State ex rel. Thomson v. Zimmerman

Decision Date06 October 1953
Citation60 N.W.2d 416,264 Wis. 644
PartiesSTATE ex rel. THOMSON, Attorney General, v. ZIMMERMAN, Secretary of State.
CourtWisconsin Supreme Court

Permission was granted to bring this action in this court as a matter public juris involving no disputed questions of fact.

Pursuant to such leave the attorney general complained that the secretary of state had announced that he would call the 1954 election of members of the legislature in accordance with the provisions of ch. 728, Laws of 1951, the so-called Rosenberry Act. The complaint sought a declaratory judgment adjudging and declaring that the call for the election be issued in accordance with the provisions of ch. 242, Laws of 1953, the so-called Rogan Act. The answer of the secretary of state alleged that the said ch. 242 is unconstitutional and void and that the 1953 amendment of secs. 3, 4 and 5, art. IV of the Wisconsin Constitution, which ch. 242 purports to implement, was never legally and constitutionally adopted by the voters of the state and consequently gives no constitutional sanction to the provisions of such ch. 242. The secretary of state pleaded a counterclaim, also, in which he made similar allegations concerning supposed infirmities of the Rogan Act and the constitutional amendment on which it is based, and prayed that our judgment declare that the 1953 amendment of secs. 3, 4 and 5, art. IV of the state constitution is void; that ch. 242, Laws of 1953, is unconstitutional and void; and that it is the duty of the secretary of state to call the elections to the legislature in accordance with the provisions of ch. 728, Laws of 1951, until some other valid apportionment of legislative districts be made following the federal census of 1960.

Further facts will be stated in the opinion.

Vernon W. Thomson, Atty. Gen., Stewart W. Honeck, Deputy Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for petitioner.

Walter J. Mattison, City Atty., and Harry G. Slater, First Asst. City Atty., Milwaukee, for respondent.

Junior Ass'n of Milwaukee Bar, amicus curiae.

Max Raskin and Wm. F. Quick, Milwaukee, for Wisconsin State Industrial Union Council, amicus curiae.

BROWN, Justice.

'* * * there is a presumption that all acts of the legislature are constitutional until established otherwise, and this presumption applies to apportionment acts as well as other statutes. * * *' State ex rel. Broughton v. Zimmerman, 1952, 261 Wis. 398, 411, 52 N.W.2d 903, 909.

Our attention, then, must be directed first toward the attack on the Rogan act, for unless that has merit the presumption alone will sustain the legislation. To understand the act and the objections which the defendant makes to its validity certain facts set forth in the pleadings, or of which we may take judicial notice, must be recognized.

In 1951, by the Rosenberry act, the legislature reapportioned the state to comply with the command of art. IV, sec. 3, Const. reading:

'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.'

The Rosenberry act survived attack in the courts, State ex rel. Broughton v. Zimmerman, supra, and, certain conditions precedent having come to pass, both parties concede that unless the Rogan act has superseded it, the Rosenberry designation of legislative districts will govern the apportionment of both houses of the legislature to be elected in November, 1954. At the time this legislation was enacted there was much discussion of a proposal to base representation in the legislature on the size or area of legislative districts as well as on the population of a district, thus modifying the principle of art. IV, sec. 3, Const., which recognized human beings only in determining legislative representation. Responding to the agitation for area recognition, the 1951 legislature adopted Joint Resolution No. 59, Laws 1951, p. 650, looking toward an amendment of such sec. 3. This resolution came before the 1953 legislature as Joint Resolution No. 9 and was again adopted, with a further resolution to submit it to the vote of the people at the election to be held on the first Tuesday of April in 1953. The resolution with the submission provision follows, with the customary device of asterisks to indicate material struck out of the section to be amended and italics for that to be added.

'Whereas, at the regular session of the legislature in the year 1951, an amendment to the constitution was proposed and agreed to by a majority of the members elected to each of the two houses, which proposed amendment reads as follows:

"(Article IV) Section 3. 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, * * * such apportioning and districting of members of the senate to be according to a district system based on area and population, and such apportioning and districting of members of the assembly to be according to population.

"Section 4. The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November after the adoption of this amendment, by the qualified electors of the several districts, such districts to be bounded by * * * town, village or ward lines, and to consist of contiguous territory and be in as compact form as practicable.

"Section 5. 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 * * *. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts. The senators elected or holding over at the time of the adoption of this amendment shall continue in office till their successors are duly elected and qualified; and after the adoption of this amendment all senators shall be chosen for the term of four years.' Now, therefore, be it

'Resolved by the assembly, the senate concurring, That the foregoing amendment to the constitution is agreed to by this legislature; and be it further 'Resolved, That the foregoing proposed amendment be submitted to a vote of the people at the election to be held on the first Tuesday of April, 1953, and if a majority of the voters voting thereon approves this amendment, it shall become a part of the constitution of the state; and be it further

'Resolved, That the question of ratification of the foregoing amendment be stated on the ballot as follows:

"Shall sections 3, 4 and 5 of article IV of the constitution be amended so that the legislature shall apportion, along town, village or ward lines, the senate districts on the basis of area and population and the assembly districts according to population?"

The question appeared on the ballot in the form prescribed by the legislature and 433,043 votes were cast in favor of the amendment, so stated, and 406,133 votes against it.

After the result of the election was known the 1953 legislature proceeded under the authority of the amendment to redistrict the senate giving consideration to area as well as population. The Rogan act, which became ch. 242, Laws of 1953, accomplished this by a formula in which area was figured at 30 per cent and population at 70 per cent in establishing the 33 districts each of which was entitled to a representative in the state senate. This act adopted the assembly district provisions of the Rosenberry act.

The defendant submits that the Rogan act violates sec. 4, art. IV, of the United States constitution by denying to Wisconsin a republican form of government. We are aware that in the composition of the senate of the United States and of the legislative bodies of many of the states, consideration is given to factors other than population, and such factors, which are principally geographical or municipal, result in departures from equality of representation for citizens living in different districts. Yet it has never been held that the republican form of government was lost thereby. We do not consider that such form has been destroyed by the Rogan act.

Defendant also contends that area recognition, and particularly the recognition given by the Rogan act, deprives citizens of the equal protection of the laws contrary to the Fourteenth Amendment to the United States constitution. If the composition of the United States senate and the many state legislative bodies in which representation is based on other factors than population, do not offend the Fourteenth Amendment, on principle the Rogan act does not. We consider that it lies with the people of the state to determine the basis upon which legislative districts are to be established and their will in this is final, providing that they make appropriate amendment of their constitution by the procedure prescribed by the constitution for adopting amendments.

While we hold that it is not beyond the power of the people to establish area as a factor in determining representation in the legislature, the legislature may not apportion the state in such a manner that practical equality of representation on the chosen basis is destroyed.

'* * * It is proper to say that perfect exactness in the apportionment, according to the number of inhabitants, is neither required nor possible. But there should be as close an approximation to exactness as possible, and this is the utmost limit for the exercise of legislative discretion. * * *' State ex rel. Attorney General v. Cunningham, 1892, 81 Wis. 440, 484, 51 N.W. 724, 730, 15 L.R.A. 561.

Today, assuming that the proposed amendment was duly ratified, we should have to modify...

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