Citations
- 263 So. 2d 797
Full opinion text
ADKINS, Justice.
In original proceeding we have for consideration the petition of the Attorney General seeking a declaratory judgment determining the validity of Joint Resolution No. 1305 apportioning the Legislature of the State of Florida. Fla.Const.1968, art. III, § 16(c), F.S.A. Adversary interests have filed briefs presenting their views and the matter has been orally argued before the Court.
At the outset, we emphasize that legislative reapportionment is primarily a matter for legislative consideration and determination. Judicial relief becomes appropriate only when a legislature fails to reapportion according to federal and state constitutional requisites. If these requisites are met, we must refrain, at this time, from injecting our personal views into the proposed reapportionment plan. Even though we may disagree with the legislative policy in certain areas, the fundamental doctrine of separation of powers and the constitutional provisions relating to reapportionment require that we act with judicial restraint so as not to usurp the primary responsibility for reapportionment, which rests with the Legislature.
Fla.Const., art. III, § 16, F.S.A., contains the following:
“(a) Senatorial and representative districts. The legislature at its regular session in the second year following each decennial census, by joint resolution, shall apportion the state in accordance with the constitution of the state .and of the United States into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative districts of either contiguous, overlapping or identical territory. Should that session adjourn without adopting such joint resolution, the governor by proclamation shall reconvene the legislature within thirty days in special apportionment session which shall not exceed thirty consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment.
“(b) Failure of legislature to apportion; judicial reapportionment. In the event a special apportionment session of the legislature finally adjourns without adopting a joint resolution of apportionment, the attorney general shall, within five days, petition the supreme court of the state to make such apportionment. No later than the sixtieth day after the filing of such petition, the supreme court shall file with the secretary of state an order making such apportionment.
“(c) Judicial review of apportionment. Within fifteen days after the passage of the joint resolution of apportionment, the attorney general shall petition the supreme court of the state for a declaratory judgment determining the validity of the apportionment. The supreme court, in accordance with its rules, shall permit adversary interests to present their views and, within thirty days from the filing of the petition, shall enter its judgment.
“(d) Effect of judgment in apportionment; extraordinary apportionment session. A judgment of the supreme court of the state determining the apportionment to be valid shall be binding upon all the citizens of the state. Should the supreme court determine that the apportionment made by the legislature is invalid, the governor by proclamation shall reconvene the legislature within five days thereafter in extraordinary apportionment session which shall not exceed fifteen days, during which the legislature shall adopt a joint resolution of apportionment conforming to the judgment of the supreme court.” (Emphasis supplied).
Senate Joint Resolution No. 1305, apportioning the Florida legislature was passed at its regular session in the second year following the 1970 decennial census. The United States Department of Commerce, Bureau of Census, prepared a Master Enumeration District List Coordinate Tape (MEDList Tape) which was purchased by the Florida legislature. Information from the Bureau of Census was computerized and made available in written and map form to the legislators, in which the units of population were broken down into counties and divisions of counties called Census County Divisions (CCD’s). Smaller units of information were provided in the form of Enumerated Districts (ED’s), Place Codes (PC’s), Census Tracts (Tracts) and Block Groups (BG’s). These units of information represent geographical boundaries as used in the Bureau of Census reports of the 1970 census. The geographical boundaries for these units of information, smaller than the county unit of information, generally followed boundaries which were recognizable on the ground. They did not necessarily respect precinct lines and are not identical with precinct lines except where they coincided by accident.
Because the districts represented by Resolution No. 1305 geographically follow the lines used by the census bureau, the present county precinct lines are often split. For this reason, it was impossible for the legislators to consider the number of inhabitants in each election precinct. This information could have been secured by the legislature, so as to avoid the confusion resulting from the splitting of precincts by district lines. It was not secured, and the delay in securing such information at this late daté would only result in more confusion.
Under the present apportionment plan, it will be necessary, in some instances, to move a polling place or establish a new one. In other instances, it will be necessary to have each voter sign an affidavit as to his place of residence and to vote in a separate voting booth or to vote in a machine capable of locking in only the voter’s respective candidates. Registration officials, at the present time, are making the necessary adjustments so that an election may be held in an orderly fashion. Although this may be confusing, there is no requirement that district lines follow precinct or county lines, for the constitutional mandate (Fla.Const., art. Ill, § 16(a), F.S.A.) is that the state be apportioned into “districts of either contiguous, overlapping or identical territory.”
Joint Resolution No. 1305 apportions the state into 120 House Districts and 40 Senate Districts. Of the House Districts, 21 are single member, 10 are two member, 9 are three number, 20 are four member,- 30 are five member, and 30 are six member. Of the Senate Districts, 5 are single member, 14 are two member, and 21 are three member.
The apportionment policy followed by the legislature in Resolution No. 1305 is stated as follows:
“In the adoption of the House of Representatives districts contained in this resolution and in its deliberations preceding such adoption and culminating therein, this legislature is following in good faith the following rational state policy of:
“(1) Recognizing the continuous and dynamic population growth in this state by establishing a House of Representatives of one hundred' and twenty (120) members, and in doing so guaranteeing better access between the inhabitants of this state and their representatives.
“(2) Providing multi-member districts for densely populated counties to guarantee effective representation and operation of government at the state level.
“(3) Providing single-member districts for the rural counties which achieves the state policy of guaranteeing effective representation and operation of government at the state level.
“(4) Establishing the following formula to achieve the above objectives:
“Multi-member districts in densely populated counties of the state are based on the county’s representational ratio, however no multi-member district exceeds six (6) representatives; single-member districts are based on the same policy and are provided in the counties not covered above.
“However, the Legislature’s overriding consideration to this policy is its good faith effort to achieve mathematical preciseness.” (Senate Joint Resolution No. 1305, Section 2)
In Reynolds v. Sims, 377 U.S. 533, 567, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506, 530-531 (1964), the United States Supreme Court said:
“Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.”
The Constitutions of Florida and the United States require that one man’s vote in a district be worth as much as another. Mathematical exactness is not an absolute requirement in state apportionment plans; however, deviations, when unavoidable, must be de minimis. Whether a deviation is de minimis must be determined on the facts of each case. The United States Supreme Court in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), invalidated a Florida plan of apportionment with maximum percentage deviations from 15.09% over representation to 10.56% under representation in the Senate and from 18.28% over representation to 15.27% under representation in the House of Representatives.
The plan of apportionment contained in Joint Resolution No. 1305 has maximum percentage deviations in the House of Representatives from 0.10% over representation to 0.20% under representation, or a total deviation of >0.30%. This plan of apportionment has maximum percentage deviations in the Senate from 0.53% over representation to 0.62% under representation, or a total deviation of 1.15%. The legislature based the apportionment upon the report of the Bureau of Census without regard to county line or precinct line. In using this procedure the legislature should have been able to divide the state into districts so that there would be no deviation whatsoever. However, it appears that the legislature has made a good faith effort to achieve mathematical preciseness in the districts and in this regard has complied with the requirements of both the Florida and United States Constitutions.
We now turn to a consideration of the use of variable multi-member districts in the apportionment plan. Many say the ideal or model plan, of course, would be single-member districts with no deviation in population so that each member of the legislature would be solely responsible to the voters in his individual district and the voters, in turn, could direct praise or criticism toward one individual who represents them in the legislature. If variable multi-member districts are permissible under the Florida and United States Constitutions, then the decision to use multi-member instead of single-member districts becomes a matter of legislative policy.
In Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), the Court considered the apportionment plan for the State of Georgia. Fifty-four senatorial districts were created along existing county lines. Thirty-three of the senatorial districts were made up of from one to eight counties each and voters in these districts elected their senators by a district-wide vote. The remaining twenty-one senatorial districts were allotted in groups of from two to seven among the seven most populous counties, but voters in these districts did not elect a senator by a district-wide vote; instead they joined with the voters of the other districts of the county in electing all the county senators by a county-wide vote. A group of registered voters attacked the plan contending that the requirement of county-wide voting in the seven multi-district counties violated the equal protection clause of the Fourteenth Amendment. The District Court ruled with the voters and invalidated the plan saying:
“The statute causes a clear difference in the treatment accorded voters in each of the two classes of senatorial districts. It is the same law applied differently to different persons. The voters select their own senator in one class of districts. In the other they do not. They must join with others in selecting a group of senators and their own choice of a senator may be nullified by what voters in other districts of the group desire. This difference is a discrimination as between voters in the two classes . The statute here is nothing more than a classification of voters in senatorial districts on the basis of home-site, to the end that some are allowed to select their representatives while others are not. It is an invidious discrimination tested by any standard.” 228 F. Supp. 259, 263.
In reversing this decision, the United States Supreme Court said:
“It is not contended that there is not ‘substantial equality of population’ among the 54 senatorial districts. The equal protection argument is focused solely upon the question whether county-wide voting in the seven multi-district counties results in denying the residents therein a vote ‘approximately equal in weight to that of’ voters resident in the single-member constituencies. Contrary to the District Court, we cannot say that it does. There is clearly no mathematical disparity. Fulton County, the State’s largest constituency, has a population nearly seven times larger than that of a single-district constituency and for that reason elects seven senators. Every Fulton County voter, therefore, may vote for seven senators to represent his interests in the legislature. But the appellees assert that this scheme is defective because county-wide voting in multi-dis-trict counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of a district, thereby thrusting upon them a senator for whom no one in the district had voted. But this is only a highly hypothetical assertion that, in any event, ignores the practical realities of representation in a multi-member constituency. It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation.” 379 U.S. 436, 85 S.Ct. 500, 13 L.Ed.2d 404.
“If the weight of the vote of any voter in a Fulton County district, when he votes for seven senators to represent him in the Georgia Senate, is not the exact equivalent of that of a resident of a single-member constituency, we cannot say that his vote is not ‘approximately equal in weight to that of any other citizen in the State.’
“In reversing the District Court we should emphasize that the equal-protection claim below was based upon an alleged infirmity that attaches to the statute on its face. Agreeing with appellees’ contention that the multi-member constituency feature of the Georgia scheme was per se bad, the District Court entered the decree on summary judgment. We treat the question as presented in that context, and our opinion is not to be understood to say that in all instances or under all circumstances such a system as Georgia has will comport with the dictates of the Equal Protection Clause. It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster. This question, however, is not presented by the record before us.” (Emphasis supplied.) 379 U.S. 438, 85 S.Ct. 501, 13 L.Ed.2d 405.
In the present proceedings, we are confronted with a similar problem. We are passing upon the validity of Senate Joint Resolution No. 1305 on its face and our opinion should not be understood to say that in all instances or under all circumstances a system of variable multi-member districts will comport with the dictates of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution or Article I (Declaration of Rights), Section 2 of the Florida Constitution.
In Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), the Court, considering a variable multi-member district plan in Hawaii, said:
“But the Equal Protection Clause does not require that at least one house of a bicameral state legislature consist of single-member legislative districts. See Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401. Where the requirements of Reynolds v. Sims are met, apportionment schemes including multi-member districts will constitute an invidious discrimination only if it can be shown that ‘designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.’ Id., at 439, 85 S.Ct. at 501 [13 L.Ed.2d at 405].
“It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson, districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one. But the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. Cf. McGowan v. State of Maryland, 366 U. S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. That demonstration was not made here.” (Emphasis supplied.) (384 U.S. p. 88, 86 S.Ct. p. 1294, 16 L.Ed.2d pp. 388-389)
Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), involved an apportionment plan of Texas which contained a combination of single member, multi-member, and floterial districts. A floterial district is one formed by combining two or more districts, each of which elects its own representatives into a larger (floterial) district for the election at large of one additional representative. Although the apportionment was held invalid because of a population deviation, the Supreme Court affirmed the District Court’s judgment insofar as it held that the protesters had not proved allegations (1) that it amounted to political gerrymandering so as to violate the Fourteenth Amendment, (2) that it unconstitutionally deprived Negroes of their franchise, and (3) that because of its utilization of single-member, multi-member and floterial districts it was an unconstitutional “crazy quilt.” In other words, the plan containing single-member, multi-member and floterial districts was not, per se, unconstitutional in the absence of evidence in the record.
The latest case involving multi-member districts in an apportionment plan is Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). The Indiana plan provided for a House of Representatives of 100 members and a Senate of 50 members. Eight of the 31 Senatorial districts and 25 of the 39 House districts were multi-member districts represented by two or more legislators elected at large by the voters of the district. Residents of Marion County attacked the plan because their votes and the votes of those similarly situated, living in the ghetto area, would be diluted so that they would have less political force or control over their legislators because the effect of their vote is canceled out by other contrary interest groups in Marion County. With a single-member district, the ghetto area would elect three members of the House and one Senator.
A Negro resident of Lake County, also a multi-member district but a smaller one, alleged an invidious discrimination against Lake County Negroes because Marion County Negroes, although no greater in number than Lake County Negroes, had the opportunity to influence the election of more legislators than the Lake County Negroes. It was claimed that Marion County was one-third larger in population and thus had approximately one-third more assembly seats than Lake County, and that permitting Marion County voters to elect 23 assemblymen-at-large gave them a disproportionate advantage over voters in Lake County.
The validity of the multi-member districts as such was upheld in that “such a district is not per se illegal under the Equal Protection Clause.” The opinion of the Court, delivered by Mr. Justice White and concurred in by the Chief Justice, Mr. Justice Black, and Mr. Justice Blackmun, contained the following:
“The question of the constitutional validity of multi-member districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts.” (403 U.S. p. 142, 91 S.Ct. p. 1868, 29 L.Ed.2d p. 375)
“That voters in multi-member districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter. But we have deemed the validity of multi-member district systems justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may ‘operate to minimise or cancel out the voting strength of racial or political elements of the voting population.’ Fortson, 379 U.S., at 439, 85 S.Ct., at 501 [13 L.Ed.2d at 405], and Burns, 384 U.S., at 88, 86 S.Ct., at 1294 [16 L.Ed.2d at 388]. Svich a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature, if it is multi-membered for both houses of the legislature or if it lacks provision for at-large candidates running from particular geographical subdistricts, as in Fortson. Burns, 384 U.S., at 88, 86 S.Ct., at 1294 [16 L.Ed.2d at 388]. But we have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. We have not yet sustained such an attack.” (Emphasis supplied.) (403 U.S. p. 142, 91 S.Ct. p. 1868, 29 L.Ed.2d p. 376)
Mr. Justice Stewart joined in this part of the opinion. In his dissenting opinion, Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Marshall concurred, agreed that “multi-member districts are not per se unconstitutional,” but held that the invidious effects of multi-member districts appeared from evidence in the record. It therefore appears that eight Justices of the United States Supreme Court agree that multi-member districts are not per se unconstitutional.
We will now consider the validity of variable multi-member districts under the provisions of the Florida Constitution. It is well settled that the state Constitution is not a grant of power but a limitation upon power. Unless legislation duly passed be clearly contrary to some express or implied prohibition contained in the Constitution, the courts have no authority to pronounce it invalid. Harry E. Prettyman, Inc. v. Florida Real Estate Commission, 92 Fla. 515, 109 So. 442 (1926); State ex rel. Jones v. Wiseheart, 245 So.2d 849 (Fla.1971).
Mr. Justice Whitfield in City of Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769 (1914) said:
“[N]o duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that, under any rational view that may be taken of the statute, it is in positive conflict with some identified or designated provision of constitutional law. . . . The courts have no veto power, and do not assume to regulate state policy; but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law.” (Emphasis supplied.) (p. 772)
Hence, this Court, in accordance with the doctrine of separation of powers, will not seek to substitute its judgment for that of another coordinate branch of the government, but will only measure acts done with the yardstick of the Constitution. The propriety and wisdom of legislation are exclusively matters for legislative determination. As stated in 16 Am.Jur.2d, Constitutional Law, § 157, p. 365:
“Statutes are the creations of legislators; and since legislators are men, their creations are subject to the same critical analysis concerning wisdom, policy, fairness, justice, and expediency as other human acts. In directing attacks on laws assailed as unconstitutional, attempts are often made to stress these frailties as reasons why the courts should nullify the legislative pronouncement. These attacks uniformly fail.”
Protesters refer to the Preamble of the Florida Constitution which guarantees equal “political rights to all,” and say this right is denied by the apportionment plan. A preamble, of course, may not be invoked apart from specific provisions of the Constitution in order to invalidate a statute. 16 C.J.S. Constitutional Law § 23; District Landowners Trust v. Adams County, 104 Colo. 146, 89 P.2d 251 (1939). Even if this statement in the preamble be considered we cannot say that such a guarantee is any different than the guarantee afforded by the United States Constitution as discussed in the above authorities.
Fla.Const., art. III, § 1, F.S.A., provides as follows:
“Composition. — The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district.”
Fla.Const., art. III, § 16, F.S.A., provides in pertinent part as follows:
“(a) Senatorial and representative districts. The legislature at its regular session in the second year following each decennial census, by joint resolution, shall apportion the state in accordance with the constitution of the state and of the United States into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative districts of either contiguous, overlapping or identical territory. Should that session adjourn without adopting such joint resolution, the governor by proclamation shall reconvene the legislature within thirty days in special apportionment session which shall not exceed thirty consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment.”
Construing these two sections together, the Constitution requires that there be one senator elected from each Senatorial district and one member of the House of Representatives elected from each representative district. This, standing alone, would require single-member districts. However, the Constitution further provides that districts may be “identical territory.” This means that multi-members of the Senate or the House of Representatives may be elected from the identical territory if such territory were designated as constituting several districts. To require single-member districts would void the provision of Fla.Const., art. III, § 16(a), F.S.A., authorizing the creation of districts in “identical territory.”
We have examined a transcript of the proceedings before the Florida Constitutional Revision Commission on November 29, 1966, pages 381 et seq., where a motion was made to strike the language “either contiguous, overlapping or identical territory” and substitute therefor the language “which shall be neither overlapping nor contain identical territory.” It was explained that the purpose of the amendment was to require single-member districts. During the debate, the arguments made in favor of the amendment were the same as those now made by the protestants. The proposed amendment failed.
Under the provisions of Fla.Const., art. III, §§ 1 and 16, F.S.A., multi-member districts are permissible and such multi-mem-ber districts may coexist with single-member districts in the same plan.
Protesters say the classification of single-member and multi-member districts is not a reasonable one. It is true that any attempted classification by the legislature must rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis. Fronton, Inc. v. Florida State Racing Commission, 82 So.2d 520, 523 (Fla.1955); State ex rel. Vars v. Knott, 135 Fla. 206, 184 So. 752, 754 (1938). Section 2 of Senate Joint Resolution No. 1305, quoted above, sets out the reasons for the classification. Single-member districts are provided for rural counties and multi-member districts are provided in densely populated counties based on the counties’ representational ratio. However, no multi-member district exceeds six representatives. This classification rests upon a difference which bears a reasonable and just relation to the apportionment resolution and it does not appear to have been made arbitrarily. This Court is not at liberty to declare the apportionment plan void because it allegedly creates inconvenience, is unfair, or is inequitable, in the absence of a violation of some provision of the Constitution.
Fla.Const., art. I, Declaration of Rights, § 5, F.S.A., gives the people the right “to instruct their representatives.” There is nothing in the apportionment plan which denies the people this right. The Constitution does riot require that one representative be available for instruction from any one individual. Rather, the Constitution contemplates that any person has a right to instruct any and all representatives, whether his own or not. This right is not limited by the apportionment plan as each person maintains this right to instruct, whether he has one or several representatives.
When the people of Florida adopted the Constitution of 1968 they reserved to themselves the right to instruct their representatives and, at the same time, authorized the election of these representatives in senatorial and representative districts which may be “either contiguous, overlapping or identical territory.” Every word of the Florida Constitution should be given its intended meaning and effect. In construing constitutions, that construction is favored which gives effect to every clause and every part of it. A construction which would leave without effect any part of the language used should be rejected if an interpretation can be found which gives it effect. 4 F.L.P., Constitutional Law, § 18, and authorities cited.
There are no provisions in the Florida Constitution relating to apportionment of the legislature more stringent than those of the United States Constitution. To say that the present apportionment meets the requirements of the United States Constitution, but is invalid under the State Constitution, is tantamount to imposing- our will upon legislative policy by limiting the clear provisions of our Constitution.
We, therefore, hold that variable multi-member districts are not per se invalid under the Florida Constitution. It might well be that, designedly or otherwise, a multi-member constituency scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated, we will consider whether the apportionment plan still passes constitutional muster.
In other words, the apportionment plan as framed may be constitutional on its face, but upon its application in a particular case the joint resolution may violate organic law. This is in accord with our holdings that a statute may be valid as applied to one state of facts, though invalid as applied to another state of facts. See 4 F.L.P., Constitutional Law, § 10, p. 253, and authorities cited.
For example, in Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 37 So.2d 692 (Fla.1948), we held that a statute was not unconstitutional per se, but in Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 245 So.2d 625 (Fla.1971), upon consideration of a different factual situation, we held that the same statute denied equal protection and due process of law to one of the parties. Also, in Georgia Southern and Florida Railway Co. v. Seven-Up Bottling Company of Southeast Georgia, 175 So.2d 39 (Fla.1965), we held that a statute imposing the doctrine of comparative negligence in suits against railroad companies was valid when enacted, but became invalid by changes in the conditions to which it applied.
The other grounds of protesters’ attacks on the validity of the apportionment plan are based upon factual situations. For a proper determination of these contentions, it would be necessary for testimony to be taken and additional evidence presented. We have considered the appointment of commissioners for this purpose, but such a course is impractical under Fla.Const., art. III, § 16(c), F.S.A., mandating us to enter a judgment within thirty days from the filing of the petition by the Attorney General.
Furthermore, an impending election is imminent and the state’s election machinery is already in progress. The proximity of the election should be, and is, considered by this Court, as well as the mechanics and complexities of an election under the apportionment plan contained in Joint Resolution No. 1305. This opinion should serve as a caveat to prospective candidates in that we are only determining the validity of the apportionment plan on its face.
The Florida Constitution contemplates that our judgment in these proceedings be limited to a declaration that the apportionment plan on its face is either valid or invalid under the Constitution of the United States and the Constitution of the State of Florida. We hold that it is valid on its face. This is without prejudice to the right of protesters to question the validity of the plan in appropriate proceedings raising factual questions asserted in their briefs.
We summarize as follows:
1. Apportionment is primarily a matter for legislative consideration and, in these proceedings, we cannot consider the wisdom, policy or fairness of Joint Resolution No. 1305 unless it violates some constitutional provision of the Federal or State Constitution.
2. The Florida Constitution requires that we determine whether the apportionment plan on its face is in accord with the Constitutions of Florida and of the United States.
3. The apportionment plan reaches mathematical preciseness with only de min-imis deviation. The fact that the legislature did not consider the plan according to political subdivision lines does not, in itself, invalidate the apportionment plan. See Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L.Ed.2d 506, 538 (1964).
4. The variable multi-member districts prescribed in the apportionment plan are not per se invalid under the United States Constitution or the Florida Constitution. We recognize that variable multi-member districts may be subject to challenge where the circumstances of a particular case may operate to minimize or cancel out the voting strength of racial or political elements of the voting population. This decision does not bar any such challenge based upon factual considerations in appropriate proceedings.
5. The forthcoming election may proceed, but any candidate should take notice that a challenger of the apportionment plan may be able to carry the burden of proving that these multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. If such burden is met, the apportionment plan would be held invalid as to any area or district to the extent proved.
We now hold that Senate Joint Resolution No. 1305, on its face, sets forth an apportionment plan in accordance with the Constitutions of Florida and of the United States.
It is so ordered.
ROBERTS, C. J., and BOYD and DEK-LE, JJ., concur.
CARLTON, J., dissents with opinion.
McCAIN, J., dissents with opinion.
SPECTOR, District Court Judge, dissents with opinion.
CARLTON, Justice
(dissenting):
I am unable to join with my colleagues in the majority. Reynolds v. Sims, 377 U. S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and subsequent United States Supreme Court reapportionment cases recognize population to be the controlling factor, but not the exclusive factor. Local government administration may also be taken into account, so long as numerical deficiencies involved are minimal. Local governments in Florida are recognized by Article VIII, Florida Constitution, as a rational means of providing for the common good and common welfare at the local level.
These political subdivisions are obviously not entitled to representation in the Legislature, but the Legislature nonetheless deals with these entities as a practical way of reaching the needs of the body politic. It is for this reason that Article III, § 16(a), Florida Constitution, requires districts ’ to be “contiguous, overlapping or identical territory.” Since citizens are governed largely on the basis of political subdivisions, they should not be forced to share representatives with portions of competing subdivisions where this can be avoided.
In regard to the House and Senate plans submitted to this Court, I agree with Chief Judge Spector that they are defective because they unnecessarily ignore county lines in numerous instances where these lines could be kept relatively intact while still adhering to Reynolds. The holding of the majority today that there is no requirement that district lines follow county lines because this is not specifically mentioned in Article III, § 16(a), Florida Constitution, overlooks the fact that the Constitution also provides for governance by subdivisions. When the Legislature chooses to determine its population districts without regard to this substantial interest, it arbitrarily discriminates between those citizens living in subdivisions kept intact and those in subdivisions which are fragmented. This clearly violates the mandate of Article I, § 2, Florida Constitution, that all natural persons are equal before the law; for while those in unnecessarily fragmented districts may be equal in terms of numerical representation, they are unequal in terms of effective representation.
I also part from the majority of my colleagues on the issue of multi-member dis-tricting as presented before this Court. Article III, § 16(a) mandates that apportionment shall be carried out in accordance with the Constitution of Florida as well as that of the United States. In Reynolds, the Supreme Court said that apportionment provisions of. state constitutions should he accommodated as much as possible, except when in violation of the United States Constitution, and particularly its Equal Protection Clause; see also, Burns v. Richardson, 384 U.S. 73 at 84-85, 86 S.Ct. 1286, 16 L.Ed.2d 376. Thus, both the Florida Constitution and the case law of the United States Supreme Court recognize that state constitutional standards are operative. There is no bar here to a state standard being applied more stringently than the federal constitutional standards so long as the Equal Protection Clause is not violated.
Only recently in State of Florida v. Barquet, Fla., 262 So.2d 431, we said regarding statutes: “Although similar statutes may be held valid by the United States Supreme Court, it does not necessarily follow that they are valid under the state constitution.” This was followed by copious quotations on the point from 20 Am.Jur.2d, Courts § 225, pp. 556-557, and 21 C.J.S. Courts § 205, pp. 362-364. We also held that our Due Process Clause (Article I, § 9, Florida Constitution) could be read more stringently than the federal Due Process Clause. This being so, I am surprised by the majority’s insistence that we cannot go beyond federal case law, especially since the Supreme Court has taken the position that this is principally a State issue.
To my mind, the mandate of Article I, § 2, Florida Constitution, is necessarily operative here as a safeguard against invidious discrimination: “All natural persons are equal before the law . . . . ” In several of its multi-member district reapportionment cases, the Supreme Court has indicated that the absence of sub-districting in these districts would be of significance in determining the constitutional validity of the plans; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, supra; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). The purpose of sub-dis-tricting is to assure an equal, distribution of at-large legislators that are resident over the entire district.
While the Supreme Court would make this one of several factors in evaluating a plan, I view it as a primary requirement imposed by Article I, § 2, Florida Constitution. Multi-member districts present a substantial potential for discrimination against minority groupings of all kinds sufficient to warrant a requirement that multi-member district candidates run from geographical subdivisions, albeit as at-large candidates. In the alternative, multi-mem-ber districts should be sustained only if the State is divided into entirely uniform mul-ti-member districts with an equal number of representatives in all districts. I do not share the view of Chief Judge Spector that our Constitution’s equal protection language requires single-member districts; Article III, § 16(a), Florida Constitution, controls this issue by providing that districts may be composed of identical territory.
The last issue involves the nature of this proceeding. Article III, § 16(c), Florida Constitution, provides that we are to review the joint resolution of apportionment on a petition for declaratory judgment. Fla.Stat. § 86.101, F.S.A. states that such judgments are instituted to, “[Ajfford relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations . . . . ” The action of the majority today does not “afford relief from insecurity and uncertainty”; instead it appears to intensify these factors by holding that the apportionment plans are valid only per se. In view of the infirmities treated above, and in view of the fact that even the majority would have considered appointment of a Commissioner for the taking of evidence had time not been short, the proper course would be to rule negatively on the joint resolution so that proper reconsideration could be given to the issues by all concerned. This is not a matter which should be left circumstanced with doubt until the next decennial census is given effect.
However, since this situation cannot be avoided due to the majority’s holding today, aggrieved citizens would do well to remember that this is essentially a declaratory judgment proceeding; therefore, the provisions of Fla.Stat. § 86.061, relating to supplemental relief, should apply. Article III, § 16(c)’s pronouncement that our judgment in this proceeding “shall be binding upon all citizens of the State” is merely a nullification of Fla.Stat. § 86.091, relating to parties, which holds that no declaration shall prejudice the rights of persons not parties to the proceedings.
For the reasons discussed, I would find the joint resolution unacceptable as an apportionment plan under the Florida Constitution.
SPECTOR, District Court Judge, concurs in part.
McCAIN, Justice
(dissenting) :
I must respectfully dissent from the majority.
While highest commendation is to be afforded our State Legislature for the tremendous task of arriving at an almost perfect numerical formula for apportioning our State House and Senate, nevertheless, computer results should not be substituted for the rights of the individual citizen to have fair and equal representation.
Even though our present review is a vel non consideration of the apportionment plan, ample evidence shows that degree of prejudice in and within certain districts to justify this Court in finding the plan unacceptable.
In my considered conclusion Senate Joint Resolution 1305 should be held invalid.
SPECTOR, District Court Judge
(dissenting) .
For the reasons hereafter discussed, I must respectfully dissent from the majority decision.
By his petition in support of the resolution, the Attorney General suggests that the only justiciable issues which are cognizable in this proceeding are:
1. Does the resolution apportion the legislature of the State of Florida on the basis of one man, one vote and in accordance with the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution ?
2. Are the representative and senatorial districts provided for in said resolution contiguous, overlapping or identical as required by the Constitution of the State of Florida, Article III, Section 16?
Those interested persons who have appeared in opposition to the apportionment scheme adopted by the legislature seem to be in general agreement with the issues to be considered as delineated by the Attorney General. However, the adversary petitioners consisting of a group of thirty members of the legislature submit a third issue as being justiciable in this proceeding, which issue is framed as follows :
“The apportionment set forth in Senate Joint Resolution 1305, 1972 Regular Session, denies to the citizens of the State of Florida the constitutional guarantees set forth in Article I, Sections 2 and 5, and Article III, Section 16, of the Constitution of the State of Florida.”
In essence, the legislative group’s petition rejects the Attorney General’s hypothesis that the validity of the apportionment resolution is to be measured solely against federal constitutional standards. Their contention in this regard is well taken for the provisions of the state constitution relating to legislative apportionment, Article III, Section 16(a) itself states that the legislature “ . . . shall apportion the state in accordance with the constitution of the state and of the United States. . . . ”
I would hold therefore that state constitutional standards are equally compelling in determining the validity of a state legislative apportionment plan so long as adherence to such state standards does not collide with provisions of the federal constitution.
The legislative group’s petition states that in determining whether state constitutional standards are met by the apportionment resolution, the court must take cognizance of the following provisions of the 1968 State Constitution, beginning with the preamble:
“We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all, do ordain and establish this constitution." (Emphasis supplied.)
* * * * * *
“Article I, Declaration of Rights.— Section 1. Political Power. — All political power is inherent in the people. .
Section 2. Basic rights. — All natural persons are equal before the law.
* * * * * *
“Section 5. Right to assemble. — The people shall have the right ... to instruct their representatives, and to petition for redress of grievances.” (Emphasis supplied.)
In pointing to the interests explicitly intended to be protected by the Florida Constitution which are not found in the federal constitution, it is contended that the validity of the Florida legislative apportionment plan is not to be determined solely by the principles established by the United States Supreme Court’s decisions in the modern reapportionment cases starting with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and continuing through the past decade to Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363. Those federal decisions turn on that court’s interpretation of the equal protection provision of the Fourteenth Amendment of the United States Constitution and do not necessarily address themselves to state constitutional standards which may be even broader than the federal equal protection clause. It seems to me that this contention is not without merit. That the framers of our state constitution intended the legislature to take cognizance of state constitutional provisions is manifested by the explicit mention of both state and federal constitutions in Article III, Section 16(a), which mandates adherence to the organic law of both sovereigns.
It is apodictic that the federal supremacy clause requires state constitutional provisions to give way to those of the federal constitution with which they collide. But if a state provision can be adhered to in formulating a state legislative apportionment plan without contravening a federal provision, then the state constitution compels such adherence.
The organic rights pertinent here which are expressly protected by the state constitution which have no counterparts in the federal compact find their genesis in that portion of the preamble which states the purpose of guaranteeing not only equal civil rights but also equal political rights. That a preamble may be resorted to in aid of statutory construction to ascertain intent see 82 C.J.S. Statutes § 349, and this court’s decision in State ex rel. Ervin v. Cotney, 104 So.2d 346. No mention of political rights is made in the preamble to the federal constitution. Political rights consist in the power to participate, directly or indirectly, in the establishment or management of the government. Every citizen has the right of voting for public officers and of being elected. These are the political rights which the humblest citizen possesses. 2 Bouv.Law Diet.
Article I, Section 1, Florida Constitution, declares all political power is inherent in the people. “Political power” as used in a state constitution declaring it to be inherent in the people has been held to consist of the three great attributes of sovereignty, namely, legislative, executive and judicial authority. Stewart v. Polk County Sup’rs, 30 Iowa, 9, 18, 1 Am.Rep. 328.
Article I, Section 5, Florida Constitution, declares that the people shall have the right to instruct their representatives and petition for redress of grievances. The corresponding provision of the federal constitution, Amendment I, is confined to the right to petition the government for redress of grievances and does not extend to the guarantee of the right of the people to instruct their representatives as does our state constitution.
I advert to the above distinctions between the state and federal constitutions to demonstrate the correctness of the legislative group’s contention that the validity of the apportionment plan before us is not necessarily controlled by the federal decisions which are based on the equal protection clause of the Fourteenth Amendment. To be sure, we must accord primacy to those decisions, but not ultimacy.
The complaint of the legislative group, as well as other opponents of the plan, as they relate to the state-federal constitutional distinctions discussed above is twofold. First, it is contended that the political power and rights of residents of single-member legislative districts is diluted as compared to the political power and rights of the residents of multi-member legislative districts. Second, as an alternative thrust in event the first contention is rejected, it is submitted that if the multi-member legislative district is permissible under the state constitution, then the absence of uniform mul-ti-member districts serves to clothe the residents of legislative districts with varying numbers of senators or representatives with varying and thus unequal degrees of political power and political rights.
Senate Joint Resolution 1305 provides for the establishment of a Senate to consist of forty members. Five are elected from single-member districts, fourteen from two-member districts, and twenty-one from three-member districts. The resolution further provides for a House of Representatives consisting of one hundred twenty members. Twenty-one are elected from single-member districts, ten from two-member districts, nine from three-member districts, twenty from four-member districts, thirty from five-member districts and thirty from six-member districts. In all, the Senate has five single-member districts, seven two-member districts, and seven three-member districts. The House has twenty-one single-member districts, five two-member districts, three districts with three members each, five four-member districts, six five-member districts and five six-member districts.
It is to be observed that each of the Senate and House districts are populated by an equal number of residents except in the many multi-member districts in which cases the population is equal to the number of legislators elected from that district times the mathematically “ideal” population figure supportive of each legislator. In this respect, the Florida Legislature has followed the dictates of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, which requires both houses of a state legislature to be apportioned in accordance with the equal population principle earlier established by thát court in Baker v. Carr, supra. My examination of the population figures submitted to us reflects only fractional percentage variations, in many cases being no greater in actual number of residents than the numbers of births and deaths occurring within the several districts since the last decennial census was taken.
Indeed, if I were to find fault on this score, it would be that the legislature may well have unnecessarily sacrificed other legitimate state interests in its slavish attachment to the equal population principle. As one reviews the de minimis population variances of .01 percent or less among the several districts, one is compelled to wonder whether the confusion arising from separation of small groups of voters from their accustomed political surroundings by “slivering off” county areas to attain a mathematically precise population profile amounts to more of an invidious discrimination than would result if county boundaries were not so cavalierly ignored.
Whether the computer-provided “cure” is better for the body politic than the discrimination inherent in a population variance of one or two or even three percent among some of the districts remains yet to be determined. It is to be realized that some county boundaries must of necessity be ignored in fashioning a proper apportionment. But total disregard of county lines seems to be the rule rather than the exception in Senate Joint Resolution 1305.
Reverting now to the question of the validity of multi-member districts. We are not unmindful that the United States Supreme Court considered this question in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (June 7, 1971). The Attorney General argues that the Whit-comb case is dispositive of the claim that multi-member districts in a state apportionment scheme are invidiously discriminatory irrespective of the equal population per legislator as among the several districts.
In rejecting the claim of invalidity, the Whitcomb court ruled that multi-member districts were not per se unconstitutional and said at 403 U.S. 142, 91 S.Ct. 1868, 29 L.Ed.2d 375:
“The question of the constitutional validity of multi-member districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts. In Lucas v. Forty-Fourth General Assembly, of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation ‘that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.’ 377 U.S., at 731 n. 21, 84 S.Ct., at 1471 [12 L.Ed.2d at 644], Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Kilgarlin v. Hill, 386 U. S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). See also Burnette v. Davis, 382 U.S. 42, 86 S.Ct. 181, 15 L.Ed.2d 35 (1965); Harrison v. Schaefer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). That voters in multi-member districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter. But we have deemed the validity of multi-member district systems justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may ‘operate to minimize or cancel out the voting-strength of racial or political elements of the voting population.’ ”
Speaking of circumstances which imper-missibly effect the voting strength of protected elements of the voting population, the court continued to hold that:
“Such a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature, if it is multi-membered for both houses of the legislature or if it lacks provision for at-large candidates running from particular geographical subdistricts, as in Fortson [v. Dorsey].” 403 U.S. 143, 91 S.Ct. 1869, 29 L.Ed.2d 376.
Senate Joint Resolution 1305 is afflicted with at least two of the three impermissible failings of a multi-membered plan as condemned by the Whitcomb court itself— and this in the very case upon which the proponents of this plan rest so heavily. It can hardly be gainsaid that the instant plan fails to provide single-member districts for at least one house of the state legislature. Nor can it be denied that the plan presented to us lacks provision for at-large candidates running from particular geographical subdistricts. We cannot ignore the Supreme Court’s recognition of the tendency to discriminate which is inherent in a mul-ti-member plan such as we now have before us anymore than we can ignore its teachings in Baker v. Carr or Reynolds v. Sims and their progeny.
The Supreme Court’s recognition of the multi-member district evil in Whitcomb is not minimized by its reversal of the trial court’s ruling that single-member districts were required for Marion County, Indiana. In Whitcomb, the court was confronted with the claim that residents of Marion County were discriminated against by a multi-member legislative district provided for them. Additionally, it considered the claim that the residents of Lake County, which adjoined Marion County were discriminated against as opposed to the residents of Marion County whose multi-mem-ber district had been assigned a greater number of legislators than had been assigned to Lake County which itself was a multi-member district. There, the court was confronted with the claim of local discrimination as it was alleged to exist in two counties. Here, we are concerned with an apportionment plan for the entire state.
In Whitcomb, the court’s ruling was based in part on evidence tending to prove that racial representation in the Indiana legislature from Marion County was disproportionate to their numbers because they, in addition to being members of a racial minority, were also members of a partisan minority in the multi-member district. Thus, the c