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Davis v. McCarty

1964 OK 5, 388 P.2d 480, 1964 Okla. LEXIS 244
Supreme Court of Oklahoma·Decided January 10, 1964·No. No. 40496·Published·Cited by 12 cases

Opinions

JACKSON, Justice.

This is an original action filed in this Court by William R. Davis, hereinafter called Petitioner, for review of House Bill No. 586, and Senate Joint Resolution No. 8, which were enacted by the Twenty-ninth Oklahoma Legislature in 1963. Since these enactments provide for legislative appor-tionments of the House and Senate it is our duty, upon petition filed, to review the apportionments to determine if they are in accord with the Oklahoma Constitution. Art. 5, Sec. 10(j), Oklahoma Constitution, and Enrolled Senate Concurrent Resolution No. 13, of the Twenty-ninth Oklahoma Legislature (1963).

Subsequent to the filing of the foregoing Petition for Review the Honorable Charles Nesbitt, Attorney General of Oklahoma, filed an application for this Court to enter a Provisional or Conditional Order which, in effect, would direct how the 1964 elections for legislative offices should be conducted if the Order of Reapportionment entered on July 17, 1963, by the United States District Court for the Western District of Oklahoma, in Moss v. Burkhart, et al., D.C., 220 F.Supp. 149, should be stayed, reversed, vacated, or held ineffective for any reason. In the Attorney General’s motion we are advised that an application for a stay of the Order of Reapportionment entered in Moss v. Burkhart will be made to the Supreme Court of the United States, where that case is now pending on appeal.

Since the promulgation of the opinion in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, we are not wholly without power, in our review, to grant some form of appropriate relief. The Baker case established, for the first time, that the courts are authorized to act when apportionment legislation fails to meet the apportionment standards prescribed by a state constitution. However, since Baker v. Carr gives us no guidelines as to what remedies may be applied by the courts, we have concluded that in selecting an “appropriate remedy” we must select the “minimum remedy” which will meet the test of substantial equality prescribed by our State Constitution. This conclusion is consistent with the separation of powers, so fundamental in our governmental system, and is consistent with the Oklahoma Constitution which directs the Legislature to make the appor-tionments.

Consistent with the view that we should apply the “minimum remedy” and thus preserve the integrity of the separation of powers, we have concluded in our review of H.B. 586 and SJR No. 8 supra, that this may be accomplished without disturbing in any way H.B. 586, except to remove flotorial representation unauthorized by the constitution; and without disturbing in any way SJR No. 8, except to add senatorial representation to meet the test of substantial equality prescribed by our Constitution. In so doing we leave intact all Legislative and Senatorial districts established by the Legislature; we accept their apportionments, and do not involve ourselves in legislative matters.

In considering H.B. No. 586, which apportioned the House of Representatives, we find the population of Oklahoma, according to the last decennial Federal census, was 2,328,284. When this population figure is considered in connection with Art. 5, Sec. 10(a), (b), (d), and (e), Oklahoma Constitution, we find that a ratio of representation in the House of Representatives is 23,282; [483] one-half a ratio is 11,641; one and three-fourths of a ratio is 40,743; arid one-fifth of a ratio is 4,656. With these figures the number of representatives to which any county or county-group is entitled may be determined from the following tables:

Under Art. 5, Sec. 10(d) above:
No. of Permanent Representatives Population
At least 11,641 (1/2 ratio) h
At least 40,743 (1 3/4 ratios) N
At least 64,025 (2 3/4 ratios) fO
At least 157,153 (6 3/4 ratios) N
Under Art. 5, Sec. 10 (e), above:
No. of Flotorial Representatives Population
At least 27,939 (1 1/5 ratios) H
At least 32,594 (1 2/5 ratios) <M
At least 37,250 (1 3/5 ratios) CO

The flotorial representation formula contained in Sec. 10(e), supra, is not applicable when a county has less than a ratio (23,382), but is applicable “when any county shall have a fraction above the ratio * * * equal to one-fifth of a ratio”.

Article 5, Sec. 10(e), supra, provides:

(e) When any county shall have a fraction above the ratio so large that being multiplied by five the result will he equal to one or more ratios, additional representatives shall be apportioned for such ratio among the several sessions of the decennial period. If there are two ratios, representatives shall be allotted to the fourth and third sessions, respectively; if three, the third, second, and first sessions, respectively; if four, to the fourth, third, second, and first sessions, respectively.”

By virtue of this constitutional provision, if a county or county-group is entitled to two or more flotorial Representatives during the several sessions of the decennial period, then such flotorial representation must be allotted to the Legislative sessions as prescribed.

Article 5, Sec. 10(d), supra, contains a proviso “ * * * That no county shall ever take part in the election of more than seven representatives.” Under the terms of H. B. 586, no cotmty is allotted more than seven representatives during any session of the decennial period. In Moss v. Burkhart, supra, the Federal Court concluded that this proviso results in invidious discrimination in Oklahoma and Tulsa counties because of the population factor. However, we are not aware of any decision from the Supreme Court of the United States which requires both Houses of a State Legislature to be based upon numerical equality contrary to the will of the people as expressed in their State Constitution. While it is clearly our duty to uphold both State and Federal Constitutions we doubt that we should be quick to upset our State Constitution until it clearly appears that our State Constitution is repugnant to the Federal Constitution. Accordingly we will assume that our constitutional limit of seven representatives to any individual county, when considered in light of the fact that senatorial representation is'based upon numerical equality, does not result in invidious discrimination against the more populous counties.

[484] We do find fault, however, with the apportionment of the House of Representatives as set forth in H. B. 586, supra, for the reason that it assigns flotorial representatives to some counties and county-groups not entitled thereto under the provisions of Article 5, Sec. 10(d) and (e), supra. We find however, that by applying the constitutional formula for determining the number of flotorial representatives that a county or county-group may be entitled, and the constitutional allotment of the flotorial representatives during the several legislative periods, the unauthorized flotorial representation may be eliminated without disturbing the Legislative districts prescribed by H. B. No. 586 for the election of the House of Representatives.

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Davis v. McCarty, 1964 OK 5, 388 P.2d 480, 1964 Okla. LEXIS 244 (Okla. 1964).

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