Opinion
No. 21252.
Decided July 17, 1964.
Original proceeding challenging the constitutionality of an Act of the legislature involving apportionment. Rule to show cause issued.
Rule Made Absolute and Effect of Judgment Stayed. Jurisdiction Retained.
1. COURTS — Federal — State — Questions — Resolution. State court defers to federal courts in the resolution of federal questions, but federal courts must defer to authority of state courts in the disposition of state questions.
2. Federal — State — Legislation — Constitutionality — Adjudication. Federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.
3. Supreme Court of United States — Federal — State — Legislation — Apportionment — Resolution. Where Supreme Court of United States decided that state amendment pertaining to apportionment of seats in legislature failed to comport with federal requirements of the Equal Protection Clause and remanded case to three-judge federal court which determined that state enactment dividing county into multiple senatorial and representative districts was valid, state court was nevertheless not foreclosed from resolving constitutionality of state question.
4. CONSTITUTIONAL LAW — Legislation — Validity. Validity of legislative enactment pertaining to apportionment must be considered in the light of Art. V, Sec. 47 of the state constitution which contains three sentences, to wit: "Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district."
5. Section — Language — Meaning. Language of Art. V, Sec. 47 is clear and plain; a grant of power is given in the first sentence and limitations are placed upon that power by the last two sentences.
6. Section — Language — Meaning — Construction. Where Art. V, Sec. 47 of the state constitution provides that "No county shall be divided in the formation of a senatorial or representative district," the words "No county" cannot be construed as meaning that one county, or two counties, or three counties may be divided; it plainly directs that there is not one county in the State of Colorado that may be divided in the formation of a senatorial or representative district.
7. Citizens — Amendment — Power — Legislature — Court. It is within power of citizens to amend constitution to permit a county to be divided in the formation of a senatorial or representative district; but until citizens so act, neither legislature nor court do it for them.
8. Provision — Language — Structure — Choice — Presumption — Discrimination. There is a presumption that the language and structure of a provision in a constitution were adopted by choice, and that discrimination was exercised in the language and structure used.
9. Intent — Constitutional Convention — Ratification — Construction — Guideline — Criterion. Intent of constitutional convention and people who ratified that which convention framed is primary guideline in construing constitution; and whole of article as originally adopted is best criterion as to intention of constitutional convention and people adopting constitution.
10. Traditional View — Construction — Attorney General — Significance. Traditional view of constitutional provision not judicially construed, found in general tacit construction and written opinion of Attorney General that division of a county in the formation of legislative districts is violative of its prohibition, has some significance.
11. Constitutional Convention — Words — Choice — Significance. There is significance to constitutional convention's choice of words which clearly provided that a county shall not be divided in the formation of a district; it is persuasive of fact that it did not want single counties divided to form multiple districts.
12. STATUTES — Severable Portion — Frustration — Entire Enactment — Nullity. Portions of Act dealing with division of single counties into multiple legislative districts are not severable from remainder of Act where if so exercised Denver is left without senatorial districts nor with any other provision for senators from Denver; for without representation from Denver and from other multiple district counties the Act obviously cannot stand.
13. Purposes — Severable Portion — Frustration — Entire Enactment — Nullity. If purposes of Act cannot be carried out without section which is stricken, act is not severable and entire enactment must fail.
14. JUDGMENT — Court — Remedy — Precedent — Stay. Where election is imminent and imperative in which rights of voter should be preserved and there is no remedial precedent to bring order out of a chaotic condition, court should act resourcefully in fashioning remedy commensurate with complex situation; accordingly, rule is made absolute but effect of judgment is stayed until after the convening of next regular session of general assembly, and jurisdiction of case is retained.
Original Proceeding.
Mr. RAYMOND C. JOHNSON, Mr. MARSHALL QUIAT, for petitioner.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. RICHARD W. BANGERT, Assistant, for respondents.
IN original proceedings White challenges the validity of Senate Bill No. 1, passed by the General Assembly and signed by the Governor in July of this year, as being in contravention of Article V, Section 47, of the constitution of Colorado.
What effect does the entry of a decree and the retention of jurisdiction by the federal three-judge court of the case of Lucas v. 44th General Assembly, et al., (Case Nos. 7501 and 7637, consolidated civil actions), announced this month, involving apportionment and districting of members of our General Assembly, have on the authority of this court to consider and determine whether Senate Bill No. 1 comports with the constitution of Colorado? If the entry of the decree and if the retention of jurisdiction have no effect, then we must determine whether the division of a county in the formation of senatorial and representative districts is in accord with the constitution of this state.
As we understand the respective jurisdictions of federal and state courts, and the amenities between courts having different jurisdictions derived from separate but related sovereign governments which are supreme in their spheres, there will be a hyphenated disposition of the whole controversy — federal and state questions — if we act. The federal court has decided the federal question which confronted it, and it becomes our concern and duty to resolve the state question.
[1, 2] We defer to the federal courts in the resolution of federal questions. On the other hand, federal courts should, indeed must, defer to the authority of state courts in the disposition of state questions. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. This concept so pervades the relation between federal and state courts that it was said in the cited case that "federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them * * *."
It is in this setting that we briefly review recent events involving apportionment of the General Assembly of this state.
In June of this year the Supreme Court of the United States decided the case of Lucas v. 44th General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, and concluded its opinion with these significant words:
"Since the apportionment of seats in the Colorado Legislature, under the provisions of Amendment No. 7, fails to comport with the requirements of the Equal Protection Clause, the decision below must be reversed. Beyond what we said in our opinion in Reynolds, we express no view no questions relating to remedies at the present time. On remand, the District Court must now determine whether the imminence of the 1964 primary and general elections require that utilization of the apportionment scheme contained in the constitutional amendment be permitted, for purposes of those elections, or whether the circumstances in Colorado are such that appellants' right to cast adequately weighted votes for members of the State Legislature can practicably be effectuated in 1964. Accordingly, we reverse the decision of the court below and remand the case for further proceedings consistent with the views stated here and in our opinion in Reynolds v. Sims. It is so ordered."
A course of action looking to the preservation of elections was pursued by state officials. Rather than petition for a rehearing in Lucas with its time-consuming pact to resolution, the Governor convoked a special session of the legislature for the purpose of apportioning the state in accordance with Article V, Sections 45-47, of the State constitution. Such special session received the approval of the three-judge federal court to which had been remanded the Lucas case.
Senate Bill No. 1 thereafter was enacted and submitted to the three-judge federal court before the Governor's signature was affixed thereto. At the time of such submission there was pending before this court proceedings testing the validity of Senate Bill No. 1 on the ground that it violated the state constitution, particularly in dividing a county into multiple senatorial and representative districts.
Notwithstanding this posture of circumstances, the three-judge federal court determined that Senate Bill No. 1 was inoffensive to the Equal Protection Clause, and in a dictum expressed by two judges, to which the third voiced his dissent, declared that division of counties into multiple senatorial and representative districts was valid.
Now it is urged by respondents that this court is foreclosed from resolving the constitutionality of Senate Bill No. 1, even though the question is purely one of interpretation of the constitution of Colorado. To this we do not accede. It is and was within our domain to determine the state question, and such has been recognized by the federal decisions, as appears from a profusion of cases cited in 36 C.J.S. § 171, p. 393 et seq.
Having determined that the action of the three-judge federal court in the premises has no effect upon the case pending before us, we now undertake to answer the question of validity of Senate Bill No. 1. This will entail a consideration in particular of Article V, Section 47. Related provisions necessarily to be considered merely strengthen our construction of Section 47.
Section 47 contains three sentences, to-wit:
"Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district."
It must be remembered that the constitution itself created the first senatorial and representative districts. The first sentence of Section 47 gave to the legislature the power to alter those districts when public convenience might require, but that power was subject to the interdictions that (1) in altering or forming districts the legislature must not join two counties which were not contiguous, and (2) they must not divide a county. The language is clear and plain. A grant of power is given in the first sentence of Section 47 and limitations are placed upon that power by the last two sentences.
It will be noted that the first sentence provides for the alteration of such districts as public convenience may require. The second sentence provides for senatorial or representative districts compose of two or more counties which must be contiguous, and speaks in terms of whole counties. There is contained in the sentence the notion that a senatorial or representative district cannot be less than a county; in effect it means that if you add to a county other territory to make such district, the added territory must be a county or counties.
The most all-inclusive proposition in the three sentences is contained in the third. It provides that "no county shall be divided in the formation of a senatorial or representative district." "No county" cannot be construed as meaning that one county, or two counties, or three counties may be divided; it plainly directs that there is not one county in that state of Colorado that may be divided in the formation of a senatorial or representative district.
The Attorney General would have us construe the section to read, in effect, as follows" "No county shall be divided in the formation of a senatorial or representative district composed of two or more counties, but may be divided for other purposes." This argument might have some weight if the second and third sentences of Section 47 were joined by a semi-colon and the word "but" inserted. We would then have a sentence reading as follows: "When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be; but no county shall be divided in the formation of a senatorial or representative district" or "in the formation of such senatorial or representative district."
If the citizens desire to amend the constitution so as to permit such division, it is within their power to do so, but until they so act, neither legislature nor court can do it for them.
There is a presumption that the language and structure of a provision in a constitution were adopted by choice, and that discrimination was exercised in the language and structure used. People ex rel. v. May, 9 Colo. 80, 10 Pac. 641. Choice and discrimination in these respects give no solace to the Attorney General.
This court is obliged to ascertain and give effect to the intent of the Constitutional Convention and of the people who ratified that which the Convention framed. This is our primary guideline in construing the constitution. Cooper Motors v. Board of County Commissioners, 131 Colo. 78, 279 P.2d 685. In ascertaining the intent of the Convention and of the people in adopting our constitution, the whole of Article V as originally adopted is the best criterion. People v. Field, 66 Colo. 367, 181 Pac. 526.
From statehood to the present day, Article V, Section 47, has remained unchanged. During that time, the third sentence of Section 47 has not been judicially construed, but a general tacit construction and a written opinion by the Attorney General of this state have viewed the division of a county in the formation of legislative districts as violative of its prohibition. This traditional view has some significance in cases involving consideration of constitutional provisions where there is room for interpretation, People v. Hinderlider, 98 Colo. 505, 57 P.2d 894.
Perhaps this traditional interpretation had a beginning in Article V, Sections 48 and 49, of the original constitution, and because Sections 48 and 49 served their purpose and expired upon their execution, thereby becoming unnecessary as part of the constitution, they were forgotten as sources of this interpretation.
Section 48 directed that:
"Until the state shall be divided into senatorial districts, in accordance with the provisions of this article, said districts shall be constituted and numbered as follows: * * *"
Thereafter appears a designation of twenty senatorial districts, the third of which is illustrative. It reads as follows: "The county of Boulder shall constitute the third district, and be entitled to two senators."
Other senatorial districts thus created also provided for multiple senators.
Section 49 provided that:
"Until an apportionment of representatives be made, in accordance with the provisions of this article, they shall be divided among the several counties of the state in the following manner: * * *"
Thereafter multiple representatives were designated for most of the counties; some were designated as entitled to one, and two counties jointly were given one.
It should be noted that the people did not divide any county where represented by multiple senators or representatives. To us this is consistent with the prohibition expressed by the third sentence of Section 47.
These two sections were self-executing. Fairall v. Frisbee, 104 Colo. 553, 92 P.2d 748. When they served their purpose, they expired. But their presence in the original draft makes the clear the intent of the people in ratifying the constitution.
At the time our Colorado constitution was in the process of being drafted, some twenty constitutions of other states had a variety of provisions relating to the formation of legislative districts. Some of these states had provisions similar to that adopted by this state. Others provided for the division of counties in the formation of such districts.
It is common knowledge that constitutions of other states were considered by the Convention in the framing of our constitution. At least one of those constitutions expressly provided that a portion of one county could not be added to another to form a district, while other constitutions being considered had the same complete interdictions against division of counties which appears in our constitution. If the framers of our constitution intended only to prohibit the division of a county for the purpose of joinder to another county, they had before them the exact language necessary to accomplish that purpose. That our constitutional convention did not adopt that language but chose instead words which clearly provided that a county shall not be divided in the formation of a district has significance; it is persuasive of the fact that it did not want single counties divided to form multiple districts.
Moreover, in states whose constitutions contain a phrase providing that no county shall be divided in the formation of a district, amendments to those constitutions have been enacted permitting division of counties before any legislative division of such counties into so-called sub-districts have been made. See, e.g., the constitutions of California, Connecticut, Michigan, Missouri, North Carolina, and Oregon.
Our consideration of the validity of Senate Bill No. 1 leads us to the conclusion that the division of counties to form senatorial or representative districts finds no sanction in our constitution.
We must now determine whether the portions of the Act dealing with the division of single counties into multiple legislative districts are severable from the remainder of the Act. As illustrative of the difficulties confronting the court in any attempt to hold the invalid portions of the Act to be severable from valid portions, we refer to Section 1 and Section 2 (1) of the Act.
Section 1 of the Act provides that there shall be one senator for each senatorial district. Section 2 (1) of the Act provides that "There shall be nine senatorial districts within the City and County of Denver," (not nine senators from Denver), and then proceeds to set up those senatorial districts. If we strike Section 2 (1) from the Act as invalid, we are left with no senatorial districts in Denver nor with any provision for senators from Denver. The same situation applies to other counties which have been divided into multiple districts.
Without representation from Denver and from other multiple district counties, the Act obviously cannot stand. In determining a section to be severable we may certainly strike a section of that Act as invalid, but we cannot enact another section to take its place, for that is solely a legislative function. And if the purposes of the Act cannot be carried out without the section which is stricken, as it cannot be here, then the Act is not severable and the entire enactment must fail. Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A.L.R. 907.
An election is imminent. Some of the election laws are amended at the same time Senate Bill No. 1 was enacted. See House Bill 1001, effective July 8, 1964. These election laws stand unchallenged. They changed the dates for the senatorial and representative assemblies and provided for new deadlines for the certification of candidates for primary election, and provided for the manner in which precincts must be created by the designated officials. These dates are upon us, and thus court is confronted with a situation not of its making.
Had this court "been afforded a reasonable opportunity to pass upon" the state constitutionality of Senate Bill No. 1 before the federal three-judge court acted, the impending election would not be in the plight it is today.
The difficulty created by the three-judge federal court was twice-compounded in that only did that court fail to await a decision of this court on the question of state constitutionality, but it failed to intimate that it might be advisable for the legislature then in session to seek by interrogatories an answer to the question of the Act's validity. And the plight of the impending election would not be what it is had the legislature on its own motion presented interrogatories to this court.
We must bring order out of a chaotic condition. What we have thus far said are considerations which require the exercise of judicial restraint in the disposition of this cause.
Confronted as we are with a situation in which an election is imperative and in which and in which the rights of the voter should be preserved, it is incumbent upon this court to permit the election to be held. Like the chancellor, if we can find no precedent we must establish one. The court should be resourceful in fashioning a remedy commensurate with a complex situation.
In Lucas v. 44th General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, the Supreme Court of the United States indicated that if the situation were thus at the time of its remand to the Colorado United States District Court the election might even be held under Amendment No. 7 despite offending the 14th Amendment to the Constitution. Here, at least, we can have an election which does not violate the rights of the citizen voter, which the Supreme Court has said are protected under the 14th Amendment to the United States Constitution.
Accordingly, the writ is made absolute, but we stay the effect of the judgment until after the convening of the regular session of the 45th General Assembly in 1965. Until further order of the court, jurisdiction of this case is retained. It is specifically noted that the remedy here fashioned has been recommended and approved by the United States Supreme Court in the recent case of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, as well as in Lucas v. 44th General Assembly, supra.
MR. JUSTICE MOORE dissents and MR. JUSTICE HALL specially concurs in part and dissents in part.