# Kruidenier v. McCulloch

> Supreme Court of Iowa · April 15, 1966 · 258 Iowa 1121

URL: https://www.frixlaw.com/law-library/cases/9571460

## Case

- **Full name:** Elizabeth Kruidenier Et Al., Appellants, v. W. E. McCulloch, Auditor of Polk County, Harold Hughes, Governor, and Members of Executive Council, Lawrence F. Scalise, Attorney General, and Robert D. Fulton, Lieutenant Governor, Appellees
- **Court:** Supreme Court of Iowa
- **Decided:** April 15, 1966
- **Citations:** 258 Iowa 1121; 142 N.W.2d 355; 1966 Iowa Sup. LEXIS 932
- **Precedential status:** Published
- **Opinion:** Concurrence by Larson
- **Judges:** Mason, Stuart, Larson
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9571460

## How later opinions describe it (automated extraction)

- holding that there is no "division" of a county as long as a district is entirely within a specific county

## Opinion text

Larson, J.
(concurring specially) — I am unable to agree with the majority conclusion in Division X that sections 34, 35 and 36, of Article III, of the state constitution are inseparable, and that there is no valid constitutional requirement today that the Iowa Senate be composed of 50 members.
I agree that the rules of construction and interpretation applicable to statutes on separability also apply to constitutional questions. State ex rel. Johnson v. Chicago, B. & Q. R. Co., 195 Mo. 228 , 93 S.W. 784 . But I do not agree that the federal court *1158 holding in Davis v. Synhorst, 217 F. Supp. 492 , that these sections were inseparable was necessary or correct.
As I understand the generally-acknowledged rules, applicable to separability, the courts are reluctant and slow to declare an entire Act of the legislature unconstitutional if for some reason a part thereof is invalid and violence to the general intent will not be done by such a severance. In other words, the court must, if possible, save the good and only eliminate the bad, if the good can stand by itself. This rule the majority seems to recognize by the reference to 16 Am. Jur.2d, Constitutional Law, section 42, but there again this authority clearly states, “unless it is obvious that the intent of the adopters of the amendment was to accept one general scheme in an entirety”, the valid portions may be saved. I would hold sections 34 and 35 of the 1904 amendment are separable, that on its face it is not obvious the adopters thereof intended all or none of the amendment be accepted, and that section 34 complied perfectly with the requirements of the Equal Protection Clause of the federal constitution, as well as Article I, section 6, of the state constitution, for the upper house of a bicameral state legislature. It is obvious the adopters desired that each house thereafter be considered separately, not as it had been under the 1846 Constitution where a single section, 31, set out both the number of senators and representatives to be chosen and provided how they were to be apportioned in both houses.
I think it is significant here that the apportionment and number in each house were dealt with separately. There is not the slightest hint that the apportionment in one house is dependent upon or reflected in the other. Section 34 of the 1904 amendment provided: “The senate shall be composed of fifty members to be elected from the several senatorial districts, established by law and at the next session of the general assembly held following the taking of the state and national census, they shall be apportioned among the several counties or districts of the state, according to population as shown by the last preceding-census.” Proponents of change would be hard pressed to draw, even today, a provision for the senate that would better conform to the requirements of the federal constitution as construed by the federal courts.
*1159 Admittedly, section 35 of the 1904 amendment was bad and, as section 36 is inseparable with it, both must fall. Section 35 dealt with the apportionment of the house alone and thus can be stricken without doing violence to the adopters’ intent as to the senate. As bearing on this question, see comments in Lucas v. Forty-fourth Colorado General Assembly, 377 U. S. 713, 734 , 84 S. Ct. 1459, 1472 , 12 L. Ed.2d 632, 646 , Avhere the question of severability was considered and the court’s position was announced in Maryland Committee v. Tawes, 377 U. S. 673 , 12 L. Ed.2d 606 . The court said it Avould haA^e to consider the constitutionality of the apportionment plan as a Avhole where deviations from a strict population basis existed. If the scheme alloAved a slight deviation in both houses so that they might be accumulative to the disadvantage of certain areas, then the whole plan might fail. Obviously such a situation would not result from the 1904 amendment adopted in Iowa, since section 34 is based solely on population. I, therefore, would hold the proAdsions of section 34 must be allowed to stand.
Such a decision would, of course, produce a conflict with the temporary plan used in the previous election and contemplated for 1966, Avhere 57 senate seats are involved. This might be a logical basis to require a special session of the legislature before the 1966 election. However, due to the shortness of time and the history of this litigation, I am satisfied the temporary plan should be followed for the 1966 election but no further, and that the provision of section 34 fixing the number of senators at 50, and providing for their method of election, should be folloAved thereafter until altered by a proper constitutional amendment.
I have said nothing about the 1928 amendment which obviously made section 34 bad. As the three sections then stood, they were all invidiously discriminatory and the federal court should have so determined the issue on that basis. However, we can and should strike the 1928 amendment to section 34 Avhieh provided, “but no county shall be entitled to more than one (1) senator”, as in conflict with Article I, section 6, and with the Federal Equal Protection Clause. This would permit section 34, Article III, of the state constitution, as adopted in 1904, to *1160 stand, and require only a new plan of apportionment for the house in this state. I would so hold.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9571460. Public record. Not legal advice.