State ex rel. Martin v. Zimmerman

• Decision Date: 22 June 1946
• Citation: 23 N.W.2d 610,249 Wis. 101
• Parties: STATE ex rel. MARTIN, Atty. Gen., v. ZIMMERMAN, Secretary of State.
• Court: Wisconsin Supreme Court

249 Wis. 101

23 N.W.2d 610

STATE ex rel. MARTIN, Atty. Gen.,

v.ZIMMERMAN, Secretary of State.

Supreme Court of Wisconsin.

June 22, 1946.

Petition by the State, on the relation of John E. Martin, Attorney General, for leave to commence an original action in the Supreme Court to obtain an injunction restraining Fred R. Zimmerman, Secretary of State, from taking any action in the matter of nominating candidates for office of assemblyman or state senators. [By Editorial Staff.]

Petition denied.

Application by the State of Wisconsin, on relation of the attorney general, for leave to commence an original action in this court for the purpose of obtaining a writ of injunction restraining respondent, as secretary of state from taking any action or in any manner proceeding in the matter of nominating candidates for or electing individuals to the office of assemblyman or state senators under districts established by ch. 27, Laws Special Session, 1931.

John E. Martin, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., W. E. Torkelson, Asst. Atty. Gen. (John A. Lawton and Charles W. Totto, both of Madison, of counsel), for petitioner.

M. G. Eberlein, of Shawano, for respondent.

FAIRCHILD, Justice.

Section 3 of Article IV of the constitution of the state of Wisconsin provides as follows: ‘At their first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed, soldiers, and officers of the United States army and navy.’

Section 4 of Article IV provides: ‘The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November * * *.’

Section 5 of Article IV provides: ‘The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen * * *.’

At a special session of the 1931 legislature, the assembly and senatorial districts were apportioned on the basis of the 1930 census by ch. 27 of the Special Session published February 8, 1932. Since the census of 1940, no apportionment has been made by the legislature of the assembly and senatorial districts.

It is the contention of the petitioner that upon the adjournment of the 1941 legislature without having apportioned the assembly and senatorial districts, the apportionment made by ch. 27, Special Session, 1931, became unconstitutional and void by reason of shifts in the population and that no valid election can be held without a reapportionment. In this respect it should be pointed out that relator does not maintain this issue consistently because he concedes that an apportionment made in 1941 would hold until the next federal census, even though there were population shifts in the meantime which threw the representation out of proportion. Indeed, in the oral argument it was contended by petitioner that the legislature could not respond to changed conditions between census years and redistrict in order to produce an equitable system of representation.

It is the contention of the respondent that the apportionment of 1931, which was held valid and constitutional in the case of State ex rel. Bowman v. Dammann, 1932, 209 Wis. 21, 243 N.W. 481, remains in force and effect until such time as the legislature shall make a new apportionment in response to the constitutional mandate.

We very readily reach the conclusion that the prayer of the petitioner, if granted, would lead to a disastrous situation. A fair apportionment in establishing boundaries to legislative districts should be made, not merely in response to the constitutional fiat, but for the purpose of preserving important political rights of the people. Since this court, however, concededly cannot compel the legislature to act, the enforcement of the constitutional mandate in this respect must be settled in the political forum as an issue involved in the candidacy for seats in the senate and assembly. The mandate is in the constitution and it runs to the legislature. The legislature being a co-ordinate branch of the government may not be compelled by the courts to perform a legislative duty even though the performance of that duty be required by the constitution. The court cannot initiate by judicial action legislation which has been placed in the hands of the legislature. Jones v. Freeman, 1943, 193 Okl. 554, 146 P.2d 564. The court has no commission and has been given no power to require the legislature to act in a given particular. The court is empowered to prevent a co-ordinate branch of government acting in excess of the authority vested in it by the constitution. That was all that was done in the case of State ex rel. Attorney General v. Cunningham, 1892, 81 Wis. 440, 51 N.W. 724,15 L.R.A. 561, relied upon by petitioner. Quite a different question was presented there where it was assumed that an injunction against an election under an invalid apportionment law would leave in force the existing legislative acts. The fact that in the Cunningham case, the court was dealing with a law which never was valid where in this case the court is asked to construe a law which has been held to be valid, the validity of which at the time it was enacted is not now attacked, makes what is said in the Cunningham case of little effect as to the power of the court in this case. We are not dealingwith a law which the legislature had no power to enact. We are dealing with a law which was well within the power of the legislature. An argument which takes no cognizance of this distinction, based on the decision in the Cunningham case, is not very persuasive.

As will appear from the history of legislation with reference to reapportionment acts, if no valid election of legislators since 1941 has occurred and this would be the result had ch. 27 become unconstitutional by passage of time, no source exists from whence can come the reapportionment this side of a constitutional convention. In support of this proposition we quote from the case of Colegrove v. Green, 1946, 66 S.Ct. 1198, 1200. In refusing to reverse a judgment of the district court of the Northern District of Illinois which dismissed the petitioner's complaint, the United States Supreme Court said: ‘Of course no court can affirmatively re-map the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid. The result would be to leave Illinois undistricted. * * *.’ One may well ask, if the districts fixed by ch. 27 are illegal, void, if they do not exist because the law under which they are formed is unconstitutional, where are the districts from which members of the legislature can be chosen in any election, general or special? Against the existence of such confusion, provision was made in our constitution and subsequent legislation connected with and related to the purposes and terms of that constitution. It is provided that each apportionment act is valid until it is supplanted by a subsequent valid act. See Williams v. Secretary of State, 1906, 145 Mich. 447, 108 N.W. 749. The reasons advanced in the argument made by the learned attorney general are inconclusive and if followed to their logical conclusion, would bring the government of the state into a legal cul-de-sac because of the elimination for the time being at least, of one of the equal co-ordinate branches of our government. It would destroy our constitutional equilibrium. As suggested, if ch. 27, Special Session, 1931 had become void and legislators elected since 1941 were not chosen from legal and constitutional legislative districts, then would we have a qualified and lawful body to enact a valid reapportionment statute? It is unnecessary, because of the validity of ch. 27, to rely on a theory that legislators elected to office from unconstitutional or nonexistent districts, have by some doctrine of de facto officialdom based on de facto legislative districts, a right to exercise the important duties necessarily entering into a fair and just apportionment. Once it is determined that the present incumbents are not de jure officers, they have no color of authority and could not serve as de facto officers. 46 C.J. § 367, p. 1054; Ekern v. McGovern, 1913, 154 Wis. 157, 142 N.W. 595, 46 L.R.A.,N.S., 796.

The possibility and perhaps the likelihood of legislative inaction upon the matter of reapportionment was considered when the constitution was adopted. The framers of that document made due provision against such a contingency. This appears from the language used by the framers of the constitution in the instrument itself and by that used by legislatures convened thereafter. In all enactments the continuation of one reapportionment until the next valid one has been provided is the controlling one. This has been declared too often to warrant the change now asked by petitioner.

In the constitution of 1846, which was rejected by the people, the provisions relating to apportionment are found in Art. V. In Section 3 of that Article, it was proposed that: ‘The legislature shall provide by law for the enumeration of inhabitants of this state, in the year one thousand eight hundred and fifty-five, and at the end of every ten years thereafter; and shall also provide for such enumeration in the year one thousand eight hundred forty-eight; and at their first session after each enumeration so made as aforesaid, and also after each enumeration made by the authority of the United States, the legislature shall...