*1 аppli- receiving- prohibited from should Repre- for the House filing
cations counties that twenty-six from the
sentatives voting strength. given been excessive provide to so this Court the failure of
From
I dissent. Plaintiff,
Harry BROWN, the State BOARD of STATE ELECTION Chairman, Oklahoma, Fitzgerald, Clee Chairman, Hewett, Herbert F. Vice Winters, Secretary, Defendants. Leo
No. 39930.
Supreme Court of Oklahoma.
Feb. 1962.
Rehearing Denied Feb.
143 *3 against of mandamus the defend- a writ
ants, them, prevent and each of interfer- processes ence with the election of the State respect po- Oklahoma filing year tential for the candidates petition presents propositions two This disposed that must considered and First, Representa- will court: so, 1962; second, if tives be elected in *4 bewill followed what law Representatives. election the of State We apportion- are not here concerned the with ment of the State Senate. proposition, As to the first as to whether Representatives State will be elected Okla.Const., providеs Art. Sec. Trezise, City, Wendell P. Midwest Jack Representa that members the House of of Brown, Oklahoma Wightman and Patrick years. tives shall hold office for 26 O. two plaintiff. City, for 113, as amended O.S.1961 (26 S.1951 Sec. City, Robert Wagner, E. Oklahoma John provides Tuesday in that first 113) Sec. the Blackstock, Bristow, for defendants. W. May the month of each even numbered of Governor, Edmondson, Okla- Howard J. primary year regular shall election be biennial Reyn- curiae, E. City, amicus Norman homa pro ay. In it is d 26 O.S.1951 Sec. olds, counsel. Jr., City, of Oklahoma any qualified is a that elector who vided Harkin, Paul Hirsh, Leon C. S. James properly of political party member for City, curiae Johanning, amici Oklahoma party, affiliated with such shall his Walt Allen and others. Senator printed his the official ballot of name White, City, amicus Sid Oklahoma eligible he party for an office to curiae. election, any upon the primary filing with prоvided officer, by the
proper
time
within
law,
of his
a Notification and Declaration
JACKSON, Justice.
provides
candidacy. This section further
by a so-called
precipitated
This action is
that notifications and declarations
candi
of
“policy
the
Elec-'
by
statement” issued
State
dacy for members
the
and House
of
Senate
signed
fion Board. The statement
Representatives
be filed with the
shall
Vice-Chairman,
who consti-
Chairman
Secretary
Board. 26
Election
State
“policy
majority
tute a
Board.
(26
as amended
O.S.1961
O.S.1951 Sec.
statement”,
part,
that
pertinent
states
163), provides
Notifications
Sec.
accept
Board
candi-
will not
filings
required
filed
Declarations
dates in
to ei-
1962 who desire to be elected
Secretary
shall be
Board
'of
Election
ther
Legislature.
house
Oklahoma
days
period
beginning
filed
within a
five
Harry Brown, an
candidate
announced
February.
Monday
on the fourth
Representatives
for the Oklahoma House of
provides
168.1,
county,
brought
Sec.
Oklahoma
O.S.1951
for
has
days
the close of
original'
against
thirty
after
fil-
action
the State Election within
offices, it shall be the
ing period for state
“policy
attention
inviting
Board
Secretary
the State Election
duty
Board will
statement”
alleging-
the.
certify
Representa-
to the secretaries
any
accept
filing
Board
county election boards
list of
during
year
un-
tives
several
Oklahoma
dp
and House
compelled
prays
for the State Senate
less
so. -He
candidates
be-
counties,
mined that
for the various
further consideration must be
county
given
problem.
and that
boards shall
election
cause the
such candidates to be
names of
Freeman,
supra,
it was said:
placed
county
on the
ballot.
V,
“By
secs. 12-16 of the
artficle]
рrovisions
pro-
Constitution,
Other
representatives
election laws
were
penalties
apportioned
official
among
vide
the failure of
the 75 counties cre-
perform
enjoined
him
Constitution,
the duties
ated
county
each
given
being
the election laws.
representative.
at least one
(Two counties,
Cotton,
Harmon and
syllabus
paragraph
the first
have been created since the Constitu-
Lowry
al.,
et al.
Town of Meeker et
adopted). However,
was
the fram-
151 Okl.
P.2d
is held:
ers of the
intended
Constitution
equity
jurisdiction
“A
has no
legislative apportionment
contained
to restrain the
an election
holding of
only
therein should serve
until 1911.
held,
authorized
to be
since the
law
They
duty
made it
Legisla-
*5
right
political
involved is a
one.”
ture
that
appor-
time to enact a new
law,
upon
tionment
population
based
the
Daly
County
See also
v.
et аl. Madison
et
as
by
ascertained
census
Federal
of
al.,
357,
160,
378 Ill.
N.E.2d
same
38
1910, or in such other manner as the
effect.
**
Legislature might direct
only
Public officers have
such au
Freeman,
v.
v.
law,
Romang
thority
as is conferred
by
them
Jones
Cordell,
Winters, supra,
and
v.
it was
authority
and such
must
in the
be exercised
Jones
could,
choice,
by
assumed that we
discard
prescribed by
manner
law.
v.
Shaw Grum
apportionments
all legislature-made
bine,
95,
p.
137 Okl.
311.
Representatives
House of
and direct
that
From the
constitutional
foregoing
elections be held under Secs. 12-16 Art.
statutory provisions,
law,
and
and case
5,
question
Okla.Const.
of whether
Secretary
that the
follows
the State Elec
could, may,
we
12-16,
or
utilize
Art.
Secs.
accept filings by
must
Board
candidates
5,
law,
as a matter
positions
legislative
1962,
to be filled in
specifically
of the House has never been
all
and that
members
the State Election
by
considered
this court.
whether
individually
Board
operating
5, 10,
From Art.
Okla.Const. it is clear
§
comply
as a Board must
with the election
that the
our
framers of
constitution intend-
of this state.
laws
This means
the Sec
ed
the Legislature
reapportion
retary
accept
filings
discharge
must
and
the House of
in 1911.
enjoined upon
law,
other duties
him
Board,
and
and its
individual mem
equally
5,
is
when
It
clear
Art.
Secs. 12-
bers,
enjoined
discharge
up
must
16,
duties
Const., are examined in connection with
by law.
on them
5,
10, Const.,
Art.
Sec.
framers of the
intended that
Constitution
Secs. 12-16 be
question for
The second
our determina-
temporary
as
expedients.
utilized
Secs.
tion what
law will
fol-
temporary
nature,
being
12-16
are statu
question
This
has
lowed.
been considered
tory
Am.Jur.,
in nature.
Constitutional
554,
v. Freeman (1943), 193 Okl.
Jones
603,
Law,
4, p.
seq.;
and
et
State ex rel.
§§
564; Romang
146 P.2d
(1952),
Cordell
Roach,
409,
Halliburton v.
230 Mo.
130 S.
369,
677;
206 Okl.
243 P.2d
and
689,
re
discussed
Initiative
W.
Petition
1961,
(1961),
Winters
decided
No.
Dec.
259,
376,
Question
Okl.,
Number
State
No.
However,
39,857,
the Oklahoma was un in 1955 legislative body. unconstitutional tion of an in that the statute was legislative body An unconstitutional can passed legislature a consti was *8 legal legislation. not enact Kidd v. McCan tutionally composed assembly under re the less, supra. apportionment provisions of the Constitu tion. it Therein was said: In an amicus curiae filed brief Governor, sug case, in the instant it is the pe- “To sustain the contention appor gested that under the constitutional would result creating
titioner a state formula, Art. tionment Sec. Okla. Probably of chaos and confusion. Const., apportionment is more mathematical percent prisoners now confined in nature than legislative. ministerial penal institutions of the state have necessary it that where bеcomes He admits been committed for violating some together forming legisla join counties subsequent enacted statute to what the legislative this would involve petitioner tive districts ap- claims was last valid adjoining “which portionment determining Legislature act discretion form combined to a should be would be counties” entitled to their dis- * * * problem district. Even if the can appropriations legislative charge. simple that would still every department said to be be of state exercising (reapportionment) government operates a function now would be be apportioned “representative” districts, conferred into not been which has that delegating subsection 10(d) provides court. The Constitution that “no coun- ty deprived impliedly part shall ever Legislature take duty to the in the election of v. Free- more representatives. than powеr. See seven the court of Jones have Winters, supra. We man and All of the foregoing suggestions were court, constitu- any from found no case submitted to a three-judge Federal Court in ours, where provisions similar tional the State of Tennessee in Baker v. Carr apportionment. court has made (D.C.1960), F.Supp. 824. In that case the court said: cases invited to attention Our “ * * * the courts where jurisdictions decision, from other view of this jurisdiction (referring to retain persuaded been decision in Kidd v. purpose McCanless, period during Tenn. 292 S.W.2d n appor enact Legislature supra) plaintiffs coercing the recognize Court, consistent with declared existing ap- tionment portionment case the Governor instant unconstitutional, In the statute formulas. into Legislature required would call the be go he will states further and de- appropriate tell the vise an will first this court speciаl remedy session if so as to reapportion the avoid a disruption it will Legislature government. of state However, To not. Legislature will suggested if the remedies attempt plaintiffs an would be suggestion neither follow this legal- nor feasible ly possible.” against the coercion” “judicial (emphasis to exercise supplied) beyond the wholly which is In that case the court reviewed an “array of legis An individual authority court. of this decisions” Supreme Court of the out vote himself willing to may lator be States, United the case of Ray Radford v. one to find office, be difficult it would but Gary, mond Governor, promulgated in 1956 constituents out willing to his vote who is by a three-judge Federal Court in Oklahoma contrary to wishes. their legislator, (reported in 145F.Supp. 541), and concluded as suggests that this court follows: The Governor Board to Election direct the State could question “The of the distribution of prоposed submit political strength legislative pur- approval for the House of poses Supreme has been before the court, order elections and then of the United States numerous apportion- approved compliance with occasions. From a review of these support of this is cited No law ment. there can no decisions doubt that the event this court procedure. rule, applied federal as enuniciated and indirectly di- what it not do doing Supreme Court, by the is that the fed- is, apportionment. make the rectly, and that courts, whether ju- eral from a lack of inappropriateness risdiction from suggests that mem Governor subject judicial matter for con- might be elected on “an at- the House bers of sideration, will not intervene in cases *9 correctly understand If large basis.” type compel to legislative of this rеap- twenty hundred and proposition one this ” * * * portionment. be nominated and representatives would by state people whole with elected Governor suggests also that any reference to counties. Cases out this court could direct that legisla votes of Congressional Delegations wherein in cited tors assembly be given an This at-large elected on basis. is, were fractional values. That increase or cannot be utilized procedure Oklahoma the value of the legislator diminish vote aof representatives. Art. correspond Election of State with to the result which would 5, 10, provides that the State shall be Sec. have followed if the had been
149
McCanless,
920,
352
according
223,
to the
U.S.
77
apportioned
S.Ct.
1 L.
157;
Ed.2d
Jordan,
considered
suggestion was
Anderson
This
v.
343 U.S.
formula.
912,
Press,
v.
72
648,
1328;
Inc.
S.Ct.
Asbury
court
Park
96 L.Ed.
v.
Cook
Fortson,
That
Wooley,
1,
705.
329
675,
161 A.2d
21,
U.S.
67 S.Ct.
91 L.Ed.
N.J.
596;
litigants file briefs
Coleman
suggested
Millеr,
433,
v.
that the
U.S.
695;
972,
1385,
consideration
S.Ct.
proposition
on that
for the
L.Ed.
122 A.L.R.
1960,
Pacific
Telephone
Telegraph
States
Briefs were tiled
court.
copies
Company
request
Oregon,
118,
avail
our
that court has made
223 U.S.
32 S.Ct.
224,
377;
briefs on that
for our
In their
L.Ed.
able
use.
Luther v.
Borden,
of the How.
proposition
attorneys,
all sides
L.Ed.
on
decision in this
Our
case,
controversy,
however,
“frac
solely
is
agreement
were in
based
on our con
incompatible with
struction
our
tional vote values” were
State Constitution and
provisions
We
of their
statutes.
Constitution.
incompatible
procedure
such a
find
supplemental
In a
brief filed
the Elec
provisions
Constitution, Art.
with
of our
tion Board
“authority
it is asserted that
31, 34,
Jersey Court
and 58.
New
Secs.
exists
the Court
ator
propo
promulgate
opinion
not
an
did
Court,”
the order of the
citing the late cases
sition,
proposition,
for the
or
other
оf In re
Chapter
Review of
482, Oregon
ap
adopted
that the
an
reason
1961, Or.,
Laws
364 P.2d
and In re
propriate apportionment
while the case
act
Apportionment of
Representa
Senators
pending.
was
IV,
tives Under Article
Oregon Con
§
stitution, Or.,
Obviously
Court to
by
ett,
public
comply with
are nominated
State,
officials
draft does not
mandatory primary
system
in Oklahoma.
formula,
to how
instructions as
3,
5, Okla.Const.,
pro
In Art.
comply with
Sec.
it is
so as to
must be
draft
amended
vided,
part:
the formula.
“The Legislature
enact
shall
laws
IV,
their
Con-
6(3) (a), of
Section
Art.
providing
sys-
primary
for a mandatory
Oregon Legis-
stitution, provides that if the
tem,
provide
which shall
for the nomi-
reapportionment
fails to enact
lature
nation of
for
candidates
all elections
of the session
by July 1,
year
measure
State, District, County,
municipal
census, then
decennial
following
Federal
* *
officers,
political parties
for all
*.”
reappor-
Secretary
shall make
of State
(emphasis supplied)
representa-
tionment of the senators
Legislature has, pursuant
The
formula.
in accordance with the
tives
3,
Secretary’s reap-
5,
command of
laws
provides that the
Art.
Sec.
enacted
further
providing
portionment
“mandatory primary sys-
for a
shall be filed with the Gov-
tem,”
upon
general provisions
ernor,
are
become
law
of which
and shall
found in 26 O.S.1951,
seq.
111 et
as
filing.
date
§
(26
seq.).
amended
O.S.1961 111
How
et
§
in Oklahoma
Legislative apportionments
may
the defendants
hold
elec-
fail to
an
court, “under
subject
review
Representatives
(which
tion
State
regulations
as the
such rules
mandatory)
3,
violating
without
Sec.
Art.
10(j) Okla.
prescribe.” Art.
Sec.
and all
our election
has
not been
no
prescribed
Legislature has
Const. The
explained.
juris-
regulations
implement our
rules and
The dilemma in which we and the Elec-
not
cases are
Oregon
The
diction
review.
Board
tion
find ourselves
cre-
was neither
in point.
ated
nor
Election Board
this Court.
as
numerous times and
have held
We
Rep-
An election
be
must
held for State
Freeman, supra)
(Jones v.
as 1943
early
apportionment.
resentatives under an
The
reappor
Legislature is
unable
that if the
only apportionment
law
existence is
people
reserved that
have
tion itself
1033, supra,
found
H.B.
which defend-
by a
power
themselves either
constitu
unto
allege
ants
is unconstitutional. Will that
amendment,
initiated statu
tional
apportionment
followеd,
or will we re-
tory enactment.
to hold an election and
fuse
violate
mandatory primary election laws and Art.
Defendants,
Fitzgerald and Herbert
Clee
Sec.
? If
Okla.Const.
no election
Hewett,
Election Board
F.
held those
now serving
questions,
posed
as follows:
two
have
perform
continue to
“shall
duties of
apportionment
(IT.
“Since
act
1.
offices until their
their
successors
shall
Twenty-Eighth Legis-
B.
**
qualified.” Art. 23,
Sec.
Okla.
comply with
re-
lature)
does
Representatives now serving
Const.
5, Section
quirements
Article
cre-
elected
were
from
districts
Olda.Const., is not unconstitutional?”
If
law
1951.
ated
is unconstitu-
law
question
the 1961
is in vio-
“If the act
then would seem
we should
Constitution,
tional
thus
lation
reasons now
unconstitutional,
require
the same
hold
can
the 1951
this Court
is also
unconstitutional. See
who
taken
respondents,
oaths
Cordell,
Romang
supra.
ap-
obey and
the Constitu-
defend
support,
was based
Oklahoma,
portionment
Federal'
to administer and
while
census
the 1961
acts?”
decennial
said unconstitutional
enforce
*11
power
jurisdiction
state court
or
Federal
upon the
was based
apportionment
review,
inequal-
modify,
override, or vacate
1960. Greater
of
census
decennial
judgment
Supreme
re-
final
if
result
will
representation
ity of
Court,
guise
who
writ or
office
those
tain
process,
attempt
apportionment.
and the
court
of such
under the
elected
were
law,
to do so
authority
is without
a
right to exercise
a
have
Courts
which,
effective,
its orders
would
paragraph
second
In the
legal discretion.
override,
so
annul, and vacate the final
State, 102Okl.
Ratzlaff v.
syllabus
judgment
order and
court,
of this
are
278,
it is held:
229 P.
void, and must be
adjudged
so
and de-
announced
rules
approve the
“We
court,
creed
this
brought
when
he
where
Marshall
by Chief
for
Justice
review.”
instruments
are mere
‘Courts
said:
For the
throughout
reasons noted
nothing. When
can will
law
opinion
this
and those which naturally fol
discretion,
a
exercise
they are said
constitutional,
low
statutory, and
law
case
discretion, a discre-
legal
mere
a
it is
to,
herein referred
we have concluded that
discerning the
exercised
to be
the 1961
law must
utilized
be
and,
law;
when
prescribed
course
in the 1962 election
does,
whether it
or
duty
discerned,
it is
that is
not, wholly
does
follow the constitutional
power is
it.
to follow
court
Judicial
formula. This
having
made such
giv-
purpose
for the
exercised
never
final determination it follows that the mem
judge; al-
will
ing effect
bers of the State Election Board will not
effect
giving
purpose of
ways for the
violate their oaths of office in administer
or, in
Legislature;
the will of
ing
utilizing
words,
law.’
to the will
other
law in the election of 1962.
Bank,
(9
22 U.S.
v. U. S.
Osborn
738, L.Ed. 204.”
Wheat.)
application
In an
permis
petition
to file a
sion
second
rehearing
command
think
We
election,
in this case it
upon the
is asserted that:
based
primary
a
hold
noted,
para-
heretofore
considerations
“The
acts under
Based
be followed.
must
mount
which
elections will be held
**
we are not
heretofore noted
considerations
clearly
are
violative of the
1033 unconstitu-
liberty to hold H.B.
14th amendment to the Constitution of
apportion-
“legal
and until
unless
tional
United States of America
in that
To do
created or enacted.
can
ment”
they deny to the citizen-electors of
gov-
of our State
be destructive
so
equal protection
Oklahoma the
ernment.
deprive them
liberty
laws and
of their
property
process
due
without
that defendants
doubtful
it seems
While
law.”
constitution
question the
right to
1033, supra,
they are
until
H.B.
ality of
is the first time this
in-
This
issue has been
right
privilege
some
denied
about to
case,
jected into this
and there is no brief
entitled,
v.
Shinn Okla
to which
support the:
eof.
rule estab-
filed
P.2d
it is
City, 184 Okl.
homa
non-jurisdiction-
this court is that
lished
given jurisdiction
Court is
clear that
questions, raised for the first time
al
ques
of this
final determination
make
ordinarily
rehearing, will not
petition for
Owens, 126 Okl.
Dancy v.
tion.
Hope
Peck,
38 Okl.
be considered.
paragraph of
fifth
in the
it is held
research,
P.
Contentions requiring
notifications Secretary ants, or them, respect either be filed with positions to tive day elections, 1962 preliminaries or such during a five Board Election of the elections, Monday any then in either such event period beginning on the fourth however, person believe, may request permission interested We do February, 1962. application to file in this action an presented been has proposition that this such clear and to make matters Supreme Court States the United order, proper orders, issue or in reference 88 717, 64 S.Ct. Freeman, 322 U.S. thereto, any application and such will McCanless, U.S. filed 352 1558; in Kidd v. L.Ed. 157; appropriate dispatch. considered with and L.Ed.2d 223, 77 S.Ct. S.Ct. Gary, U.S. Radford found but we 559, 1 L.Ed.2d BLACKBIRD, WELCH, J., and V. C. been has proposition where this
no case DAVISON, IRWIN, JJ.,. and JOHNSON feel do not We that adjudicated Court. concur. anticipate the or forecast we should ultimately rendered may dеcision WILLIAMS, J., part C. concurs Supreme Court on States by the United part. dissents in question. essentially federal granted of mandamus The writ BERRY, JJ., HALLEY and dissent. Board, Election Secretary the State office, any, are if and his successors HALLEY, (dissenting). Justice filings for to receive directed specifically that I still think that Because fact pur- of State offices repre- fifty-one of the State have counties State, un- of this election laws suant provided for under House Bill' sentatives Twen- H.B. 1033 of pursuant to der and Legislature of the 1961 O.S.1961, et (14 Legislature ty-Eighth § manner, provided are for in a any comply with proceed to and to seq.), opinion I am of the State Election required functions and other ministerial filings should receive for such of- Board State, laws of and it election this by the twenty-six counties that do not fices. so ordered. qualify the Constitution of Okla- under herein, Fitz- Clee representativе defendants The other for at least homa one Hewett, F. and their and Herbert gerald adjoining counties be attached to that dc> them, any, successors, if and each of Legislature. qualify the next That can act to utilize directed this be done either the State Bill Twen- No. House Election Board. O.S.1961, (14 ty-Eighth § authority me no To this Court has to re- duties, and to performing their seq.), et proceed quire Election Board to the State legal duties comply with their otherwise an Act under it State, of this election laws fully comply does not has determined is so ordered. should We see that the Constitution. opinion Acts are nullified this is deemed un- and con- unconstitutional event In the adopted. sufficiently clear methods as to stitutional or not certain enjoined by any law on duties specific seriously argue can that House No one defendants, successors, any, and their equаl suffrage and thereby grants Bill 1033 thereof there is doubt in the representation making account equal point quote defendants, On this I State. which acts these or either toas *13 Woolley, improvement but of what we now not be Press, Inc. v. Asbury from Park have. 705, pp. 709-710: 33 A.2d 161 N.J. I dissent. of the qualified voters legally
“The right given the
several counties
all
to vote
the Constitution
under
BERRY,
(dissenting).
Justice
people.
by the
elective
officers that are
disagree
majority opinion.
I
with the
Assembly
N.J.Const.,
2, par. 3.
Art.
gist appears
Its
Court
to be: Since this
voter
officers,
each
men are such
expressly
has never
is un-
determined and
his
cast
county
entitled to
is
of each
willing to now hold
H.B.
1033
which
of them
for the number
ballot
unconstitutional,
is
session
IV,
of Article
mandate
absolute
the State Election
refuse to
Board cannot
requires
be allo
to
III, supra,
Section
accept
by
filings
candidates for the House
repre
a
county. Ours is
cated to his
viola-
being
without
It can
government.
form of
sentative
statutes;
tion of certain election
and to di-
only if
true sense
remain
in the
such
cope
rectly
with the
fea-
unconstitutional
equality
citizen has
of each
vote
tures of H.B. 1033
invite
result in
would
or
in the other
neighbor
with
of his
orderly
chaos
the end
government.
to
State, according
counties of
organic law. To
prescription of the
justi-
The State Election Board seeks to
county
given a
his
is
the extent that
fy
policy
its
statement
the in-
asserting
members in
low
lesser number of
validity of
Apportionment
the 1961
Act.
due, his vote
er
than are
House
its
constitutionality
1033 has
of H.B.
value,
he does
thus
diminishes
properly
I,
been
challenged.
raised and
protec
or
not
the full measure
receive
therefore,
believe that we must rule
representation which are of
tion and
constitutionality
H.B.
democracy. No man
the essence
constitutionality of H.B.
toAs
privilege
higher
than
can boast
a
opinion in
dissenting
my
I refer to
Jones
to the citizens of our
right granted
357. Neither
Winters, Okl.,
P.2d
v.
equal suffrage
and Nation of
State
Freeman,
554, 146 P.2d
Okl.
representation
thereby
equal
to
Cordell,
Okl.
Romang v.
nor in
laws of the land.
making
hold that
did this
243 P.2d
right
our Constitution that
is
Under
discretionary powers
grant
lacked
it
It is one which he cannot
absolute.
reappor
unconstitutional
against an
relief
deliberately
deprived,
or
either
he
merely chose
The Court
tionment statute.
part of Legislature.
on the
inaction
powers.
those
exercise
not to
apportion
which causes an
Inaction
must first
the issues that
my opinion,
unequal
arbitrary
In
ment act
(1) Is H.B. 1033 un-
are:
just
be determined
throughout the State is
as
effects
uncon-
(2)
it
found
If
equality
constitutional?
posi
a denial
as if
much
perpetuate
stitutionаl,
this Court
passed
should
had been
to accom
tive statute
Legis-
view, depriva
present state
defiance
plish the result.
In our
(3)
mandate?
only
lature of the
against
offends
tion not
directly
indirectly
our refusal
very
deny
but
well
Would
Constitution
in chaos and the
1033 result
protection of the
sanction H.B.
equal
viola
(4)
government?
Does H.B.
of State
the Fourteenth
end
Amendment of
the Fourteenth Amendment to
States
violate
the United
Constitution.
sider
If this Court
[*]
its
*»
duty
in matters
simply
do
what
kind,
I con-
they stand
these
Federal Constitution?
questions in
posed.
sequence
I
shall
discuss
Is H.B.
unconstitutional?
(1)
would be worked out that could
solution
supra,
Romang
In
we stated
desisted from
Cordell,
interfering
legislation
p.
so, pointed
243 P.2d:
inaction.
it
doing
679 of
out that
although
power
had the
review it did
discuss,
necessary
here
“It is
authority
not have
reapportion,
re-
constitution
length,
detail or at
compel
vise, or
a legislativе
revision
ality
the act
consideration.
case,
present
act.
the Court
V,
provisions
Article
violates the
*14
of
upon,
effect,
approve
called
in
legis-
to
the
section 10 of the Oklahoma Constitu
malapportionment
lative
by a
direct
ap
particulars
to
tion in the same
holding
requiring
affirmative action in
the
proximately the
extent as the
same
of an election
I know of no
thereunder.
is,
previous apportionment acts and
decision in which this situation confronted
therefore,
subject
same criti
any
Nation,
court in the
and I deem the
thoroughly
cisms which were discussed
in
distinction
this
significant.
fact
While
Freeman,
in the
of
case
Jones
we
wisely
avoided interference
Okl.
In that
P.2d
processes
with election
past,
in the
we
opinion,
out,
pointed
this
compel
should not
holding
the
of an elec-
expressed
particularity,
‘prinсiples,
the
an
invalid
opinion
act.
of
Constitution,
implied
in
(which)
the
majority
in
beyond
this
goes
case
mere
ap
be
an
must
observed’ in order for
failure to
places
power
interfere.
our
portionment act
to be constitutional.
to review a
resting place.
final
None
these were
in the
of
followed
preparation and
passage
(3) Would chaos
result
State Govern-
purpose
It would serve no useful
act.
ment?
repeat
legal
here
them or
I
up-
cannot conceive that our refusal to
upon
foundation
which
rest.”
hold
1033 would
H.B.
result in chaos and
(emphasis supplied)
government.
destruction of our
A
In
language
view
the unmistakable
similar
argument
or identical
was advanced
above,
quoted
it is an exercise of semantics
Asbury
Press,
Park
Inc. v.
Woolley,
to now announce that
this Court has not
705, 712,
161 A.2d
and was an-
N.J.
held
the former
acts un-
language:
swered in this
merely
constitutional but
held them not to
comply
my way
with the Constitution. To
“Some
defendants
suggest
thinking,
this
is similar
“Tweedledum
(strike
malapportion-
so
that to do
and Tweedledee”.
I feel
the constitu-
would be
act)
ment
to create chaos or
tionality of H.B. 1033 is now before this
anarchy, because no matter how long
unequivocal
Court and must be
answered
filing
of our mandate was with-
terms.
permit the
held to
enactment of a cura-
unconstitutional,
(2) If H.B. 1033 is
law,
government
the state
tive
perpetuate
should
it ?
we
completely disrupted
be
the Legis-
not act
issues here are not
same
lature did
within that
as
time. Al-
agree
and Romang
though
cases. Never
we
if the
be-
1941 act
Jones
upon
unconstitutional,
fore
this Court been
has
called
has become
act
resort
affirmatively, by
the issuance
a
could
be had
of writ of
not
to an
mandamus,
compel
earlier vintage
the State
act of an
Election
because
Board
follow an
act
such measure would also
invalid
test,
which the Court has
we
determined to be
same
do not
out
believe that
harmony with
mandatory
feared
allegedly
formula
result would
ever
respect
A
I
come about.
judiciary,
Constitution.
con-
conscious of
vastly
case to
quality
sider this
different
the sacrosanct
its
from
oath
cases,
Romang.
uphold
Constitution,
In the cited
can-
office
denied,
was
simply
accept
relief
Court
not
terrorem argument
a
not be
ranted
based,
lar
would be an
(emphasis
coequal
oath.
obligations
upon
just as
reflection
part
Any
supplied)
the notion
unbecoming
respectful
lesser
imposed by
faith
government
Legislature.”
and unwar-
members
on
their
[*]
our
[*]
simi-
part
will
pletely equal,
tion between rural and urban
based
face.
equitable
this State
is at
best a
It еffects
matter
population
are,
distribution
non-discriminatory on
just, although
on
formula which
principle, governed
approximation.
basis. This
representa-
electors,
com-
fair,
con-
its
ignored
stitutional formula has been
in-
in the
confidence
I
the same
share
more
disregarded by the
as
of our
tegrity and bona fides
follow-
years.
than a
Instead of
score of
law-mak-
Jersey
did the New
Constitution, the
ing the
mandate of
present
In the
ing body of that State.
*15
misapplied
cause,
many
advanced
are
solutions
apportioned
in a
formula and
the State
I see
briefs,
them
more than one of
and in
thinking, dis-
my way
manner
which, to
constitutionally
methods
feasible
majority
against
criminates
a substantial
chaos, anarchy and
preventing
means of
deprived of
are
Oklahoma voters who
premise of
disruption
government.
law
representation
that ratio of
be, that
appears to
opinion
majority
accords.
brought about
has
because our
ig-
can be
impasse,
an
the Constitution
regulate
generally
States
free
then
correct,
reasoning is
nored.
If
right
The Federal Constitu
of franchise.
some
I
overrule
submit that we should
require
equal apportion
an
does not
preserve
prior
in order to
decisions
How
ment
districts.
state
Constitution.
ever,
enact
constitution
once
state
does
application
general statute,
Equal or a
then its
violate the
(4) Does H.B. 1033
dispari
must without discrimination or
the Fourteenth
Protection Clause
Press,
Asbury Park
v. Wool
See
Inc.
Constitu-
ties.
Amendment
the United States
supra (p.
Magraw
ley,
A.2d);
710 of
tion?
Donovan,
F.Supp.
(D.C.Minn.,
firmly
opinion that H.B.
I
am
Illinois, 351
1958); Griffin
U.S.
Equal Protection
violates in its effect
Ohio,
891; Burns v.
585, 100 L.Ed.
S.Ct.
Amendment
Clause
the Fourteenth
1164,