93 Mich. 1 | Mich. | 1892
Lead Opinion
The Constitution of Michigan contains the following provisions, found in article 4:
“ Section 1. The legislative power is vested in a Senate and House of Representatives.
“ Sec. 2. The Senate shall consist of thirty-two members. Senators shall be elected for two years, and by single districts. Such districts shall be numbered from one to thirty-two, inclusive, each of which shall choose one Senator. No county shall be divided in the formation of "'Senate districts, except such county shall be equitably entitled to two or more Senators.
“ Sec. 4. The Legislature shall provide by law for an enumeration of the inhabitants in the year 1854, and every ten years thereafter, and, at the first session after each enumeration so made, and also at the first session after each A enumeration by the authority of the United States, the ij/Legislature shall rearrange the Senate districts * * * .¡¡according to the number of white inhabitants, and civilized ¡Ipersons of Indian descent not members of any tribe.”
Acting under these constitutional provisions, the Legislature passed the senatorial apportionment act, No. 175, Laws of 1891. By the census of 1890 the population was 2,093,889. The ratio of each district would therefore be 65,434. Eight of the districts under this act contain populations as follows: Seventh, 91,420; tenth, 82,697; fourteenth, 88,678; eighteenth, 86,129; twentieth, 84,694; twenty-fifth, 82,556; twenty-seventh, 97,330; thirty-first, 82,213. These are the eight largest districts. Eight other districts contain populations as follows: Twelfth, 41,245;
The relator is a citizen and an elector in the seventh district, composed of the counties of Kalamazoo, St. Joseph, and Branch, with a population of 91,420, and prays for the writ of mandamus to restrain the respondent, the Secretary of State, from giving notice of the election of Senators under the act of 1891, and to compel him to give notice under the apportionment act of 1885. The petition also contains a prayer for general relief. The basis upon which relief is sought is that the power delegated by the above provisions of the Constitution to rearrange the senatorial districts is limited; that this limitation was wholly disregarded by the act in question, and the act is therefore unconstitutional and void.
It appears conceded by the learned Attorney General that the Legislature is not in the exercise of a political and discretionary power when acting under these constitutional provisions, for which it is only amenable to the people, and that this Court has jurisdiction, in a case properly before it, to determine the constitutionality of the act in question. The Constitution of this State provides:
“The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo war*4 ranto, procedendo, and other original and remedial writs* and to hear and determine the same. In all other cases-it shall hare appellate jurisdiction only.”
The general jurisdiction of this Court to determine the constitutionality of legislative enactments is not limited so as to exclude laws involving political rights. The constitution of Wisconsin, in conferring jurisdiction upon its supreme court, is nearly identical in language with the Constitution of this State. The supreme court of Wisconsin has recently most ably and thoroughly discussed and determined the jurisdiction of the court in a case similar in principle and its facts to the present one. State v. Cunningham, 81 Wis. 440 (51 N. W. Rep. 734). The authorities in support of the jurisdiction are there collated, and citations made from them. Were the power conferred^ upon the Legislature one of absolute discretion, then the'] express mandate, “ shall rearrange according to the number j of inhabitants,” would be void of any' force or meaning* ( except that it might be regarded as expressive of the opinion of the framers of the Constitution that such method would be equitable and fair. We have no doubt| of the jurisdiction of the Court.
But it is insisted by the Attorney General that, inasmuch as the relator is a private citizen, having no interest in the matter above every other citizen, he has no standing in court, because, prior to filing his petition, he made no application to the prosecuting attorney of his county, the Attorney-General, or other public officer, to apply to this Court for a mandamus touching the matter here at issue. In support of this claim he cites People v. Regents, 4 Mich. 98 ; People v. Inspectors of State Prison, Id. 187; People v. Green, 39 Id. 121; People v. Supervisors, 38 Id. 423.
In People v. Regents the application was to compel the regents to appoint a professor of homoepathy in the medical department of the University. The Court expressed its
“We do not intend to say that a case may not arise in which this Court would allow an individual to file such a •complaint, particularly if the Attorney General were absent, ’•or refused to act without good cause.”
In People v. Inspectors of State Prison a private citizen applied for the writ of mandamus to restrain the respondents from teaching to convicts in the State prison the mechanical trade of wagon-making. The main question was disposed of upon its merits, the Court expressing some doubt whether the relator had such clear legal right and special interest as to entitle him to make the application.
In People v. Green the application was to compel the county clerk and register of deeds to keep his offices at a •certain place, he claiming that the county-seat had been lawfully removed. Relator’s convenience in having access to the offices was the ground of his petition. It was held that he had shown no such special interest as to authorize him to proceed without application to the proper public officer.
In People v. Supervisors the application was to compel the allowance of claims alleged to be owing from the county to the city. The city authorities were, of course, the proper parties to institute the proceedings.
In People v. State Auditors, 42 Mich. 422, this precise ■objection was made, and the Court said:
“In the present case the officer whose duty it usually is to enforce the rights of the State in this Court has, in the performance of his official functions as adviser of the State •officers, placed himself in an adverse position, and appears for the respondents on this application.”
The present case comes directly within that decision. The law does not require unnecessary things to be done.
The unconstitutionality of the act is clear. The county; of Saginaw, with only 16,839 inhabitants in excess of the ratio, is divided into two senatorial districts, one having 25,707 less than the ratio, and the other having 22,888 less than the ratio. There is no basis, constitutional or otherwise, for such an apportionment. It is contemplated by the Constitution that the ratio shall govern so far as is practical. This is apparent from the provision that—
“ Each county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate Bepresentative when it has attained a population equal to a moiety of the ratio of representation.”
The Constitution of the United States provides that—
“The number of Bepresentatives shall not exceed one for every 30,000, but each state shall have at least one Bepresentative.”
Under the first census, which showed the total number of free persons, with three-fifths of the slaves, to be 3,606,-397, Congress fixed the number of Bepresentatives at 120, being one for every 30,000. In the apportionment, Massachusetts was entitled to 15 Bepresentatives, with an excess of 25,327, for which she was given an additional Bepresentative. Other states with a similar large excess were treated likewise, .while those states which had a small excess
“First. The Constitution has prescribed that Representatives shall be apportioned among the several states according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the states, will yield the number and allotment of Representatives proposed by the hill.
“Second. The Constitution has also provided that the number of Representatives shall not exceed one for every 30.000, which restriction is by the context and by fair and obvious construction to be applied to the separate and respective numbers of the states, and the bill has allotted to eight of the states more than one for every 30.000. ”
A county having an excess of only about one-fourth of the ratio is not, in the language of the Constitution, " equitably entitled to two or more Senators,” while one district composed of nine counties, and containing nearly two and a half times the population of each district into which the former county is divided, receives but one Senator. Equity has no definition applicable to such a case. It was' never contemplated that one elector should possess two or three times more influence, in the person of a Representative or Senator, than another elector in another district.. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in. such matters lies at the basis of our free government. It is guaranteed, not only by the Coiistitution, but by the. ordinance of 1787, organizing the territory out of which, the State of Michigan was carved. State v. Cunningham, supra.
Aside from considerations of equity and justice, it is apparent that the framers of the Constitution understood that a county, to be entitled to two Senators, must have a
The State cannot be divided into senatorial districts with mathematical exactness, nor does the Constitution require it. It requires the exercise on the part of the Legislature of an honest and fair discretion' in apportioning the districts so as to preserve, as nearly as may be, the equality of representation. This constitutional discretion was not exercised in the apportionment act of 1891. The facts themselves demonstrate this beyond any controversy, and no language can make the demonstration plainer. There is no difficulty in making an apportionment which shall satisfy the demand of the Constitution.
It is not the purpose or province of this Court to inquire into the motives of the Legislature. Courts will not discuss the motives of legislative bodies except as they appear in the public acts or journals of such bodies. The validity <of an 'act does not depend upon the motive for its passage. The duty of a court begins with the inquiry into the constitutionality of the law, and ends with the determination of that question.
The petition prays that the respondent be directed to give notice of the election under the apportionment act of 1885. The constitutionality of this act is therefore directly involved in the controversy, unless it be held to be removed from question by the fact that the people have acquiesced in its validity by acting under it for three elections. It must be conceded that this act is affected with .the same constitutional infirmity as the act of 1891. It is unnecessary to determine whether such infirmity exists to an equal or a greater or less degree. It is sufficient to say that it is not in accord with the Constitution, and for the same reasons which apply to the act of 1891. It is therefore insisted with great force by the Attorney General that no election should be ordered under the former act, and he
Our conclusions therefore are:
1. The petition is properly brought into this Court by the relator.
%. The Court has jurisdiction in the matter.
3. The apportionment acts of 1891 and 1885 are unconstitutional and void.
4. The writ of mandamus must issue, restraining the respondent from issuing the notice of election under the act of 1891, and directing him to issue the notice under the apportionment act of 1881, unless the Executive of the State shall call a special session of the Legislature to make a new apportionment before the time expires for giving such notice. No costs will be allowed.
Concurrence Opinion
(concurring). It is evidently contemplated by the Constitution that the county shall be the essential factor in the formation of senatorial districts. “ No county shall be divided in the formation of Senate districts, except such county shall be equitably entitled to two or more Senators,” is the prevailing idea of the organic provision. It is further contemplated that such districts shall be arranged according to the “number of white inhabitants, and civilized persons of Indian descent not members of' any tribe.” This equality of representation, however, is secondary to and hampered by the fact that no county can be divided, and a part of it attached to another county, or the part of another county, in order to make the districts equal, or nearly so, in population. This express inhibition against the division of a county gives, necessarily, great latitude to the legislative discretion, and the senatorial districts must of necessity not be as equally divided as to population as might be done if county lines could be-disregarded. The Legislature undoubtedly could take a partisan advantage by making choice of different counties, and joining them together in one senatorial district, when such counties are contiguous; so that one Legislature of one-political complexion might put, for instance, Macomb and St. Clair in one district, while another of a different-political complexion might join Macomb with Lapeer, and St. Clair with some other adjoining county, and not-violate any constitutional rights of the electors of such districts. But, as shown by Mr. Justice Grant, the-Legislature in the senatorial apportionment of 1891 went far beyond any legitimate discretion, and violated the rules-of equity, when it was not necessary, or even proper, to do-so, because of the fact that a county could not be divided. The twenty-seventh and twenty-ninth districts lie contiguous to each other, so that there was no excuse for
The senatorial apportionments of 1891 and 1885, which are before us, so that we are compelled to examine them, were neither of them arranged in view of the Constitution or the rights of the electors of this State. "While it is true that the motive of an act need not be inquired into to test its constitutionality, I believe that the time for plain speak-f ing has arrived in relation to the outrageous practice of > gerrymandering, which has become so common, and has so ¡ long been indulged in, without rebuke, that it threatens' not only the peace of the people, but the permanency of j our free institutions. The courts alone, in this respect, can save the rights of the people, and give to them a fair count and equality in representation. It has been demonstrated that the people themselves cannot right this wrong. They may change the political majority in the Legislature, as they have often done, but the new majority proceeds at once to make an apportionment in the interest of its party, as unequal and politically vicious as the one that it repeals. There is not an intelligent school boy but knows what is [ the motive of these legislative apportionments, and it is idle for the courts to excuse the action upon other grounds, or to keep silent as to the real reason, which is nothing more nor less than partisan advantage taken in defiance of the Constitution, and in utter disregard of the rights of the citizen.
Take our own State for example. In the election of 1884, the Republican candidate for Secretary of State had a plurality of 4,383 out of a total vote of 401,003. The Republican majority in the Legislature of 1885 arranged the senatorial districts so that, upon the vote of 1884, 21 were Republican and 11 were Democratic. In eight districts a population of 316,578 are given the same representation in the Senate as are 532,222 people in eight other districts.
There is no higher privilege granted to the citizen of a free country than the right of equal suffrage, and thereby to an equal representation in the making and administration of the
We have been obliged, under the issue here made, to investigate but two apportionments, — those of 1891 and 1885. Both are tarred with the same stick. We do not care to go further, since there is a remedy in the hands of the Executive and Legislature. The consequences of this decision are not for us. It is our duty to declare the law, to point out the invasion of the Constitution, and to forbid it.
I agree with the result as announced in the opinion of Mr. Justice Grant.
Concurrence Opinion
(concurring). I desire to express my hearty concurrence in the views expressed by my brethren. The purpose of the constitutional enactment is to secure as nearly as possible equality of representation. Any apportionment which defeats that purpose is vicious, contrary not only to the letter uf the Constitution, but to the spirit of our institutions, and subversive of popular government. Power secured or perpetuated by unconstitutional methods is power usurped, and usurpation of power is a menace to free institutions. The greatest danger to the
The population of the State, according to the last enumeration made by the authority of the United States, is 2,093,889. The ratio for each Senator is 65,434.
On page 15 will be found a sketch of the division of the Lower Peninsula into senatorial districts by the act of 1891. The' population of each county is given, with the total population of each district. -The county of Wayne has a population of 257,114, and is divided into four districts. Emmet county is attached in the apportionment to the Upper Peninsula. It will be seen that eight of the districts so formed are populated as follows: 97,330, 91,-420, 88,678, 86,129, 84,694, 82,697, 82,556, 82,213; making a total population of 695,717. Thus but 2,246 less than one-third of the population of the State have but one-fourth of the total number of Senators. Eight other districts have a population of 349,156, and with but a little over 16£ per cent, of the population they have 25 per cent, of the representation in the Senate. Four of the first named have a total population of 363,557, while four of the last named have but 163,215. Any one of the first five named has more than double the population of any one of four of the last named. The first four have a population of 363,557, or 14,401 more than the last named eight, yet the 349,156 persons have eight representatives in the Senate while 363,557 have but four. Why should the twenty-two contiguous counties forming the twenty-seventh, twenty-eighth, and twenty-ninth districts be so divided that five, having a population of but 43,701, are given one Senator, and eight, having a population of but 40,033, are given another, while nine, having a population of 97,330, or 13,596 more than both of the other districts, are given but one? Why should the twenty-eighth or twenty-ninth districts, having, respectively, a population of
But the law of 1885 is equally vicious, a similar sketch of the apportionment of which year will be found on page 17. The population of the State was 1,853,658, and the ratio 57,926. Under that apportionment 41 per cent, of the population elected 16 Senators, or half the whole number. Eight districts had a population of 601,468, distributed as follows: 84,600, 78,076, 76,918, 75,047, 74,795, 73,779, 69,246, 69,007. Eight others had 315,925, as follows:
Such laws breed disrespect for all law, for law-makers become law-breakers.
