State Ex Rel. Smiley v. Holm

¹ Reported in 238 N.W. 494. The appeal is from an order sustaining a demurrer to the petition of relator, a citizen and taxpayer, on the ground that it did not state facts sufficient to constitute a cause of action.

These proceedings arise from an act of the seventy-first congress, approved June 18, 1929, entitled:

"An Act to provide for the fifteenth and subsequent decennial censuses and to provide for apportionment of Representatives in Congress."

The effect of the act was to reduce Minnesota's representatives in the house of representatives of the congress of the United States from ten to nine members. Intending to divide the state into nine congressional districts, there was introduced in the house of representatives in our state legislature a bill known as H. F. No. 1456 (see L. 1931, p. 640) which in form specified the counties to constitute each of such nine districts. This measure passed the house on April 16, 1931, and the state senate on April 20, 1931. It was transmitted to the governor, who promptly returned it to the house, where it originated, without his approval and with his written objections which in form constituted a veto. Two days later the house adopted the following resolution, to-wit:

"WHEREAS, on the 16th day of April, 1931, the House of Representatives of the State of Minnesota duly passed H. F. No. 1456, a bill for an act to divide the State of Minnesota into nine Congressional Districts; and

"WHEREAS, on the 20th day of April, 1931, said H. F. No. 1456 was duly passed by the Senate of the State of Minnesota; and

"WHEREAS, said bill is now in the possession of the House,

"NOW, THEREFORE, BE IT RESOLVED, That the Chief Clerk of the House be and he is hereby directed to deposit for filing with the Secretary of State the enrolled copy of said H. F. No. 1456, said bill to become and remain part of the permanent records of the office of the Secretary of State."

Five days later H. F. No. 1456 was deposited with the secretary of state in accordance with the terms of the foregoing resolution.

The population of the various congressional districts as specified in H. F. No. 1456, as shown by the census of the United States for the year 1930, was as follows:

"First congressional district ...................... 228,596

"Second congressional district ..................... 251,734

"Third congressional district ...................... 291,601

"Fourth congressional district ..................... 286,721

"Fifth congressional district ...................... 344,500

"Sixth congressional district ...................... 301,984

"Seventh congressional district .................... 326,391

"Eighth congressional district ..................... 276,633

"Ninth congressional district ...................... 253,786"

An equal division of our population of 2,551,583 would allocate 283,509 inhabitants to each congressional district.

It is the duty of the secretary of state to receive filings of candidates for nomination to the office of representative in congress from all persons eligible to be candidates thereat; and to refuse such filings for nomination thereto when persons tendering the same appear to be ineligible. He also has charge of the printing of all necessary ballots, the expense of which is usually greater than the income from filing fees.

Soon after the adjournment of the 1931 session of our state legislature, a controversy arose as to whether the legislature had in fact prescribed the congressional districts in the state or whether the governor's veto had invalidated the efforts of the senate and the house. The secretary of state, claiming the governor's veto was a nullity, acted upon the theory that new districts had been created and accepted a filing fee from one or more persons as candidates in at least one of such districts and refused to accept filing fee from one who sought to be a candidate at large upon the theory that the legislature had failed to comply with the requirement of congress. The relator herein seeks to sustain the veto of the governor and to have determined the question as to whether or not the proceedings of the senate and the house are a nullity.

In the United States constitution we find:

Art. I, § 4. "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to places of choosing senators."

In the constitution of the state of Minnesota we find:

Art. 4, § 1. "The legislature shall consist of the senate and house of representatives, which shall meet biennially at the seat of government of the state."

On August 8, 1911, the congress passed an act for the apportionment for representatives in congress among the several states under the thirteenth census. 37 St. 13, c. 5 (U.S. Code, title 2, § 2, et seq.). It was therein provided that the congressmen should "be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants." Section 3 of the act (U.S. Code, title 2, § 3). Such provision is not found in the language of the act of June 18, 1929. 46 St. 21. It is the contention of the appellant that said provision of the 1911 law is still in force because the act of 1929 provides that such redistricting should be made

"by apportioning the then existing number of Representatives among the several States according to the respective numbers of the several States as ascertained under such census, by the method used in the last preceding apportionment."

It is claimed that the foregoing language reads into the statute of 1929 that portion of § 3 of the 1911 statute which requires that the districts be composed of contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants. It is also pointed out that the language of the 1911 act provides that representatives to the sixty-third congress "and each subsequent Congress" should be elected from such districts.

The principal questions presented by appellant are: (1) That H. F. No. 1456 is invalid because vetoed by the governor and not passed over his veto; (2) that if H. F. No. 1456 is otherwise valid, the provisions of the same dividing the state into districts are so arbitrary and unfair as to violate the provisions of the act of the congress of August 8, 1911, and also certain provisions of the federal constitution.

1. For a long time congress passed apportionment acts following each decennial census act. Obviously these decennial statutes were enacted to meet the change in population, and it was always apparently contemplated that ten years hence another law of similar character would be enacted. In 1920 the congress did not enact such a law. Consequently the 1911 statute served. It was a general and permanent law at least for a time, and congress very properly caused the same to be included in the judicial code in 1926. Section 3 of the act of 1911 is as follows:

"That in each State entitled under this apportionment to more than one Representative, the Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative." (37 St. 14.)

We construe the foregoing section as meaning that the provisions thereof were applicable only to elections held under "this apportionment" i. e. pursuant to the act of 1911. The law was apparently so written to so limit its application. The history of the enactment of these laws, necessitated by the national decennial census, confirms this belief. No such law having been passed by congress in 1920, the congress in 1929, apparently to meet the past omission and to avoid a repetition, enacted the 1929 law, which called for the fifteenth and subsequent decennial censuses and to provide for apportionment of representatives in congress. It embraced the two subjects which had usually been covered by separate acts. Upon the enactment of the 1929 law, the 1911 act, so limited by its own language and so replaced by subsequent law, "was no longer upon the scene." The later law contained a clause repealing all inconsistent laws. Some portions of the 1929 law were inconsistent with the same sections in the 1911 law. In fact the 1929 law made provision which would replace all of the 1911 law, unless it was that portion of § 3 requiring the districts to have the characteristics therein mentioned. It is true that many statutory laws are cumulative and additional, but such statutes usually involve remedies whereby a class of persons may proceed under a prior law or under the one which gives cumulative or additional remedies. In the case before us the history, nature, purpose, and language of these statutes disclose a clear intention on the part of congress to have each of these apportionment acts replace its immediate predecessor. We believe it was the intention of congress to have the 1929 statute supersede and take the place of the entire statute of 1911. Until the 1911 act, it was made the duty of the legislatures of the several states to divide the respective states into districts. Such was their constitutional duty. The 1911 act went further and provided that the state legislatures in redistricting should act in the manner provided by the state laws. This was to reach and include the referendum, existing in some states, particularly in the state of Ohio. The clause "by the method used in the last preceding apportionment," as used in the 1929 act, we construe as relating exclusively to the arithmetical method of computation.

Congress has never attempted to modify the grant of this constitutional power to the state legislature, but it did assume in the act of 1911 to direct how the duty should be performed, that is, in accordance with the laws of the state. Since no direction now exists, we need not consider the power of congress to give this direction in the 1911 law. The constitutionality of that act may present a debatable question; but that is unimportant, since we hold that that law is no longer in the picture.

2. The act of 1929 does not require the districts to be "composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants."

We are of the opinion that the various provisions of our state constitution cited in the briefs are of little importance in relation to the matter now in controversy. The power of the state legislature to prescribe congressional districts rests exclusively and solely in the language of art. I, § 4, of the United States constitution. The provisions of the state constitution control and operate when the ordinary affairs of the state are involved. They cannot of course prevail as against the provisions of the superior fundamental law of our nation.

The legislature is required to "prescribe" the times, places, and manner of holding elections. This means "to lay down authoritatively as a guide, direction, or rule of action; to impose as a peremptory order; to dictate; appoint; direct." (Webster's New International Dictionary.)

The command to the legislature comes, as indicated, from the United States constitution. The reason why the state legislature acts in the matter is because of a mandate, not from the people of the state but from the people of the United States. It seems then that our first question is to be solved by ascertaining the meaning of the term "legislature" as found in the federal constitution, art. I, § 4.

The ordinary meaning of the word "legislature" is that it refers to the senate and house of representatives, which our state constitution [art. 4, § 1] says constitutes the "legislature." Within this meaning it indicates the representative body which makes the laws of the state and of which the chief executive is not a part, although he has a limited restraint upon the enactment of state laws. Perhaps the veto power is a legislative power. Gottstein v. Lister,88 Wn. 462, 153 P. 595, Ann. Cas. 1917D, 1008; Spokane G. F. Co. v. Lyttaker, 59 Wn. 76, 109 P. 316; In re Opinion of the Justices, 118 Me. 552, 107 A. 705, 5 A.L.R. 1407. The word "legislature" has also been used to indicate "the lawmaking power of the state." State ex rel. Schrader v. Polley, 26 S.D. 5,127 N.W. 848; Hawke v. Smith, 100 Ohio St. 385, 126 N.E. 400; State ex rel. Mullen v. Howell, 107 Wn. 167, 181 P. 920; Stuart v. Chapman, 104 Me. 17,70 A. 1069; State ex rel. Davis v. Hildebrant,241 U.S. 565, 36 S.Ct. 708, 60 L. ed. 1172. Appellant urges us so to hold. Under our state constitution the legislature consists of the senate and the house of representatives. We believe the word is ordinarily so understood. The frequent expression that our state, like the nation, has three branches of government, executive, legislative, and judicial, is seldom, if ever, understood as meaning that the governor is a part of the legislative.

In what sense was the word used in the federal constitution? Unless a contrary intent appears, we must accept words as used in their ordinary meaning; if so, little construction is here required.

The word "legislature" is found in other portions of the federal constitution. The members in the lower branch of the congress shall have the qualifications requisite to be members of the lower house of the "state legislature." Art. I, § 2. Also see the seventeenth amendment. Prior to the adoption of the seventeenth amendment, providing for the election of United States senators by popular vote, they were chosen by the "legislature." Art. I, § 3. The seventeenth amendment also authorized the "legislature" to empower the executive authority to make temporary appointments to fill vacancies in the United States senate until the people fill such vacancies as the "legislature" may direct. Prior thereto the governor was authorized to fill such vacancies by temporary appointments until the next meeting of the "legislature." Art. I, § 3. It is provided that the United States shall protect each state against domestic violence upon application of the "legislature." Art IV, § 4. It provides that members of the "state legislatures" shall take a certain official oath. Art. VI. The phrase "members of the legislature" is used in thefourteenth amendment, § 2, and also in § 3. It provides for the "consent of the legislature" to the United States government buying lands for certain purposes. Art. I, § 8. It prohibits two or more states merging without the "consent of the legislatures of the states concerned." Art. IV, § 3. It provides that amendments may be ratified by the "state legislatures." Art. V. The same article provides that congress upon application of the "legislatures of two-thirds of the several states, shall call a convention for proposing amendments." It is provided that the presidential electors shall be appointed as the "legislature" may direct. Art. II, § 1. Then we have the provision now under consideration.

In the days when the "legislature" elected the United States senators, it was never suggested, so far as we are advised, that the governor could apply his veto power. Indeed in all the uses of the word "legislature" in these various provisions in the federal constitution, it would seem that it was used in the same sense — in the ordinary meaning, i. e. as being the representative body which makes the state laws and not all the governmental machinery which constitutes the lawmaking power of the state. Indeed at the time of the adoption of the federal constitution there were seven or more states wherein the veto power did not exist.

We think it was the spirit of the framers of the constitution that in ordinary questions of governmental affairs the majority should rule. We see no reason why they would intend to advance the proposition that if the governor was opposed to the judgment of the legislature it would have to determine questions referred to it by a two-thirds vote, as is required by our state constitution, instead of by a majority vote, while in those states where no veto existed a majority would always control. We cannot think that such consequential situation was intended. We must view the situation from the viewpoint of the framers of the constitution as it then appeared in their light. We cannot be controlled by what one might think the law ought to be now. The construction of such constitutional provisions sounds in fundamentals. The word "legislature" as so used necessarily had reference to legislatures as they were then known. A constitution must always be construed in the light of its history. The referendum was then unknown, and where it has been considered as a part of the lawmaking power relative to art. I, § 4, it was because of the act of 1911 providing that the redistricting was to be done according to the laws of the respective states. Congress itself by that act recognized the referendum as a part of the legislative authority of the state.

It is now the settled law that the state legislature, in ratifying amendments to the federal constitution, does not act in the discharge of its legislative duties as the lawmaking body but does act for and in behalf of and as representative of the people of the state, under the power conferred by art. V of the federal constitution. Hawke v. Smith, 253 U.S. 221,40 S. Ct. 495, 64 L. ed. 871, 10 A.L.R. 1504; Barlotti v. Lyons,182 Cal. 575, 189 P. 282; Decher v. Secretary of State,209 Mich. 565, 177 N.W. 388; Whittemore v. Terral, 140 Ark. 493,215 S.W. 686; Prior v. Noland, 68 Colo. 263, 188 P. 729.

The legislature in districting the state is not, strictly in the discharge of legislative duties as a lawmaking body, acting in its sovereign capacity, but is acting as representative of the people of the state under the power granted by said art. I, § 4. It merely gives expression as to district lines in aid of the election of certain federal officials; prescribing one of the essential details serving primarily the federal government and secondly the people of the state. The legislature is designated as a mere agency to discharge the particular duty. The governor's veto has no relation to such matters; that power pertains, under the state constitution, exclusively to state affairs.

The word "legislature" has reference to the well recognized branch of the state government — created by the state as one of its three branches for a specific purpose — and when the framers of the federal constitution employed this term we believe they made use of it in the ordinary sense with reference to the official body invested with the functions of making laws, the legislative body of the state; and that they did not intend to include the state's chief executive as a part thereof. We would not be justified in construing the term as being used in its enlarged sense as meaning the state or as meaning the lawmaking power of the state. We are of the opinion that the authorities support our conclusion. Hawke v. Smith,253 U.S. 221, 40 S.Ct. 495, 64 L. ed. 871, 10 A.L.R. 1504; Brooks v. Fischer, 79 Cal. 173, 21 P. 652, 4 L.R.A. 429; Barlotti v. Lyons, 182 Cal. 575, 189 P. 282; Decher v. Secretary of State, 209 Mich. 565, 177 N.W. 388; Whittemore v. Terral, 140 Ark. 493,215 S.W. 686; Prior v. Noland, 68 Colo. 263, 188 P. 729; In re Opinion of the Justices, 118 Me. 544, 107 A. 673,5 A.L.R. 1412; State ex rel. Gill v. Morris, 79 Okla. 89, 191 P. 364; Carson v. Sullivan, 284 Mo. 353, 223 S.W. 571; Ex parte Dillon (D.C.) 262 F. 563; In re Opinion of the Justices,254 Mass. 617, 151 N.E. 680. It follows that the governor's veto herein was a nullity.

State ex rel. Schrader v. Polley, 26 S.D. 5, 127 N.W. 848, is not in harmony with our conclusion. The opinion in that case was put upon two grounds, the first being based upon the theory that art. I, § 4, did not delegate power to the legislature or to the state to provide for the election of representatives; and it was said that this power was one reserved by necessary implication to the various states and that the whole purpose of art. I, § 4, was simply to grant to the congress the power to supersede by law enacted by congress any state regulation on the subject. The second ground was however that the words "the legislature thereof" did not mean simply the representative body we have spoken of, but did mean the "lawmaking power" of the state as established by the state constitution, and including the people of the state when authorized to act in view of the referendum provisions contained in the state constitution. The second ground in the Schrader case seems to have been overruled by Hawke v. Smith, 253 U.S. 221,40 S.Ct. 495, 64 L. ed. 871, 10 A.L.R. 1504. We are not satisfied with the first reason given in support of the Schrader case, and we speak with the utmost respect for the learned judges who have reached a conclusion differing from ours. We feel that it was erroneous to claim that the action was taken under a power reserved to the people of the state without regard to the grant of power in the federal constitution. We think the state acts rather under a power surrendered to it. Certainly, congress must have the implied, if not the expressed, power to provide for the election of its members and to make all necessary laws in reference thereto. U.S. Const. art. I, § 8. We have not considered the matters involved herein in as great detail as were covered by the helpful memorandum of the learned trial court, and in reference to the reasoning of the South Dakota case we now quote with approval a portion of the memorandum:

"There can be no inherent power in the people of South Dakota to legislate for any one except themselves. There can be no inherent power in the people of the State to adopt a Federal Constitution or to amend the Federal Constitution which is to govern the inhabitants of other states and territories. As a matter of fact, that Constitution may be amended and they may be subjected to the effects of such amendment without their consent and contrary to their expressed wishes. The Representatives in Congress are officers of the Federal Government. They legislate for all the people of the United States. They govern the District of Columbia, the Territory of Alaska and the island possessions of the nation. It does not sound plausible that any State may claim that it has inherent power or control over legislative, executive or judicial officers who are performing exclusively federal functions. The State does not have inherent power to determine who shall vote in a federal election, whether it be for President, Senators or Representatives. The right to vote in such an election is derived from the Federal Constitution exclusively. The Federal Government determines the term of office, the duties, powers and rights and the compensation of Senators and Representatives. It determines their apportionment to the several States. It is a Federal election to choose Federal Officers by Federal Electors, Ex parte Yarbrough,110 U.S. 651, 4 S.Ct. 152, 28 L. ed. 274; Felix v. U.S. (C.C.A.) 186 F. 685. Congress has already fixed the time for Congressional elections. USCA, title 2, § 7. Nothing is left to the States except through their Legislatures to fix the places of election. As in the case now before the Court, so in the Schrader case, this was done by districting the State. It does not seem to be either an inherent and reserved power of the people of the State nor does it appear to be State legislation subject to the State Constitution."

In State ex rel. Davis Y. Hildebrant, 241 U.S. 565,36 S. Ct. 708, 60 L. ed. 1172, it was held that the act of 1911 expressly modified the phraseology of previous acts by inserting a clause mainly intended to provide that where, by the state constitution and laws, the referendum was treated as a part of the legislative power, the powers thus constituted should be held and treated to be the state legislative power for the purpose of creating congressional districts by law. The provision so inserted, permitting the redistricting to be done by the state "in the manner provided by the laws thereof," permits a referendum under the laws of Ohio and substantially recognizes the referendum as a part of the legislature of that state. No such provision is contained in the present act. The Hildebrant case seems to hold that congress has the constitutional power to control the method by which the state legislature may act, and may or may not subject its action to the referendum. If that be the true interpretation of that case, the congress has now deliberately omitted any such requirement and reverted to the character of legislation in vogue prior to 1911, when no control over legislative method was attempted to be exercised. The Hildebrant case is discussed in Hawke v. Smith,253 U.S. 221, 40 S.Ct. 495, 64 L. ed. 871, 10 A.L.R. 1504.

3. The fact that the legislature voted upon the subject matter in the form of a bill is not controlling. Form does not control. We look to the substance. They voted upon the particular measure. No one misunderstood. The issue was clear. They definitely gave their assent to and expressed their determination fixing definite lines, accomplishing the redistricting as they saw fit. They prescribed the districts within the meaning of said art. I, § 4. In short, they did what the constitution said they should do. Their action was effectual.

4. Appellant calls our attention to the fact that on seven occasions prior to voting upon the measure now under consideration the legislature of this state has made state and federal reapportionments in the form of a bill for an act which was approved by the governor. We are of the opinion that such procedure as disclosed in appellant's brief is insufficient to support the claim of practical construction. We are also of the opinion that since the matter here involved arises out of the federal constitution and its meaning is so clear and the purpose is so apparent, the language being used in its ordinary meaning, that there is no room for the application of the doctrine of practical construction. State ex rel. University of Minnesota v. Chase, 175 Minn. 259,220 N.W. 951; State ex rel. Morris v. Wrightson, 56 N.J.L. 126,28 A. 56, 22 L.R.A. 548.

5. Dividing the territory into districts under art. I, § 4, involved discretion, a discretion the extent of which cannot be well defined; a discretion on the part of the legislature, not on our part. If the provisions of the 1911 act were still in force, as contended, and serving as a command as to how the duty should be performed, we would be required to hold that the court could interfere only where such discretion is plainly and grossly abused. It is our function to review questions of law and not to revise official action involving the exercise of discretion. We are not to say whether the division is the best that could have been made, but whether the legislature proceeded according to legal rules. The legislature in this matter was exercising a political and discretionary power granted by the federal constitution for which the members are amenable to their constituents. How nearly equal in population such districts may be made in actual practice must depend largely upon the integrity of the legislature; and we find nothing in the record authorizing our interference even upon the hypothesis that the rule of conduct, as contained in the act of 1911, still prevails. State ex rel. Meighen v. Weatherill, 125 Minn. 336, 147 N.W. 105; Donovan v. Suffolk County, 225 Mass. 55, 113 N.E. 740, 2 A.L.R. 1334; People ex rel. Carter v. Rice, 135 N.Y. 473, 31 N.E. 921,16 L.R.A. 836; People ex rel. Woodyatt v. Thompson, 155 Ill. 451,40 N.E. 307; In re Baird, 142 N.Y. 523, 37 N.E. 619; State ex rel. Warson v. Howell, 92 Wn. 540, 159 P. 777; Wise v. Bigger,79 Va. 269; 2 A.L.R. 1337, Anno. Though a case might arise that would require our disapproval, this does not seem to be such.

6. However, as already stated, we hold that the act of 1929 wholly replaces the act of 1911, and that the authority so given by art. I, § 4, is unrestricted, unlimited, and absolute; that is, the authority is not hampered by requiring the duty to be performed in any particular manner. The law does not prescribe any rule of conduct controlling the performance of the duty imposed. Under such circumstances, in administrative and political affairs and in the absence of constitutional limitations, the action of the legislature is beyond the reach of the judiciary. We have no right to and hope to refrain from putting up our opinion against the opinion of those in whom the exclusive right to redistrict has been lodged. Under the circumstances we simply have no control over the legislature. Richardson v. McChesney,128 Ky. 363, 108 S.W. 322, 129 A.S.R. 299; State ex rel. Morris v. Wrightson, 56 N.J.L. 126, 28 A. 56,22 L.R.A. 548; 2 A.L.R. 1337, Anno.

7. It is claimed that H. F. No. 1456 is so unfair and the districts are so unequal in population that the redistricting is in violation of the fourteenth amendment to the federal constitution. A part of the argument is that two voters in the same district have the same power as three voters in another of the districts. The specific claim seems to be that the alleged violation of this amendment relates to the provision that "no state shall make or enforce any law which shall abridge the privileges, or immunities of citizens of the United States." It seems sufficient to say that while the constitution does not define the "privileges and immunities" of citizens, the right of suffrage is not one of them. Nor did thefourteenth amendment add to the "privileges and immunities" of a citizen. Minor v. Happersett, 21 Wall. 162, 171, 22 L. ed. 627; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 48 L. ed. 817. We believe the argument advanced is fallacious and untenable, and are of the opinion that the fourteenth amendment is in no way violated.

Affirmed.