In Re Legislative Apportionment

Annotate this Case

228 Or. 562 (1961)

364 P.2d 1004

IN THE MATTER OF THE REVIEW OF CHAPTER 482, OREGON LAWS, 1961, RELATING TO THE APPORTIONMENT OF SENATORS AND REPRESENTATIVES. McKINLEY ET AL

Supreme Court of Oregon.

Argued September 18, 1961.

Petition granted September 22, 1961.

Vernon Cook, Gresham, argued the cause and submitted *563 a brief for petitioners Charles McKinley, Donald G. Balmer and Howard E. Dean. With him on the brief were Dirk D. Snel and Reuben Lenske, Portland.

Edward N. Fadeley, Eugene, argued the cause and submitted a brief in propria persona.

Wm. S. McLennan, Portland, argued the cause and submitted a brief for petitioner Eleanor P. Kafoury.

Reuben Lenske, Portland, submitted a brief amicus curiae pro se.

Edwin J. Peterson, Portland, and Douglas R. Spencer, Eugene, argued the cause and submitted a brief amicus curiae in support of Chapter 482, Oregon Laws 1961. With them on the brief were Clay Myers, Portland; Robert E. Jones, Portland; Ken Maher, Portland; George Annala, Hood River; F.F. Montgomery, Eugene, and Victor Atiyeh, Portland.

Robert Y. Thornton, Attorney General, Salem, submitted a brief amicus curiae in opposition. With him on the brief was Louis S. Bonney, Assistant Attorney General, Salem.

PETITION GRANTED.

O'CONNELL, J.

This is an original proceeding in which the petitioners seek a judgment declaring unconstitutional Chapter 482, Oregon Laws 1961, which purports to reapportion representation in the Oregon legislative assembly.[1]

The provisions for the apportionment of senators *564 and representatives within this state are contained in Article IV, § 6 of the Oregon Constitution. The method for determining the number of senators and representatives for each county or district is set forth in subsection (1) of Article IV, § 6:

"(1) The number of senators and representatives shall, at the session next following an enumeration of the inhabitants by the United States government, be fixed by law and apportioned among the several counties according to the population in each. The ratio of senators and representatives, respectively, shall be determined by dividing the total population of the state by the number of senators and by the number of representatives. The number of senators and representatives for each county or district shall be determined by dividing the total population of such county or district by such respective ratios; and when a fraction exceeding one-half results from such division, such county or district shall be entitled to a member for such fraction. In case any county does not have the requisite population to entitle it to a member, then such county shall be attached to some adjoining county or counties for senatorial or representative purposes."

The total population of Oregon according to the official federal census of 1960, as reported on November 29, 1960, was 1,768,687. The application of the constitutional formula to this figure produces a senatorial ratio of 58,956 and a representative ratio of 29,478.[2] The number of senators and representatives to which each county or district is entitled is obtained by dividing, respectively, 58,956 and 29,478 into the population of the county or district. This computation when applied to each of the counties (as distinguished *565 from the senatorial or representative districts) yields the following result:

                                         Population Divided by
                                     _______________________________
                       1960             Senatorial    Representative
  County            Population            Ratio           Ratio
  Baker               17,295               .293           .587
  Benton              39,165               .664          1.329
  Clackamas          113,038              1.917          3.835
  Clatsop             27,380               .464           .929
  Columbia            22,379               .380           .759
  Coos                54,955               .932          1.864
  Crook                9,430               .160           .320
  Curry               13,983               .237           .475
  Deschutes           23,100               .392           .784
  Douglas             68,458              1.161          2.322
  Gilliam              3,069               .052           .104
  Grant                7,726               .131           .262
  Harney               6,744               .114           .229
  Hood River          13,395               .227           .454
  Jackson             73,962              1.255          2.509
  Jefferson            7,130               .121           .242
  Josephine           29,917               .507          1.015
  Klamath             47,475               .805          1.611
  Lake                 7,158               .121           .243
  Lane               162,890              2.763          5.526
  Lincoln             24,635               .418           .836
  Linn                58,867               .998          1.997
  Malheur             22,764               .386           .772
  Marion             120,888              2.050          4.101
  Morrow               4,871               .083           .165
  Multnomah          522,813              8.868         17.736
  Polk                26,523               .450           .900
  Sherman              2,446               .041           .083
  Tillamook           18,955               .322           .643
  Umatilla            44,352               .752          1.505
  Union               18,180               .308           .617
  Wallowa              7,102               .120           .241
  Wasco               20,205               .343           .685
  Washington          92,237              1.565          3.129
  Wheeler              2,722               .046           .092
  Yamhill             32,478               .551          1.102

*566 From the foregoing tabulation it is apparent that, on a county basis, if effect is given to the constitutional provision awarding a senator and a representative to a county or district "when a fraction exceeding one-half results from such division," 14 counties would be entitled to 27 senators and 24 counties would be entitled to 61 representatives. Thus, such an apportionment would exceed the constitutional maximum set by Article IV, § 2 which contains the proviso that "the Senate shall never exceed thirty, and the House of Representatives sixty members." It is to be noted, however, that this result could be obviated by combining, in some instances, two or more counties into a single district.[3]

It appears from assertions in the briefs that the proponents of H.B. 1665, which eventuated in Chapter 482, Oregon Laws 1961, considered it impossible to comply strictly with the constitutional formula calling for a fractional entitlement and that it was, therefore, necessary to adjust the method of allocating senators and representatives in order to produce a valid apportionment. Under Chapter 482 the apportionment of senatorial districts was as follows:

                                        District       No. of
    Districts       Counties              Ratio       Senators
      1st          Marion                 2.050           2
      2nd          Linn                    .998           1
      3rd          Lane                   2.763           2
      4th          Douglas                1.161           1
      5th          Jackson                1.255           1
      6th          Josephine               .507           1
      7th          Coos
                   Curry                  1.169           1
*567      8th          Yamhill                 .551           1
      9th          Washington             1.565           1
     10th          Tillamook
                   Washington             1.887           1
     11th          Clackamas              1.917           2
     12th          Multnomah              8.868           7
     13th          Benton                  .664           1
     14th          Clatsop
                   Columbia                .844           1
     15th          Lincoln
                   Polk                    .868           1
     16th          Gilliam
                   Hood River
                   Morrow
                   Sherman
                   Wasco
                   Wheeler                 .792           1
     17th          Umatilla                .752           1
     18th          Baker
                   Union
                   Wallowa                 .721           1
     19th          Grant
                   Harney
                   Malheur                 .631           1
     20th          Crook
                   Deschutes
                   Jefferson
                   Lake                    .794           1
     21st          Klamath                 .805           1

The apportionment of representatives among the representative districts was as follows:

                                         District        No. of
    Districts       Counties              Ratio     Representatives
      1st          Clatsop                .929            1
      2nd          Columbia               .759            1
      3rd          Tillamook              .643            1
*568      4th          Washington            3.129            3
      5th          Yamhill               1.102            1
      6th          Multnomah            17.736           16
      7th          Clackamas             3.835            4
      8th          Lincoln                .836            1
      9th          Polk                   .900            1
     10th          Benton                1.329            1
     11th          Marion                4.101            4
     12th          Linn                  1.997            2
     13th          Lane                  5.526            5
     14th          Douglas               2.322            2
     15th          Coos                  1.864            1
     16th          Coos
                   Curry                 2.339            1
     17th          Josephine             1.015            1
     18th          Jackson               2.509            2
     19th          Gilliam
                   Hood River
                   Morrow
                   Sherman
                   Wasco
                   Wheeler               1.583            2
     20th          Umatilla              1.505            2
     21st          Union
                   Wallowa                .858            1
     22nd          Crook
                   Jefferson              .562            1
     23rd          Baker                  .587            1
     24th          Deschutes              .784            1
     25th          Grant
                   Harney
                   Lake                   .734            1
     26th          Malheur                .772            1
     27th          Klamath               1.611            2

*569 It is apparent that, under the district division made by Chapter 482, if each of the districts having a major fraction were allotted a senator and a representative the number of each class would exceed the constitutional maximum. Thus, it is seen that under Chapter 482 the division resulted in 18 whole numbers and 17 major fractions, the combination of which would call for 35 senators. If this were the inevitable result of the application of the constitutional formula some method of reducing the number of senatorial seats would be required to avoid exceeding the constitutional maximum of 30 senators. Similarly, the maximum for representatives would be exceeded.

It appears that the proponents of H.B. 1665 drafted the apportionment plan embodied in Chapter 482 upon the foregoing assumption and, to effect the reduction required by the constitution, first allocated to the districts consisting of a small county or combination of small counties a senator or representative for each whole number and for each major fraction. As a consequence of this allocation the number of available seats was reduced to the point where it became impossible to allot to the larger counties (such as Multnomah and Lane) the full number of seats called for by the strict application of the ratios. Petitioners contend that whether or not this was the premise upon which the creators of H.B. 1665 proceeded, the apportionment made in Chapter 482 deprived the 12th senatorial district (Multnomah county) of two senators and the 3rd senatorial district (Lane county) of one senator. And it is contended that the 6th representative district (Multnomah county) was deprived of two representatives and that the 13th representative district (Lane county) and the 18th representative district (Jackson county) were each deprived of one representative.

*570 1. It will be noted that in apportioning only seven senators to the 12th senatorial district (Multnomah county) the method adopted in Chapter 482 results not only in eliminating from the final ratio a major fraction but a whole number as well. Thus, through the application of the constitutional formula the 12th senatorial district had a ratio of 8.868, entitling the district to nine senators if effect is given to the major fraction. Had the major fraction alone been disregarded the district would have been allotted eight senators. Chapter 482 allotted only seven senators to the 12th senatorial district. Conceding, without deciding at this point, that the constitution could be construed to permit the legislative assembly to disregard the major fraction under the circumstances of this case, it is impossible for us to conceive of a reasonable interpretation of Article IV, § 6 which would permit the legislative assembly to subtract a whole number from the quotient resulting from the application of the constitutional formula for determining representation in the state senate. The constitution clearly demands that "the number of senators and representatives for each county or district shall be determined by dividing the total population of such county or district by such respective ratios," (i.e., the ratios determined by dividing the total population of the state by the number of senators and by the number of representatives). The constitution then provides for the eventuality that the ratio may include a major fraction. The purpose of this sub-section is clear; representation is to be based upon the population ratio. The ratio is to be determined arithmetically by the simple process of division. The constitution makes no mention of the use of any other factor in making the apportionment. The constitution *571 does not expressly or impliedly empower the legislature to adjust the representation among the districts in the state by disregarding the results of the arithmetic process called for by Article IV. Through its authority to designate the senatorial and representative districts and, as we shall see, through its power to adjust the major fractions, the legislature does have the power to make some adjustment in representation, but it does not have the power to adjust the ratios to the extent of disregarding a whole number once the districts have been established and the division made upon the basis of such districts. We hold, therefore, that the elimination of a whole number from the ratio for the 12th senatorial district in itself renders unconstitutional the apportionment plan contained in Chapter 482.

In resting our decision on the foregoing ground we have assumed, arguendo, that there could be circumstances warranting the elimination of a major fraction in an apportionment plan. We shall now consider the validity of that assumption.

It is not unlikely that the drafters of Article IV assumed that by recognizing major fractions as whole numbers and disregarding minor fractions the total of all of the ratios would equal the number which was being divided, i.e., that the sum of the parts thus adjusted would equal the whole. Whether or not this was the assumption, it is clear that the constitutional formula for apportionment can produce whole numbers and major fractions exceeding the number (30 and 60 in the present case) which the ratios purport to apportion precisely. This is illustrated in the present case where the total number of whole numbers and major fractions is the equivalent of 61 seats for the house. It is possible to conceive of situations in *572 which the population is so distributed as to create ratios greatly exceeding the number of seats which are to be allocated. Thus it would be possible for 30 counties to have major fractions as their ratios and the remaining six counties to have ratios expressed in whole numbers or whole numbers and fractions. With a slightly different distribution of the population the total of all the ratios could equal far less than the number of allocable seats. This would be the case, for example, if 30 counties had minor fraction ratios and the remaining six counties had ratios in whole numbers with or without fractions. The problem presented by an excess of major fractions would be accentuated where districts containing only minor fraction ratios were combined to create a ratio consisting of a major fraction.

Some of the petitioners argue that the difficulties presented by an excess of major fractions can be obviated by the creation of districts through the combination of counties in such a way as to reduce the number of major fractions and thus bring the total of whole numbers and major fractions within the constitutional maximum. For example, if two counties, each with a ratio of .625 were combined into one district the district would be entitled to one senator, whereas, if the two counties were not combined each would be entitled to one senator. It is argued that since the legislature can, by the creation of such districts, work out the formula in Article IV to avoid the creation of an excess of major fractions, it must do so and that it cannot disregard a major fraction if it appears in the final ratio. The argument loses sight of the fact that whether the legislature indirectly rids a county ratio of a major fraction by combining it with another county, as illustrated above, or directly *573 by disregarding the major fraction without districting, the purpose, and only purpose for combining the counties into districts in this circumstance is to adjust the constitutional formula so that it can be made to work.

It is evident, then, that any apportionment plan submitted to us must be tested in light of the inherent deficiencies of the constitutional formula. Whatever solution is suggested, it is necessary to make some adjustment of the major fractions. In judging whether the adjustment is reasonable it must be borne in mind that the major fractions which arise out of the application of the constitutional formula have little, if any, relation to whole numbers involved in the division of the population into units of representation. Lacking this relationship the major fractions become, in effect, a mathematical excrescence in the apportionment process and the creator of the apportionment plan must dispose of that excrescence in some way.

2, 3. In attempting to make workable an otherwise unworkable plan the legislature has the discretion to make any adjustment in the treatment of major fractions which is rational and consistent with the fundamental constitutional requirement that apportionment be made according to the population of the state in each county or district. Thus, it would not be unreasonable to give preference to the major fractions which most closely approximate a whole number. Or it would not be unreasonable to ignore a major fraction from the ratio of a more populous county or district having one or more whole numbers plus a major fraction and assign a member to a less populous county or district having only a major fraction. Other adjustments consistent with the principle of apportionment *574 among the several counties according to population would be valid. However, the adjustment of the ratios can go no further than that which is necessary to obviate the problem created by the existence of major fractions in the ratios. As we have already stated, the constitution cannot reasonably be interpreted to permit the elimination of a whole number from a county or district ratio. Consequently, Chapter 482 is unconstitutional. The Secretary of State is directed to draft a reapportionment of the senators and representatives in compliance with subsection (1) of § 6, Article IV and return the draft to this Court by October 1, 1961. The mandate shall issue forthwith.

NOTES

[1] Original jurisdiction is conferred upon this court by virtue of Article IV, § 6 (2) (a), which reads as follows: "Original jurisdiction hereby is vested in the Supreme Court upon the petition of any qualified elector of the state filed with the Clerk of the Supreme Court prior to September 1 of the year in which the Legislative Assembly enacts a reapportionment measure, to review any measure so enacted."

[2] The senatorial ratio, based upon a senate consisting of 30 members, results from dividing 1,768,687 by 30. The representative ratio, based on a house of 60 members, results from dividing 1,768,687 by 60.

[3] For example, Yamhill county with a senatorial ratio of .551 which, if considered alone would entitle it to one senator, could be combined with Washington county having a senatorial ratio of 1.565 producing a combined ratio of 2.116 and eliminating one senatorial seat.