Opinion to the Governor

• Decision Date: 18 October 1962
• Citation: 185 A.2d 111,95 R.I. 109
• Parties: OPINION TO THE GOVERNOR.
• Court: Rhode Island Supreme Court

Page 111

185 A.2d 111

95 R.I. 109

OPINION TO THE GOVERNOR.

Supreme Court of Rhode Island.

Oct. 18, 1962.

October 18, 1962

To His Excellency John A. Notte, Jr.

Governor of the State of Rhode Island and Providence Plantations

We have received from Your Excellency a request for our written opinion in accordance with the provisions of article XII, section 2, of amendments to the constitution of this state upon certain questions of law which you propound in your letter as follows:

'1. Is the membership of the present House of Representatives, having been elected pursuant to the apportionment in Chapter 22-2 of the General Laws, competent to act validly on legislation and other matters entrusted by law to the House of Representatives, and is the legislation heretofore enacted by said House of Representatives validly enacted?

'2. In the light of the special commission's report of September 5, 1962, does the action of the Assembly set forth in H-1022

'(a) making a legislative determination that it would be impossible to enact reapportionment legislation to be effective for the 1962 general election, and

'(b) continuing the commission in existence and directing it to report back no later than March 1, 1963, with specific legislation implementing specific recommendations

meet the obligation of the General Assembly to act 'within such reasonable time as circumstances may permit' to provide for reapportionment conformable to the 1960 census and to the opinion of the Supreme Court in David Sweeney, et al v. John A. Notte, Jr., et al., supra?

'3. Notwithstanding the determination of the Supreme Court in its advisory opinion filed August 22, 1962, and its decision in the case of David Sweeney, et al. v. John A. Notte, Jr., et al., supra, as to the existence of a present obligation to reapportion the House of Representatives, will persons nominated on September 11, 1962, and elected on November 6, 1962, to a house of representatives composed of members elected from districts apportioned as provided presently in Chapter 22-2 of the General Laws have jurisdiction during the term for which they are elected to act in all matters entrusted by the Constitution of Rhode Island to the House of Representatives?'

The question numbered 1 makes inquiry first as to whether the present house, being malapportioned, is 'competent to act validly on legislation and other matters entrusted by law to the House of Representatives * * *.' It contains also a corollary inquiry concerning the validity of prior legislative enactments of the present house. The question, as we understand it, is directed primarily at the competence of the present house to exercise the legislative power of the state. In its secondary aspect it inquires whether the prior legislative enactments of the present house were mere nullities for the reason that it was without authority to exercise the legislative power.

The question of law upon which our opinions are sought posits a house and a senate comprising the general assembly which is the repository of the legislative power of the state. Our attention is therein directed to the effect, if any, of the malapportionment of the present house upon its competence, that is to say its authority, to exercise the legislative power of the state. It is concerned not with the validity of legislation as the end product of an exercise of the legislative power by the house but with the authority of the house to exercise that power at all. It is obvious that in the context of the instant inquiry the validity of prior legislative enactments of the present house must depend entirely upon whether the malapportionment thereof deprived it of all authority to exercise the legislative power or to do those things, the performance of which is committed by the constitution to the house.

The formulation of question numbered 1 is such as to preclude its being construed as including within its scope inquiry concerning the validity of laws, that is, the end product of an exercise of legislative power, by reason of the impingement thereof upon any of the constitutional guarantees, federal or state. If the question were intended to be of such scope, we would be unable to answer unless we had before us some specific legislation, either enacted or proposed. We conclude, therefore, that the instant inquiry is limited to the effect of the malapportionment of the present house upon its authority to exercise that portion of the legislative power that reposes therein or, to put it otherwise, whether a purported exercise of the legislative power by the present house is in fact a nullity because its authority to exercise that power was extinguished by reason of its malapportionment.

We undertake then to answer the first question only with respect to the effect of the malapportionment of the present house upon its authority to exercise the legislative power of the state. We do not intend thereby to be understood as ruling that law which results from an exercise of the legislative power may not, upon attack that suffices to overcome the presumption of constitutionality, be found invalid for the reason that it was enacted in violation of the right of the citizenry to equality of representation secured by the equal protection clause of the federal constitution.

It is well settled that the powers of the federal government were conferred upon it at the time of the adoption of the federal constitution and that the legislative power of the states, excepting such portions thereof as were conferred upon the federal government at that time, was retained by the several states. The proposition that the states retained the legislative power is set out in clear and understandable language in Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. In that opinion at page 294, 56 S.Ct. at page 865, the court said: 'The states were before the Constitution; and, consequently, their legislative powers antedated the Constitution. Those who framed and those who adopted that instrument meant to carve from the general mass of legislative powers, then possessed by the states, only such portions as it was thought wise to confer upon the federal government; and in order that there should be no uncertainty in respect of what was taken and what was left, the national powers of legislation were not aggregated but enumerated--with the result that what was not embraced by the enumeration remained vested in the states without change or impairment.' See Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77.

Inhering in the legislative power thus reserved to the states is the power to formulate, establish, and maintain representative governments therein. Under the provisions of sec. 4 of art. IV of the federal constitution the United States is required to guarantee a republican form of government to every state. In Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, at page 175, 22 L.Ed. 627, the court pointed out that the guaranty clause does not designate the exact form of government that is so guaranteed but said: 'The guaranty necessarily implies a duty on the part of the States themselves to provide such a government.' A republican form of government contemplates representative government and, the states being obligated to provide such government, obviously they have the power to establish and maintain such government.

State constitutions, on the other hand, are generally held to operate as limitations upon the exercise of the legislative power of a state by a legislative branch of the government thereof. 'A multitude of cases and authorities could be added to the effect that insofar as the legislative branch of the General Assembly is concerned, constitutional provisions, in general, operate as limitations rather than grants of power; that except as a limitation on the power of the Legislature to enact legislation is found in the Constitution, such limitation does not exist.' State ex rel. Morford v. Emerson, 1 Terry 328, 40 Del. 328, 345, 10 A.2d 515. See Opinion to the Justices by the Senate, 137 Me. 350, 19 A.2d 53; Commonwealth ex rel. Kelley v. Keiser, 340 Pa. 59, 16 A.2d 307.

There are numerous authorities which hold that the legislative power of a state is plenary and, except as constitutionally limited, is absolute. 'The Constitution is not a grant of power to the Legislature, but it is a limitation of its general powers. * * * The Legislature's power is practically absolute, except for constitutional limitations. * * * Subject to constitutional restraints, the state Legislatures have been compared to the British Parliament, whose 'power and jurisdiction,' according to Lord Coke, 'is transcendent and absolute." Rafus v. Daley, 103 Vt. 426, 154 A. 695.

This court has long adhered to this view of the plenary nature of the legislative power possessed by the general assembly of this state. In Payne & Butler v. Providence Gas Co., 31 R.I. 295, it Said at page 315, 77 A. 145 at page 153: '* * * when we adopted the federal constitution, the legislature had the combined powers of crown and parliament, and thereafter until May, 1843, the date of the adoption of our constitution, the General Assembly had the full powers of crown and parliament less whatever power had been granted to the federal government. After the adoption of the State constitution the legislature had the powers of crown and parliament aforesaid, less the power taken therefrom for the federal government, and also minus whatever powers were taken from it by the constitution of the State * * *.' In an earlier decision in the case of Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97, 24 L.R.A.,N.S., 991, the court pronounced its acceptance of this proposition more succinctly when it said at page 30, 73 A. at page 104: 'The General Assembly of Rhode Island succeeded to all the powers of the British Parliament except as limited by the constitution of the United States or the State of Rhode Island.'

We...