Cahill v. Leopold

Inglis, C. J.

(dissenting). I am unable to agree with the majority of the court either in their conclusion that the “completion” of the seventeenth census occurred prior to the opening of the 1951 session of the General Assembly or in their conclusion that the thirty-first amendment precludes redistricting by any session of the General Assembly except the one next after the completion of a census.

The thirty-first amendment provides that the senatorial districts, after they are once established, “shall not be altered, nor the number of senators altered, except at a session of the general assembly next after the completion of a census of the United States.” The first question with which we are faced, therefore, is what is meant by the phrase “the completion of a census” as it is used in the amendment. In the consideration of this question it must be borne in mind that every reasonable intendment must be made in favor of the legislative enactment. If the constitution is reasonably open to a construction which will make a statute valid, it must be given such a construction. Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586, 87 A.2d 139; Legat v. Adorno, 138 Conn. 134, 145, 83 A.2d 185; Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702.

It is obvious that the “census” referred to in the amendment is one which shows the detail of all figures requisite for an intelligent division of the state into senatorial districts. Inasmuch as no one *28of those districts may overlap county lines and any one may be a subdivision of a city or town, and inasmuch as, in the formation of the districts, their populations must be as nearly equal as possible, the population figures must be for the whole state broken down into counties, towns and wards. A census to be complete for the purposes of redistricting must be one which shows such figures.

With this much, I apprehend, the majority of the court agree. The differences between us on this phase of the case arise by reason of the difficulty in fixing the date at which so much of the seventeenth census as set forth such figures was completed. The majority opinion seems to fix two possible dates. One of these is October 30, 1950, when, as now appears from the statement of the director of the census, the census was complete, and after which the governor could have obtained the population figures. The difficulty with accepting this date is that there was not, at that time, any official publication of the fact that the necessary figures were then available, and therefore no one in our state government was chargeable with notice to that effect. Most of the argument of the majority seems to be directed to the conclusion that preliminary figures were all that was necessary and that therefore the census was completed when those figures were published. It seems to me that this conclusion is untenable because basing a redistricting upon preliminary figures involves the risk that inaccuracies may creep in and produce an unequal division of the districts. As a matter of fact, as will be pointed out in detail later on, there was no official announcement of even preliminary population figures broken down into wards until long after the opening of the 1951 session of the General Assembly. It is true that pre*29liminary figures based on the field count were released to the press by local supervisors in June, 1950, but they could not have been official because under the federal law the only person authorized to issue bulletins is the director of the census himself. Even if there had been an official announcement, however, it seems to me clear that it could not have marked the completion of the census. I take it that it is axiomatic that nothing is completed until it is in its final form. The completion of the tabulation and the announcement of preliminary figures clearly were not the completion of the census in its final form. My position is that the seventeenth census was not completed until November, 1951. My reasons for arriving at that conclusion follow.

A census is the official enumeration of the population. Webster’s New International Dictionary (2d Ed.). But as used in a constitutional provision such as that before us it connotes something more than that. It would be of no avail to the General Assembly in enacting a redistricting if the census went no further than the mere enumeration or, even if the data obtained in the enumeration had been tabulated, the tables were locked up somewhere in Philadelphia or Washington and not available to the public. The word “census” as used in the thirty-first amendment, therefore, connotes an official record of the enumeration to which access may be had by the public and upon which reliance may be placed. Accordingly, for the purposes of redistricting, a census is completed only when the population figures obtained in the enumeration have been finally tabulated by counties, towns and wards and the results of that tabulation have been released to the public by an official authorized by law to make such publication. In this practically all of the authorities, so far as I have *30been able to seek them out, are agreed. Childers v. Duvall, 69 Ark. 336, 338, 63 S.W. 802; Huntington v. Cast, 149 Ind. 255, 258, 48 N.E. 1025; State v. Braskamp, 87 Iowa 588, 591, 54 N.W. 532; Wolfe v. Moorehead, 98 Minn. 113, 116, 107 N.W. 728; Lewis v. Lackawanna County, 200 Pa. 590, 597, 50 A. 162; Greenough v. Town Council of Narragansett, 29 R.I. 380, 382, 71 A. 594; Nelson v. Edwards, 55 Tex. 389, 392; 14 C.J.S. 103, § 6. There are two jurisdictions in which cases seem to hold that for reapportionment purposes the census figures may be merely preliminary, but even then they must have been made public by a duly authorized official. Herndon v. Excise Board of Garfield County, 147 Okla. 126, 127, 295 P. 223; Ervin v. State, 119 Tex. Crim. 204, 208, 44 S.W.2d 380; Holcomb v. Spikes, 232 S.W. 891, 893 (Tex. Civ. App.). The only case coming to my attention which holds that a census is complete when the enumeration is finished and before it is officially published is Twin Falls v. Koehler, 63 Idaho 562, 567,123 P.2d 715.

It is true that in the past the General Assembly, in redistricting the state, has acted upon preliminary census returns. The plaintiffs contend that this constitutes a contemporary and practical construction made by state officials which should now control the interpretation of the constitutional provision in question. Granted that it should be given weight, it must be remembered that the particular question now before us has never before been brought in issue and, in any event, contemporary construction of a constitutional provision “ ‘can never abrogate the text, ... it can never narrow down its true limitations, it can never enlarge its natural boundaries.’ ” Borino v. Lounsbury, 86 Conn. 622, 625, 86 A. 597. In the present case, the meaning of “completion” of the *31census as used in the thirty-first amendment is so clear that common practice giving it a different meaning, when no one raised a question about it, ought not to be allowed to override it.

The federal law governing the taking of the seventeenth census fixed no date for the completion of that part of it with which we are concerned in this case. It did require that the tabulation of total population by states as required for the apportionment of representatives in Congress be completed within eight months after April 1, 1950. 46 Stat. 21, 13 U.S.C. § 202. It also allowed the period of three years from January 1,1950, for the completion of all of the reports required. 46 Stat. 21, 13 U.S.C. § 202. Nothing, however, is said in the law concerning the completion of the tabulation of population statistics by counties, towns or wards. The provisions of the law which are relevant to the determination when the census was completed by the publication of the final figures as to population are only two in number. Section 18 (46 Stat. 25, 13 U.S.C. § 218) authorizes the director of the census to furnish any governor with certified copies of so much of the population returns or transcripts thereof as may be requested. Section 13 (46 Stat. 25, 13 U.S.C. § 213) authorizes him to have printed preliminary and other census bulletins and final reports of the several investigations authorized by the law. There is no time limited for such publications.

It is stipulated that the governor of Connecticut could have obtained from the director of the census certified copies of returns showing the population in this state at any time after the end of October, 1950. If it is assumed that had he received that information it would have been such an official publication as would have been a completion of the census under *32the thirty-first amendment, the fact is that he did not make the request and that consequently there was no official publication made in that way prior to the opening of the 1951 session of the General Assembly.

There were only four official bulletins published by the director. The first was the bulletin of August 18, 1950. That was merely a preliminary bulletin which expressly disavowed all claim that the final computations would not change the result. Moreover, it did not contain figures broken down into population by wards. Even if it had been final, therefore, it was not adequate to provide a basis for redistricting. For those reasons it was not the completion of the census. The second bulletin was the one released as of November 5, 1950. Although the figures contained in this were stated to be final, they were not broken down into any subdivisions of any states. It cannot well be claimed that this bulletin constituted the completion of the census.

The third bulletin, dated August 12, 1951, contained final figures by states, counties and towns but not by wards. It, therefore, would not meet the requirement of an official publication of the results of the enumeration which would be the completion of the census under the thirty-first amendment. It was not until the fourth bulletin was published on November 28,1951, that there was an official record open to the public at large which met all of the requirements. It was, therefore, this publication which marked the completion of the seventeenth census as contemplated by the thirty-first amendment. Consequently, the completion of the census postdated the convening of the 1951 session of the General Assembly, and the 1953 session was the one “next after the completion of [the] census.”

*33In determining the question whether the thirty-first amendment precludes a redistricting at any session of the General Assembly other than the one immediately following the completion of a census, it must also be borne in mind that the constitution must be interpreted in such a way as to support the validity of a legislative enactment if such an interpretation is reasonably possible.

So far as I am able to ascertain, it is uniformly held in other jurisdictions that, where the constitution imposes a duty on the legislature, at its session next after a census, to redistrict or reapportion the state for election purposes, there is a continuing duty, and, if the first session fails to enact a valid redistricting act, the duty devolves on succeeding legislatures until it is performed. Opinion of the Justices, 254 Ala. 185, 186, 47 So. 2d 714; In re Legislative Apportionment, 12 Colo. 186, 21 P. 480; Fergus v. Kinney, 333 Ill. 437, 440, 164 N.E. 665; State ex rel. Meighen v. Weatherill, 125 Minn. 336, 340, 147 N.W. 105; State ex rel. Gordon v. Becker, 329 Mo. 1053, 1061, 49 S.W.2d 146; Botti v. McGovern, 97 N.J.L. 353, 356, 118 A. 107; People ex rel. Carter v. Rice, 135 N.Y. 473, 490, 31 N.E. 921; Matter of Reynolds, 202 N.Y. 430, 444, 96 N.E. 87, 416; Jones v. Freeman, 193 Okla. 554, 563, 146 P.2d 564; Opinion of the Judges, 61 S.D. 107, 110, 246 N.W. 295; State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724; 18 Am. Jur. 190, § 14.

The reasoning upon which the foregoing authorities rest is well stated in People ex rel. Carter v. Rice, supra, 491: “It cannot be tolerated that a legislature, by a mere omission to perform its constitutional duty at a particular session, could thereby prevent for another ten years the apportionment *34provided for by the Constitution.” In Botti v. McGovern, supra, the New Jersey court puts it forcibly (p. 356): “In our opinion, the right of the inhabitants of the several counties of the state to be accorded the representation in the lower house, provided by the constitution, cannot be defeated by such non-action of the legislature.”

The only case coming to my attention which takes a contrary view is Opinion of the Justices, 18 Me. 458. In that case, decided in 1842, two of the three justices expressed the opinion that, if the session of the legislature designated by the constitution failed to act, the following session had no power. The third justice disagreed. The plaintiffs have cited Noecker v. Woods, 259 Pa. 160, 164, 102 A. 507, and Rumsey v. People, 19 N.Y. 41, 54. The constitutional provision involved in these cases, however, related to the redistricting of judicial districts rather than election districts. This difference is a real one. The redistricting of judicial districts affects only the determination where cases shall be tried. It deprives no litigant of any substantive right. The omission to reapportion senatorial districts in accordance with changes in population, on the other hand, affects the right of each voter to have proportionate representation in the legislature.

It is true that most of the constitutional provisions involved in the cases cited differ from those contained in the thirty-first amendment to the Connecticut constitution. In most instances they go no further than to direct that the session of the legislature next after the taking of a census shall reapportion the state. They do not expressly limit the power to that session. In Opinion of the Judges, 61 S.D. 107, 111, 246 N.W. 295, however, it appears that the constitution of South Dakota, in addition to di*35reeling that the reapportionment be made at the session next after a census, specified expressly “but at no other time.” The court said with reference to that difference (p. Ill): “That is to say, in most of the comparable constitutional provisions there is affirmative mandate for action at a certain specified time but no express prohibition of action at other times. We do not, however, regard that fact as particularly material. It seems to be held by all the courts which have had occasion to pass upon the matter that an affirmative mandate for legislative action at a specific time is an implied prohibition of action at any other time.”

With this background of interpretation of comparable constitutional provisions in other states, I turn now to a consideration of the proper construction to be given the thirty-first amendment to our own constitution. It is clear, in the light of the authorities cited, that, if the amendment imposes on the session of the General Assembly next after a census any duty with reference to redistricting the state and that session has failed to perform that duty, it is a continuing duty to be fulfilled by the next session unless it is prohibited by the amendment. The first inquiry, therefore, is what, if any, duty is imposed upon the session of the General Assembly next after the completion of the census.

There is no question that the first session of the General Assembly after the completion of a census is given the power to alter the senatorial districts, “if found necessary to preserve a proper equality of population in each district.” Although this power is not expressly granted to any session after that of 1911, there can be no doubt that the intendment of the amendment is that each session next after each succeeding census shall have the power.

*36Under the constitution of 1818, the state senators were elected at large. Conn. Const. Art. Ill §§ 4, 5 (1818). The dominant purpose of the thirty-first amendment and of its prototype, the second amendment, was to provide representation in the senate in proportion to the population. The principle of such proportionate representation has become fundamental in our form of government. It was obviously contemplated by the framers of both amendments that changes in the population of the various districts would require changes from time to time in the district boundaries if the fundamental principle of representation in proportion to population was going to be maintained. The grant of a power is often the equivalent of the imposition of a duty to exercise that power. In view of the fact that the exercise of the power granted to the General Assembly in this matter is so essential to the maintenance of the fundamental principle of government embodied in the amendments, I can come to no other conclusion than that it is the intent of the amendments to impose upon the General Assembly the duty to exercise the power. State ex rel. Meighen v. Weatherill, 125 Minn. 336, 339, 147 N.W. 105; see Jones v. Commissioners, 137 N.C. 579, 590, 50 S.E. 291; Palmcroft Development Co. v. Phoenix, 46 Ariz. 200, 205, 49 P.2d 626. It is to be noted that the duty is not necessarily to accomplish a redistricting at any given session but rather to determine at the session next after the completion of each United States census whether a redistricting is “necessary to preserve a proper equality of population in each district.”

After imposing a duty on the General Assembly to determine from time to time the need for redistricting, the amendment goes on to provide that, *37after 1911, “said districts shall not be altered, nor the number of senators altered, except at a session of the general assembly next after the completion of a census of the United States.” It is essential to determine the intent expressed in this clause. Obviously, the only purpose of its injection into the amendment was to preserve a certain stabilization of the districts to the end that they could not be frequently changed for partisan political advantage. The first session of the legislature after the completion of a census has the advantage of being in possession of fresh population figures, and for that reason it is desirable that the redistricting be accomplished by that session. Aside from that consideration, however, there could be no reason to anticipate that the first session would make a more equitable apportionment than any subsequent session.

It is of some significance that changes are not limited to the sessions next after a census but to “a” session next after a census. If it is kept in mind that the main purpose of the amendment was to establish the principle of proportionate representation in the senate and to continue that principle in operation through changes in population, the intendment of the clause in question is apparent. It is that the duty to consider redistricting shall be performed by the General Assembly not oftener than once after each United States census. Reading the amendment as a whole, therefore, it means this: It is the duty of the first session of the General Assembly after the completion of a United States census to determine whether it is necessary to alter the senatorial districts in order to preserve a proper equality of population among the districts. If the first session after any census fails to perform that obliga*38tion, then the duty devolves upon succeeding sessions until it is performed, provided, however, that when it has once been performed after any given census it may not be undertaken again until another census has been completed. This interpretation accords with common sense and is in line with the overwhelming weight of authorities in other jurisdictions.

It is stipulated that the General Assembly of 1951 took no action with respect to altering the state senatorial districts and that no bill for that purpose was introduced in either house. The plaintiffs seek to modify that fact by pointing out (1) that the governor recommended such action, (2) that the attorney general advised the governor that it was competent for the 1951 session to revise the districts, and (3) that the house of representatives of that session proposed certain amendments to the constitution relating to the subject of senatorial redistricting. Action by either the governor or the attorney general can hardly be considered action by the General Assembly. The first of the constitutional amendments proposed was the one the purpose of which was to revise the entire constitution by incorporating the provisions of the forty-seven amendments into the body of the constitution. By this proposal the thirty-first amendment was treated in the same manner as all the others. The other proposal was for an amendment of the thirty-first amendment itself. Neither of these proposals could fairly be interpreted as a consideration by the house of representatives of the redistricting of the state at that time. The further contention of the plaintiffs that the nonaction of the General Assembly in 1951 was the equivalent of a determination by it that no redistricting was necessary at that *39time is an unrealistic appraisal of the situation.

I, therefore, conclude that if the seventeenth United States census had been completed before the convening of the 1951 General Assembly, the result of the failure of that session to consider the question whether a redistricting was necessary would have been that the duty of considering the question would continue to the 1953 session.

Baldwin, J. (dissenting). I cannot concur with my brethren in the majority opinion. The rule has been often stated that a court should approach the question of the constitutionality of an act of the legislature with great caution, make every presumption and intendment in its favor and sustain it unless its invalidity is clear. Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586, 87 A.2d 139. It is the duty of the courts to reconcile legislative enactments with the constitution, if that can be done logically and reasonably, for it must be presumed that the legislature, in enacting a law, intended that it should be valid. DeMond v. Liquor Control Commission, 129 Conn. 642, 645, 30 A.2d 547; Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 247, 111 A. 363. This means simply that we should find, if possible, a reasonable, logical way by which the act of the legislature under attack can be brought within constitutional limitations.

The vital question is whether the seventeenth census was completed, within the meaning of the thirty-first amendment, before the opening of the 1951 session of the General Assembly. The taking of a census is a prodigious task. The statute prescribes a three-year period beginning on January 1 of the first year of each decennium starting in 1930, which it defines as the “decennial census period,” as the time *40within which the census shall be completed. 46 Stat. 21, 13 U.S.C. § 202. It authorizes the director of the census to publish the census bulletins and reports. 46 Stat. 25, 13 U.S.C. § 213. The plaintiffs, in their argument, and the majority opinion, in sustaining that argument, point out that there was available to the governor and members of the General Assembly, before the convening of the 1951 session on January 3, 1951, an enumeration of the population of Connecticut broken down into cities, towns, wards and voting districts which would have furnished an adequate basis upon which to rearrange the senatorial districts of the state. This material was obtainable from the census bureau upon request by certain individuals and upon the payment of a fee. That all may be.so, but it does not follow that the census was completed, within the meaning of the thirty-first amendment, so as to require action by the General Assembly upon such available data. We are not concerned with whether an enumeration of the population had been finished or the census sufficiently completed so that information concerning it could have been obtained from the census bureau in Washington. The language of the amendment is precise. It requires that any redistricting be done “after the completion of a census of the United States.” The framers of the amendment obviously intended that there be some definite time readily ascertainable after which the legislature should act. No better time could have been chosen than the date when the final and complete figures for Connecticut were officially published by the census bureau, as was done on November 28,1951. Thenceforth everybody could know what the population figures were, by city, town, borough, ward and voting district. Not until this official publication could *41it be truly said that the census was completed.

We are construing the provisions of a constitution. Our duty is to construe them, if reason and logic permit, so that they will be understandable and workable in the future. Therefore we should find, if we can, that the words “completion of a census” refer to some act or date, fixed and certain and readily determinable, when the census is officially complete and available to all. In a matter that affects the voting rights of the voters of the whole state, it is essential that the members of the General Assembly should know with certainty when the census is complete. It is only just that the people should have the data upon which their legislature acts. The majority opinion leaves this date or act entirely in the air. It completely fails to make either definite. If a census is complete when sufficient data are available, who is to say just when that time is or whether it is before or after the date for the convening of a General Assembly? There could well be a divergence of opinion which could confound any legislator. At best, that time would depend upon the whim or caprice of an official in the census bureau. On the other hand, the publication of the final figures for Connecticut, as authorized and required by law, is a definite and final act marking the completion of the census. The day of publication is a definite and final date. It is known to the legislators and all officialdom and the people as well. Thereafter there can be no question about the completion of the census and the time when it was completed.

The majority opinion points to the fact that every act changing the limits of senatorial districts has been enacted in the year immediately following the year of the decennial census. It argues further that down through the years governors and others have *42pointed out that the session immediately following the year in which the census is taken is the only one in which the legislature can act. All this could be so and yet have been based upon an assumption that a census had been completed. It does not necessarily follow that the census actually had been completed within the intendment of the thirty-first amendment. The fact is that the precise question which we have to decide in this case has never been raised before. This is the first time that this court has been called upon to determine what the language “the completion of a census” means as it is used in the thirty-first amendment. The whole case turns upon this phrase. If we hold that it means that the census is complete within the intendment of the thirty-first amendment when the population figures for Connecticut are finally and officially published and so made available to all, we arrive at a logical, reasonable result which avoids all confusion and uncertainty for the future and disposes of the case at bar.

Assuming that the census was completed before the convening of the 1951 session of the General Assembly, the majority opinion goes on to construe the amendment to mean that, since the 1951 session failed to redistrict the state, redistricting cannot again be considered until 1961. If that is the case, one branch of the legislature, by refusing to act at a session following the completion of the census, can postpone a needed redistricting for ten years. Concededly, there is a wide and unjust disparity in population among the senatorial districts as now established. Some have as many as four times the population of others. Since the senate is that branch of the legislature in which the people are supposed to be represented on the basis of equality in population in the districts, the public welfare requires that this *43discrepancy be remedied. That is the controlling purpose of the amendment. The General Assembly is given the power to alter the districts “if found necessary to preserve a proper equality of population in each district.” This is tantamount to stating that when there is so obvious a discrepancy as presently exists the legislature is under a duty to exercise that power. Courts are bound to construe a provision of a constitution so that it will accomplish the purpose intended. Palka v. Walker, 124 Conn. 121, 127, 198 A. 265; see West Hartford v. Thomas D. Faulkner Co., 126 Conn. 206, 211, 10 A.2d 592; People’s Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233.

It is not necessary to repeat here the citation of cases in the majority and dissenting opinions which hold that, if the legislature next after a census fails to act, a succeeding legislature may do so. True, those cases do not concern constitutional provisions identical with our own. They do deal, however, with constitutional provisions which are obviously designed to accomplish the same purpose, that is, a redistricting once every ten years. This is brought about by a constitutional requirement that the legislature at a session “next following” or “first convened” after a decennial census shall do such redistricting as the situation may require. Legislatures have broad powers, and if one session fails to take action which is obviously necessary it is going a long way to hold that no subsequent meeting of the legislature can perform the function. While the main purpose of the thirty-first amendment, and of the constitutional provisions discussed in the eases, was to require one redistricting every ten years to preserve equality of representation, it was also their purpose to avoid more than one. In fortifying the *44claim that only a session of the legislature immediately following a census can act and that no session thereafter can act until after another census, the majority lay great stress upon the words in the amendment that the districts, when established, “shall not be altered . . . except at a session of the general assembly next after the completion of a census.” This means, read as it must be with the entire sentence in which the language is contained, that when there has been a redistricting in one decennium there shall not be another until another census has been completed. The prohibition becomes operative only when the legislature has acted to redistrict and not when it has failed to do so.

The dissenting opinion of the chief justice produces a reasonable and workable construction of the amendment and one to which I subscribe.