State ex rel. Thomson v. Zimmerman | Cases | Westlaw

Our attention, then, must be directed first toward the attack on the Rogan act, for unless that has merit the presumption *649 alone will sustain the legislation. To understand the act and the objections which the defendant makes to its validity certain facts set forth in the pleadings, or of which we may take judicial notice, must be recognized.

In 1951, by the Rosenberry act, the legislature reapportioned the state to comply with the command of art. IV, sec. 3, Const. reading:

‘At their first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed, soldiers, and officers of the United States army and navy.’

The Rosenberry act survived attack in the courts, State ex rel. Broughton v. Zimmerman, supra, and, certain conditions precedent having come to pass, both parties concede that unless the Rogan act has superseded it, the Rosenberry designation of legislative districts will govern the apportionment of both houses of the legislature to be elected in November, 1954. At the time this legislation was enacted there was much discussion of a proposal to base representation in the legislature on the size or area of legislative districts as well as on the population of a district, thus modifying the principle of art. IV, sec. 3, Const., which recognized human beings only in determining legislative representation. Responding to the agitation for area recognition, the 1951 legislature adopted Joint Resolution No. 59, Laws 1951, p. 650, looking toward an amendment of such sec. 3. This resolution came before the 1953 legislature as Joint Resolution No. 9 and was again adopted, with a further resolution to submit it to the vote of the people at the election to be held on the first Tuesday of April in 1953. The resolution with the submission provision follows, with the customary device of asterisks to indicate material struck out of the section to be amended and italics for that to be added.

*650 ‘Whereas, at the regular session of the legislature in the year 1951, an amendment to the constitution was proposed and agreed to by a majority of the members elected to each of the two houses, which proposed amendment reads as follows:

“(Article IV) Section 3. At their first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, * * * such apportioning and districting of members of the senate to be according to a district system based on area and population, and such apportioning and districting of members of the assembly to be according to population.

“Section 4. The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November after the adoption of this amendment, by the qualified electors of the several districts, such districts to be bounded by * * * town, village or ward lines, and to consist of contiguous territory and be in as compact form as practicable.

“Section 5. The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen * * *. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts. The senators elected or holding over at the time of the adoption of this amendment shall continue in office till their successors are duly elected and qualified; and after the adoption of this amendment all senators shall be chosen for the term of four years.' Now, therefore, be it

‘Resolved by the assembly, the senate concurring, That the foregoing amendment to the constitution is agreed to by this legislature; and be it further

**419 ‘Resolved, That the foregoing proposed amendment be submitted to a vote of the people at the election to be held on the first Tuesday of April, 1953, and if a majority of the voters voting thereon approves this amendment, it shall become a part of the constitution of the state; and be it further

‘Resolved, That the question of ratification of the foregoing amendment be stated on the ballot as follows:

*651 “Shall sections 3, 4 and 5 of article IV of the constitution be amended so that the legislature shall apportion, along town, village or ward lines, the senate districts on the basis of area and population and the assembly districts according to population?”

The question appeared on the ballot in the form prescribed by the legislature and 433,043 votes were cast in favor of the amendment, so stated, and 406,133 votes against it.

After the result of the election was known the 1953 legislature proceeded under the authority of the amendment to redistrict the senate giving consideration to area as well as population. The Rogan act, which became ch. 242, Laws of 1953, accomplished this by a formula in which area was figured at 30 per cent and population at 70 per cent in establishing the 33 districts each of which was entitled to a representative in the state senate. This act adopted the assembly district provisions of the Rosenberry act.

‘* * * It is proper to say that perfect exactness in the apportionment, according to the number of inhabitants, is neither required nor possible. But there should be as close an approximation to exactness as possible, and this is the utmost limit for the exercise of legislative discretion. * * *’ State ex rel. Attorney General v. Cunningham, 1892, 81 Wis. 440, 484, 51 N.W. 724, 730, 15 L.R.A. 561.

*653 ‘In viewing the fairness of the apportionment, the whole scheme of the statute must be taken into account, and not isolated instances where the Legislature has fallen short of a perfect result. * * *’ State ex rel. Bowman v. Dammann, supra, 209 Wis. at page 31, 243 N.W. at page 485.

One very great impediment to perfect equality, or differently stated, one legitimate excuse for some inequality, in legislative districts has been the constitutional requirement that county, precinct, town and ward lines be followed. By the proposed amendment these limitations on the formation of senate districts were removed, taking with them so much of justification for inequalities. Therefore, in apportionments made pursuant to such an amendment, as the Rogan act was, a closer approximation to equality is to be expected and required than was formerly the case. Plaintiff concedes that in several instances it would have been physically possible to approach more nearly to exact equality by the modification of certain district boundaries but he submits that the variations do not exceed that tolerance to which legislation on so complex and difficult a problem is entitled. We do not follow this objection to the Rogan act to a conclusion because it is the amendment itself and not the legislation under it which compels our decision and makes further study of such legislation unnecessary.

The apportionment of the state into senatorial districts hitherto has been made according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy, pursuant to art. IV, sec. 3, Const. This section does not countenance any other basis and accordingly the constitutionality of the Rogan act, which takes area into consideration, depends upon a successful, effective amendment of the constitution authorizing recognition of area in the formation of senatorial districts.

This recognition of area was one alteration,—but only one,—which Joint Resolution No. 9 proposed to make in *654 the existent constitution. In addition to directing that area was hereafter to be considered, sec. 3 was also to be amended by dropping the exclusion of Indians and the military in calculating population. In sec. 4 the former requirement that assembly districts should be bounded by county, precinct, town or ward lines was changed to town, village or ward lines. Since the constitution before the referendum forbade the division of an assembly district in the formation of a senate district, sec. 5, art. IV, Const., senate district lines necessarily followed assembly district lines. The proposed amendment dropped the prohibition against dividing assembly districts in forming senate districts, and thus left no direction or restriction whatever as to the latters' boundaries. So long as the district is formed from territory which is ‘contiguous' and, in the discretion of the legislature, ‘convenient’, constitutional requirements under this amendment would be met.

It is evident from the preceding paragraph that the amendment proposed by Joint Resolution No. 9 embraces many more changes in the constitution than the accommodation of an area factor in senate district apportionment. It is evidence, also, that the additional changes are not necessary to accomplish the result of giving consideration to area in apportioning the senate. In particular, the designation of assembly district boundaries has nothing whatever to do with the senate. The assembly as well as the senate is further affected by the amendment of sec. 3 which removes the prohibition against counting certain Indians and the military in calculating the population base entitled to representation in each house of the legislature.

Art. XII, sec. 1, Const., directs that the legislature shall

**421 ‘* * * submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; * * * provided, that if more than one amendment be submitted, they shall be submitted in such *655 manner that the people may vote for or against such amendment separately.’

Mr. Justice Taylor for the court said, 54 Wis. at page 336, 11 N.W. at page 791:

‘We think amendments to the constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. * * *’

He concluded that the whole scope and purpose of the matter submitted to the electors for their ratification was the change from annual to biennial sessions and to make that change it was reasonably necessary that the terms of legislators be altered to correspond with the new state of affairs, and their compensation adjusted likewise, and he concluded further that in construing art. XII, sec. 1, Const., it is permissible to treat as one amendment a submission which covers several propositions all tending to effect and carry out one general object or purpose, and all connected with one subject.

*656 Plaintiff repeatedly urges upon us that the change contemplated by the amendment was the direction to the legislature to take area as well as population into account in apportioning the senate districts and that the other changes which Joint Resolution No. 9 proposes in the constitution are details of that plan necessary, or at least convenient and proper, for the accomplishment of the main purpose. Thus, he reasons, there is no necessity of submitting more than a single amendment, under authority of State ex rel. Hudd v. Timme, supra.

At this point it is appropriate to observe that in specifying what shall be the boundaries of assembly districts the proposed amendment designates town, village and ward lines in place of county, precinct, town or ward lines. The Cunningham case, supra, held that the constitution prohibited the creation of an assembly district which took in portions of more than one county unless it took in all of such counties. The great importance of that prohibition is discussed at length in the opinions filed by the several justices. The elimination of the county line boundary of assembly districts is, then, a drastic, revolutionary alteration of the existing constitutional requirements on the subject.

As we have already pointed out, the proposed amendment permits the legislature to ignore assembly districts in the creation of senate districts. This great change, then, in the designation of the boundaries of assembly districts, has no bearing on the main purpose of the proposed amendment, as that is stated by the attorney general, nor does it tend to effect or carry out that purpose. It must have some different object or purpose and thus it fails to satisfy the test laid down in State ex rel. Hudd v. Timme, supra, entitling several changes to be submitted as a single amendment. We conclude, therefore, that a separate submission was required of the amendment changing the boundary lines of assembly districts.

**422 *657 A change of almost equal importance is that which revokes the provision of art. IV, sec. 3, Const., excluding untaxed Indians and the military from those who are to be counted in determining the representation to which a district is entitled, who, though they are not residents in the sense of being eligible to vote, in the case of the military see art. III, sec. 5, Const., are nevertheless to be added by the proposed amendment when a district's representation in the legislature is calculated. We consider that a constitutional change in the individuals to be counted is not a detail of a main purpose to consider area in senate districts but is a separate matter which must be submitted as a separate amendment.

The submission of the proposed amendment at the April, 1953, election brings to our attention a strange omission. The commands of the constitution concerning the submission of proposed amendments to the people are those of art. XII, sec. 1, Const., referred to, supra. Pursuant to this authority to dictate the formalities of submission the legislature has enacted sec. 6.23(8), Stats., which, so far as material here, states:

‘Whenever a proposed amendment to the constitution, or any measure or other question shall be submitted to a vote of the people, a concise statement of the nature thereof shall be printed in accordance with the act or resolution direction its submission upon a separate ballot provided for that purpose, and underneath the question as thus stated shall appear the words ‘yes' and ‘no,’ * * *.'

By sec. 6.10(1), Stats., the legislature made further provisions but expressly limited them to the elections held in November of the years in which the state officers, legislators and other officials are to be chosen. This subsection prescribes the notices which the secretary of state shall publish in advance of the election and then directs that if a constitutional amendment is to be submitted to the people *658 the amendment shall likewise be published and, appended to it, a brief statement of the change which the amendment will make in the constitution. He is directed to make this publication not later than the last Friday of September and once a week thereafter until the election takes place. There is no apparent reason why the legislature confined these general provisions of sec. 6.10, Stats., to those amendments which were to be voted on in November elections nor, if it did that, why it did not then prescribe similar formalities for the submission of this amendment in April, 1953, but so it is. As a matter of fact, the secretary of state in giving notice of the election and referendum in question published Joint Resolution No. 9 in the official state paper on February 21, 1953, and appended thereto what purported to be a brief explanation of the changes which the amendment, if approved, would make in the constitution. There is no contention that the publication was made once a week until election nor at any other time except on February 21st, but we cannot consider the publication to be of much importance one way or the other, for publication of election notices by the secretary of state is a purely ministerial act which has legal effect only as it complies with statutory or constitutional commands. The command of sec. 6.10(1), Stats., to publish the amendment and explanation on the last Friday of September and once a week thereafter until election in November cannot by any rule of statutory construction breathe life into a publication made in February. We are compelled to hold that such publication by the secretary of state was not by or under direction of the legislature and was barren of any effect. It did not constitute part of the submission of the proposed amendment to the people and the only contemporaneous way in which the legislature prescribed the manner of submission of this amendment dealt with the time of submission and the form of the question to be stated on the ballot, as follows:

*659 ‘Resolved, That the foregoing proposed amendment be submitted to a vote of the people at the election to be held on the first Tuesday of April, 1953, and if a majority of the voters voting thereon approve **423 this amendment, it shall become a part of the constitution of the state; and be it further

‘Resolved, That the question of ratification of the foregoing amendment be stated on the ballot as follows:

“Shall sections 3, 4, and 5 of article IV of the constitution be amended so that the legislature shall apportion, along town, village or ward lines, the senate districts on the basis of area and population and the assembly districts according to population?”

By sec. 6.23(8), Stats., the legislature has prescribed generally that the referendum ballot shall carry a concise statement of the nature of the proposed amendment and underneath the question as thus stated the words ‘yes' and ‘no’ shall appear. In State ex rel. Ekern v. Zimmerman, 1925, 187 Wis. 180, 204 N.W. 803, we had occasion to consider the sufficiency of such ‘concise statement’. We said then, 187 Wis. at page 201, 204 N.W. at page 811:

‘Had the Legislature in the instant case prescribed the form of submission in a manner which would have failed to present the real question, or had they, by error or mistake, presented an entirely different question, no claim could be made that the proposed amendment would have been validly enacted. In other words, even if the form is prescribed by the Legislature, it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment. This demonstrates quite clearly the fact that the form of submission is after all a mere form, and that the principal and essential criterion consists in a submission of a question or a form which has for its object and purpose an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise.’

We come then to defendant's counterclaim in which he demanded a judgment declaring that it is his duty to issue the call for elections to the legislature in accordance with the districting and apportionment provisions of ch. 728, Laws *661 of 1951, the Rosenberry act, until, at some **424 time after the next federal census, some other valid apportionment of legislative districts shall be made.

It is quite clear that the invalid Rogan act did not repeal or supercede the Rosenberry act and the latter remains the law under which the secretary of state is required to issue the call for elections until replaced by some other valid apportionment. Whether that must wait until after the next census is a slightly different question.

Plaintiff properly concedes that under the constitution as it existed in 1951, no more than one valid apportionment may be made in the period between the federal enumerations. This concession agrees with what we have held in Slauson v. City of Racine, 13 Wis. 398, 401.

Plaintiff does not concede that a second apportionment may not be made between federal enumerations if, after the first apportionment, the constitution should be amended, as in the present proposed amendment, to embody a new scheme of representation in the legislature. The issue here is not moot because defendant's counterclaim, by asking us to declare that the Rosenberry act shall control elections until after the next federal census, asks us to declare that there shall not be any more apportionments in the period between 1950, when the census was last taken, and the taking of the next census. This is asking too much. It lies within the power of the people to amend that portion of art. IV, sec. 3, Const., which sets the time at which apportionments may be made. Joint Resolution No. 9 did not do so but left that part unchanged.

‘Where a constitution is revised or amended, (a) the new provisions come into operation at the same moment that those they take the place of cease to be of force; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue *662 it in uninterrupted operation. * * *’ Cooley's Constitutional Limitations, Seventh Edition, pp. 96, 97.

Complaint dismissed. Judgment granted on the counterclaim declaring that it is the duty of the secretary of state to issue the call for all elections of the members of the assembly and senate in 1954 in accordance with the provisions of ch. 728, Laws of 1951, and likewise in subsequent years prior to the enactment of a valid reapportionment after the census of 1960, unless in the meantime a valid constitutional amendment followed by appropriate legislation shall permit or direct otherwise.