Oregon Advisory Opinions April 11, 1951: OAG 51-71 (April 11, 1951)
Collection: Oregon Attorney General Opinions
Docket: OAG 51-71
Date: April 11, 1951
Advisory Opinion Text
OAG 51-71.
The terms of office of senators and representatives are fixed by Article IV, § 4, of the constitution.
Hall of Representatives
Dear Sir: This is to acknowledge your letter of April 6, 1951, requesting my opinion as to the constitutionality of House Bill 117. This bill is proposed legislation relating to legislative districts on the apportionment of senators and representatives.
In the consideration of the constitutionality of any proposed legislation, such bills are not to be considered unconstitutional unless the bill violates some expressed provision of the constitution and a serious question arises as
to such constitutionality. See Starr v. Laundry, 155 Or. 634.
It is also fundamental that the duty of determining the apportionment and setting out the districts into which the state shall be divided is reposed by the constitution in the legislature. And the exercise by the legislature of its constitutional discretion in making such an apportionment will not be disturbed unless such action is clearly arbitrary and contrary to the provisions of the constitution. See Williams v. The State, 108 N.W. 749; 2 A.L.R. 1334.
The controlling provisions of the constitution of the state of Oregon concerning apportionment of senators and representatives throughout the state and the creation of senatorial and representative districts appear in Article IV, §§ 6 and 7. These sections are as follows:
"The number of senators and representatives shall, at the session next following an enumeration of the inhabitants by the United States or this state, be fixed by law, and apportioned among the several counties according to the number of white population in each. And the ratio of senators and representatives shall be determined by dividing the whole number of white population of such county or district, by such respective ratios; and when a fraction shall result from such division, which shall exceed one-half of said ratio, such county or district shall be entitled to a member for such fraction. And in case any county shall not have the requisite population to entitle such county to a member, then such county shall be attached to some adjoining county for senatorial and representative purposes. (Emphasis supplied)
"A senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating senatorial districts."
The whole purpose behind these provisions is to secure as nearly as possible equal representation in the government. The above section of the constitution is clear in that any county having a population that exceeds one-half of the ratio shall be entitled to one representative. In those cases where a county does not have "requisite population to entitle such county to a member, then such county shall be attached to some adjoining county for senatorial or representative purposes".
"* * * It is, * * * a usual requirement that representative districts shall be equal, as nearly as possible, in population or in population entitled to vote. * * *"
18 Am. Jur., § 17, p. 192.
As we do not have before us the latest figures enumerating the population of the respective counties, it shall be assumed that the legislative assembly has carried out the constitutional mandate in making the proper apportionment. See Jones v. Freeman (Okl.), 146 P. (2d) 564.
"* * * Equality of representation in the legislative bodies of the state is a right preservative of all other rights. The source of the laws that govern the daily lives of the people, the control of the public purse from which the money of the taxpayer is distributed, and the power to make and measure the levy of taxes, are so essential, all-inclusive, and vital that the consent of the governed ought to be obtained through representatives chosen at equal, free, and fair elections. If the principle of equality is denied, the spirit, purpose, and the very terms of the Constitution are emasculated. The failure to give a county or a district equal representation is not merely a matter of partisan strategy. It rises above any question of party, and reaches the very vitals of democracy itself."
Stiglitz v. Schardien (Ky.), 40 S.W. (2d) 315, 321.
A careful reading of House Bill 117 indicates that it appears to meet all the above essential requirements and does not in any manner conflict directly with any of the provisions of the constitution.
The only objection that might be raised concerning the constitutionality of this bill appears in §§ 6 and 7 thereof. In each of these sections there is an apparent attempt to cut short the terms of office of the senators and representatives. The terms of office of these offices are set out in Article IV, § 4 of the constitution, wherein it provides:
"The senators shall be elected for the term of four years, and representatives for the term of two years from the day next after their general election; * * *."
Under this provision the terms of office of senators and representatives elected at the general election held on November 6, 1950, would expire as follows: Senators, November 7, 1954, and representatives, November 7, 1952. The general election for the years 1952 and 1954 falls on the third day of November and the second day of November of those years. It is therefore clear that the present provisions of the act, making its provisions operative on the day of the regular general election in 1952 and the day after the regular election of 1954, cut short the constitutional term of office of senators and representatives. In order to overcome any objections that may arise concerning this problem I do feel it advisable to amend the act, clearly removing the arbitrary expiration day and the commencing of the terms of such offices contrary to the expressed provisions of the constitution. Even though such objections are not removed, they may be upheld as coming within constitutional power of the legislature to make apportionment and redistrict the state for legislative purposes.
In the proposed House Bill 117, it is my opinion that the legislative assembly has exercised constitutional discretion in the apportionment of the districts and has not acted arbitrarily in view of the constitution and that the act is constitutional.