White v. Anderson

• Decision Date: 17 July 1964
• Docket Number: No. 21252,21252
• Parties: George J. WHITE, Petitioner, v. Byron A. ANDERSON, Secretary of State of the State of Colorado, and Richard L. Lyles, Clerk and Recorder of Pueblo County, Colorado, Respondents.
• Court: Colorado Supreme Court

Page 333

394 P.2d 333

155 Colo. 291

George J. WHITE, Petitioner, v. Byron A. ANDERSON, Secretary of State of the State of

Colorado, and Richard L. Lyles, Clerk and Recorder

of Pueblo County, Colorado, Respondents.

No. 21252.

Supreme Court of Colorado, En Banc.

July 17, 1964.

Raymond C. Johnson, Marshall Quiat, Denver, for petitioner.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Richard W. Bangert, Asst. Atty. Gen., Denver, for respondents.

FRANTZ, Justice.

In original proceedings White challenges the validity of Senate Bill No. 1, passed by the General Assembly and signed by the Governor in July of this year, as being in contravention of Article V, Section 47, of the constitution of Colorado.

What effect does the entry of a decree and the retention of jurisdiction by the federal three-judge court of the case of Lucas v. 44th General Assembly et al., (Case Nos. 7501 and 7637, consolidated civil actions), announced this month, involving apportionment and districting of members of our General Assembly, have on the authority of this court to consider and determine whether Senate Bill No. 1 comports with the constitution of Colorado? If the entry of the decree and if the retention of jurisdiction have no effect, then we must determine whether the division of a county in the formation of senatorial and representative districts is in accord with the constitution of this state.

As we understand the respective jurisdictions of federal and state courts, and the amenities between courts having different jurisdictions derived from separate but related sovereign governments which are supreme in their spheres, there will be a hyphenated disposition of the whole controversy--federal and state questions----, if we act. The federal court has decided the federal question which confronted it, and it becomes our concern and duty to resolve the state question.

We defer to the federal courts in the resolution of federal questions. On the other hand, federal courts should, indeed must, defer to the authority of state courts in the disposition of state questions. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. This concept so pervades the relation between federal and state courts that it was said in the cited case that 'federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. * * *'

It is in this setting that we briefly review recent events involving apportionment of the General Assembly of this state.

In June of this year the Supreme Court of the United States decided the case of Lucas v. Forty-Fourth General Assembly, 84 S.Ct. 1459, and concluded its opinion with these significant words:

'Since the apportionment of seats in the Colorado Legislature, under the provisions of Amendment No. 7, fails to comport with the requirements of the Equal Protection Clause, the decision below must be reversed. Beyond what we said in our opinion in Reynolds, we express no view on questions relating to remedies at the present time. On remand, the District Court must now determine whether the imminence of the 1964 primary and general elections requires that utilization of the apportionment scheme contained in the constitutional amendment be permitted, for purposes of those elections, or whether the circumstances in Colorado are such that appellants' right to cast adequately weighted votes for members of the State Legislature can practicably be effectuated in 1964. Accordingly, we reverse the decision of the court below and remand the case for further proceedings consistent with the views stated here and in our opinion in Reynolds v. Sims [377 U.S. ----, 84 S.Ct. 1362]. It is so ordered.'

A course of action looking to the preservation of elections was pursued by state officials. Rather than petition for a rehearing in Lucas with its time-consuming pace to resolution, the Governor convoked a special session of the legislature for the purpose of apportioning the state in accordance with Article V, Sections 45-47, of the State constitution. Such special session received the approval of the three-judge federal court to which had been remanded the Lucas case.

Senate Bill No. 1 thereafter was enacted and submitted to the three-judge federal court before the Governor's signature was affixed thereto. At the time of such submission there was pending before this court proceedings testing the validity of Senate Bill No. 1 on the ground that it violated the state constitution, particularly in dividing a county into multiple senatorial and representative districts.

Notwithstanding this posture of circumstances, the three-judge federal court determined that Senate Bill No. 1 was inoffensive to the Equal Protection Clause, and in a dictum expressed by two judges, to which the third voiced his dissent, declared that division of counties into multiple senatorial and representative districts was valid.

Now it is urged by respondents that this court is foreclosed from resolving the constitutionality of Senate Bill No. 1, even though the question is purely one of interpretation of the constitution of Colorado. To this we do not accede. It is and was within our domain to determine the state question, and such has been recognized by the federal decisions, as appears from a profusion of cases cited in 36 C.J.S. Federal Courts § 171, p. 393 et seq.

Having determined that the action of the three-judge federal court in the premises has no effect upon the case pending before us, we now undertake to answer the question of validity of Senate Bill No. 1. This will entail a consideration in particular of Article V, Section 47. Related provisions necessarily to be considered merely strengthen our construction of Section 47.

Section 47 contains three sentences, to-wit:

'Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district.'

It must be remembered that the constitution itself created the first senatorial and representative districts. The first sentence of Section 47 gave to the legislature the power to alter those districts when public convenience might require, but that power was subject to the interdictions that (1) in altering or forming districts the legislature must not join two counties which were not contiguous, and (2) they must not divide a county. The language is clear and plain. A grant of power is given in the first sentence of Section 47 and limitations are placed upon that power by the last two sentences.

It will be noted that the first sentence provides for the alteration of such districts as public convenience may require. The second sentence provides for senatorial or representative districts composed of two or more counties which must be contiguous, and speaks in terms of whole counties. There is contained in the sentence the notion that a senatorial or representative district cannot be less than a county; in effect it means that if you add to a county other territory to make such district, the added territory must be a county or counties.

The most all-inclusive proposition in the three sentences is contained in the third. It provides that '[n]o county shall be divided in the formation of a senatorial or representative district.' 'No county' cannot be construed as meaning that one county, or two counties, or three counties may be divided; it plainly directs that there is not one county in the state of Colorado that may be divided in the formation of a senatorial or representative district.

The Attorney General would have us construe the section to read, in effect, as follows: 'No county shall be divided in the formation of a senatorial or representative district composed of two or more counties, but may be divided for other purposes.' This argument might have some weight if the second and third sentences of Section 47 were joined by a semi-colon and the word 'but' inserted. We would then have a sentence reading as follows: 'When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be; but no county shall be divided in the formation of a senatorial or representative district' or 'in the formation of such senatorial or representative district.'

If the citizens desire to amend the constitution so as to permit such division, it is within their power to do so, but until they so act, neither legislature nor court can do it for them.

There is a presumption that the language and structure of a provision in a constitution were adopted by choice, and that discrimination was exercised in the language and structure used. People v. May, 9 Colo. 80, 10 P. 641. Choice and discrimination in these respects give no solace to the Attorney General.

This court is obliged to ascertain and give effect to the intent of the Constitutional Convention and of the people who ratified that which the Convention framed. This is our primary guideline in construing the constitution. Cooper Motors v. Board of County Commissioners, 131 Colo. 78, 279 P.2d 685. In ascertaining the intent of the Convention and of the people in adopting our constitution, the whole of Article V as originally adopted is the best criterion. People v. Field, 66 Colo. 367, 181 P. 526.

From statehood to the present day, Article V, Section 47, has remained unchanged. During that time, the third sentence of Section 47 has not been judicially construed, but a general tacit construction and a written opinion by the Attorney General of this state have viewed the division of a county in the formation of legislative districts as violative of...