Radford v. Gary

• Decision Date: 02 November 1956
• Docket Number: Civ. No. 7144.
• Citation: 145 F. Supp. 541
• Parties: James A. RADFORD, Plaintiff, v. Raymond GARY, Governor of the State of Oklahoma; The House of Representatives of the State of Oklahoma; The State Senate of the State of Oklahoma: N. B. Johnson, Earl Welch, Albert C. Hunt, N. S. Corn, Ben T. Williams, Harry L. S. Halley, W. H. Blackbird, Denver Davison and Floyd L. Jackson, Composing the Supreme Court of the State of Oklahoma; and George D. Key, Art S. Bower, and Leo Winters, constituting the State Election Board of the State of Oklahoma, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

145 F. Supp. 541

James A. RADFORD, Plaintiff, v. Raymond GARY, Governor of the State of Oklahoma; The House of Representatives of the State of Oklahoma; The State Senate of the State of Oklahoma: N. B. Johnson, Earl Welch, Albert C. Hunt, N. S. Corn, Ben T. Williams, Harry L. S. Halley, W. H. Blackbird, Denver Davison and Floyd L. Jackson, Composing the Supreme Court of the State of Oklahoma; and George D. Key, Art S. Bower, and Leo Winters, constituting the State Election Board of the State of Oklahoma, Defendants.

Civ. No. 7144.

United States District Court W. D. Oklahoma.

November 2, 1956.

Sid White, Oklahoma City, Okl., for plaintiff.

Mac Q. Williamson, Atty. Gen., of Oklahoma, and Fred Hansen, First Asst. Atty. Gen., for defendants.

Before MURRAH, Circuit Judge, and WALLACE and RIZLEY, District Judges.

MURRAH, Circuit Judge.

This three-judge court was convened under Title 28 U.S.C.A. § 2281, to hear the complaint of the plaintiff to the effect that the existing apportionment statutes of the State of Oklahoma violate the plain mandate of the Oklahoma Constitution and operate to deprive him of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States.

The essential allegations are that the complainant is a citizen of Oklahoma and resident and voter in the most populous county in the State; that because of a shift in the population since 1910, the county wherein the complainant resides and votes, now has approximately fifteen percent of the total population of the State, with approximately two percent representation in the State Senate and less than four percent in the House of Representatives; that since 1910, the Legislature of the State of Oklahoma has failed to reapportion the State as required by Article V, Sections 9(a) and 10 of the Oklahoma Constitution; that the defendant, Governor of the State, has failed and refused to call a special session of the Legislature for the purpose of effecting legislative compliance with the constitutional mandate; that the Supreme Court of the State of Oklahoma has repeatedly failed and refused to required compliance with the Constitution; and that the complainant is therefore without state remedy.

The prayer is for a writ of mandamus to the Governor to call the Legislature into session for remedial legislation, and when so called, the Legislature be commanded by this court to make apportionments required by the Oklahoma Constitution and equal protection clauses of the Federal Constitution; and that failing to do so, the individual members of the Supreme Court of the State of Oklahoma be commanded by mandamus or mandatory injunction to make the apportionment as by law required. Meanwhile, the court is asked to restrain and enjoin the individual members of the State Election Board from holding any election to elect members of the House of Representatives or the State Senate of the State of Oklahoma by presently constituted districts; that until constitutional reapportionment is effected, the members of the House of Representatives and the Senate be elected at large. In the event of the election and certification of representatives and senators from the existing districts, we are asked to enjoin the State Auditor and the State Treasurer from paying the per diem, salaries and expenses from appropriations made by the so-called de facto Legislature.

This being a civil action to redress the deprivation, under color of state law, a right secured by the Constitution of the United States; and since injunctive relief is sought against the operation of a state statute by state officers, all of the elements of three-judge jurisdiction are present. See 28 U.S.C.A. §§ 1343(3) and 2284.

The case comes on for consideration on the defendants' motion to dismiss, by which they admit all of the essential allegations of the complaint. And, the issues are further sharpened by the Attorney General's candid admission that the Oklahoma Legislature has, since 1910 failed and refused to reapportion the State of Oklahoma in compliance with the plain mandate of the Constitution of the State of Oklahoma.

On at least three occasions, the question of reapportionment has been before the Supreme Court of the State of Oklahoma. In each case, the court has declared the right of each citizen "to have the state apportioned in accordance with the provisions of the Constitution, and to be governed by a Legislature which fairly represents the whole body of the electorate, elected as required by the provisions of the Constitution." Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 571; and see Latting v. Cordell, 197 Okl. 369, 172 P.2d 397; Romang v. Cordell, 206 Okl. 369, 243 P.2d 677. And, in each instance, the Oklahoma Court has said emphatically that the existing reapportionment statutes have failed to comply with the requirements of the Constitution. The question in each case was not whether the Supreme Court had jurisdiction to review legislative reapportionment acts upon constitutional grounds, but whether it was constitutionally empowered to "revise or correct" the apportionment when the Legislature refused to act. In each case the Oklahoma court declined to grant any relief on the grounds that the mandate of the Constitution was addressed solely to the Legislature. And, in the event of the failure of the Legislature to act, the remedy was in the hands of the sovereign people who may (1) elect legislators who will comply with the Constitution or prescribe rules and regulations whereby the Supreme Court may do so; (2) initiate a proper statute; or (3) amend the Constitution to take the power of apportionment from the Legislature and vest it in a ministerial board subject to the coercive power of the court. See Romang v. Cordell, supra, 243 P.2d at page 681.

This concept of the separation of powers finds ready support in the federal cases where the federal Constitution has been invoked to require state action. The first of the contemporary cases, Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, involved the complaint of voters in a populous congressional district in the State of Illinois. It was alleged that the failure of the Legislature of the State of Illinois to redistrict the State in accordance with the Reapportionment Act of August 8, 1911, 37 Stat. 13, as amended, 2 U.S.C.A. § 2a, operated to deprive the complaining voters of the rights and privileges secured to them by the Constitution and laws of the United States. Particularly it was alleged that changes in population in the congressional districts since the State Reapportionment Act of 1901, S.H.A. ch. 46, §§ 154-156, had diluted the voters' rights in the populous districts to the point of deprivation of their constitutionally guaranteed equality of sufferage. On authority of Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, the Supreme Court affirmed the dismissal of the complaint on the grounds that the Illinois Act of 1901 did not violate the Federal Reapportionment Act of June 18, 1929, 46 Stat. 21.

But the court was not content to rest its decision on the question of state compliance with federal law. The majority went on to explore the broader question of the competence of the federal courts to grant relief, even in the face of a deprivation of a federally protected sufferage right, finally concluding that the issue was one of a "peculiarly political nature and therefore not meet for judicial determination." See Colegrove v. Green, supra, 328 U.S. at page 552, 66 S.Ct. at page 1199. The court took the view that the Federal Constitution, Art. 1, § 4, had "conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility." And, said the court, "If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people." Id., 328 U.S. at page 554, 66 S.Ct. at page 1200. The issue was thus committed to the "exclusive control of Congress."

There was a strong dissent, not only in support of federal jurisdiction, but the propriety of its exercise in order to redress what was deemed a flagrant deprivation of a right secured to the complainants by the Federal Constitution. The dissenters thought that the failure to equitably apportion the congressional districts, thus diluting the weight and influence of the citizen's vote, was quite as much a deprivation of his constitutional right as the right to vote and have it counted, which was ardently vouchsafed in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987.

But the majority view again prevailed in the closely analogous case of MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, wherein an injunction was sought against a statute which allegedly discriminated against the most populous counties in the State of Illinois in its provisions for the formation and recognition of a new political party in that State.

And, the majority view was again upheld in a case more similar to ours in which the complaint challenged the validity of Georgia's County Unit Election system. As against the contention of the complaining residents of the most populous counties in the State that the "voters in that county have an average of about one-tenth of the weight of those in other counties" amounting to an unconstitutional discrimination, the court declined any equitable relief on the grounds that the case posed only state "political issues" with which the federal courts should not interfere. See South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, citing MacDougall...