238 N.W. 494 | Minn. | 1931
Lead Opinion
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 *231 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 *232 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 *233 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 *234 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. *235
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.
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,
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
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. *238
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,
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,
State ex rel. Schrader v. Polley,
"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,
In State ex rel. Davis Y. Hildebrant,
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 *242
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,
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,
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 *243
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,
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
Affirmed.
Dissenting Opinion
My view is that the apportionment of the state into congressional districts must be by legislation. Nor am I satisfied that if it is otherwise H. F. No. 1456, passed by the house and senate and returned to the house by the governor as a vetoed bill and by its resolution ordered deposited with the secretary of state, without other action thereon and without action by the senate, constituted an effective apportionment. *244
Dissenting Opinion
I cannot agree that, because in assigning administrative or political functions to state legislatures the constitution excludes all other state agencies, the same conclusion is forced where, as in art. I, § 4, a specific lawmaking task is vested in them. Judgment based only upon identification of the agency selected ignores the more important factor of the kind of action demanded. Administrative and political action proceed in their own way and subject to their own peculiar limitations. Legislative action — lawmaking — is something very different, especially in a republic.
The necessity of submitting the result to executive approval or veto and the right to pass over a veto (although not found in all states) have from the beginning been characteristic of American constitutional government. Few other subjects gave the constitutional convention so much difficulty. Its members considered that the power of any legislature to make laws might wisely be subjected to a qualified executive veto. They so conditioned the lawmaking power of congress. It could well have been contemplated therefore that while any other kind of action would be by the legislature alone, the purely legislative function of lawmaking would be subject to conditions imposed by the state constitutions.
Wanted in every such case is state action. McPherson v. Blacker,
That the convention was consciously dealing with a lawmaking function in art. I, § 4, is clear. The idea is suggested in the word "prescribed." It is confirmed by the grant to congress of the power "by law" to make or alter regulations made by the states. "The times, places and manner of holding elections" are not only appropriate to be dealt with by lawmaking but also wholly inappropriate to any other process. So I cannot conceive that the intention was any other than that the task assigned should be performed *245 by ordinary state legislation. Any restriction of state power to subject the lawmaking of its own legislature to executive veto must rest on remote and unnecessary implication, and so there is no such restriction.
Because under American theory the people themselves are the source of all governmental powers and the federal constitution but a grant of some, there is merit in the reasoning of the judges in State ex rel. Schrader v. Polley,
But, Judge Story tell us, the whole section "was afterwards assailed by the opponents of the Constitution, both in and out of the State conventions, with uncommon zeal and virulence. The objection was not to that part of the clause which vests in the State legislatures the power of prescribing the time, places, and manner of holding elections; for so far it was a surrender of power to the State governments. But it was to the superintending power of Congress to make or alter such regulations." Story, Constitution (4 ed.) § 815.
There is no difference of substance between the South Dakota view that the power was "reserved" by the state governments and that of Judge Story that it was surrendered to them. They agree that the power remained in the "state governments." Had the state conventions or any single member of any of them considered any other view tenable, the debates would show it. The "uncommon zeal and virulence" of the opponents of adoption were such that not even slight and technical objections to the new national government were overlooked. This one, if anyone had thought of it at all, would have been made much of, for the whole fight on the constitution was grounded on its effect as a surrender of state power. *246
McPherson v. Blacker,
That conclusion is impossible unless art. I, § 4, invokes thewhole legislative power of the states.
In that assertion I do not overlook the discussion by the court of the act of congress of 1911 and its effect, "in so far as Congress had power to do" it, of recognizing the validity of a referendum on a state redistricting act. The limitation, "in so far as Congress had power to do," is significant. Whatever power is possessed by the states or their legislatures has been the same ever since the constitution was adopted. Theexercise of that power is subject to supervision (Ex parte Siebold,
Congress may "by law" make its own "regulations" or alter those of the states. It cannot say either that the state regulations shall or shall not be subject to veto by executive or people. That would be to amend the constitutional confirmation of power in the state legislatures, which has always meant either that their power was or was not subject to such veto. The act of congress of 1911, while it could not change the constitution, could and did construe it. The interpretation was that the whole legislative power of the state was invoked, the referendum to be or not to be a part of it as determined by the fundamental law of each state.
If, as we now decide, the term "legislature," as used in art. I, § 4, does not refer to the legislative power of the state, however exercised, but is confined to the members of the legislatures as such and so excludes executive veto, it equally excludes veto by referendum, and both the opinion of congress and the decision in the Hildebrant case,
That case was distinguished in Hawke v. Smith,
The Hildebrant case,
"It was held [in the Hildebrant case] * * * that the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional. Article I, § 4, plainly gives authority to the State to legislate within the limitations therein named. Such legislative action is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution. In such expression no legislative action is authorized or required."
We are dealing now with legislative action. It is established that, if required by a state constitution, the referendum is a part of the legislative process. It must be equally true that, when made so by a state constitution, executive approval and veto are parts of the same process and so not excluded by art. I, § 4.
I cannot concur either in putting aside so easily the argument that there has been a persuasive, if not a controlling, practical construction contrary to the conclusion of the majority. It is always easy for a court to remove a case from the reach of any sort of construction simply by asserting a lack of room for it. The contrary opinion of the court of last resort of our sister state of South Dakota is enough to make a real question. The comment already cited from Judge Story shows that the state ratifying conventions considered that the power concerning times, places, and manner of electing congressmen was left to untrammeled state action, except for the superintending function of congress. The latter was all they objected to.
Without adequate historical search, my impression is that never heretofore has there been serious question that the states have the whole power of legislative action in the matter, except as congress may make its own regulations or alter those of the states. Minnesota is but one of many states (all of them so far as I know) where congressional redistricting has been always by ordinary statute. *249 The present chief justice of the United States, when governor of New York, expressed himself on the subject of congressional redistricting to an extraordinary session of the legislature in 1907 as follows:
"It is not my purpose to propose a particular plan of apportionment. It is the function of the legislature to formulate such plan and submit it by suitable bill for executive action." Public Papers of Charles E. Hughes, New York, July 8, 1907, p. 52.
Congress has always assumed that congressional redistricting could be by ordinary state legislation, participated in by the executive through the right of veto where required by fundamental state law. That it has considered also that such legislation may be subject by state law to veto by referendum is plain from the act of 1911 and the debates concerning it. 47 Cong. Record, 3436, 3437, 3507.
One thing more. Our legislature thought that it was proceeding in the ordinary way by "A bill for an act," which before becoming effective as law would need approval by the governor unless passed over his veto. As such and not otherwise, it was submitted to him. Only the lower house, after his veto and in default of repassage, ordered the measure filed with the secretary of state. It strikes me that we ought not so far to disregard the intention of our own legislature as to say that its purpose was other or different from what so plainly appears, that is, to enact state law in the ordinary fashion but first to subject it to executive disapproval. So possibly we do not have before us the question that would arise had the legislature intentionally proceeded independently of the governor. The scope of their action they themselves define so plainly as to negative that intention. They attempted only to enact a state law. I question whether we can exempt it from any of the applicable provisions of our state constitution.
As to the substance of the measure, I agree that we cannot hold it a transgression of legislative power. I agree also that the act of congress of 1911 is wholly superseded by the one of 1929.
For the reasons above given, I think that the order appealed from should be reversed. *250