Jones v. Cordell, SEC.

1946 OK 135, 168 P.2d 130, 197 Okla. 61, 1946 Okla. LEXIS 458

• Court: Supreme Court of Oklahoma
• Decided: April 18, 1946
• Docket: No. 32561.
• Status: Published

Opinions

Petitioner, Jenkin Lloyd Jones, brings this original action to test the constitutionality of Senate Bill 119 of the 1945 Legislature, S. L. 1945, p. 38, which reapportioned Senatorial Districts No. 7 and No. 9 consisting of Kay, Grant, Alfalfa, and Major counties. He seeks to restrain respondents, who are the state election officials, from proceeding under the allegedly invalid law.

1. Respondents contend that petitioner, being a citizen of Tulsa county and not a resident of either of the senatorial districts affected by the act, may not maintain this action. This question has been decided adversely to respondents' contention in Jones v. Freeman, 193 Okla. 554, 146 P.2d 564.

2. The next question for decision is whether the Legislature may validly enact a senatorial apportionment law affecting less than all of the senatorial districts of the state. Upon the oral argument of this case the Assistant Attorney General, who presented the case on behalf of respondents, conceded that Senate Bill 119 is unconstitutional upon this ground. While we are not bound by his concession, we are of the opinion that his view is correct. As we pointed out in Jones v. Freeman, above, the framers of our Constitution made it the mandatory duty of the Legislature to reapportion the state for legislative purposes once in each decennial period, so that the people might have, as nearly as practicable, an equal voice in the government. While they did not so state, it is apparent that they contemplated that the entire state should be apportioned into proper senatorial districts by a single act. The proper reapportionment of the state, giving due effect to all of the various constitutional requirements, is at best a difficult and involved task, and one almost impossible to accomplish by piece-meal legislation. Each district is related to, and to some extent interdependent on, all the other districts, and to effect a proper law the whole scheme must be worked out at one time. Moreover, the Constitution provides that once a valid apportionment law is enacted, no further apportionment law may be passed until the next federal decennial census. Const., art. 5 §§ 9(a), 10(b), (c); Jones v. Freeman, above. Consequently, if Senate Bill 119, pertaining to Senatorial Districts 7 and 9, were to be held valid, it is clear that no further apportionment law affecting these districts could be enacted until after the next federal decennial census. Yet the Legislatures of 1947 and 1949, should they desire to enact a proper apportionment law covering the rest of the state, might find it impossible to fit the districts created by this act into a harmonious scheme for the proper apportionment of the entire state.

We find no cases directly in point on this question and counsel have cited none. The case most nearly in point is Rogers v. Morgan, 127 Neb. 456, 256 N.W. 1. In that case the Nebraska Legislature re-enacted the apportionment law which had been in effect during the preceding decennial period, but instead of making proper provision for the shifts in population which had occurred since the enactment of the former law, it made changes in only two districts. The court, in holding the law invalid because in conflict with constitutional provisions very similar to our own, said that it appeared that the "act did not apportion the whole state according to population and that such apportionment was not done for the correction of inequalities of the whole state". Nebraska also has a constitutional provision that apportionments may be made but once in each decennial period, and the court pointed out that to hold the law valid would preclude a proper apportionment of the remaining counties during the remainder of such period.

We hold, therefore, that Senate Bill 118 is invalid because in conflict with the requirement of our Constitution that the entire state be reapportioned into proper senatorial districts by a 'Single act.

3. Respondents urge, however, that even though the law be invalid, we should decline to restrain its operation since it affords a more equal representation to the inhabitants of the two districts than is afforded by the present apportionment laws. Prior to the act, according to the Federal Census of 1940, District No. 7, consisting of Alfalfa and Major counties, had a population of 26,075, while District No. 9, consisting of Grant and Kay counties, had a population of 60,212. By Senate Bill 119 Grant county was taken from District No. 9 and made a part of District No. 7 so that under the new law District No. 7 has a population of 39,203 and District No. 9 has a population of 47,084. Since each district was given one Senator under the old law as well as the new, it is true that the act does tend to correct the inequality theretofore existing between the two districts.

Respondents say that in Jones v. Freeman we refused to enjoin an election under invalid laws, because to do so would have resulted in a greater inequality of representation than that already existing, and urge that we should do likewise here. But in Jones v. Freeman a different situation existed. The various invalid laws were of long standing and their constitutionality had never before been questioned in the courts. To have enjoined elections under all of them would have required the election to be held on the basis of the original apportionment made in the Constitution. So drastic a step, we thought, would have been contrary to the best interests of the state, and in our discretion we declined to take it. But we did not mean to intimate that we would refuse to strike down future invalid laws. Having pointed out in our former decision the constitutional requirements for valid legislative reapportionment laws, we think the public welfare will be best served by requiring laws enacted thereafter to conform to those requirements.

Respondents are enjoined from proceeding under Senate Bill 119.

GIBSON, C.J., HURST, V.C.J., and OSBORN, BAYLESS, and DAVISON, JJ., concur. RILEY, J., concurs in conclusion.

WELCH, J., dissents to the action of the court in assuming jurisdiction of this action as a proper method and manner to test the questions involved, as well as to the whole action of the court on the majority opinion.