Opinion
No. 37432
Decided May 4, 1962.
General Assembly — Apportionment by Governor, Auditor of State and Secretary of State — Section 11, Article XI, Constitution — Duty to determine — Senator to represent electors of combined district — Term and election of incumbent Senator of annexed district not affected.
1. There is no clear legal duty under the Constitution or the laws of Ohio upon the Governor of Ohio, the Auditor of State of Ohio and the Secretary of State of Ohio, in making a new apportionment of the General Assembly of Ohio pursuant to Section 11 of Article XI of the Ohio Constitution, to determine that an incumbent Senator, in a district which has been annexed to another district to form a combined senatorial district in accordance with the provisions of the Constitution, shall represent all the electors of the combined district in the first legislative session of the decennial period instead of determning that a Senator shall be elected by the electors of the combined district to represent them in the first session of the decennial period.
2. When the district of an elected member of the Ohio Senate is annexed to another district for the purpose of forming a combined district in accordance with the provisions of the Ohio Constitution requiring a new apportionment at the beginning of each decennial period, the Senator's election and term of office are not affected, and he shall continue to serve as a member of the Senate until his term expires.
IN MANDAMUS.
This is an action in mandamus originating in this court. The relator, Harry J. Lehman, is a president, taxpayer and elector of Cuyahoga County, which comprises the 25th senatorial district. The respondents, Michael V. DiSalle, Governor, James A. Rhodes, Auditor of State, and Ted W. Brown, Secretary of State, are the three officers designated by Section 11, Article XI of the Ohio Constitution, to make a new apportionment of the General Assembly for the decennial period beginning January 1963, in accordance with the 1960 decennial census.
This apportionment was made by Rhodes and Brown and published as provided in Section 107.09, Revised Code.
The apportionment annexes the 9th-14th senatorial district, composed of Athens, Fairfield, Hocking, Morgan, Washington and parts of Monroe and Noble Counties, to the 15th-16th senatorial district, composed of Muskingum, Perry, Delaware and Licking Counties, to form a combined senatorial district to be known as the 9th-14th-15th-16th senatorial district.
The apportionment provides that the combined senatorial district shall be entitled to elect one Senator in each session, and two additional Senators, one in the third session and one in the fourth session of the decennial period.
The apportionment provides further that the incumbent Senator, elected from the 9th-14th district for a four-year term commencing in January 1961 and expiring January 1965, shall, in accordance with the provisions of Section 1 of Article XI of the Ohio Constitution, continue as a member of the Senate during the first session of the decennial period (1963-1964).
The relator questions that portion of the apportionment which provides for a Senator to be elected from the combined senatorial district in the first session of the decennial period.
Respondent DiSalle has filed an answer agreeing with relator's position.
Respondents Rhodes and Brown have filed a general demurrer to the petition.
Mr. Kenneth G. Weinberg and Mr. Wilton S. Sogg, for relator.
Mr. Mark McElroy, attorney general, and Mr. Richard F. Swope, for respondent Michael V. DiSalle, Governor.
Mr. MArk McElroy, attorney general, and Mr. Hugh A. Sherer, for the respondents James A. Rhodes, Auditor, and Ted W. Brown, Secretary of State.
Senator C. Stanley Mechem represents the electors of the geographical area composed of Athens, Hocking, Fairfield, Morgan and Washington Counties, and parts of Monroe and Noble Counties, known as the 9th-14th senatorial district in the Ohio Senate at the present time, having been elected by the electors of that district in the November 1960 election. His term does not expire until January 1965.
Senator Robert E. Zellar represents the electorate of Muskingum, Licking, Delaware and Perry Counties, designated as the 15th-16th senatorial district in the Ohio Senate at the present time. His term expires in January 1963.
The apportionment made by respondents Rhodes and Brown combines these two districts. It provides that the electors of the combined district shall elect one Senator to represent them in the 1963-1964 session, one in the 1965-1966 session, two in the 1967-1968 session, two in the 1969-1970 session, and one in the 1971-1972 session. It provides that Senator Mechem shall continue as a member of the Ohio Senate until his present term expires in January 1965 at the end of the 1963-1964 session.
Relator contends that the apportionment is unconstitutional in providing for the electors of the combined district to elect a Senator to represent them in the 1963-1964 session. Relator argues that there should be no election for a Senator from the combined district until the November 1964 election, and that the respondents should decree that Senator Mechem represent the combined district during the 1963-1964 session, even though the electors of four of the counties of the combined district had no opportunity to participate in his election.
Respondents and relator agree that Senator Mechem continues as a member of the Ohio Senate under the provisions of the Constitution until his present term expires in January 1965.
Relator sums up his position as follows:
"The overriding duty of the respondents under Article XI is to determine and fix the representation of the various districts in accordance with the constitutional formula. It is the representation that we are concerned with and not the election as respondents would have us believe."
The respondents Rhodes and Brown's position may be summarized as follows:
For a Senator to be the representative of the electors of a district, under the provisions of Section 2 of Article II of the Ohio Constitution, all the electors of the district must have had the opportunity to participate in his election.
There is no power or authority under the Constitution or the laws of Ohio that requires, or even permits, the respondents to decree that a Senator elected by the electors residing in a portion of the geographical area now encompassed in the combined senatorial district shall be the representative of those electors residing in the other portion of the geographical area of the district who were not allowed to participate in his election.
The mathematical inequalities between districts, based upon population, are not great regardless of which apportionment is adopted. Relator, however, contends that in the Senate the adding of one additional Senator in the first session of the decennial period will dilute the effect of the vote and the influence of the Senators from his district in that session. This mathematical inequality, when determined in the perspective of the decennial period, is not significant.
Relator asserts that under Section 11 of Article XI of the Ohio Constitution, the combined 9th-14th-15th-16th senatorial district is entitled to only one Senator in the 105th General Assembly beginning in 1963, and that the Senator elected by the electors of the former 9th-14th district and entitled to serve in the 105th General Assembly should represent the electors of the former 15th-16th district as well in the 105th session.
Relator relies upon the language of the opinion in State, ex rel. Evans, v. Dudley, 1 Ohio St. 437. That opinion, in referring to the provisions of the Ohio Constitution governing apportionment, at page 446, makes the following statement:
"These provisions irrevocably fix the districts and apportion representation for ten years."
Respondents Rhodes and Brown cite Section 2, Article II of the Ohio Constitution, which provides, in part, that "Senators shall be elected by the electors of the respective senatorial districts," and Section 11, Article XI of the Ohio Constitution, which provides, in part, that "the Governor, Auditor, and Secretary of State, or any two of them, shall * * * ascertain and determine the ratio of representation, according to the decennial census, the number of * * * Senators each * * * district shall be entitled to elect, and for what years, within the next ensuing ten years." (Emphasis added.)
Relator answers by asserting that respondents have determined that the first district, consisting of Hamilton County, is entitled to representation in the 105th General Assembly by three Senators, but only one to be elected for the 105th General Assembly in November 1962, the other two being holdover members who were elected in 1960 for four-year terms.
Respondents Rhodes and Brown counter this argument by stating that all three Senators from Hamilton County represent only Hamilton County and each one was elected by the electors of that county.
Relator points to the fact that vacancies in the Ohio Senate are filled "by appointment by the members of the Senate who are affiliated with the same political party as the person last elected by the electors to the seat which has become vacant" and not by election. Respondents Rhodes and Brown answer this contention by citing that this procedure is required by an amendment to the Constitution of Ohio, Section 11, Article II, adopted by the electors of the state on November 7, 1961.
Relator also cites Section 3521.02, Revised Code, which provides that vacancies in the Senate of the United States shall be filled by appointment by the Governor. However, this is in accordance with the statute passed by the Legislature pursuant to the provisions of the Constitution.
Relator concludes his argument by contending that a determination that the incumbent Senator in the 104th General Assembly of the 9th-14th senatorial district, Senator Mechem, shall be designated as the one and only Senator to represent the combined 9th-14th-15th-16th senatorial district in the 105th General Assembly will comply completely and literally with the provisions of Article XI of the Constitution.
Respondents Rhodes and Brown contend that Section 2, Article II of the Constitution, is mandatory in that "Senators shall be elected by the electors of the respective senatorial districts" except as the Constitution provides for the filling of vacancies; and that Section 11, Article XI (providing for apportionment), plainly states that the apportionment shall determine the number of Senators each district shall be entitled to elect.
Further, respondents Rhodes and Brown assert that the relator has not been able to point to any provision of the Constitution or law which requires, is authority for, or even permits the respondents to designate the incumbent Senator of the 9th-14th district in the 104th General Assembly to represent the combined 9th-14th-15th-16th district in the 105th General Assembly. Respondents Rhodes and Brown assert that the Constitution requires that the Senator from a district be elected to represent the district.
All parties concede that the inequality of representation between districts, based on population, is not sufficient in this case to be of importance, and it appears to this court that the dilution of the vote and influence of the Senators from relator's district by the apportionment in this case is, if it exists at all when taken over the decennial period, small indeed.
A reasonable argument can be advanced by both relator and respondents Rhodes and Brown for the apportionment which each advocates. There is, however, no clear legal duty under the Constitution and the statutes upon respondents to fix the apportionment other than in the way they have determined.
The demurrer to the petition is sustained, and, counsel having agreed that such ruling will be dispositive of the case, the writ is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and GRIFFITH, JJ., concur.
GRIFFITH, J., of the Seventh Appellate District, sitting by designation in the place and stead of HERBERT, J.
We concur also for the reason that in our opinion relator has not sustained the burden of showing a mandatory duty resting on respondents as state officials to act in accordance with his demand. The provisions of the Constitution relating to the subject are not sufficiently clear that we can say, for the purpose of issuing a writ of mandamus, that the conclusion reached by the respondents is any less reasonable than the conclusion contended for by the relator. There is, therefore, no clear mandatory duty resting on the respondents.