It is urged that in view of these changes, considered in the light of the Constitutional mandate, that the 1941 act now results in voting inequality and becomes unconstitutional. The petitioner also claims that the use of the 1941 Apportionment Act as a basis for the election of State Senators in 1962, having in mind the 1960 official census, contravenes the Fourteenth Amendment of the United States Constitution.
Prior to 1836 the supreme legislative authority of the State was vested in a single House of Representatives. The House consisted of a representative from each town without regard to the number of inhabitants. To correct the resulting inequality and to partially remedy the deficiency in popular representation the Senate was established to afford county representation according to population. Vt.Constitution, 1793, Chap. II, sec. 3; Art. of Amend. III; Journal of Constitutional Convention of 1836, p. 58.
In applying the apportionment act of 1941 to the 1960 census the Chancellor, findings Nos. 14 and 15, states:
'14) The allotment of Senators among the several counties provided by No. 2 of the Public Acts of 1941, fails to apportion thirty Senators to the several counties 'as near as may be in the ratio of population' as ascertained by the United States Census of 1960 in that:
'a. In Addison County with two Senators, the population per Senator 10,038
is:
'In Chittenden County with four Senators, the population per 18,606
Senator is:
'In Orleans County with two Senators, the population per Senator 10,071
is:
'In Rutland County with four Senators, the...
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