95 P. 698 | Wyo. | 1908
Lead Opinion
The relators have filed a petition in this court in which they pray that a writ of mandamus issue out of this court directed to the defendant commanding him as Secretary of State in notifying the boards of county commissioners of the various counties of the state what public officers are to be elected at the next general election to be held in the present year, to insert in such notice the number of senators and representatives for each county as specified in the legislative apportionment found in the constitution- of the state, and to disregard the number of senators and representatives specified in the apportionment acts respectively of
The petition assails the apportionment act approved February 19, 1907, apportioning among the different counties of the state, senators and representatives, as unconstitutional and void for the alleged reasons that the apportionment was not made upon the enumeration of the number of inhabitants of the state made in 1905, and according to ratios fixed by law as required by the constitution, and that the two preceding apportionment acts made in 1901 and 1893 are each unconstitutional for the latter reason, leaving the only valid apportionment of senators and representatives in force in the state that made by the constitution at the time of its adoption, and which was to remain in force and effect until otherwise provided' by law. It is charged by the petition that the apportionment made by each act does not conform to a ratio fixed by law, and that the senators and and representatives were not by said acts divided among the counties according to the number of inhabitants, and that the apportionment made by each act is unequal, and gives undue representation to certain counties, leaving others .'insufficiently represented.
Before proceeding with the other allegations of the petition and the statement of the claims of the respective parties, the constitutional provisions with reference to election
Sec. 2. “Senators shall be elected for the term of four (4) years and representatives for the term of two (2) years. The senators elected at the first election shall be divided by lot into two classes as nearly equal as may be. The seats of senators of the first class shall be vacated at the expiration of- the first two years, and of the second class at the expiration of four years. No person shall be a senator who has not attained the age of twenty-five years, or a representative who has not attained the age of twenty-one years, and who is hot a citizen of the United States and of this state and who has not, for at least twelve months next preceding his election resided within the county or district in which he was elected.”
Sec. 3. “Each county shall constitute a senatorial and representative district; the senate and house of representatives shall be composed of members elected by the legal voters of the counties respectively, every two (2) years. They shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. Each county shall have at least one senator and one representative; but at no time shall the number of members of the house of representatives be less than twice nor greater than three times the number of members of the senate. The senate and house of representatives first elected in pursuance of this constitution shall consist of sixteen and thirty-three members respectively.”
Under the sub-title of Apportionment are the following sections, viz.:
Sec. 2. “The legislature shall provide by law for an enumeration of the inhabitants of the state in- the year 1895, and every tenth year thereafter, and at the session next following such enumeration, and' also at the session next following an enumeration made by the authority of
Sec. 4. “Until an apportionment of senators and representatives as otherwise provided by law, they shall be divided among the several counties of the state in the following manner:
Albany county, two senators and five representatives.
Carbon county, two senators and five representatives.
Converse county, one senator and three representatives.
Crook county, one senator and two representatives.
Fremont county, one senator and two representatives.
Laramie county, three senators and six representatives.
Johnson county, one senator and two representatives.
Sheridan county, one senator and two representatives.
Sweetwater county, two senators and three representatives.
Uinta county, two senators and three representatives.
The relators’ complaint is directed mainly to the apportionment of the representatives. No ratio having been expressly fixed in the act of 1907 it is alleged that so much of the act of 1901 as fixed a ratio was continued in force and that the legislature was bound to follow it in the matter of the apportionment in the act of 1907. The act of 1901 provided that each organized county should be represented in the legislature by one senator and one representative regardless of the population of such county and in addition .thereto should have one senator for every six thousand inhabitants and one senator for every fraction over 3,500 inhabitants, and also one representative for every 2,250 inhabitants and one representative for every fraction over 2,000 inhabitants, in addition to the minimum allowance of one senator and one representative. Upon the assumption that the ratios so fixed in the act of 1901 should be applied to the apportionment under the act of 1907 it is alleged that Weston county with a population of 3,605 was given three representatives or one to which it was
But little light is thrown upon the question here presented by the decisions of the courts of other states in- cases where the constitutionality of apportionment acts have been questioned. In each case the decision rests upon the construction of constitutional provisions which obtain in the jurisdiction where the question arose and which as a whole differ materially from those in our constitution. It therefore becomes necessary in reaching a conclusion to follow the specific provisions of our constitution giving to them that construction which was plainly intended, and preserving to the relators such rights if any to which they are entitled under the allegations of their petition.
It will be observed that the counties of Big Horn, Natrona and Weston are not named in the apportionment fixed in the constitution, as separate senatorial and representative districts, although for legislative purposes they were by the various acts under which they were created attached to and remained a part of the counties from which they were respectively taken and were so included -and formed a part of the districts established in that apportionment. They are however mentioned as separate districts in- the different apportionment acts assailed. It therefore becomes a necessary and a material inquiry to determine their status and the effect which an election held under the apportionment fixed in the constitution would have upon these counties and the people residing within their limits.
It is admitted by the respondent in argument that the apportionment acts of 1893 and 1901 are each unconstitutional, but it is urged that the same infirmity does not exist as to the act of 1907. Such admission is one of law and this court is not bound by it. It requires a judicial deter
In the two former acts a ratio was fixed and expressed in each/but in either act it appears upon the face of the petition that the legislature disregarded such ratio in making the apportionment. It further appears that in both acts the number of senators and representatives to which each organized county was entitled under the constitution was not taken into consideration upon the ratio, but that the latter applied only to those which were allowed in addition thereto. In other words a part only of the apportionment was based upon a ratio. In each act; however, and including the act of 1907, it is provided that each organized county in the state of Wyoming shall constitute a separate senatorial and representative district for the election of senators and representatives. Natrona and Weston counties were so recognized in the act of 1893, and it was further provided in that act that Big Horn when organized should be entitled. to one senator and one representative. Without, therefore, discussing further the question as to the unconstitutionality of the apportionment acts of 1893 and 1901 as a whole, we take it that if conceded as being unconstitutional in the matter of apportionment of senators and representatives, they and the act of 1907 as well, constitute a legislative recognition of the organization and a declaration of the right to representation in the legislature of the counties of Natrona and Weston, and of Big Horn when organized, as separate senatorial and representative districts, although they were not established as such in the apportionment made in the constitution. (Sec. 4, Sub-title Apportionment, supra.)
Section 1 of the act of 1893 is as follows: “Each organized county shall constitute a separate senatorial and representative district for the election of senators and representa
The constitution 5was adopted and ratified by the people at an election held for 'that purpose on the first Tuesday in November, A. D. 1889. (Section 7, Art. XXI of the constitution, and the act of congress admitting Wyoming as a state of the union.) On July 10, .1890, the act of admission was approved and the constitution went into effect. (Commissioners of the county of Fremont v. Perkins, 5 Wyo., 166, 170.) Between the time of the adoption of the constitution and the admission of the state the county of Weston was created and organized pursuant to Chap. 47, S. L,. 1890, approved March 12, 1890, its officers having qualified on May 16, 1890. By Sec. 61, Chap. 90, S. L. 1888, Natrona county was created as an unorganized county with authority to organize upon the petition o'f 300 electors resident therein, in pursuance of the sections of that act, and did so become fully organized on April 12, 1890, when its officers qualified. The county of Big Horn was created and the manner of its organization prescribed by Chap. 48, S. L. 1890, which was approved March 12, 1890, but its right to so organize was ppstponed by Sec. 2 of the act until after February 1, 1892,. Neither of these counties was represented in the first legislature which convened on November 12, 1890, as separate senatorial and representative districts, nor as such in the second state legislature which convened on January 10, 1893. At the time the constitution went into effect, viz.; July 10, 1890, Natrona and Weston were organized and Big- Horn was unorganized; but for legislative pur-posés each continued to be part of the county or counties from which they were taken, as provided by the act or acts under which they were created, and as such they were merged in, and though not separately named constituted a part of, the senatorial and representative districts as estab
Aside from the fact that judicial notice will be taken of the organization of these political subdivisions of the state the legislature has recognized them as such and has by the various acts of apportionment which are here assailed constituted them senatorial and representative districts. The title of each act is as follaws: “An act fixing the state senatorial and representative districts and determining the legislative representation thereof.” These are cognate subjects and germane to the subject of apportionment, and being followed in the act by a declaration as to what shall constitute such senatorial and representative districts clearly show the legislative intent to establish the districts thus defined. It cannot be said to be a mere re-declaration of the constitutional provision and limited to the districts existing at the time that instrument went into effect, for it was within the contemplation of the constitution that the legislature should create and establish new districts as occasion required, and further it was contemplated that each organized county should constitute such district. Such counties could be declared as such by a separate act unac
The issue as to the existence of Big Horn county as a separate senatorial and representative district is not tendered nor is its right to represenation in the legislature questioned except in the manner in which it would be affected by compelling an election to be held under the apportionment fixed in the constitution. We think upon the theory of relators’ case as disclosed by their petition and the argument and brief thereon that they must be held to concede that these counties are now separate senatorial and representative districts and as such are entitled to representation in the legislature and that such right must be recognized under any apportionment act. The petition attacks the apportionment act as a whole upon grounds which do not involve the question of their existence or right as such districts to separate legislative representation. In all the computations made by relators in their petition and brief' in attempting to show the injustice and inequality of the apportionment acts complained of, these counties are recognized and taken into consideration with all the' other counties of the state as constituting separate districts for legislative purposes. Aside, however, from the rule that relators should be held bound by their theory and its logical sequence we are nevertheless compelled to the conclusion that these counties were constituted and have continued to be such districts by reason and in pursuance of legislative enactments ever since the apportionment act of 1893 and the organization of Big Horn and the admission of their senators and representatives elected under such act to seats in the third state legislature which convened on January 8, 1895.
By the act of 1907 the number of senators was fixed at twenty-seven and the number of representatives was fixed at fifty-six. It is thus seen that the relative number in membership of the senate and the house of representatives is within the constitutional provision and that the act is not objectionable on that ground.
It is contended b}r the respondent that the inequalities and defects alleged with reference to the apportionment in the act of 1907 were made within the legislative discretion, while it is argued by the relators that they constitute a clear and palpable violation of the constitution. These questions have been ably discussed by the attorneys who appear in this case.
We are not required' to go into the question of how far the constitution has lodged discretion in the legislature when it provides that the apportionment must be made as near as may be upon a basis of the number of inhabitants of the county, nor in fixing a ratio, nor as to how far their discretion extends in fixing the number of the members of the house and senate so long as the proportionate membership fixed by the constitution is carried out, for we are met by an obstacle which confronts us upon the threshold of this case which renders it unnecessary to do so.
Sec. 2, Art. Ill, supra, fixes the term of the senators at 4 years, and that of representatives at 2 years, and provides that the senators elected at the first election shall be divided by lot into two classes as nearly equal as may be, those of the first class to serve two years and those of the second class to serve four years. This court takes judicial notice of the membership of the legislature and the terms of the senators as the senate is now constituted and the journal of either branch of the legislature, in so far as it is germane to and bears upon the question here involved.
At the first state election the senators as provided in section 4, sub-title Apportionment, supra, numbered 16 in all and the membership of the house of representatives was fixed at 33, and were to be elected from the districts as therein provided. The term of the senators was fixed by lot as provided in Sec. 2, Art.'Ill, supra. Neither Big
It was clearly the intention as gathered from the constitution that one-half of the senators should hold over, and that the holdover senators should be taken into consideration in whatever apportionment act that should thereafter be passed by the legislature. (Sec. 2, supra.) It is
It will be observed that each senatorial and representative district is a territorial unit. It can not be a senatorial and at the same time not a representative district.
If the constitution were susceptible to the construction that the county of Big Horn upon its organization, and the counties of Natrona and Weston upon the admission of the state, became legislative' districts, and as such, without further legislative enactment entitled to the representation of one senator and one representative and that such senators and representatives should be considered as supplementary to the apportionment as made in that instrument, then, as it necessarily follows that no greater representation could be allowed in the absence of legislative enactment, it would be necessary to add the total of the minimum representation from these counties, or 3 senators- and 3 representatives to the numbers respectively allowed in such apportionment, which would make 19 senators and 36 representatives. Upon the facts alleged, Natrona, and
The apportionment found in the constitution was based upon the number of votes cast at the election preceding the framing of that instrument. It was intended by the convention to apply only to the first state election. It was so stated in the debates and proceedings of the convention and it was further expected that the first state legislature would pass an apportionment act based on the provisions and requirements of the constitution. It was intended to be temporary in its application and was applicable to the conditions existing at that time. It does not partake of that fixed and enduring character of other constitutional provisions which never yield to legislative enactment; nor can it at any time, be applied so as to disturb conditions which are the legitimate outgrowth of such other provisions and which are permanent in their nature. Such inapplicability does not arise from the infirmity of the apportionment acts complained of, but from fixed conditions with reference to legislative representation which exist at the present time, and which are the outgrowth of other constitutional provisions. It does not follow that a valid legislative enactment is necessary to render this apportionment inapplicable. It may be so rendered by the operation of other constitutional provisions under which the legislative department of the government has been organized and established and out of which conditions have arisen which render it inapplicable without violating the spirit and express provisions of the
It may be conceded, for the purposes of this discussion, that the present legislature was elected under an inequitable apportionment act, and it may be further conceded that there has not been a fair apportionment act passed since the constitution went into effect, but that does not render the legislature so elected under such apportionment act illegal nor authorize or empower this court to inquire into the qualification or right of any one to his seat therein. Such right cannot be questioned in the courts. (People ex rel. Sherwood v. State board of Canvassers, 129 N. Y., 360; 29 N. E. 345; 14 L. R. A. 646; 10 Cent. Dig., 127, Tit. Const. Law.) The last and final arbiter of such question is the legislature itself and each house is the sole and exclusive judge of the election and qualification of its own members. Such determination is so far judicial in its nature as to make one so admitted a member not only de facto, but de jure also. In speaking upon a similar question where an apportionment act was assailed' as being unconstituional, the Court of Appeals of New York say: “As already said, the senate
What is here said with reference to the senator from Weston county is equally applicable to the senator from Crook county.
It will be observed that the senatorial and representative district of Crook county as established in the constitution included the territory embraced within the boundaries of' Weston county as provided in the act creating the latter, .and as such district it was entitled to a representation of one senator and two representatives. The senator from Crook county is also a holdov.Sr senator, he having qualified as such on January 8, 1907, and his term does not expire until the first Tuesday in January, 1911. To fall back to the constitutional apportionment means also to fall back to the legislative districts as therein established and those counties would be entitled to but one senator, whereas, they now have two holdover senators whose right to hold their seat is a question which has been passed upon by the legislature itself,' and- as already stated, its judgment and action thereon is conclusive upon this court. It is difficult to understand how in view of the present unyielding conditions the apportionment made in the constitution can be applied and its integrity and that of the
The senatorial and representative district of the county of Carbon as established by the constitution in connection with the act creating and prescribing the method of the organization of Natrona county included for the purposes of representation in the legislature the territory embraced within the boundaries of the latter. Under the apportionment, Sec. 4, Sub-title Apportionment, supra, this district was given two senators. Carbon county alone, and ever since the creation of Natrona into a separate legislative district, has itself elected its senators and representatives. At the general election held' in 1906, it elected two senators for a term of four years each, commencing on the 8th day of January, 1907, and ending on the second Tuesday in January, 1911, and each duly qualified for such term and they will be entitled to their seats in the next legisla- * ture which convenes on the second Tuesday in January, 1909. They were not elected by the people of Natrona county,-for that county and its people had no voice in their election. To apply the apportionment as fixed in the con
. The legislative districts of Fremont, Johnson and Sheridan as established in the constitution were each entitled to one senator and two representatives. As such they each included a part' of the territory now embraced within the limits of Big Horn. Since the organization of Big Horn county the territory included therein has been detached from the counties from which it was taken. The senatorial districts of Sheridan and Johnson' each have a senator who was elected at the general election in 1906, and who has duly qualified and whose term as such does not expire until the second Tuesday in Janüary, 1911, and each is entitled to his seat in the senate which is to assemble and organize on the second Tuesday in January, 1909. It is apparent that the same condition exists as to the people of this county that, exists as to the people of Natrona. They, by an election held under the apportionment and from the districts as made and established in the constitution, would be denied the right to elect a senator as a separate senatorial and representative district and would be compelled to submit to representation by non-residents of the county and in whose election they had no voice and who also were not elected from the districts as established in the constitution, but by the inhabitants of a part only of such districts.
The writ of mandamus is referred to in the text books and the decisions as a writ of right. The nature of the writ should not be confounded with the right to have it
It is said by some of the authorities that if a legal right is withheld from the relators the consequences of securing such right through the issuance of the writ ought not to be considered. The courts are not in harmony on this question, but seem to have been governed by the facts in each particular case, so that each case stands practically upon its own footing. The determination of the question in each case necessarily involves the question of the right sought to be secured and the effectiveness of the remedy for that purpose. There is an underlying principle in all the cases that if mandamus be not the proper remedy or would be ineffectual to secure the right sought then it should not issue for in such case it would be of no benefit. It is also fundamental that the legal right to the issuance of the writ never exists to coerce the performance of an illegal act, and that question must be determined upon the facts and conditions existing at the time the application for the writ is made and in determining that question the courts may and should take judicial notice of those conditions which are germane and exist as to a co-ordinate branch of the government and which are the legitimate outgrowth of constitutional provisions. In Spelling, Injunctions and Extraordinary Remedies, (2nd Ed.) at
The counties of Big Horn, Natrona and Weston, not being organized at the time the constitution was framed and adopted, constituted a part of and were embraced in the districts established by the apportionment fixed in the constitution. They have since been organized, the ’ former after the state was admitted and the two latter prior thereto, and as already stated, have been by legislative enactment constituted and are now separate senatorial and representative districts, and as such each is entitled to representation in both branches of the legislature. They have become such districts in pursuance of law, and having been so created they cannot as such be here questioned. The section of the constitution fixing the apportionment says that until otherwise provided by law the senators and represen
Under and by all rules of construction they must be held to be excluded from and disregarded in the apportionment fixed in the constitution, as separate senatorial and representative districts, and if the writ issue as here prayed the respondent must- notify the commissioners of every organized county in the state embraced in the districts then established, and no other, of .the number of senators and representatives to be elected or voted for in the respective counties so notified. He would be required and limited by the writ to notify those counties alone and thus ignore and withhold any notice to the counties of Big Horn, Nat-rona and Weston as separate senatorial and representative districts. Further, as already stated, an election in pur
This court has no power to apportion the number of senators and representatives. It could not force upon the people of the state an- illegal apportionment act. It can only pass upon the questions presented. It has no power to compel the respondent to do an act which is unlawful and it is clear that he has no autohrity to issue notices of an election which ‘if- held as prayed by the relators would confer no right upon the persons elected in pursuance thereof to organize as a valid and constitutional legislature. Nor is this court authorized to compel him by its writ to do so. It would be lending the power of the court to the violation of constitutional and vested rights, to partially disfranchise three of the counties of the state, to in effect declare by its allowance a vacancy in the office of either the senator from Weston county or the senator from Crook county, or to require the respondent to issue notices of an election for senators and representatives so that the latter are less in number than twice the number of those who are entitled to a seat in the senate, and which would be a legislature which is unauthorized by the constitution.
In order to entitle the relators to the writ it is incumbent upon them to show a prior valid apportionment to fall back to. This proposition is substantiated by the following cases cit'ed in their brief: Giddings, Relator v. Blacker, Secy. of State, 93 Mich., 1, 16 L. R. A., 402; Board of Supervisors v. Blacker, 92 Mich., 638, 16 L. R. A., 432; People ex rel. Carter v. Rice, People ex rel. Pond v. Supervisors, Horn v. Board of Supervisors, 135 N. Y., 473; 16 L. R. A., 836; Parker v. State ex rel. Powell, 132 Ind., 419, 32 N. E. 836; 18 L. R. A., 567; State v. Wrightson, County Clerk, 56 N. J. 126, 22 L. R. A., 548; Denny, Clerk, v. State ex rel. Basler, 144 Ind., 503, 31 L. R. A., 726; People ex rel.
Upon principle and authority as to that branch of the case it is clear that the relators are not, upon the allegations of their petition, entitled to the writ, and that being so this court is not called upon nor is it necessary to decide the constitutionality of the apportionment act of 1907. The relators have no standing to ask this court to decide that question as a mere abstract question of law. (North v. Trustees &c., 137 Ill., 296; People v. Olson, 215 Ill., 620; Kennealy v. City of Chicago, 220 Ill., 485, 505.) They must show that a legal right to which they are entitled is withheld from them, that is to say, they must show a prior apportionment under which the election of a valid and constitutional legislature can be held, that they are entitled to but are denied the right to elect their proportionate membership of a legislature under such prior apportionment; that it is within the power and that it is the legal duty of the party against whom the remedy is sought to perform the act which will secure them that right and that they are entitled to the writ to compel the performance of such act.
The demurrer will be sustained, and should there be no further pleadings filed, the writ will be denied.
Concurrence Opinion
(Concurring.)
I concur in the conclusion and the grounds thereof stated in the opinion delivered by Justice Scott as the opinion of the court, and I would ordinarily be content with the simple announcement of my. concurrence. But owing to the unusual importance of the case itself, the questions involved, and the grave duty cast upon the court in their determination, as well as the peculiar situation disclosed by existing conditions, if the claims of the relators be correct as to the validity of the legislative enactments called in question, I desire in a separate opinion to set forth the reasons which in my opinion irresistibly lead to the conclusion and disposition of the case announced in the principal opinion. This I do, not alone of my own inclination, but following also the desire of my associates. I do not expect or hope to add materially to the main opinion, and much that I shall say will be but a repetition of that already said, though perhaps differently expressed.
I do not doubt as a general rule the power and duty of the court in a proper case to pass upon the constitutionality of a legislative act, and to adjudge it to be invalid if found to conflict with constitutional provisions, nor, when that question is necessarily involved in the disposition of a pending case properly instituted, to determine whether an act apportioning legislative representation is violative of constitutional requirements, and to declare the same void if found to conflict with such requirements. But the decision should be necessary to a just determination of the case. Judge Cooley, in his work on Constitutional Limitations stated the principle as follows:
“Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless*526 a decision upon that point becomes necessary to the determination of the cause. * * * In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” (Cooley’s Const. Lim., 3rd 'Ed., 163.)
Another rule of controlling importance in considering the validity of a statute is that all reasonable doubts must be solved in favor of the legislative act. Such a question is to be approached by the judiciary with great caution, and examined in every possible aspect, and a statute should not be declared void, unless its validity is beyond íeasonable doubt. (Id. 182.)
With these principles in mind I propose briefly to exam-ine the allegations and contentions of the parties to ascertain where they lead.
First, it is alleged and contended that the apportionment act of 1901 prescribed a ratio for the apportionment of senators and representatives respectively, and that the act of 1907 is void for the reason that the apportionment therein made was not based upon the ratio so established. In other words the position of the relators is that as ratios were not expressly prescribed in the act of 1907, the ratios of 1901 continue in force and are controlling upon the question of apportionment until new ratios are prescribed. While it is contended generally that the act of 1907 is void on the ground that the senators and representatives are not thereby apportioned among the counties as nearly as may be according to the number of inhabitants, the particular theory of the petition is that the ratios of 1901 controlled and were not followed. It is true that the act of 1907 does
Now, conceding that the apportionment made by the act of 1907 does not follow the ratios of 1901, the act of 1901 in prescribing ratios is then inconsistent with the provisions of the act of 1907. It was clearly within the power of the legislature to repeal the former act, and when it made an apportionment and repealed all inconsistent provisions of other acts, it necessarily repealed' the inconsistent ratio provisions of the act of 1901. It it clearly more reasonable and logical to so hold than to say that the later act is invalid because inconsistent with the former one. Of course the repeal would not result if the apportionment in the act of 1907 is void upon other grounds, because if the apportionment part of the act should be declared void, the ratios prescribed by the act of 1901 would not be inconsistent with any of its provisions.
But there is still another and sufficient answer to the claim that the ratios of the act of 1901 controls until other ratios are fixed. The constitutional provision for ratios is found in the section requiring the legislature in 1895, and every tenth year thereafter, to provide by law for an enumeration of the inhabitants of the state, and it is directed therein that at the session next following such enumeration, and also at the session next following an enumeration made by authority of the United States, the legislature shall “revise and adjust the apportionment for senators and representatives, on a basis of such enumeration according to ratios to be fixed by law.” The words “such enumeration” in the latter part of the section clearly refers to the last preceding enumeration. It is a publicly known fact and conceded in the petition that the legislature did provide for an enumeration in 1905, and that such enumeration was made. Upon that enumeration, therefore, it be
“Each organized county shall have one senator for every six thousand inhabitants and one senator for every fraction over 3,500 inhabitants in such county, as shown by the enumeration of such inhabitants made by the authority of the United States, in the year one thousand and nine hundred.”
What can be clearer than that this ratio so fixed and qualified would not control and indeed could not control in an apportionment made subsequent to the state enumeration of. 1905, without violating the constitutional requirement that after the later enumeration it should constitute the basis for a revision and adjustment of the apportionment ?
Again, the act of 1901 did not fix ratios for all the senators and representatives, but only for those in addition to the one senator and representative respectively allotted to each county. It is true that under the constitution each county is entitled to at least one representative in each legislative body. That, however, does not mean that the ratios shall not be fixed for all, but only that whatever the ratio each county shall have at least one senator and one representative. Nor does it mean that the ratio is necessarily the number of inhabitants in the county having the smallest population, for that would arbitrarily determine the number in each body, and would prevent keeping up the, relative size of the two bodies as required by the con
It will be observed that contrary to the rule prescribed in many states, the senatorial and representative districts are fixed by our constitution, each county constituting such a district. It would seem therefore that to prescribe a ratio for the excess only over the minimum allowed to each county might be held 'to depart from the letter as well as the spirit of the constitution.
There is a further answer that might be made to the claim that the ratios fixed by the act of 1901 are controlling until other ratios shall be expressly prescribed. In the section of that act fixing a ratio for apportioning members of the house of representatives, it is provided that no county shall have a less representation, either in the senate or house, than is allowed to such county in the legislature of 1901 which passed the act. The ratio as to representatives was therefore again qualified, and, if controlling at all, it .carries the proviso with it, which might result, as it apparently did in that act, according to the averments of the petition, in awarding to a county a greater number of representatives than it would be otherwise entitled to upon the
For either of the reasons above mentioned I think it may well be doubted whether the basis of. the particular objections set out in the petition against the act of 1907 has any support upon a proper construction of the constitution and statutes.
However, it is contended that the constitution not only requires that an apportionment shall be actually made according to ratios, but that such ratios shall be fixed by law. With that view I am inclined to agree. .The constitution seems to contemplate that the basis of the apportionment shall not be left to conjecture, nor for ascertainment upon independent computation. But it must be remembered that the purpose of the provision, in connection with others upon the same subject, is to secure a fair and equitable apportionment according to the number of inhabitants of the respective counties. Upon a mere technical objection that ratios were not expressed by law, without it appearing that in fact an apportionment was not based upon ratios that were fair and reasonable, and that such apportionment was unfair or inequitable, or not made according to the number of inhabitants as nearly as may be, there would, in my opinion, be strong reason for hesitation on the part of the court to declare an act void.-
It is here claimed by the Attorney General, in defense of the act, that ratios were employed, and that they are to be discovered as to both bodies by dividing the number of •inhabitants of the state by the number of members provided for each body respectively. Such a division produces •a quotient or ratio for the senate of 3771, and 1818 for the house.
No other county had a major fraction, that is to say more than one-half the number required for a representative, after receiving the number of representatives allotted to it. But though Crook county was given a third representative, having a fraction of only 201 in addition to the number required for two, Natrona county, with a fraction over of 624, was given but one representative, 'Sheridan, with 875 more than enough to entitle it to five representatives, was given only five, Albany county, with 902 in excess of the number entitling it to five, was given only five, and Converse was given only 2, although it had 532 more than the number required for two.
None of the counties, except Uinta, however, had a large enough fraction over the number required for the representation given it, which would seem to afford reasonable ground of complaint that it had not received its full quota, that is, none except Uinta was left with a major fraction unrepresented, if we may assume that the ratios'aforesaid were in fact adopted or employed. But on the other hand, the particular counties above mentioned might perhaps find cause to complain that Weston county was given a third representative in the absence of any number of inhabitants in excess of that required for two, and that Crook was given a third representative upon a smaller 'fraction than several other counties had, and that therefore those coun
Adopting the ratio above suggested the Attorney General contends that the words “as nearly as may be” vest in the legislature a reasonable discretion not subject to 'control by the courts; that in considering the legislative action, some regard must be given to the difficulties necessarily encountered in the passage of an act, and especially one of this nature where sectional jealousies and differences are bound to be displayed; and that nothing but gross inequalities, or a plain departure from the constitutional principle, will justify the court in adjudging an apportionment act void.
The relators not only assail the act of 1907, but they allege and contend that the two previous acts — those of 1901 and 1893, are each void, upon the ground that the ratios established thereby respectively were not followed in making the apportionment. The Attorney General concedes the invalidity of said former acts, but upon different grounds. He maintains that each act establishes ratios in an unconstitutional manner, viz.: By applying them to some of the members of each body only; and he also contends, as I understand, that the inequalities of the apportionment made by each of said acts are greater than those appearing in the act of 1907.
By the admission of the relators, therefore, as well as that of counsel for respondent, if the act of 1907 is invalid, the acts of 1901 and 1893 are likewise invalid, and if the act of 1907 is to be held unconstitutional, both of the preceding acts must also fall. This would leave as the only apportionment the one made in the constitution itself, under which the elections for senators and representatives were
I do not'doubt that the question as to the constitutionality of the act of 1907, and possibly the two previous acts, is presented in this case, and I suppose the court would have jurisdiction to determine that question in the first instance, before going to any other question in the case. But there is another question that would demand consideration, in the event that the apportionment acts should be decided to be unconstitutional, and upon its determination the right to the remedy sought would ultimately depend. Should we enter upon a full consideration of the constitutionality of the act of 1907, and adjudge it to be invalid, and then upon a consideration of the further questions, viz.: the right to have the notices for the election given under the apportionment in the constitution, should decide, as we would be compelled to do, that,the right does not exist, on the ground that such apportionment is totally inapplicable under present conditions, at least so far as the power of the court to enforce it is concerned, the court would find itself in the position of having for no purpose whatever adjudged a legislative act .void. While, therefore, the court might take upon itself the responsibility of deciding
I am aware that there are cases holding to the contrary view. (Parker v. State ex rel., 133 Ind. 178; People v. Thompson, 155 Ill. 451.) I think that those cases are distinguishable from the one at bar owing to difference in the circumstances. In those cases it would have been necessary to examine and pass upon the constitutionality of a former act as determined by practically the same objections urged against the later, and I do not understand that the enforcement of such former act would leave various sections of the state totally unrepresented in-one or other of the two legislative bodies, or that its enforcement, if validly enacted, would interfere with constitutional provisions.
In the Indiana case, however, there was a vigorous dissenting opinion by Judge Elliott upon the precedence of the questions in which he gave several excellent reasons for first considering the right to the remedy in any event. Among other reasons he mentioned the following:
“Courts will not send against a public officer the extraordinary writ of injunction or of mandamus, unless the complainant makes it appear that the writ will be effective in the particular case in which it is demanded” and, “The inexorable rule is that constitutional questions will never be decided unless their decision is indispensably necessary to a final disposition of the case actually before the court.”
Upon appeal in a case of a similar nature the New York Court of Appeals decided the question of the validity of an apportionment act', and hjeld it to be unconstitutional, although it made no order in the case for the reason that
We conceive that the situation here is greatly different from that apparently presented in other cited cases involving the validity of apportionment acts. But even if our conclusion in this respect would seem not to accord with the decisions by some other courts, we maintain upon principles well settled and universally recognized that under a situation such as is here presented it is eminently more logical and reasonable to inquire in the first place whether the remed}r proposed through the intervention of the court is one within its power to grant without compelling a deviation from constitutional mandates.
It is, therefore, in order, before proceeding further with the discussion of the apportionment acts ■ to take up the apportionment embodied in the constitution, together with other provisions therein contained, and review the situation now presented in connection therewith. It may be said here that it is not denied by counsel that as each house is the sole and exclusive judge of the qualifications of its own members, and as the terms of office of the members of the legislature that convened in 1907 have not expired, and will in no case expire until January next, that legislature was a de facto legislature, and its members are de facto members thereof and that its acts, if otherwise valid, cannot be assailed on the ground of the invalidity of any apportionment act under which the members were elected. It is indeed asserted by counsel for relators, and in that we agree with him, that the same legislature, if called in special session for that purpose, would have the power.to pass a valid apportionment act if the one now assailed should be held to be invalid. That is simply a concession to a well settled principle applicable to the acts of public officers generally, as well as the lack of power of the court
It may be here stated that had there been no subsequent legislation of any character upon the subject, the apportionment section of the Constitution would have remained the only apportionment law for this state. That was declared to be effective until otherwise provided by law. The general statement that it would constitute the apportionment until otherwise provided by law, shows that it was intended to have only a temporary existence or effect. Indeed, in another section it is stated that the senate and house first elected, under the constitution shall consist of 16 and 33 members respectively, fhe members that were actually apportioned.
In the absence of any action by the legislature pursuant to constitutional provisions affecting the question of apportionment, the various sections of the state would have remained represented in the legislature as apportioned in the constitution, and very little difficulty or cause of complaint would have arisen, except that new communities might be unfairly represented; but there would not then have existed any legal ground of complaint, nor the condition of affairs that now confronts us.
But the legislature did act .and did assume to enact apportionment laws, the first in 1893, under which the members of the legislature of 1895, 1897, 1899, and 1901, respectively were severally elected. In 1901, the second act was passed, under which the members of the legislature respectively of 1903, 1905, and 1907, were elected. Except for the first State legislature, and by the apportionment therein made “until otherwise provided by law,” the constitution does not prescribe the number of members for either the senate or house of representatives. The legislature is not restricted in that respect, otherwise than as to the size of the two bodies in relation to each other. In
It is to be rememebred that the constitution was framed by a convention held in' September, 1889, while Wyoming was yet a territory, in anticipation of favorable action by Congress upon a bill or proposed bill for its admission as a state. When the bill would be considered or passed could not be known. This is not only evident from the nature of the question, but it was recognized by the convention, and provisions were inserted in the schedule to cover contingencies depending upon the date of statehood. (See Secs. 21, 22, Art. XXI, entitled Schedule.) These provisions had reference to the assembling of the legislature and the general election. The people of the territory voted upon and adopted the constitution at an election held in November, 1889. The act of admission was approved July 10, 1890, and thereupon the Constitution became effective. The first state election was held in September of the same year, and the first legislature of the new state convened in November, and remained in session until the latter part of January, 1891. Between the time of framing and adopting the constitution as aforesaid, and its taking effect, (here using the term “adopted” as referring to the vote of the people thereon) two new counties were organized, Natrona, which had been created from the northern part of Carbon in 1888, and Weston, created from the southern part' of Crook, by the legislature of the territory that assembled in January, 1890.
The'constitution provided (Art. XII, Sec. 1.) that “the several counties in the territory of Wyoming as they shall exist at the time of the admission of said territory as a state, are hereby declared to be the counties of the State of Wyoming-.” Under that provision it cannot be doubted that Natrona and Weston counties, having been created and organized prior to the State’s admission, became upon such admission counties of the State. Big Horn county had
Neither of these new counties were mentioned in the apportionment of senators and representatives provided in the Constitution; and hence had there been no subsequent enactment of an apportionment law by any legislature of the state, tlie territory in such counties would no doubt have remained attached to the counties from which they were respectively taken, for the purpose of participation in the election of members of the legislature; for, although each county is expressly constituted a separate senatorial and representative district by the constitution itself, that provision would necessarily be read in connection with the section making a specific apportionment, which, for that purpose, mentioned the counties as they existed when the Constitution was framed. To prevent the non-representation of the territory and people included in the newly organized counties, they would necessarily be regarded as part of the original counties respectively, for the purposes of legislative elections ánd representation. And that course was in fact followed in the election of the first legislature that convened in November, 1890, and the second that convened in January, 1893.
By the apportionment act of 1893, Natrona and Weston counties were each awarded one senator and one representative, and it was provided that Big Horn County, when organized, should have one senator and one representative. Omitting Big Horn County, the senate and house were by that, apportionment to be composed of 18 and 37 members respectively, and with said county the relative membership was tó be 19 and 38; thus preserving the constitutional proportion, with or without that county. In
In the legislature of 1895, and each succeeding legislature, Natrona and Weston counties were each separately represented by a senator, as well as representatives, and commencing with the session of 1897, Big Horn county has been separately represented in each body. Each senator from said counties' was elected for the term of four years, the term of office fixed by the constitution. There having bfeen no apportionment act passed between 1893 and 1901, the number of members elected after the organization of Big Horn- county, and until and including the session of 1901, continued at 19 and 38 respectively. At the session of 1895, the senate was composed of 18 members, of whom nine, or one-half the number, had been elected at the last preceding election for the term of four years, so that the two- classes at that session were equally divided. At the session of 1897, there were ten senators who were to hold office for four years from that time, having been elected at the fall election in 1896, as -against 9 whose terms would expire in two years, the latter having been elected at the election held in 1894; and, therefore, at the next succeeding session there were nine newly elected members to serve for four years as against ten in the other class whose terms were to expire before the next following biennial session. This proportion was of course maintained at the session of 1901, the numbers being again reversed, the four-year class containing ten members.
Thg apportionment act of 1901 provided for a senate of 23, and a house of 50 members, giving each of. the new counties separate representation. This increase in the senate resulted in the election of 13 new senators at the election in 1902, so
The present holdover senators, that is, those who will- be entitled to seats as senators at the regular session to be held in January, 1909, by virtue of their election in 1906, for four years from January, 1907, were elected in the numbers stated from the following named counties: 2 from each of the counties of Albany, Carbon, Laramie and Uinta, and one (1) from each of the counties of Crook, Johnson, Sheridan, Sweetwater and Weston. In order to give to the respective counties named in the apportionment found in_ the Constitution the number of senators awarded them thereby, without interfering with the holdover senators above mentioned, it would require an election of a senator in each of the following counties, viz.: Converse, Fremont, Laramie and Sweetwater, or a total of four (4), which, when added to the number of holdovers, makes 17, or. one more than the number of senators provided for by the apportionment in the Constitution.
We are, therefore, confronted with this situation, that should the Secretary of State be commanded to call an election under said apportionment it would be necessary for him to determine the counties wherein an election for a senator or senators should be held; unless indeed this court would be authorized to make such a determination and embody'the
Should the senators already elected and seated not be disregarded, and we know of no authority on the part of the court or the Secretary to disregard them, then there would be 13 senators in one class, and not more than 4 in the other. And at any subsequent election new senators would necessarily he elected for the constitutional term of four years. It is, therefore, apparent, using former acts as an illustration, that should the senate under a new apportionment be composed of 23 as heretofore, or 27 as provided by the act of 1907, the newly elected senators would number 19 or 23, while the remaining class would consist of four only; and this inequality would continue to exist, whatever the number of senators, unless reduced to a very small number, thus defeating the very obvious purpose of that provision of the Constitution dividing the senators into two classes.
Again a great reduction in the number of senators would require a corresponding though less reduction in the number of representatives, since the latter are in no case permitted to exceed three times the number of senators. Moreover, if 17 members are to compose the senate, that will be more than one half the number of representatives, a condition forbidden by the constitution in the most positive language; as neither the court nor the' respondent could add to the'number of representatives, it would be imperative that there be not more than 16 senators,‘so that it would be necessary to either' deprive some 'county of its representation prescribed in the apportionment of the Con'stitu
The incompetency of the court to enter an order that would effectively deprive any holdover senator of his office is recognized by all the authorities and the principle is so well settled as to require no citation of cases. But I may refer to a late case in Pennsylvania where a relator in quo warranto, claiming to have been elected a senator, questioned the constitutionality of an apportionment act, the court refused to decide the question on the ground that the relator had no such interest as gave him a standing to maintain the writ, and it was said: “Even a judgment of ouster against the respondent would not give the office to the relator, for his own qualifications and the regularity and validity of his election would still be subject to the investigation and judgment of the senate, which is the ultimate and supreme tribunal on these matters.” (Commonwealth v. Biddle, 218 Pa. 234, (67 Atl. 355.)
The above statement of the present condition shows not alone the confusion and difficulties that would attend any attempt at this time to go back to the apportionment of the constitution, but to do so would deviate from mandatory constitutional provisions. It is evident that this court cannot in this case or any other either make an apportionment,
It would be an anomaly to say that a provision of the Constitution is itself unconstitutional or invalid as conflicting with another provision of the same instrument. We are not here saying that the apportionment made in and by the constitution “until otherwise provided by law” is unconstitutional or invalid for any reason. Such a position is far from our decision. But it is to be read and
But in any view of the matter, our position goes a step beyond that. Keeping in mind the evident purpose of the apportionment temporarily made by the constitution, the acts adopted by the legislature, and up to this period acquiesced in by the people, have resulted in a condition impossible of correction by the courts, which must be regarded by the court, so far as this case is concerned, as equivalent to “otherwise provided by law,” so as to render the apportionment in the constitution superseded and inoperative.
I do not mean to say that an invald law would of itself destroy the operation or effect of the apportionment section of the constitution; but an act appearing to have been duly enacted and promulgated is to be regarded as valid until otherwise declared by competent authority, and we are now considering the propriety of passing upon the validity of the apportionment acts, if not the power of the court to do so; and what I do maintain upon the facts above stated is that a condition beyond the control of the court has been produced, which, - so far as the power of the court is concerned to award the remedy here sought, has caused in effect the apportionment of the constitution to become inoperative.
Where it was sought to have an election for the legislature held' under the apportionment act of 1879 in New York, intsead of the act of 1892, assailed as void, and the court could see that if the act of 1892 was invalid, the act of 1879 was also void, and that to hold the later act void would' relegate the people to the act of 1866, a law more than a quarter of a century old, the court said that “this would be a travesty on the law and up'on all ideas of
That case does not, of course, precisely touch the question before us upon the facts, but it does show that subsequent conditions were considered as having an important bearing upon the construction of a particular section of the constitution.
But there is an additional element in thé case that I have not referred to, but which is mentioned' in the principal ‘
In the opinion handed down for the court, Judge Scott has called attention to the fact that two senator's from Car
The cases cited in brief and argument involving the validity of apportionment acts severally present a far different state of facts as well as different constitutional provisions, from those with which we are concerned. In many if not most of the cases the duty was imposed upon the legislature by the constitution of establishing districts according to the number of inhabitants and under certain other restrictions such as those of compactness and contiguity, but I do not recall a case where, if an election was held under a previous act, certain counties or sections would be deprived not only of representation, but of any voice in the selection of a representative.
Upon any view of the case at bar, should the writ demanded by the relators be granted, not only would there be caused inextricable confusion, but there would occur an inevitable deviation from the permanent provisions of the constitution concerning the formation of the legislature, and representation therein; and in my opinion therefore the only safe and reasonable course is to deny the writ on the ground that the relators have not shown themselves entitled to it, without deciding as to the validity of the apportionment acts.