Stiglitz v. Schardien

• Decision Date: 19 June 1931
• Citation: 239 Ky. 799,40 S.W.2d 315
• Parties: STIGLITZ, County Clerk, v. SCHARDIEN. REAGER v. STIGLITZ, County Clerk. BLAIR v. LEWIS, Secretary of State, et al.
• Court: Kentucky Court of Appeals

40 S.W.2d 315

239 Ky. 799

STIGLITZ, County Clerk, v. SCHARDIEN.

REAGER v. STIGLITZ, County Clerk.

BLAIR v. LEWIS, Secretary of State, et al.

Court of Appeals of Kentucky

June 19, 1931

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division, and appeal from Circuit Court, Franklin County.

Actions by George W. Schardien against William G. Stiglitz, County Clerk of Jefferson County, by Allen M. Reager against William G. Stiglitz, County Clerk of Jefferson County, and by John Henry Blair against Ella Lewis, Secretary of State, and others. From the judgment in the first case defendant appeals, from the judgment in the second case plaintiff appeals, and from the judgment in the third case plaintiff appeals. Judgment in first case affirmed, judgment in second case reversed, with directions, and judgment in third case affirmed.

Gardner K. Byers and Harris W. Coleman, both of Louisville, for appellant and appellee Stiglitz.

William T. Baskett, of Louisville, for appellee Schardien and appellant Reager.

Henry J. Stites, of Louisville, for appellant Blair.

J. W Cammack, Atty. Gen., and George H. Mitchell, Asst. Atty Gen., for appellees Lewis and others.

WILLIS J.

These three cases, presenting a common question, have been consolidated and considered together, and will be disposed of in a single opinion. The ultimate question involved is the constitutionality of the two acts of the General Assembly of 1930 purporting to redistrict the state into one hundred legislative and thirty-eight senatorial districts pursuant to section 33 of the Constitution of the commonwealth. Chapters 147, 148, Acts of 1930.

The case first styled was brought by George W. Schardien, a citizen, taxpayer, and voter in the Fifty-Eighth representative district located in Louisville, Jefferson county, Ky. against Wm. G. Stiglitz, county clerk of Jefferson county, to enjoin him from preparing and furnishing ballots and other necessary things for the approaching August primary election in the legislative districts defined by the new act, and to require such duties to be performed according to the old districts created by the act of 1918. Ky Statutes § 2003. The lower court held chapter 147 of the Acts of 1930 unconstitutional and void, and granted the relief sought. The clerk has prosecuted an appeal from the judgment.

The second case was instituted by Allen M. Reager, a citizen, taxpayer, and voter in the Thirty-Seventh senatorial district located in Louisville, Jefferson county, against Wm. G. Stiglitz, county clerk of Jefferson county, to enjoin him from supplying the ballots and other paraphernalia in the senatorial primary for the new districts, and to compel him to carry out such duties according to the old senatorial districts. The circuit court denied the relief sought by Reager upon the ground that the district in which he lived exceeded the hypothetical unit for senatorial districts by only 11 per cent., and plaintiff could not complain of such inequality so long as his particular district was not unreasonably disproportionate to the hypothetical unit, regardless of the radical inequality of the other districts. Reager has appealed from the judgment dismissing his action.

The other case was filed in the Franklin circuit court by John Henry Blair, a citizen, taxpayer, and voter of Harlan county, Ky. living in the Ninety-Eighth representative district and in the Twenty-Third senatorial district, against Miss Ella Lewis, Secretary of State, James W. Cammack, Attorney General, and W. B. O'Connell, clerk of the Court of Appeals, D. B. Cornett, and F. E. Bradley, members of the state board of election commissioners, to restrain them from permitting the election of the General Assembly for 1932 under the districting acts of 1930, to enjoin the Secretary of State from including those acts as a part of the statute law of the state, and to inhibit the Attorney General from publishing chapters 147 and 148 of Acts of 1930. By an amended petition it was alleged that the Secretary of State had certain duties to perform respecting elections. The circuit court, without deciding the question of plaintiff's right to maintain the action, sustained a special demurrer to the petition upon the ground that neither of the defendants had any present duties to perform respecting the legislative or senatorial districts that was subject to the control of the court or at all. Blair has appealed from the judgment dismissing his action.

It will be convenient to consider the three appeals separately.

1. It is urged that a citizen, taxpayer and voter may not maintain an action to question the validity of redistricting acts, since no pecuniary right is involved. It is settled that the courts, in a proper case, may interpose for the protection of political rights, and the right to be equally represented in the legislative bodies of the state is not only a political but a constitutional right. If an act of the Legislature infringes the constitutional rights of a citizen, taxpayer, and voter, he may invoke the processes of the courts to prevent the performance of a duty attempted to be imposed by such void act. Hager v. Robinson, 154 Ky. 489, 157 S.W. 1138; Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316; Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865, 30 Ky. Law Rep. 1199, 128 Am. St. Rep. 242; Yates, Clerk, v. Collins, 118 Ky. 682, 82 S.W. 282, 973, 26 Ky. Law Rep. 558, 930.

It is not necessary to be a candidate for office in order to raise such questions. The basis of the jurisdiction is that the unconstitutional law infringes the right of a citizen to be equally represented, and it does not rest upon any right peculiar to a candidate for office. The primary right of the citizen, taxpayer, and voter to equality of representation in the lawmaking bodies in accordance with the Constitution is of greater dignity than his derivative right to be a candidate or even to be a representative. It is the primary rights of citizens that are violated by invalid statutes, which the court, in a proper case, may protect by injunction or other process. The citizen possesses political as well as pecuniary and personal rights which may be the subject of an action to prevent the operation of unconstitutional legislation. It is not merely the right of the citizen under the Constitution to be fairly represented in the government, but also his right to prevent unequal and unconstitutional discrimination against his own in favor of other districts, that enables the court to intervene. Every citizen, taxpayer, and voter has an undoubted right to have the districts for representatives and senators created in accordance with the Constitution. It is not enough that one district may be of the proper size theoretically so long as other districts are given greater representation than is warranted by the Constitution and their population. The discrimination is just as real and just as wrong whether it be based upon a denial of representation to one locality or be founded upon excessive representation given to another. Indeed, it necessarily operates to bring about both results, and in either case the constitutional standard of equality is destroyed. The people are entitled to have the districts defined in accordance with the Constitution, and comparisons to test that objective must be made according to the facts, and not by the hypothetical unit. If one district is approximately the size that all districts should be, and another district with half the population is given the same or greater representation, the result is inequality in the Legislative Assembly. The rights of the whole state are linked up with the representation of the several districts. We entertain no doubt of the right of the plaintiff to invoke the power of the court to protect his constitutional rights. Authorities, supra. Cf. State ex rel. v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A. L. R. 348.

Section 33 of the Constitution reads: "The first general assembly, after the adoption of this Constitution shall divide the state into thirty-eight senatorial districts, and one hundred representative districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district, which district shall constitute the senatorial and representative districts for ten years. Not more than two counties shall be joined together to form a representative district: Provided, In doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the general assembly shall then, and every ten years thereafter, redistrict the state according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of population should be unavoidable, any advantage resulting therefrom shall be given to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous."

Pursuant to that mandate, the Legislature districted the state in 1893, creating one hundred representative and thirty-eight senatorial districts. Acts 1891-92-93, c. 235, p. 1204. The Constitution directs that a redistricting be made every ten years, but the first redistricting act was not passed until March 23, 1906. Acts 1906, c. 139, p. 472. That act was before this court in Ragland v. Anderson, 125 Ky 141, 100 S.W. 865, 30 Ky. Law Rep. 1199, 128 Am. St. Rep. 242, and it was held unconstitutional and declared void. No further legislation upon the subject was enacted until 1918, when new legislative and senatorial districts were defined. Acts of 1918, c. 3, p. 6; Act of 1918, c. 45, p. 134. The...