# Davis v. McCarty

> Supreme Court of Oklahoma · January 10, 1964 · 388 P.2d 480

URL: https://www.frixlaw.com/law-library/cases/5147102

## Case

- **Full name:** In the Matter of the Review of Enrolled House Bill No. 586 and Enrolled Senate Joint Resolution No. 8 of the Twenty-ninth Legislature of Oklahoma. William R. DAVIS v. J. D. McCARTY, Speaker of the House of Representatives of the State of Oklahoma, individually and on behalf of all of the members of the House of Representatives of the State of Oklahoma, Roy C. Boecher, President Pro Tempore of the Senate of the State of Oklahoma, individuaily and on behalf of all of the members of the Senate of the State of Oklahoma and Henry Bellmon, Governor of the State of Oklahoma
- **Court:** Supreme Court of Oklahoma
- **Decided:** January 10, 1964
- **Citations:** 388 P.2d 480; 1964 OK 5; 1964 Okla. LEXIS 244
- **Precedential status:** Published
- **Opinion:** Concurrence by Halley
- **Judges:** Halley, Jackson
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Alexander v. Taylor, 51 P.3d 1204 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5147102

## Opinion text

HALLEY, Vice Chief Justice
(specially-concurring) .
It is my opinion that Art. 5, § 10(d) of the Constitution of the State of Oklahoma, which provides that no county shall ever take part in the election of more than seven representatives is unconstitutional under the provisions of the Constitution of the United States which is the supreme law of the land. Therefore, so far as the apportionment Act retains such limitation in the House of Representatives for Oklahoma and Tulsa Counties it is unconstitutional.
I realize that the declaring of a portion of our State Constitution to be unconstitutional under the Federal Constitution should not be undertaken lightly. The Supreme Court of Washington said it this way in Romine v. State, 7 Wash. 215 , 34 P. 924 :
“But there is also a question of propriety involved. The courts of the states are as much bound to uphold the supremacy of the constitution of the United States as are the federal courts, or as they are to sustain the constitution and laws of their several states. This obligation may perhaps even extend to declaring unconstitutional a provision in the state constitution under which the court exercises jurisdiction. But the conflict between the state and the federal constitution must certainly be a very clear one to call for so solemn a decision; * *
When considering this point the Supreme Court of Colorado in People v. Western Union Telegraph Company, 70 Colo. 90 , 198 P. 146 , 15 A.L.R. 326 , said:
“ * * * The answer is that any section of the state Constitution which is contrary to the federal Constitution is, for that reason and to that extent, null and void. It is no part of the state Constitution, and no legerdemain of logic can cover it with the sanctity of a judge’s oath.”
But this is not the first time this Court has been called upon to make “so solemn a decision” and we have previously found such a “very clear” conflict between the State and Federal Constitutions. In the case of Appeal of National Bank of Tulsa, Okl., 312 P.2d 495 , we held in the first paragraph of the syllabus:
“In assessing property for ad valo-rem tax purposes, uniformity and equality required by the 14th Amendment to the Federal Constitution takes-precedence over the requirement of Art. X, sec. 8 of the Oklahoma Constitution that property be assessed ‘at its fair cash value’ where compliance with both provisions is impossible.” (emphasis added)
We have used this identical language in other cases involving this subject matter. See fourth paragraph of syllabus in Appeal of National Bank of Commerce of Tulsa, Okl., 316 P.2d 175 ; third paragraph of syllabus in Appeal of Thompson Building Company, Okl., 316 P.2d 179 ; fourth paragraph of syllabus in Appeal of Southwestern Art Ass’n, Okl., 316 P.2d 609 ; third paragraph of syllabus in In Re Assessment for the Year 1953, etc., Okl., 317 P.2d 242 ; third paragraph of syllabus in Appeal of Boy Scouts of America, Okl., 317 P.2d 262 ; first paragraph of syllabus in Appeal of Stanolind Building Corporation, Okl., 317 P.2d 735 .
Thus it is seen that this Court is no stranger to the proposition that the Federal Constitution takes precedence over the State Constitution where compliance with the provisions of both is impossible.
It is impossible in the instant case to comply with the provisions of our State Constitution which limits Oklahoma County and Tulsa County to no more than seven representatives in the House of Representatives, and at the same time follow the provisions of the Federal Constitution which have been construed to prohibit invidious discrimination. Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 .
Since we have given Oklahoma, Tulsa and Comanche Counties additional Senators because of invidious discrimination, I think we should give Oklahoma and Tulsa Coun *490 ties that representation in the House of Representatives to which their population entitles them under the basis fixed for all other counties and the limit of seven should be disregarded.
In my opinion the reapportionment for the House of Representatives should provide for 19 representatives from Oklahoma County and 15 from Tulsa County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5147102. Public record. Not legal advice.