Opinion
No. 20,240.
Decided July 6, 1962. Reconsideration denied July 12, 1962.
Original proceeding relating to apportionment of the General Assembly. Rule to show cause issued.
Rule Discharged as to Executive Officers. Jurisdiction Retained.
1. COURTS — Jurisdiction — Rules — Relief — Remedy. Although relief prayed for is not within constitutional power of court to grant, under Rules of Civil Procedure if allegations of petition are such as to involve both the jurisdiction of the court, and on the face thereof entitle petitioner to some relief, the fact that petitioner misconceives his remedy will not deprive the court of jurisdiction to act.
2. CONSTITUTIONAL LAW — Courts — Separation of Powers. Under the doctrine of separation of powers, the Supreme Court cannot and will not command the Governor to do any act which lies within his discretionary power, and the authority to call the legislature into special session is such prerogative.
3. General Assembly — Reapportionment — Failure to Act — Courts — Jurisdiction. Failure of General Assembly to reapportion following the 1960 Federal census, allegedly to the injury of petitioners and other citizens, are matters which the parties are entitled to call to the attention of the Court and of which the Court has jurisdiction.
4. General Assembly — Reapportionment — Mandatory Duty — Presumptions. Art. V, Sec. 45 of the state constitution makes mandatory the duty of the General Assembly to reapportion at the session next following an enumeration of population made by authority of the United States, and the court must indulge the presumption that the legislature has acted according to its obligation to uphold the constitution unless the contrary appears beyond doubt.
5. General Assembly — Reapportionment — Sessions. Where 1961 regular session of General Assembly was about to adjourn when figures of Federal census became available, and 1962 session was limited generally to fiscal matters and such other matters as were referred to it by the Governor, fact that matter of reapportionment was included in message of the Governor for 1962 Session did not make enactment of a measure therefor mandatory at such session in view of provision of Art. V. Sec. 45, which contemplates bi-annual sessions of the General Assembly.
6. INITIATION AND REFERENDUM — General Assembly — Reapportionment — Courts. Where it is shown that constitutional amendments relating to reapportionment of the General Assembly are to be submitted to the people at the 1962 general election, no need appears for intervention of the judiciary until it is determined that both the people and the legislature have failed to act.
ORIGINAL PROCEEDING
Mr. CHARLES GINSBERG, Mr. GEORGE LOUIS CREAMER, for petitioner.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. RICHARD W. BANGERT, Assistant, Mr. DONALD S. MOLEN, Special Assistant, for respondents. Members of the General Assembly appearing pro se.
Mr. CHARLES S. VIGIL, Mr. RICHARD S. KITCHEN, for intervenors Federal Plan for Appointment.
Mr. FRED M. WINNER, Mr. WARREN O. MARTIN, Mr. WILLIAM G. BERGE, Amici Curiae.
THIS matter is before the court on original proceedings seeking the issuance of a prerogative or remedial writ.
It is apparent from the prayer of the petition and from the answers to the show cause orders issued by the court pursuant to said prayer that the relief asked for is not within the constitutional powers of this court to grant. It has long been the established rule, however, confirmed by the Colorado Rules of Civil Procedure that if the allegations of the petition are such as to invoke both the jurisdiction of the court and to entitle the petitioner, on the face thereof, to some relief, the mere fact that one misconceives his remedy will not deprive the court of jurisdiction to act.
Before proceeding, however, to a discussion of: first, the jurisdiction of the court and second, whether it is incumbent upon the court to act at this time, we wish to state at the outset that under the separation of powers doctrine we cannot and will not command the Governor to do anything, the doing of which lies within his sound discretion, and we deem his authority to call the Legislature into special session to be such prerogative. Veto Power, etc., 9 Colo. 642.
It appears from the Governor's answer that conceiving it is his duty to call the matter of apportionment to the attention of the 43rd General Assembly, he twice included the matter among the subjects presented to the Legislature for consideration. He states, and we agree, that he was powerless to do more.
As to the other officers of the state, to-wit: the Secretary of State and the Treasurer, we concede, as averred in their answer, that this court cannot and should not enjoin upon them by the constitution. The Secretary of State has no discretion but to carry out the election laws as prescribed by statute, and the Treasure, on vouchers properly presented to him, where appropriations have been made therefor, must make disbursements as commanded by said vouchers. Accordingly, the rule as it affects the Governor, Secretary of State and Treasurer is discharged.
1. JURISDICTION OF THE COURT
We proceed now to the question of the jurisdiction of this court over the subject matter of the petition. Petitioner has alleged facts and has referred to the constitutional provisions and statutes which in their materiality to the issues framed are either admitted or are so well known and generally accepted that the court will take judicial notice thereof. In summary, pertinent allegations are that the General Assembly has never provided for a state census; an enumeration made by the authority of the United States was last made in the year 1960; the current (43rd) General Assembly sat in the years 1961 and 1962, and it is not scheduled regularly or automatically to sit again; the matter of apportionment by the senators and representatives was brought before the General Assembly in both years, but no reapportionment act was enacted; the statutes of Colorado relating to apportionment are C.R.S. '53, 63-1-1 to 63-1-8, inclusive. There are general allegations in the petition concerning approximate population figures, later embellished in a memorandum brief under the statement of facts by actual figures taken from the official 1960 Federal census. From all that appears, both in the petition and the memorandum brief of petitioners, the parties are entitled to call these matters to the attention of the court. In at least a half dozen cases, commencing with Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663, the Supreme Court of the United States has made this plain. As was said recently in Asbury Park Press., Inc., v. Wooley, 33 N.J. 1, 161 A.2d 705:
"The judicial branch of the government has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights granted thereby to the people. In this sphere of activity the courts recognize that they have no power to overturn a law adopted by the Legislature within its constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such case lies with the people. But when legislative action exceeds the boundaries of the authority delegated by the Constitution, and transgresses a sacred right guaranteed to a citizen, final decision as to the invalidity of such action must rest exclusively with the courts. It cannot be forgotten that ours is a government of laws in the last resort. However delicate that duty may be we are not at liberty to surrender, or to ignore, or to waive it. State v. Wrightson, supra, 56 N.J.L. at page 209, 28 A. at page 65. The authority and the duty to act when our jurisdiction is invoked in cases like the present, in the words of Chief Justice Beasley in State v. Rogers, 56 N.J.L. 480, 615, 28 A, 726, 757, 29 A. 173 (Sup.Ct. 1894), is `so entirely established as not to be debatable.' And as the present Chief Justice said in Village of Ridgefield Park v. Bergen Co. Bd. of Taxation, 31 N.J. 420, 426 157 A.2d 829, 832 (1960), when it is regularly invoked we cannot `properly look the other way,'"
The majority opinion then went on to say:
"From the foregoing it is manifest that the triunity of our government is not invaded by acceptance of this litigation for decision. If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him. The law making body cannot by inaction alter the constitutional system under which it has its own existence."
Since it is abundantly clear that this court has jurisdictions, we come to the question: Was it mandatory under the plain wording of the Constitution for the 43rd General Assembly to enact a reapportionment bill in any of the three sessions held by it?
The answer to this question lies in a reasonable interpretation of Article V, section 45, of the constitution which reads:
"The general assembly shall provide by law for an enumeration of the inhabitants of the state, in the year of our Lord 1885, 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 the United States, shall revise and adjust the apportionment for senators and representatives, on the basis of such enumeration according to rations to be fixed by law."
It is the contention of the petitioner herein that the 43rd General Assembly defaulted in the duty imposed upon it by the above sections in 1961 and again in 1962. If such default did occur, then this court cannot stand by and permit by inaction defiance of the constitution — anymore than we can sustain affirmative action of a legislature in plain violation of the constitution. However, there is restraint imposed upon the judiciary in all constitutional questions, i.e., that the violation appear beyond all reasonable doubt.
There is also a presumption in which the court must indulge, namely, that the Legislature has acted according to its oath to uphold the constitution unless the contrary appears beyond doubt. "A judiciary, conscious of the sacrosanct quality of its oath of office to uphold the Constitution, cannot accept an in terrorem argument based upon the motion that members of a coequal part of the government will not be just as respectful of the obligations imposed by their similar oath. Any less faith on our part would be an unbecoming and unwarranted reflection on the Legislature." Asbury Park Press, Inc., v. Woolley, supra.
A step by step analysis of the legislative history of 1961, 1962 as revealed in the answers filed discloses some facts which cast doubt upon whether the constitution imposed any duty on the current 43rd General Assembly now in recess sine die. From the answer of the Governor we are informed that he was not able to certify to the Legislature the enumeration of the various counties and legislative and senatorial districts until March 21, 1961, at which time he sent a message to the General Assembly then in session. We note from other available data that as of that date the 43rd General Assembly had been in session almost three full calendar months and was construed to be the "session next after the enumeration" because that one was for all practical purposes past. Actually the next session was in June 1961 — an extraordinary one — lasting two days and called especially to correct some school finance legislation. One could not contend that it was mandatory under the constitution to enact reapportionment legislation at the "next" session because of limitations in the call of the Governor which prevented any such consideration by the Assembly.
We then look at the 1962 session. Such even numbered annual sessions were not provided for at the time section 45 remains unchanged, a 1950 amendment to the constitution provided for annual sessions in place of the bi-annual session which had been held for 74 prior years. But the session in the even numbered years is also a "limited one" in which only fiscal matters and bills "pertaining to subjects designated by the Governor in writing during the first ten days of the session every two years in the odd-numbered years in which the Legislature has unlimited control over the bills to be introduced, True, the Governor designated reapportionment legislation as one of the subjects which the Assembly might consider in this session. But it is not mandatory by any law or constitutional provision that he do so and had he failed or refused to, the Legislature could not have even discussed the subject. A mandatory duty is one directly imposed without the discretion or intervention of any third party either required or permitted. Thus to effect enactment of a reapportionment bill in 1962 required the intervention of the Governor to make its performance possible. Can we, therefore, say that what was before the Assembly only by virtue of the Governor's call is a subject matter to be characterized as mandatory upon the 43rd General Assembly, or merely permissive? The Legislature tried to enact a bill. More than a half dozen different versions were introduced, and many legislators labored long and hard but fruitlessly to enact a suitable statute. The question is, was the constitution defied when they failed? Was this an invidious and deliberate discriminatory action? We think not. With the presumption in favor of the Legislature performing its duty and discharging its oath, the constitutional mandate to reapportion did not devolve on the 43rd General Assembly but rather such legislation is not mandatory until the 44th General Assembly convenes. We hold that we can and must await the action of the 44th General Assembly.
Such an interpretation does not do violence to the constitution, is a reasonable one, and is consistent with the history of Colorado reapportionment enactments in the past. Such an interpretation still gives to the people reapportionment in the 10th year following the last enactment in 1953. Historically, in 1913, 1933 and 1953 reapportionment was considered and enacted by the session of the General Assembly convened next following the enumeration. The many years of unchallenged practical application given to the words used in the constitution, if interpolated, give it an unambiguous meaning so as to make the section read, "* * * and at the session [of the general assembly] next following such enumeration and also at the session next following an enumeration made by the authority of the United States shall revise and adjust the apportionment * * *." Why should the judiciary command reapportionment as early as the eighth or ninth year since the 1953 apportionment? If it is our duty to do so, then we must not shirk it, but if it is not required for us to act forthwith, we should await the proper time. If we must act in the future we will have to arrive at some workable solution. At this moment it does not appear that the suggested election at large would be feasible, though we may come to it. Obviously it would destroy all districts, even those entitled to the number of representatives they now have. We believe that in sections 5 and 47 of the constitution (Article V) districting by the Legislature is contemplated. Originally sections 48 and 49, Article V, provided for districting. The repeal of those sections in 1950 was, in our opinion, intended only to delete from the constitutions those sections which became self-eliminated once the Legislature had divided the state as therein commanded, as was done for the first time in 1887. Problems posed by a mandate from us ordering a legislative election of 100 members-at-large staggers the imagination, and we trust we will be able to determine a better solution if we come to the point of directive decision. We can see that aside from the fact that there is no election law to guide the conventions of political parties in the process of nominating such members-at-large, the ballot would be unmanageable. Voting machines could not be used. Paper ballots in every county would have to contain at least 130 candidates for representatives and at least 34 for the office of senator upon which the people could vote for any 65 for representatives. They would have the choice of only 17 for senators because half of the senate is composed of holdover senators elected for four years. In addition there would be all the candidates for county and state offices and several constitutional amendments. A lengthy paper ballot so composed would be of such proportions as to be almost impossible to read or vote upon, and even more staggering to tally and certify. And the resultant composition of the Legislature would compound present alleged inequities.
As for the future — if we were now to hold the Legislature to be required to reapportion in the second or even-year of the decade, we would have a precedent-making decision encroaching upon the discretion of all future governors, compelling them to include reapportionment in every call in the even-numbered years. That would be an invasion of the executive branch for 1972 or 1982, etc., when all agree the judiciary has no such powers.
Another compelling reason to withhold action until after the 44th General Assembly is organized and convened is present. By reason of the showing made by intervenors in these proceedings we are informed that the people have taken this problem unto themselves for solution by constitutional amendment. And, since in Colorado, as distinguished from Baker v. Carr, supra, all power has been reserved by the people through the initiative and referendum, there is no need for the judiciary to take action until it is determined that both the people and the Legislature have failed to act. Retaining jurisdiction until other processes of governmental structure have had an opportunity to function is not without precedent. In Magraw v. Donovan, 163 F. Supp. 184 (D.C. Minn. 1958) a three-judge Federal court retained jurisdiction of a similar justiciable issue and declared:
"It seems to us that if there is to be a judicial disruption of the present legislative apportionment or of the method or machinery for electing members of the State Legislature, it should not take place unless and until it can be shown that the Legislature meeting in January 1959 has advisedly and deliberately failed and refused to perform its constitutional duty to redistrict the State."
See also Asbury Park Press, Inc. v. Woolley, supra, wherein the New Jersey court retained jurisdiction through adjournment of the next legislative session.
We believe there should be no judicial intrusion into the legislative and executive affairs of the state, and we should be ever mindful of the necessity of preserving the integrity and independence of the coordinate branches of government. We should, therefore, exercise an appropriate degree of restraint to see it they will carry out their duties. Only if both they and the people fail to act will it become a judicial function to step into the void.
It has been called to our attention that in Tennessee on June 22, 1962, (U.S.D.C. No. 2724, Nashville Div.) a three-judge federal court acting pursuant to the mandate of Baker v. Carr, supra (the land-mark case from which flows all current reapportionment litigation) decided to retain jurisdiction to give the Tennessee legislature "an opportunity at its 1963 session to enact a fair and valid reapportionment." As authority for so doing the court cited similar procedures in McGraw v. Donovan, D.C. Minn. (1958), supra, Toombs v. Fortson, N.D. Ga. (May 25, 1962), 205 F. Supp. 248, (involving the legislature of Georgia); and the recent Alabama case of Sims v. Frink, 30 Law Week 2512. Then the court said:
"We have confidence that a legislature so elected, having before it the views of the Court * * * as the recent legislature did not, will adopt a plan of reapportionment which will comply with the commands of the Federal Constitution."
So too, then, do we express confidence in either the people adopting a reapportionment amendment at the polls in November 1962 or in the Legislature appropriately amending the present statutes at the 1963 session. As was said by Mr. Justice Moore in Four-County Met. C.I. Dist. v. Board of County Comm'rs., 149 Colo. 284, 369 P.2d 67, referring to the "Home Rule Amendment" to the constitution:
"* * * If in fact the home rule provision of the constitution is obsolete the remedy is to bring about its repeal or amendment. It would indeed be a `black day' for Denver as well as for the entire state of Colorado if this court were to presume to amend or repeal this provision of the constitution by judicial fiat. * * *"
We add that if the original concept that the Legislature should have both the right and the duty to reapportionment itself seems now unfeasible or if it is intended that the Legislature must consider reapportionment at the "very first opportunity" following a Federal census, then the remedy is a constitutional amendment. Many thousands of the electorate have felt some change is needed and have taken the appropriate steps to submit it to a vote. Whether such action will solve the problem must await the passage of time.
And time is what we should await now. Should the constitution be amended, then there would be no duty on the 44th General Assembly to enact a reapportionment bill, except as directed by the new amendment. Should the people fail to adopt one of the amendments to appear on the ballot, then we hold the duty on the 44th General Assembly to be mandatory.
Accordingly, an order will be entered reserving final judgment herein on all issues until either a constitutional amendment has been passed by the voters in November 1962 or until the 44th General Assembly in its 1963 session has had an opportunity to act in the matter, but in the case of the latter such action to be not later than June 1, 1963. After that date or after the Legislature had adjourned, if there is no new constitutional amendment or no proper legislative reapportionment enacted, the case may be represented upon application of any party or upon the court's own motion. Notwithstanding such time limits, full jurisdiction is retained.
Mr. JUSTICE SUTTON, Mr. JUSTICE McWILLIAMS and Mr. JUSTICE PRINGLE concur.
Mr. JUSTICE MOORE and Mr. JUSTICE FRANTZ dissent.
Mr. JUSTICE HALL specially dissents.