Grim v. Cordell

PER CURIAM. This is an original proceeding in this court commenced by Orval Grim seeking a writ of mandamus to compel the respondents as members of the State Election Board to accept and - file his notification and declaration as a candidate for the Democratic nomination for the State Senate from the Second Senatorial District at the 1946 Democratic primary election, and to cause his name to be placed upon the official primary election ballot. The Second Senatorial District, composed of Beckham, Dewey, Ellis, and Roger Mills counties, was created by section 11, art. 5, of the Constitution, and was allotted two Senators. In 1941, the Legislature divided the district into two nominating districts, making Dewey, Ellis, and Roger Mills counties a nominating district and providing that said counties should nominate a candidate for the State Senate in 1942 and each four years thereafter, and that Beckham county should constitute a nominating district and should nom *145 inate a candidate for the State Senate in 1944 and each four years thereafter, and providing that the candidates so nominated should be voted for at the general election by the voters of the entire district. Chapter 2, Title 14, S.L. 1941, page 38, 14 O.S. 1941 § 9. The candidates for the State Senate were nominated and elected pursuant to said act in 1942 and 1944. In 1945, the Legislature amended said act so as to make Ellis and Dewey counties a nominating district and Beckham and Roger Mills counties a nominating district, and provided that Ellis and Dewey counties should nominate a candidate in 1946 and each four years thereafter and that Beckham and Roger Mills counties should nominate a candidate in 1948 and each four years thereafter, and that the candidate so nominated should be voted for at the general election by electors of the entire district. S.L. 1945, page 39. Grim is a resident and elector of Roger Mills county and possesses all the qualifications of a State Senator as prescribed, by section 17, art. 5, of the Constitution. He alleges in his petition, and contends here, that both acts, above cited, are unconstitutional, and that, in any, .event, the 1945 act is unconstitutional'. ." .. ; In Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564, we pointed out that, under article 5, secs. 9, 9(a), 9(b), and 10(b) of the Constitution, it .was the mandatory duty of .the Legislature, after each decennial .federal census, beginning in 1910, to divide the state into 44 senatorial districts, and that but one Senator- should be elected from each district, except in counties having a population entitling them to more than two Senators, and we pointed but that no valid senatorial reapportionment act has been passed since statehood. And in Jones v. Cordell, 197 Okla. 61, 168 P. 2d 130, we held that the state cannot be reapportioned by piecemeal, but must be by a single act. While these cases do not decide the precise question here presented, we think-they are persuasive. The -mákers of the Constitution had in mind that the senatorial apportionment made by article 5, sec. 11, would serve only until the Legislature could perform its mandatory duty to reapportion the state at the first session after the Decennial Federal Census of 1910 was announced. See article 5, sec. 11, Constitution. Our attention has been called to no provision of the Constitution expressly denying the Legislature the power to create nominating districts in senatorial districts. But the rule is that legislative authorities may be limited by those restrictions which are impliedly imposed. “Restrictions in a Constitution as to legislation are equally effective whether they arise by implication or are stated in express terms; and such restrictions may be found either in the language employed or in the evident purpose which was in view and the circumstances and historical events which led to the enactipent of the particular provision as a part of the organic law.” 11 Am. Jur. 897. To the same effect, see Trapp v. Cook, 24 Okla. 850, 105 P. 667; Thomas v. Reid, 142 Okla. 38, 285 P. 92; 12 C.J. 750; Cooley’s Constitutional Limitations (8th Ed.) p. 355. By article 5, secs. 9, 9(a) and 9(b), and 10 of the Constitution, the policy of.the state with reference to legislative districts, Senate and House, of Representatives, is outlined, and the for-, mula by' which the Legislature must, be guided in enacting reapportionmeht .acts' is clearly stated, so that the legislative discretion is confined to narrow limits. The duty of the Legislature to reapportion the state for senatorial purposes by one.' act at the next session after the announcement of the Federal Census of 1910, and at the first session following the announcement of each subsequent decennial federal census, and to provide for the election of but one Senator from. each district, ex *146 cept as provided for the populous counties entitled to more than two Senators, by necessary implication excludes the right to do so by piecemeal legislation, either by rearranging districts or by creating nominating districts within districts. The respondents argue that the cases sustaining acts creating nominating districts for district judges are in point and sustain the right to create senatorial nominating districts. We do not agree. The applicable constitutional provisions are not similar. There is no such mandatory duty upon the Legislature to periodically redistrict the state for judicial purposes according to a clearly defined formula and to provide for but one district judge in each judicial district as there is with reference to senatorial districts. By article 7, sec. 9, of the Constitution, the authority of the Legislature to create district court judicial districts is granted and no limit is placed thereon. The respondents also point out that there are other senatorial districts in which nominating districts have been created, and that the legislative construction of the Constitution in creating such nominating districts should be followed. In the light of the plain provisions of our Constitution pertaining to senatorial districts, referred to in Jones v. Freeman, above, this argument is not convincing. Legislative construction of the Constitution is given consideration by the courts only when the provision is ambiguous. Coyle v. Smith, 28 Okla. 121, 113 P. 944; 11 Am. Jur. 698; 12 C. J. 717. For many years the Legislature has construed the Constitution not to prevent them from redistricting the state for senatorial purposes by piecemeal legislation, but in Jones v. Freeman, above, we declined to follow such construction, since it is contrary to the plainly expressed provisions of the Constitution. The reasons for withholding relief in Jones v. Freeman, supra, are applicable to the 1941 Act, in effect when that decision was promulgated. It follows that the 1945 Act above cited, is unconstitutional and void, and the petitioner is entitled to the writ. The candidates for State Senator in said district will be voted for by the qualified electors in the 1946 primary election under the 1941 Act, above cited. Writ granted. WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. HURST, V.C.J., and RILEY, J., concur specially. BAYLESS, J., concurs in result. GIBSON, C.J., and OSBORN, J., dissent.