Grim v. Cordell

I regret I am unable to concur in the majority opinion. Under section 11, art. 5, of the Constitution of Oklahoma, the Second Senatorial District was created, composed of Beckham, Dewey, Ellis, and. Roger Mills counties, with the right to elect two Senators. The 1941 Legislature (S.L. 1941, Title 14, p. 38) divided said senatorial district into two nominating districts, providing that:

"Roger Mills, Ellis and Dewey counties shall constitute one nominating district and shall nominate a candidate for the State Senate in the primary election 1942, and each four years thereafter; Beckham county shall constitute a nominating district and shall nominate a candidate for the State Senate in said district at the primary election of 1944, and each four years thereafter; and the candidates so nominated in said districts shall be voted for at the general election following such nomination by all of the qualified electors in said Second Senatorial District."

The 1945 Legislature (S.L. 1945, Title 14, p. 39) amended said law and provided:

"Ellis and Dewey counties shall constitute one nominating district and shall nominate a candidate for the State Senate in the primary election of 1946, and each four years thereafter; Beckham and Roger Mills counties shall constitute a nominating district and shall nominate a candidate for the State Senate in said district at the primary election of 1948, and each four years thereafter; and the candidates so nominated in said districts shall be voted for at the general election following such nomination by all of the qualified electors in said Second Senatorial District."

Petitioner, Orval Grim, a resident of Roger Mills county, and being otherwise eligible, filed with the State Election Board his notification and declaration of his candidacy for the office of State Senator, which notification and declaration said Election Board declined to accept and approve by reason of the residence of petitioner in Roger Mills county, predicating its action upon the provisions of the above quoted 1945 Act.

Petitioner has filed this proceeding for a writ of mandamus directing the State Election Board to receive, file, and approve his notification and declaration and place his name upon the official primary election ballot as a Democratic candidate for the office of State Senator from said Second Senatorial District.

He first contends that the Legislature was without authority to create nominating districts in said senatorial district and that the Acts of 1941 and 1945 violate article 3, secs. 5 and 7, and article 5, sec. 32, of the Constitution. He frankly concedes that unless there is some distinction between the power of the Legislature to create nominating districts in senatorial districts and the power of the Legislature to create nominating districts in judicial districts, this court has directly passed upon his legal contention adversely to him in the cases of Glasco v. State Election Board (1926)121 Okla. 119, 248 P. 642; Monroe v. McNeill (1927) 122 Okla. 297,255 P. 150, and Johnson v. State Election Board, 197 Okla. 211,167 P.2d 891. Those decisions, except the last mentioned, have been promulgated for many years and have been acquiesced in, and the Legislature, both as to judicial districts and as to senatorial districts, has apparently relied thereon, and for many years no one has questioned the soundness thereof. In 1913 separate nominating districts in the Thirteenth Senatorial District (14 Ohio St. 1941 § 21[14-21]) and in the Fifteenth Senatorial District (14 Ohio St. 1941 § 22[14-22]) were created. In 1917, in the Fourteenth Senatorial District (14 Ohio St. 1941 § 31[14-31]), and in 1925 in the Seventeenth and Twenty-Seventh Senatorial Districts (14 Ohio St. 1941 §§ 41[14-41] and 61), and in 1933 in the Ninteenth Senatorial District (14 Ohio St. 1941 § 51[14-51]), and in 1941 in the Sixth Senatorial District (14 Ohio St. 1941 § 10[14-10]), separate nominating districts were created, and in each of those districts a Senator is to be elected at the election to be held during this year. As to each of said districts, no question has ever been raised as to the validity of the action of the Legislature in creating nominating districts within said senatorial districts. It may be noted also that many of the judicial districts of the state provide for the election of two or more district judges, and that various nominating districts have been therein created and are now existing and no question has been raised as to the validity of the action of the Legislature in the creation of specific nominating districts therein.

Thus it appears that there has been continued action and continued acquiescence in the previous holdings of this court relating to the specific question, and the Legislative, Executive, and Judicial Departments of the State, as well as the officeholders and people, have long acquiesced in said construction. To overturn the same, or by legalistic or specious reasoning to iterate a fine-spun distinction, theoretical or nonexistent, would result in great hardship, confusion, and positive harm. I am of the opinion, therefore, that we should adhere to our previous opinions on this point.

It is further contended that the act in question is violative of section 17, art. 5, of the Constitution, providing that:

"Members of the Senate shall be at least twenty-five years of age, and members of the House of Representatives twenty-one years of age at the time of their election. They shall be qualified electors in their respective counties or districts and shall reside in their respective counties or districts during their term of office."

It is said that the petitioner lives within the territorial boundaries of the Second Senatorial District and that the act limits and restricts his right to be a candidate by requiring that he reside within a given portion of said senatorial district, and thereby impinges his constitutional right. He cites the following authorities: People v. Board of Election Com'rs of Chicago, 221 Ill. 9, 77 N.E. 321; People v. McCormack, 261 Ill. 413, 103 N.E. 1053; McAlpine v. Dimick,326 Ill. 240, 157 N.E. 235; Gates v. Long, 172 Tenn. 471,113 S.W.2d 388; Jansky v. Baldwin, 120 Kan. 338, 243 P. 302 (47 A.L.R. 476, anno. page 481); 42 Am. Jur., sec. 38, p. 909.

But in Glasco v. State Election Board, supra, the question was specifically determined adversely to his contention.

It may be pointed out that this senatorial district was created by the Constitution with the right to elect two Senators, and that the creation of separate nominating districts, with the election by all the electors of the district as a whole, constitutes in no way an attempt to reapportion said senatorial district as discussed in the case of Jones v. Freeman, 193 Okla. 554, 146 P.2d 564, and the recent case of Jones v. Cordell, Secretary, decided on the 18th day of April, 1946, 197 Okla. 61, 168 P.2d 130. The district still is entitled to elect two Senators. Unlike Jones v. Cordell, supra, there was no attempt to change either the representation or the geographical territory of the district. The reapportionment provisions of the Constitution have no application, either expressly or by implication.

For these reasons, I respectfully dissent.

Mr. Chief Justice GIBSON concurs herein.