State ex rel. Sullivan v. Schnitger

Decision Date12 May 1908
Citation16 Wyo. 479,95 P. 698
PartiesSTATE EX REL. SULLIVAN ET AL. v. SCHNITGER, SECRETARY OF STATE
CourtWyoming Supreme Court

ORIGINAL proceeding in mandamus.

The case was instituted upon a petition filed in the name of the State on the relation of Patrick Sullivan and John T Williams, praying for the writ of mandamus to compel an election of members of the Legislature under the apportionment contained in the constitution, in disregard of all subsequent apportionment acts, each of which acts were alleged to be invalid. Hearing was had upon a demurrer to the petition and alternative writ. The facts are stated in the opinion.

Writ denied.

W. E Mullen, Attorney General, for the respondent, in support of the demurrer.

The contention of relators is, that the act of 1907 is void, for the reason that the apportionment is not based upon the census of 1905, and made according to the ratio fixed by the act of 1901, that being the only ratio fixed by any legislature in the state. A failure to follow this ratio and the computations made pursuant thereto in the petition, are made the sole basis of the attack upon the act of 1907. The petition also condemns the entire act of 1901, and yet inconsistently alleges the act of 1907 to be void, in failing to follow a ratio fixed by the prior statute.

The subject of legislative apportionment is referred to under two distinct heads in the constitution. Why was it covered by separate sections under distinct heads, one directing senators and representatives to be apportioned among the counties as near as may be, according to the number of their inhabitants, the other directing senators and representatives to be apportioned on a basis of the last enumeration according to ratios to be fixed by law? The only explanation is found in the debates. Committee No. 2 of the constitutional convention was a "Legislative Committee." Committee No. 6 was a committee on "Boundaries and Apportionment." Each committee made a report on legislative apportionments, and the result was the adoption of two reports under separate heads. Under settled rules of construction, the two sections must be considered together and given effect if possible. The primary principle underlying the interpretation of constitutions and statutes is that the intent is the vital part and the essence of the law. * * * The intent must be found in the instrument itself. (Rasmussen v. Baker, 7 Wyo. 128.) If both sections are to be given effect, legislative apportionments must be based on census enumerations according to ratios fixed by law, and senators and representatives apportioned among the counties, according to the number of their inhabitants. An apportionment law following the first section only, could not be regarded as wholly unconstitutional. For example, a law which apportions senators and representatives among the counties according to the number of their inhabitants, allowing each county at least one senator, and one representative, as directed by the first section, (Art III, Sec. 3, Leg. Dept.) is constitutional for it carries out the intent of the constitution, viz., to apportion and distribute representation to the counties according to their population as near as may be. The second section, (Art. III Sec. 2, Apportionment) would seem to merely indicate a method of carrying out the provisions of the first. The petition does not allege a violation of the first section. It fails, therefore, to state a cause of action, for, if the act has, in fact, apportioned senators and representatives among the counties according to the number of their inhabitants as near as may be, giving at least one senator, and one representative to each county, the law is good. The petition as we read it does not expressly allege a contrary condition. This action is apparently based exclusively upon the second section; every complaint of inequality is predicated on a ratio requirement which is alleged to be the ratio fixed by law. Relying on this section alone, relators cannot complain on behalf of any county, because the section deals with "state census enumerations and ratios" and does not recognize counties, nor the number of inhabitants in any county.

Measured by the ratio rule recited in the petition, relators allege the act of 1907 to be unconstitutional; the premises are false and the reasoning unsound. (a) The act of 1901 which fixed that ratio rule, relators themselves allege to be unconstitutional and void. (b) The act fixing that ratio rule has been repealed by the inconsistent act of 1907. (c) The act which fixed that ratio was clearly in violation of Art. III, Sec. 3, (Legislative Department) of the constitution.

The ratio rule appearing in the act of 1901, gave one senator and one representative to each county regardless of its population. The rule was not only so declared, but the petition avers that it was followed in the act, except as to Converse, Albany and Sweetwater counties. There is no warrant in the constitution for such a rule. They are to be apportioned according to, and not regardless of, county population. While a similar rule is fixed in the act of 1893, long acquiescence in such a rule will not make it constitutional. (Parker v. State, 133 Ind. 178.) The requirement that each county shall have at least one senator and one representative, does not mean that each county shall have one of each regardless of population large or small. That provision was intended for the protection of small counties, where the population is insufficient to give them representation in any other way. It was inserted as a rule of minimum representation, and not as a rule whereunder a senator and representative might be apportioned to each county before commencing to apportion according to population.

The convention understood this provision, and construed it to mean minimum representation and nothing more. This is apparent from the first apportionment appearing in the constitution itself. Where a construction has occurred contemporaneously with the adoption of the constitution by those who had an opportunity to understand the intention, a strong presumption exists that the contsruction rightly interprets the intention. (Cooley Const. Limitations, 82; State v. McAllister, (Tex.) 28 L. R. A. 525.) Similar provisions in the constitutions of other states, have been construed time and again, by their respective legislative bodies, but have never been given the interpretation in their apportionment acts, which we find in the acts of 1901 and 1893, whereby each county is given a complimentary senator and representative, regardless of its population.

Taking up another feature of the ratio of 1901. It is provided "That no county shall have a less representation, either in the senate or in the house representatives than is allowed to such county in the present legislature." This was a provision evidently intended to protect counties, such as the county of Converse for instance, already over-represented at the time, or any county, which according to the last census enumeration might show such a decrease in population as to otherwise require a decrease in its representation. The clear purpose of adjusting apportionments at the legislative session next following an enumeration of inhabitants is for the purpose of increasing representation where population has increased, and decreasing representation where population has decreased.

We do not regard the allegations relating to the acts of 1901 and 1893 as having any material bearing upon the controversy here. According to our theory, each of said acts has been repealed, but if not repealed, the ratio rule provided in each of them is so clearly in violation of the constitution that we have nothing to offer in their support.

The apportionment found in the constitution was made in view of conditions existing at the time. Defendant offers no objection to it, except that owing to changed conditions, such as the organization of new counties and the increase of state population, it could not be applied without depriving a considerable number of the people of representation. The counties of Big Horn, Natrona, and Weston, have been organized since the adoption of the constitution. An election called pursuant to that apportionment would violate the provisions of Art. 3, Sec. 3, which directs that each county shall have at least one senator and one representative. Great inequalities would exist as between the other counties.

A special session of the legislature would be composed of its present membership which was elected under the apportionment made in 1901. According to relator's theory it is an unconstitutional body. If that be true it has acted heretofore as a de facto body. (Throop Pub. Off. 628-637; Mechem Pub. Off. 318; State v. Carroll, 38 Conn. 449; Meagher v. Story Co., 5 Nev. 244; Kirker v. Cincinnati, 48 O. St. 507.) But if the act creating it be adjudged void it is doubtful whether it could act as even a de facto body thereafter. There would be no certainty that it would or could enact an apportionment law satisfactory to relators, even if so convened. In seeking for a correct solution of any legal question, especially the construction of a statute, or a constitution, the result which may follow from one construction or another, is always a potent factor and is sometimes in and of itself conclusive. Courts have a right to consider the evil which would result. (People ex rel. Carter v. Rice, 16 L. R. A. 852; Rumsey v. People, 19 N.Y. 52.)

The effect and not the intention of the legislature determines the question of the constitutionality of the act. (Van Bokkelen v. Canady, 73 N.C. 198.) It is our contention that the act of 1907 in fact fixed a ratio for senators and representatives; that it likewise...

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