Romang v. Cordell

O’NEAL, J.

(dissenting). The majority opinion assumes that the legislative Apportionment Act, Title 14 O. S. 1951 §§93-96, may be sustained as a valid exercise of discretionary power of the Legislature. That assumption vio*375lates the express wording oí the Constitution for it is manifest that the constitutional provisions have been disregarded. The framers of the Constitution in art. V, §10 (b) provided:

“The apportionment of this State for members of the Legislature shall be made at the first session of the Legislature after each decennial Federal census.”

and in §10(c) provided:

“The whole population of the State as ascertained by the Federal census, or in such manner as the Legislature may direct, shall be divided by the number one hundred and the quotient shall be the ratio of representation in the House of Representatives for the next ten years succeeding such apportionment.”

and in §10(i) provided:

“Ascertaining the ratio of representation according to the Federal census, or such other enumeration as the Legislature may provide, and attaching any county, previously having a separate representative but found to have less than the number required by the ratio, to an adjoining county; and determining the number of representatives each county or district shall be entitled to, and for what sessions of the Legislature within the next decennial period; and apportioning the Senators, shall be done by the Legislature and be presented to the Governor for his approval in the same manner as other bills which may be passed by the Legislature.”

and in §10(j) provided:

“An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, under such rules and regulations as the Legislature may prescribe. And such court shall give all cases involving apportionment precedence over all other cases and proceedings; and if said court be not in session, it shall convene promptly for the disposal of the same.”

It was not contended at the bar that the Legislature has by act, resolution, rule or otherwise adopted a plan or scheme as a substitute for the recited constitutional provisions. The argument that we must indulge the presumption that the Legislature has so acted, though we find no symbol to guide us, is based on too tenuous an argument for adoption. The legislative act is neither based on population or geographical lines, but upon an undisclosed formula, the application of which is left to the arbitrary or capricious acts of those empowered to enforce the act. The inequalities and inequities thus created will be illustrated infra.

Although the Constitution twice states that the population of the whole state, as ascertained by a Federal census, shall, unt'l otherwise provided by the Legislature, be the sole method of making the apportionment for members to the House of Representatives, the opinion labors the application of sec. 10(j) as to whether that section.is self-executing. It cannot be successfully contended that Sec. 10(j) is ambiguous. It expressly gives any citizen the right to challenge in this court any act of the Legislature purporting to make an apportionment for representation in the House of Representatives. The argument is made that sec. 10(j) also provides that the action can only be maintained under such rules and regulations as the Legislature may prescribe.

The Legislature is not commanded to promulgate rules and regulations, but is given permissive authority so to do. The inherent power of the court, as well as the express language of sec. 10(j), gives this court power and authority to entertain an action of a citizen who challenges the constitutionality of the Apportionment Act in question.

In my view of the case, one simple question is presented for our review, that is, whether the Apportionment Act of the 1951 Legislature here drawn in question is constitutional. We can lay to one side the statement in the opinion that only the plaintiff, a citizen, is before the court, and that this action would adversely affect all residents of 42 of the 77 counties orf the state, by depriving them of representation, in *376whole or in part, in the Legislature. Suffice is to say the plaintiff is here under the authority of the express language of the Constitution. The residents of the 42 counties are here, so far as their appearance is required, by the Attorney General, who has ably represented their position before this court. But the opinion emphasizes that under sec. 10(j) that the review should be denied in the absence of an affirmative showing that the Legislature has promulgated rules and regulations governing 'the review. This indeed is a novel assertion. In effect, it bars this court under its constitutional power to review the Apportionment Act on the sole ground that the Legislature has neglected to pass rules governing the review. This assumption is unsupported by citation of precedent to sustain it. Moreover, I am unable to concede that an important constitutional provision can be nullified by inaction more readily than by affirmative action. Neither do I find myself able to agree with the majority opinion that this proceeding is little more than ex parte determination of the issues. It is not pointed out what necessary parties are absent.

On two previous occasions we have held that any citizen of the state is entitled to maintain an original action in the Supreme Court under authority of art. VII, §2, of the Constitution to test the constitutionality of legislative apportionment acts and to have enforcement of the judgment in such case by the proper writ. Jones v. Cordell, Secretary, et al., 197 Okla. 61, 168 P. 2d 130; Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564.

The assertions advanced in argument that 18 counties each have less than one-half of a representative ratio in population based on a Federal census enumeration and that 24 other counties have been allotted excessive representation according to the Constitution and the Federal census, are not controverted, but are in effect admitted. Moreover, we are impotent to construe the constitutionality of the act, as the majority opinion points out, because only the people in their sovereign power through a constitutional amendment can force the Legislature to adopt the necessary rules and regulations suggested in the Act. The opinion, in this respect, shears the court of its constitutional function solely on the theory that the Legislature has neglected to exercise a permissive function and not an express demand of the Constitution. The majority opinion tacitly admits that the court is powerless to judicially determine the constitutionality of the Apportionment Act. The opinion states:

“The solution of the problem, in its final analysis, is solely in the hands of the people as the supreme sovereign. They may elect members of the Legislature who will enact a re-apportionment act in conformity with the constitutional requirements as outlined herein and in the case of Jones v. Freeman, supra, or who will prescribe rules and regulations whereby this court may review and revise such acts as contemplated in Article V, sec. 10(j) of the Constitution; . . .”

In Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564, we construed the identical provisions above referred to of the State Constitution, and we there held the provisions of the Oklahoma Constitution for enacting legislative apportionment acts are mandatory. And in that case we said that this was a continuing duty and if not exercised at one session of the Legislature, the duty should be performed at a succeeding session.

In the majority opinion in the case before us it is suggested that the people have not seen fit to amend the Constitution to force the Legislature to adopt rules and regulations to comply with sec. 10 (j) and .fortior we are without jurisdiction in the premises. I readily concede as the opinion holds that the court has “no power” under the Constitution to compel the Legislature to “properly” re-apportion the state, as is required by the Constitution, but I do not hold with the majority view that the Act of apportionment cannot *377be held null and void when it not only totally disregards but completely ignores the express mandate of the Constitution.

Moreover, we held in Jones v. Freeman, as well as in Jones v. Cordell, supra, that the Supreme Court has original jurisdiction of an action to test the constitutionality of legislative apportionment by any of the appropriate writs mentioned and that such jurisdiction is not affected by the provisions or art. V, §10 (j) of the Constitution, as the power is expressly vested in this court under art. VII, §2 of the State Constitution of Oklahoma.

For the reasons herein stated, I respectfully dissent from the majority opinion in this case. I would grant the writ.