DocketNumber： 9130
Judges： Rizley, Murrah, Daugherty
Filed Date： 8/8/1962
Status： Precedential
Modified Date： 10/19/2024
(dissenting).
On June 19, 1962 this Court filed a unanimous opinion in the above styled cause in which it said and I quote:
“The case now comes on for trial on its merits, the parties appearing in person or by counsel * * *. From the stipulations, evidence and other facts of ju*900 dicial notice, we find there has been only-token reapportionment by the State of Oklahoma of its legislative body since 1911. Both branches of the Legislature have consistently disregarded the provisions of the State Constitution, with respect to reapportionment, with no thought of affording the equal protection of the laws.”
We then reviewed all the attempts that had been made to obtain reapportionment in Oklahoma for the past fifty years, including the attempt by initiative petition and then said: “On this record, the Court concludes that the existing apportionment of the offices of both houses of the Oklahoma Legislature is grossly and egregiously disproportionate, and without rational basis or justification in law or fact. We conclude that the apportionment of the Legislature of Oklahoma, under and by virtue of its apportionment statutes is invidiously discriminatory against this Plaintiff and his class of voters, and all such statutes are, therefore, unconstitutional and void.” (Italics ours).
We further said in our June opinion: “The Plaintiff and his class are entitled to appropriate equitable relief, which will substantially insure the numerical reapportionment of the Oklahoma Legislature, in a manner to accord the Plaintiff and his class the equal protection of the laws, guaranteed by the Fourteenth Amendment.”
It should be noted that the Court, after reviewing the history of the Oklahoma Legislature for half a century, was not content with simply using the word “disproportionate”, but emphasized that term by using the woi*ds “grossly and egregiously disproportionate”. Webster’s Dictionary defines the word “egregiously” as something that is prominent, eminent, conspicuous for bad quality, flagrant; and the word “invidious” as “tending to excite odium, ill will, or envy; likely to give offense; and unjustly discriminating.” Mr. Webster says it is synonymous with “repugnant” and then he defines “repugnant” as “opposed or reciprocally opposed, contradictory, irreconciliable, as a principle repugnant to constitutional law; that offers resistance, hostile, refractory, distasteful, repellent.” “Repugnant implies a nature alien to one’s ideas, principles, or tastes, and a stirring up of resistance or loathing; repellent, a forbidding or unlovely quality that causes one to back away; abhorrent, a repugnance that stimulates antagonism.”
In keeping with our June opinion, we filed with it a decree in which we said and I quote: “The Court is of the opinion that the existing statutes of the State of Oklahoma, relating to apportionment for the nomination and election of the members of both houses of the Oklahoma Legislature are invidiously discriminatory against the Plaintiff and his class; hence, null and void.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Title 14, Secs. 9-77, inclusive, 99 and 100 O.S. (1961), and Article 5, Section 11 of the Oklahoma Constitution, where presently operative, be, and they are hereby declared prospectively null and void, and inoperative for all future elections.”
The majority seem to take) comfort in the words “prospectively inoperative” and construe future elections not to mean the November election in 1962. They say further that by us refusing in our first opinion to enjoin the primary election, that we condoned the illegal and unconstitutional statutes, and they say that because the primary and general election is in fact all the same election, that we are obliged to recognize it as a legal election, notwithstanding that we have said the statutes under which it is being held are null and void.
In my search of judicial decisions since the beginning, I am unable to find any decision of any court which says, that by condoning a void and illegal statute or by condoning a wrong, you breathe legality into the statute and give a right to those who operate under it, even though it is wrong.
In an endeavor to overturn the earlier opinion of this Court, entered herein on
The only authority cited by the majority in its decree in support of their finding that the general election in November, 1962 is not a future election is Gragg v. Dudley, 143 Okl. 281, 289 P. 254. This case itself is not in point since the interpretation therein that the election process includes registration, primary elections, the general election and the announcement of the election returns is pure dicta insofar as it related to the primaries. There a State Senator sought to run for the office of Lt. Governor. The question was raised that this violated Article 5, Section 23 of the Oklahoma Constitution. All that was necessary to that decision was the ruling that the November election was not complete until the votes were counted and the result made known.
Article 3, Section 1 of the Oklahoma Constitution provides:
“Qualified electors of this State shall be citizens * * * who have resided * * * in the election precinct thirty days next preceding the election at which such elector offers to vote.”
Under Oklahoma law a registration period is provided before the primary election, the run-off election, and still another before the general election. If the theoiy adopted by the majority is correct, the last two named registrations would violate this constitutional provision.
As a practical matter the Oklahoma Supreme Court in the case of Stafford v. State Election Board, 203 Okl. 132, 218 P.2d 617, did distinguish the cited case and said at page 620 the following:
“We agree with the contention of petitioner that the provision of the constitution that members of the House of Representatives must be at least twenty-one years of age at the time of their election means at the date of the general election and not the primary election.
“The Constitution does not prescribe the qualifications of a candidate in a primary election.”
In State ex rel. Williamson v. Carter, 177 Okl. 382, 59 P.2d 948, at 949, the Oklahoma Supreme Court said:
“At the time of the adoption of the Constitution, great consideration was given to the question of popular election of public officials. The Constitution required the Legislature to pass a mandatory primary law. Section 5, article 3, Const. However, it has been well recognized not only in this state, but by the highest courts of other states, that there is a wide distinction between ‘election’ and a primary election; the latter being statutory methods provided for the selection of representatives of the various political parties in the ‘elections’ provided by the Constitution for the selection of the various state, county, and other public officers.”
We submit that it is perfectly obvious that what the majority meant in June and what they now mean are entirely two different things.
The majority in its haste to recede from our June 19th opinion has glossed over a very important question of law. That is to say, where a court, as we did in the June opinion, declares a statute creating public offices null and void, the statute is null and void ab initio. This principle of law is set out at length in the landmark case of Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. The Supreme Court of Tennessee had earlier declared a statute allowing a board of commissioners to subscribe to railroad stock unconstitutional. The case was appealed to the United States Supreme Court. One of the parties argued that if there was not a de jure officer, that the officers were de
“But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county.”
Said Mr. Field:
“This contention is met by the fact that there can be no officer, either de jure or de facto, if there is no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. * * * Their position is, that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
Our own Oklahoma Supreme Court followed the United States Supreme Court in the case of State ex rel. Tharel v. The Board of County Commissioners of Creek County, 188 Old. 184, 107 P.2d 542, which says and I quote:
“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. It imposes no duties, confers no rights, bestows no power or authority on any one, affords no protection and justifies no acts performed under it.”
As I have heretofore suggested, the majority of the Court seems to take comfort in the words “prospectively null and void and inoperative for all future elections”, but the Oklahoma case above cited knocks this argument into a cocked hat by saying courts do not have the power to make a statute inoperative from the point of adjudication forward. Quoting from an earlier Florida case, State ex rel. Nuveen v. Greer, 88 Fla. 249,102 So. 745, our Court said, at page 547:
“Validity or invalidity relate to the enactment of a statute under the existing organic law and not to a subsequent date. The courts have no power to make a statute inoperative only from the date of an adjudicated invalidity, because the courts merely adjudge that a statute conflicts with organic law, and the Constitution then operates to make the statute void from its enactment, the courts having no power to control the operation of the Constitution.”
We are bound to give weight ana validity to the Oklahoma authorities, and when the Oklahoma Court has said that courts have no power to say when a statute is or is not inoperative, after once declaring the statute void as being unconstitutional, it would certainly be presumptuous on our part to attempt to control the operation of the Constitution. Far be it from me to say that in a proper case that there is no question but what there is a place for the de facto doctrine, but ours is not such. This doctrine is founded upon consideration of policy and necessity for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the titles of persons clothed with authority. For the good order and peace of society, their authority is to be respected until some mode is prescribed by law to determine their rights to serve. Such is not the case here. The offices of the legislature were determined null
There is positively no evidence in the record to sustain any finding that there is not ample time to have a primary, a run-off, and a general election to elect a constitutional legislature. In fact all of the evidence is to the contrary.
There is also evidence in the records that funds can be made available to hold the elections. This would be legal, right and not postpone the relief to which we say the plaintiff and all of his class are entitled. “Justice delayed is justice denied.”
Finally the majority, in order to extricate themselves from the June opinion, state they have withheld judicial reapportionment on the solemn, word of the intervening legislators that once their constitutional duty is unequivocally and unescapably clear, they will discharge it with befitting honor and fidelity. I have searched the record and do not find such a promise on the part of any individual legislator. To the contrary, nowhere does the record disclose that any single legislator, much less a majority of both Houses, have represented that the legislature intends to act in keeping with either the State Constitution or this Court’s decree. The majority of the State Senate who intervened at the hearing on the remedy state in their pleadings that they desire a legislative session “in order that they may institute constitutional processes to correct the ¡presently existing discriminatory constitutional provisions”; further, that “any relief, which the Court might decree, based on census population as aforesaid, would be invidiously arbitrary and discriminatory”; and finally, these intervening defendants contend and attempt to show that the provisions of the Constitution of Oklahoma, in respect to legislative representation in this State, have become invidiously discriminatory since the adoption of said provisions; “and that said provisions cannot be met or enforced by any legislation conforming thereto without contravention of Amendment XIV to the Constitution of the United States.”
These intervenors even question the power of the judiciary to enforce the Fourteenth Amendment and state that any decree herein would be an unlawful derogation of their powers. This was their pleading.
At the hearing they substantiated their intent by introducing a plethora of unexplained and useless figures and charts which they orally stated substantiated their contention that we should ignore the census and that they can ignore substantial equality in apportioning or in submitting constitutional revisions pertaining to apportionment.
Intervenors produced only two witnesses. The Speaker of the House of Representatives, who expressed a hope that the House could reapportion but refused to hazard an opinion as to the ability of the Senate to pass apportionment provisions, and I might say parenthetically, it is obvious that if there is only hope that the House might be able to pass such provisions, there can be no hope that the Senate can do so since it is far more malapportioned than the House. The other witness was a State Senator of many years’ service, who would make no stronger statement than he was ready to assume his responsibilities to the people of the State. On cross-examination he admitted that he had always been ready to assume such responsibility, although he further admitted that he had voted against apportionment in accordance with the State Constitution during the previous session. He had served in each of the nine sessions since the State Supreme Court in Jones v. Freeman stated that the question of apportionment went to the “very vitals of democracy”, and the Court in the Jones case had further solemnly
It is, therefore, respectfully submitted that my brothers’ statement is wholly without basis in the record, and the facts of history for almost half a century disclose that it is wholly without justification and can only lead to a hopelessly chaotic legislative session that can produce nothing more than the submission of a constitutional amendment which, if adopted, would violate the Fourteenth Amendment. Even the Supreme Court of the State of Oklahoma in its most recent opinion, Brown v. State Election Board et al.; Okl., 369 P.2d 140 stated:
“An individual legislator may be willing to vote himself out of an office, but it would be difficult to find one who is willing to vote his constituents out of a legislator contrary to their wishes.” V
It is respectfully submitted that we should have deferred to the interpretation of the abilities of the legislators to reapportion themselves as expressed by the State Supreme Court and the Chief Executive of the State, who are in a far better position to judge the situation than are we. It is significant that the legislator’s solemn word is the only reason given by the majority for staying the judicial hand, and this reason is patently unsound.
We have found a legal wrong to exist. The majority would refer this wronged plaintiff and those of his class to a political remedy. In fact, the political remedy suggested is the very one which has caused the wrong. Therefore, I see no justification for delaying the judicial hand and to the contrary I foresee only chaos as a result of this delay and further complications as a result thereof. This Court has been fortunate in having a Chief Executive, a State Treasurer, an acting Attorney General and a State Election Board that have offered full cooperation. Who can dare say that their successors, who will be in office on March 8, 1963, will be as cooperative, much less cooperative at all?
While I might bleed with the majority for the downtrodden intervenors, who pleaded with the Court for a chance to do it themselves, I can only interpret what they may have in their minds by their past acts in challenging not only the Supreme Court of Oklahoma, but also more than 200,000 residents of Oklahoma who signed an Initiative Petition, the State Election Board, and everyone else who has attempted to get them to discharge their constitutional duty with honor and fidelity.
I respectfully dissent.