*1 406 of the presumption validity petition,
facie a sheet thereof, fail, affidavit, by verified must ostensibly along thereon, all and the burden is cast signatures upon of the referendum re proponents show affirmatively petition on such thereof are maining or sheet signatures genuine re fide and that voters as signers registered bona Moore, 445; 211, v. by law. Ariz. P. quired Whitman 2d 223; Hall 2d In re Initiative v. Petition (Ark.), Ellis S. W. 455; No. ex rel. v. 176 Okla. Carson P. 2d Kozer, supra.
To a more lenient rule who adopt urged appellees would, below, were in our frustrate opinion, intervenors v. intent Newman language behind the the section discussed. E. 162 N. 2d Secretary (Mass.), Commonwealth no more It circulator of to do permit petition 293. would regis- to be signatures than to collect the of those purporting State, voters, act- impose upon Secretary tered office, or the proponents the Attorney General’s ing through ineligible. out the law, weeding referred burden re- such a contemplate not provision The constitutional does sult. remanded and case
Order reversed incon- proceedings further costs opinion; this sistent with appel- intervening paid lees. FAIR FOR REPRESENTATION COMMITTEE
MARYLAND TAWES, GOVERNOR et al. et l. a Term, 140, Adv., September 1962.] [No. *2 curiam, 23, 1962. per July
Decided 2, 1962, rehearing, August September denied Motion filed 11, 1962. 25, 1962. September Opinions filed *3 J.,C. before argued Bruñe, cause was Hender- Marbury Horney, Macgiee, son, Hammond, Prescott, Circuit, as- Fifth specially Associate Judge Judicial signed, JJ. Gardner, Scanlon, were & John with whom Shea D. Alfred Bowie, brief, on the Johnson for Wright appellants.
B. Binan, General, Joseph Attorney B. Thomas S. Kauf- Turk, General, man, Morris were Attorney whom Deputy Supervisors Anne Arundel Election Board Attorney for for brief, for County, appellees. County, Maryland. Montgomery Brief Curiae filed by Amicus County, Carter, Attorney Montgomery County H. Alfred Attorney, on the brief. Sincoff, County Assistant Richard J. Henderson, opinion Court. delivered J., 1962, 23, per we filed a curiam order affirming On July for Anne Circuit Court Arundel decree declaratory III, Constitution is Maryland Article sec. 2 County state the reasons for We our now valid and constitutional. order. Court. case has been before this the third time this
This is 24, 1962, ruling Court’s April following On Carr, curiam order per and its Baker v. 369 U. S. Hare, reversed decision we v. U. S. Scholle sustained Anne Arundel which had County Court for Circuit held, bill complaint. to the demurrers appellees’ bill, court, alleging apportionment divided violated the Four- Maryland Constitution prescribed by Constitution, United stated Amendment teenth States courts, and of action cognizable cause justiciable determine might the chancellor the case in order that remanded exist with does not an discrimination “whether or invidious Com- or both houses.” Md. in either respect Tawes, said that “inquiry We also mittee 228 Md. to be seems into the rational basis such for.” called chancellor, with- 28, 1962, but after argument
On May judgment held on motion for summary out hearing testimony, Delegates, prescribed by House of composition that the Constitution, III, violated the Maryland sec. 5 Article Amendment, the distribution numerical Fourteenth in that Dele- for members of the House of strength voting voting and more suburban to voters the four accorded gates, *4 counties, He re- unreasonable. and populous arbitrary the decision as to served Senate. session special
The convened a Governor promptly of time in the history the first Assembly, General Delegates, of nineteen to the House Delegates this added elections, legislation for in by “stop-gap” to be voted the 1962 A pro- amendment. rather than a constitutional by proposing apel- failed passage. amendment of posed constitutional reserving the order from chancellor’s lants entered an appeal di- remanded the case with as to the and we decision Senate rections that the chancellor decide the point. The present ap- peal from that decision. No the question presented as to validity “stop-gap” legislation or the reapportionment of the House of Delegates. III,
Article section 1 of Maryland Constitution provides: “The Legislature branches; shall consist of two distinct a Senate, and House of shall Delegates, styled and Gen- eral of Assembly Maryland.” Ill,
Art. 2 provides: sec. “The of Baltimore shall be City divided into six legislative districts near as as of may equal of contiguous and of territory, legis- and each said lative of districts Baltimore City, as from time they may out, hereof, time be laid accordance with the provisions and State, Senator, county each shall be to one who entitled shall be elected qualified voters of legislative said of State, districts Baltimore counties of the City and and shall of his respectively, serve for four from date years election.” the colonial
Throughout period upper house consisted Council, the Governor and appointed by proprietor, modeled after the House of sat English also They Lords. provincial court court of courts. appeals from county Bond, Court of et Appeals Maryland, See also p. seq. See McMahon, Historical Government Maryland View That distribution (1831), p. 148. had a certain sectional they on was fortuitous. While the House of selected Delegates was county basis from were selected from (four each) councilors holders, the most eminent landowners and serv- among office at the will the Governor.1 In the ing Constitution Art. XV to be vote provided elected by from one each Delegates elected two from each county there At that time City of and Baltimore Town. Annapolis on were ten eight counties on the eastern shore and counties 33, legislature The last colonial convened March Calvert, present Rid- the twelve councilors Benedict were: John out, George Bordley, Stewart, St. Thomas Beale Daniel of John Lee, Benjamin Lee, Jenifer, Ogle, Philip Thomas Richard William Fitzhugh Hayward, Dulany Younger), (the Daniel William George Plater. Md. Archives of LXIV.
411 electors elect shore. These were directed six the western of the shore and nine senators from residents eastern senators shore, wisdom, “men of of western the most from residents virtue, age, of resi- twenty-five years and above experience whole next three years preceding the state above dents of election, therein real and above personal property and having Niles, money.” value of one thousand current pounds See Law, p. pro- Constitutional 5. amendment Maryland By 1837, 197, 1836, in Acts ratified of and posed Chapter by each consist one senator from was reconstituted to of of reason which there were then county (of twenty by and one from of and Carroll Allegany establishment Counties) an electoral of indirect election by Baltimore The method City. distribution was continued was abandoned. This college concerned, 1851, far of and so counties Constitution in of 1864 and continued the Constitutions was formed, Gar- amendments. The last county subsequent Scharf, 3 of rett, Maryland, History 1872. was erected See twenty- that date the counties have numbered 778. From p. three.
However, status of Baltimore which had achieved City, Baltimore County of subdivision political independent senators, district, legislative three one from each was allotted It received continued 1867. provision and this was 1864 senator in and two district legislative an additional annexation portions subsequent more 82 of County Chapter Anne Arundel Baltimore County the Acts integral part been an have always of Maryland counties established in was County government. Mary’s state St. the proprietary the establishment contemporaneous shire, as- English the model of
government, probably Scharf, supra, p. sheriff. office sociated with the important Indeed, Clai- established by et been County Kent had seq. he established borne before landing Marylanders from Mary- he ousted after Virginia Kent County New there noted vi et We have land armis Calverts. Con- adoption at the time counties eighteen were retained always possessed have stitution 1776. They individualities, distinct because of the possibly of ter- diversity *6 rain and Baltimore the most occupation. County, populous in State, towns, still incorporated the no until the has and recent of of a charter form adoption government, governed by- three who elected commissioners exercised the func- executive tions, legislative while most of the functions were exercised by the its General representatives Assembly. Baltimore City,, the status an having acquired unique of independent political subdivision, has its local government, maintained own subject to control the Assembly, General since by 1867. two Only counties, Baltimore have the Montgomery charter adopted form of government of under Art. XI the Constitution. State bodies, it is true that not While the counties are hav- sovereign the municipal corporations, status ing only County of Howard Matthews, Md. have they traditionally exer- cised powers education, wide in the fields governmental of wel- fare, taxation, sanitation, roads, police, health the adminis- of tration with a of the justice, supervision minimum by State. In the of their their diversity interests local autonomy, they states, analogous to relation to the quite United States.
It is an historical fact that the mode of interesting selecting the members of the adopted United States 1789 was Senate modeled, extent, to considerable a of upon Maryland Senate 1776. In the Constitutional on addressing August Convention 14, 1787, Madison that opposed a senators be proposal paid states that it tend by ground would impair Senate, remarked, which, stability independence he “was formed on the model of that Maryland.” 4 The Writ- Madison, Hunt, edited ings G. Gaillard B. Put- by James 202. nam’s in No. of The p. Again, Federalist (1903) Sons Madison in Papers, answering a contention that ap- a Senate pointed immediately and for term by people, a of six years, would in the acquire dangerous a preeminence govern- ment and it into finally transform tyrannical a aristocracy, stated that “the constitution of Maryland furnishes the most ap- posite The example. elected, senate is as the Fed- be, eral will indirectly people; Senate a term by * * therefore, less year one *. by only, If the Federal been pro- contained the which has so really danger loudly claimed, at least of like this symptoms ought some danger by time to been the senate of no betrayed Maryland; have but by * * * appeared. contrary such On the symptoms have constitution daily deriving salutary oper- from Maryland it, ation this reputation which it will part probably not be The mem- rivalled Union”. by any State bers of the Federal continued to be elected the state Amendment legislatures adoption until Seventeenth It Maryland is also note when interesting abandoned selection of state an electoral col- senators lege adopted for one senator from each provision n county City, and from Baltimore federal following pattern n house. geographical upper before us is not such question provision whether *7 whether, bill, wise unwise but mem- simply alleged as bership both a bicameral “be legislature houses of must to, on, or based related reasonably present population” of political various subdivisions of the the pro- State. Since vision of one senator from each been county ap- has repeatedly and proved incorporated Maryland Constitution by people of it Maryland, cannot offend the conceivably Mary- land Constitution. The claim is sole that violates equal protection clause the Fourteenth Amendment. protection been
Equal equated has judicially prohibi- a tion against Op- invidious discrimination. Williamson v. Lee Co., tical 348 U. Not in- 489. discrimination every S. is vidious, nor itwill be set “if aside state facts reason- any be conceived ably may Maryland, it.” justify McGowan v. 366 U. 426 and cases cited. a S. We think complete justi- fication for the election of state senators on is a basis county be found the historical The precedents cited above. idea of a bicameral with the legislature, branch a upper selected territorial basis, rather than popular a was one in a familiar and it familiar purpose The two today. very having other, houses was each would be a check upon and prevent of hasty legislation. A passage ill-conceived different method of essential selection was to the bicameral more natural or plan. logical No basis than suggested could political that the established subdivisions be ac- long viable had in election of electors they been representation, corded Constitution 1776. under not
The one that has become obsolete concept bicameral It been recog- with the has passage years. repeatedly President, the adop- subsequent nized by Congress Amendment, in tion of the Fourteenth the constitu- approving Coyle admission to the seeking tions of states Union. See cases, Smith, 221 In most recent Alaska U. S. Hawaii, each for sena- their contain provisions Constitutions torial inequality popular representation. districts of marked fifteen In one of the senators more than represents Alaska Moreover, as the other. the constitutions times as voters many the Fourteenth Amend- of the states ratified based on geo- ment an house provisions upper contained senators, reference to distribution of graphical popula- without for ratifica- tion. It maintained that hardly voting can were, effect, tion their own state to invalidate they voting constitutions. that the Constitution furnishes appellants argue
neither nor of the Mary- for the precedent composition analogy on the which adopted land states ground sovereign argument Federal Constitution were bodies. The the fact that states were admitted thirty-seven overlooks sovereign Union after had never been which were bodies, It also over- exception with the Texas. possible the fact that it never that senators vote suggested looks congress,, states. members of national They were clearly stability designed greater for the very purpose achieving *8 central than the Articles government and a under stronger event, upon In the and effect Confederation. any consequence same, for the be rights voting are whether the voter voting it is hardly senator or state senator. think United We States in the one conceivable that different would principle apply case than in the other. that the of course aware United government
States, not re- rights within its delegated powers, may possess tained there rights the But where civil are concerned states. still truth in is sauce for the the ancient that what adage for the goose sauce When gander. Supreme the Court held Education, 483, in Brown Board v. 347 U. that the equal S. clause protection prohibited the states from ra- maintaining schools, in Bolling Sharpe, it also held cially segregated v. 497,
U. the same day, S. decided the Government was likewise the Fifth The be- barred Amendment. relation tween the two amendments seems close sufficiently to negative Senate, provision a conclusion that like that for the Federal Const., I, 3, U. Art. sec. would be offensive to either. S. however,
The argue, the federal appellants plan has in been followed since an Maryland, exception has been made in the City, case Baltimore has been into subdivided six election has districts and now six senators. The argument proves too much. The that the original fact has been modi- plan in fied instance does not that it one require totally abandoned. 1864, There are for reasons In when Baltimore distinction. senators, three in City acquired control the Union in Army sympathizers southern many southern eastern Maryland and the shore had been disfran- chised. were for special There reasons the continuance of extra when and again population comprised of Baltimore per cent fifty-one Baltimore, War, population even Civil prior State. was a great seaport, an industrial center the hub of com- merce Despite and communication. city govern- distrust ments, turn “rings” dominated around the of the century by “bossism”, it mustered power enlarge enough political its been representation. Until it has quite underrepre- recently sented the House of well as Delegates as picture with the although changed explosion has counties, out suburban is not far line. instant larger case is a between political contest power counties, and the smaller is not Baltimore concerned. City It also noted that there is no may require- constitutional ment of territorial under the Fourteenth Amend- uniformity 545; ment. Salsburg Maryland, Ocampo v. United U. S. States, 234 U. S. support
We find Court cases nothing appellants’ claim of invalidity *9 416 Carr, that a decided supra, merely v. Baker
Maryland Senate. v. The remand Scholle presented. was justiciable question Hare, allowing for supra, express purpose further question to consideration give Court Michigan into not Baker We do read v. Carr. light in the presented de- be as to case should intimation how that any remand significance any merits. do we attach cided Nor A., Inc. v. M. C. in the York case of W. similar New remand Court, remand,.the Simon, Michigan Upon 370 U. S. three, sem- any that in held absence four vote “[t]he districts,” senatorial plan blance or design present the voters state provision approved by constitutional order stayed the 1952, But Mr. was invalid. Stewart Justice de- “It clear issues is reapportionment, stating: very issues; ones Court are new Michigan Supreme cided sig- it is Carr.” think in Baker that were not decided v. case, Stewart, Baker nificant that Mr. concurring Justice there any- “The not say imply said: Court does State, acting ‘to prevent Constitution thing struc- legislative not from electoral irrationally, choosing any interests, and customs suited to the temper, ture thinks best * * of its people.’ Green, the Court held MacDougall “In v. 335 U. S. not that the Protection Clause Equal ‘deny does be- diffusion of initiative as power proper assure a political having those concen- thinly populated tween its counties and masses, in that the latter have trated view the fact practical their at the polls opportunities exerting political weight * * no intimation available to former.’ We find not still later Court cases this is the law.
We think there little from review of cases gained in other A states and the lower federal courts. state typical is that ment of the Tennessee v. remand of Baker upon Carr. re 31 2003 : (June 1962) protection “[Ejqual L.W. * * * apportionment in at least one house shall quires based, faith, on numbers fully good voters qualified Frink, without regard to other v. any factor.” also See Sims Fortson, 2512 Toombs (Ala.), (Ga.) L.W. L.W. 2605 Williams, and Caesar v. (May 1962) P. 2d (Ida.) *10 In some of the denied 1962. deci- May reading rehearing attention whether constitu- paid particular sions must houses, on in both tion based requires representation courts, taken state lower federal The action or by some do. as conceded, is turn on the may of question justiciability once not present of the state constitution a federal and construction at are distinguishable. all. cases In readily any question Such event, unanimity is no of to be drawn from the opinion there cases, the final determination must further light and await of United from States. J., following opinion,
Brune, C. filed the which dissenting JJ., concurred.1 Marbury, PrEscott question appeal The on is of fundamentally this one law—the meaning constitutional of the application Equal the Fourteenth Protection Clause of to the Amendment Con- stitution of the to the regard United apportionment States representation of in the legislature of That also State. on the first true but the as then appeal, question presented was two-pronged and the apportionment representation related of in the House of (a) Delegates and of the (b) Senate Maryland. General of As of Assembly legislation a result en- acted after the first the present limited appeal, controversy apportionment representation of State Senate. determined, case, trial court remand of the following second if the House were he properly apportioned (as thought been had the Special of the General by Assembly Session the determination following just prior to the Special Session its then existing sustainable would the 1962 there was no need to election), reapportion on of population. basis He any his conclusion an upon based to the Federal analogy system under Representatives House apportioned the basis States, but each of population, regardless population, has two members of the He dis- accordingly Senate. missed bill reapportionment as to of the per aBy Senate. (and fortunately temporary) Judge But for the recent illness of Prescott, opinion appeal who wrote the on the first in this case, opinion this have would been him. written four of seven judges order this Court joined curiam order of dismissal. We dissented. affirmed first Maryland on the Com- appeal, In the majority opinion Tawes, Representation v. 228 Md. Fair A. mittee for some familiar which are propositions 2d stated equally we that the Constitution United here: States apposite thereof law pursuance parts supreme made laws paramount any contrary provisions the land and are State, this that this is so both un- laws of the Constitution Constitution United der the Clause Supremacy Declaration of Maryland Article 2 under States into our writing the latter effect Constitution Rights, expressed; else therein this limitation upon everything *11 of of the the United by Constitution interpretations States us. upon binding the Court United States or between the that there is no difference dispute believe We The last them this on those of propositions. of Court members first appeal the on the majority opinion by was recognized Md., opinion at and also the 418) by dissenting and 428 (228 the is Md., present Our difference with majority at 448). (228 recent of the effect of decisions understanding our upon based in hand. bearing upon subject the Supreme of Court Carr, is, course, v. of Baker U. first of those cases 369 The S. think, clear, that the Protection Clause we Equal It makes does afford protection against Fourteenth Amendment of legis- of rights through or dilution voting the debasement State The exact at which representation. point apportionment lative true, case, it is specific be afforded any will protection such nor, think, Carr; it well could Baker we is not determined of the claim of plaintiffs-appellants have The basis been. dilution of their the debasement or vot- through discrimination through ing rights regard popu- without houses)
Tennessee Legislature (both the Supreme proposition lation. The second determined 197-98, S., Ct., 699): at thus at (369 stated U. S. which ap- cause of action is stated upon justiciable “(b) And near entitled relief.” appropriate would be pellants Brennan further Court, Mr. opinion end of the Justice S., conclude “We at : 720) at Ct. U. (369 said S. denial of equal protection complaint’s allegations that the cause of action upon which constitutional present justiciable as- trial and a decision. The right entitled appellants are under judicial is within reach of protection serted Amendment.” Fourteenth it also from think clear both what have just quoted we Court in from to the Baker opinion footnote 15 pro- for which the were entitled seek right appellants found, merits, trial
tection and which might upon to have been violated Federal constitutional Foot- right. was a S., Ct., note (369 part U. at at reads 698) S. “The complaint, as follows: addition claims under Constitution, alleges also and the rights, General duties, under the Tennessee we Assembly’s Constitution. Since hold that have —if it trial that appellants develops at the facts support allegations cognizable federal constitutional —a in no cause of degree rights action resting guaranteed Constitution, the Tennessee do putatively guaranteed we consider, enforce, let alone rights under a Constitution further than the go the Fourteenth Amend- protections ment.”
The opinion in the instant majority appears case to take a different and to view confuse the with the In right. remedy the last paragraph opinion cases other States and in the lower Federal courts are com- dismissed ment that “there little to be gained from a review [such] cases.” opinion cites several of them decided since Baker *12 and then on to goes say:
“In some of the reading attention decisions must be paid to whether the constitution particular requires representation on population houses, based in both as some do. The action taken by state or lower federal courts, once the of question conceded, justiciability is turn on the construction may of the state constitution not present a question federal at all.” Where compliance with State constitutional requirements will also vindicate the right Federal shown to have been infringed, a decree in accordance with State constitutional provisions is
an form desirable otherwise obviously remedy pos- an rem- sibly very difficult-problem determining appropriate Baker) relatively not solved become edy (a problem may However, it remains clear under that simple. Baker a exists constitutional right quite independent provi- State sions and is no them for enforce- dependent upon its way ment some through appropriate remedy. Court case which to Supreme second recent seems us
The Hare, is highly.-pertinent present controversy Scholle That involves an on the solely ap- U. case attack S. 429. o,f the House is Michigan Michigan Senate. portionment as be on basis of closely about as apportioned may population. to fact well known Court certainly Supreme This when it remanded the case to United States Scholle Court for further consideration Michigan Carr, supra. of Baker v. It is difficult for to imagine us light is of an than express clearer indication (short statement) house of this that the fact one given remand mere in accordance is with legislature apportioned strictly popu- State the other from lation does not apportionment immunize on the the Fourteenth Amendment ground attack under popula- or malapportionment representation regards gross tion invidious discrimination. constitutes on the first of this Court opinion appeal
In Md., at that no the views expressed 433-34) this case we (228 or is representation required inflexible formula for precise and stated, reasonable latitude every that the is allowed can be thereto discrimination which any may regard rea- if of facts exist therein will not be set aside state any it, that “there be conceived sonably may justify that there the Baker decision must implication strong voters, or eligible relationship some reasonable of population, if an representation Assembly, General invidious escape constitutionally-prohibited label of to those we think discrimination.” We adhere views and them. The of that remand case remand supports Scholle case to us to have been for the appears having purpose determine whether not there rational Michigan was a the allocation of ground upon support
421 rather involved marked which clearly the Michigan senatorial dis- between different voting power disparities in Michi- The maximum population. disparity tricts regards as note, to 1 maxi- 15 as against was approximately we gan, to 1. 32 approximately in Maryland disparity mum Simon, C. A. v. the case of M. that the remand of W. think United (the court below Ct. U. S. S. District New York) District Court for Southern States first consider the merits of federal constitu- “the claim, doubts to its free from any justiciability tional geographical as to the merits of and invidious alleged arbitrary discrimination” our supports interpretation purpose the opinions the remand of the As we read case. Scholle remand, filed in Michigan Supreme following Court or was there was the Court divided on whether sharply apportionment not rational for the senatorial Michigan basis fixed adopted a constitutional amendment some significance, In at least one be of respect, 1952. which may in Maryland. case differs from the situation Michigan There, under at the election at which apportionment same of ap- adopted majority attack was aby popular Scholle 300,000 votes, another constitutional proposed proximately on amendment which would have apportioned basis of majority ap- was defeated a popular 500,000 been votes.2 No similar choice has ever proximately popular Despite popular submitted vote this Maryland. vote and the and against arguments historical-geographical out of the to the of four system, analogy majority seven members Court Michigan Supreme participating held on ap- invalid. The case is now apportionment Court peal Supreme the order has been Michigan Mr. stayed by Stewart. Justice to ac- this Court case seems present if house of the cept tacitly, that if one expressly, view Maryland General Assembly apportioned (the Senate) may remand, Cf. W. M. C. A. v. where Simon L.W. upon grounds somewhat similar factor was one of several existing upheld. New York *14 disparities basis which ignores of population, the other
house House of must (the Delegates) be apportioned with due and that population, assumes the House of regard Dele is so It is gates apportioned. now true that the apportionment House of the is not under attack on this and no appeal ques tion with now regard true, before us. It is also how thereto ever, that even as the reapportioned by May Special Ses sion of the General Assembly, considerable still disparities instances, in exist number of though previous disparities have been materially reduced. Reference to A Appendix appended hereto will the past present show and with regard situations the and also House the situation with regard not which has There is no changed. such close be relationship tween population in of representation the case the House, Michigan or registered between voters representa tion as is declared the Federal District Court necessary by after Tennessee remand the Baker case. of (31 2003). L. W. the not Surely, present Maryland apportionment so closely population related to of the Representatives as is that House of the Congress of the In that the United Federal respect States. is far from perfect. analogy it perfect
Nor is respects. other still believe there is some difference between and the relationship States National Government and that of the counties and State Government. We do is not deny sovereignty State what it less once was is far than it significant today true, however, or It is that the Constitution of United States does offer small popula- States matter (no tions when have members of they may become Union) guarantee equal repre- against-being deprived Counties, their sentation without consent. at least in Maryland, remain creatures have they no constitutional guarantee. such
Also, we think that the appellants right contending does not Maryland pattern follow an- fully to minimize attempts departure other respect. rule of one political from the senator subdivision made per our Baltimore With all due deference to City. case the fact out history, of local seems stand reading brothers’ were albeit granted, to Baltimore City that these concessions large of Baltimore’s relatively popu- in recognition grudgingly, corresponding There is no importance. lation economic Constitution. in the Federal provision one senator pattern matter of history, as a
Strictly, in force subdivision was comparable political per county City, From to 1851 Baltimore 1851 to 1864. from only had one senator. County, of Baltimore Since which was a part three, four, six. later and since At had first 1864 it has slightly increase over the time of last had 50% State, census. With 6 the 1920 according it had about senators out 21% *15 that to none of point It out hardly necessary seems Senate. of Baltimore comprised the six districts City legislative to a comparable constitutes subdivision political a State county. to the Federal attempts analogy by bolster majority
The that the Fifth Amendment those who drafted argument in original drafting of whom also participated had (many not have that Due Process Constitution) thought could Law infringed the Fifth guaranteed by Amendment by to the then Clause Equal Representation applicable Fifth first Process Amendment with under equating Due being, we Due Process under the Fourteenth (this equation think, Due then further Process true) equating and by Protection Clause the Fourteenth Clause Equal This to us strained. We argument Amendment. highly seems otherwise, basis, no or for that the know of historical thinking in for the representation of provision equal States deprived no be representation may of which Senate—a amended, to lim- its was intended be without consent—was ited, further the Fifth Amendment. may or construed that, the Due note in instances Process although many Equal are sep- these two Clauses overlap, Protection Clauses may that Amendment they Fourteenth expressed arately States, not the Federal limitations upon upon constitute sufficient, further, answer A think in itself Government. and we Carr, rests supra, Baker squarely to this contention is on the Equal Protection expressly Clause and is the basis for the remand Scholle.
The imperfections analogy are system a minor case, factor in the relatively though the itself analogy one of the is main grounds upon which relies. other ground perhaps really includes the Federal —and analogy ground history furnishes a rational basis for —is geographical representation without to regard present glaring disparities population between areas. to which it
Up point, a be to may difficult locate precisely, there is doubtless some to merit an based argument solely history, but there must be limit to its efficacy. A phrase which all is lawyers familiar the old saying that the reason is historical something rather than can far logical. How we go adopting as the history guide whether determining is there basis rational discrimination patent for a ? It almost ironic that this malapportionment of representation popula- tion this case was well as worse than (as is) in the House. Surely, historical-geographical can- argument pushed be the logical extreme an un- contending inhabited geographical area entitled to legislative need body. (We not even consider the prob- stop lem who would represent it.) cannot Geography simply divorced from people representation. a basis for How large must the population of subdivision geographical political in relation to that of other order such subdivisions afford *16 a reasonable base no representation? exact grant We Court; mathematical rule guide should this attempted by it but seems to in when the reaches population us disparity where it has no point rational limit of justification, the per- missible discrimination to is A we 32 passed. disparity think, does exceed limit. votes the elec- permissible In tion of in exists disparity Senators between voters as Baltimore in and voters Kent there were County County. If ; no other it of little comparable disparities, significance might but there are reference to the other as comparable disparities, in as be- figures Appendix A will show. Thus disparity County voters in in Talbot tween Prince George’s County in between Montgomery voters approximately as 16^2 425 it is in County approximately Garrett County 17*4 in Anne Arundel County Queen and as between voters to 1. The 12)4 it maximum approximately Anne’s County to 1. was 15 Without com- disparity multiplying Scholle another, composite of one county following parisons in which B), from (taken Appendix figures thirds, into will is divided reveal roughly the Senate between the most subdivisions of populous disparity general the less subdivisions: populous State Approximate Approximate 196» State % of Population Population Senate % Units Four most Counties populous and Baltimore City 2,336,409
(10 Senators) 34>á 214,930 Ten least populous Counties 34>i Senators) (10
Nine intermediate Counties 549,350
(9 Senators) further, To the fifteen least carry comparisons popu- a step lous counties can elect These 15 coun- 29 Senators. 450,160, ties have little over population a combined or a is, 3,100,869. total That ap- population State’s 14% one-seventh of the can elect proximately of the State Senate. the figures
Further comment scarcely emphasis can add fol- shown table immediately above the paragraph it. lowing known at least as well supposed analogy us, remand but did Supreme prevent
for consideration on the merits of apportionment Scholle, Baker, cannot or in M. C. A. We W. case to lower reason for logical remanding think of any ground consideration of untenable patently court for the cited the three cases just constitutional attack. Of Scholle opinion The majority on this matter. seems most pertinent think is a necessary to avoid what we the instant case seeks say- on this point by the remand of from implication Scholle not decide question. Court did that the ing *17 think that what the Court has not decided whether or not there is a rational basis for senatorial Michigan ap- portionment. that the majority
We think of this Court dismisses rather too decisions of the lightly courts of other of lower States Federal courts from a review of which it finds little to be gained. think that on whole these other recent cases seem to our support views rather than those of the In majority. gen- eral, both houses they regard legislature as subject State requirement that there shall be some reasonable relation- ship between population representation. This be shown may ratio, a rational explanation of departure from an exact and such an explanation will be more accepted as readily one if house the other is proportioned to exactly population. Some, Carr, such as Baker v. supra, (31 remand L.W. have 2003) as to one deferred action house if the is al- other most exactly apportioned according population.
The opinion of the United District States Alabama, Middle District 1962, 21, filed v. July Sims Frink, 245, reasoned, F. and, Supp. in our carefully estimation, exact, supports the exact, view that or almost even apportionment of one house in in accord- legislature a State ance with population does with the dispense entirely need for some reasonable in the regard apportion- ment of the other. To like effect is another recent Fed- very eral District 23, Court decision (July 1962) Southern Florida, Adams, District of See, v. 208 F. Supp. Sobel however, the court, more recent of that F. opinion Supp. 319, 6, also the Miami Herald reported of September upholding proposed Florida constitutional amendment which affects both House and bringing apportionment former much more in line with but nearly population, per- considerable mitting disparities It held Senate. that population need not be “a factor” in major reapportion- ment of The Supreme Court of Senate. Vermont (on July Rousseau, in Mikell 1962) A. 2d held the ap- portionment to be unconstitutional State under the A Constitution. Kansas District Court County unconstitutional the held legis- Kansas *18 the 27, of Court of Common 1962. A decision on July lature Pennsylvania, by appellees, of cited Dauphin County, Pleas in what we as regard general accord with views expresses de does not final defers It involve a action. simply trend Williams, did Caesar 371 P. termination on merits. Nor v. 1962, on 3, reach final decision 2d decided a April 241 (Ida.), v. Supreme In Court merits. Colorado Stein 2075, action 31 deferred Assembly, requiring General L.W. McNichols, v. 31 but District Court a Federal L.W. Lisco 2107, time of deferment. shortened District for the Middle District Court United States Tennessee, Carr, to supra, on Baker v. appears remand of an ours that there be
have taken view similar to should a basis “equitable” reapportionment of Tennessee strength.” even it not related “fully voting need be to though Fortson, Ga.), F. Supp. (N.D., also Toombs v. 205 248 See 2605, least District held that at 30 which the Court L.W. one have to be on a apportioned strictly popula house would have tion both would basis and did decide whether houses to be so apportioned. acted
A Court has three-judge District Oklahoma legislature about State. reapportionment bring Burkhart, 885, commented on Moss v. F. Supp. the Federal Advance Reporter section Highlights”
“Judicial
9,
action
(for
for
1962. Further
case
July
Sheets
in Pacts
have no
Supp. citation)
reported
we presently
F.
Pile,
2-8, 1962,
August
been
on
to have
taken
August
Notte,
v.
(R. I.),
In
could contends, “The General petitioners case said: Attorney concede, county, mu- that apportionment along geographical, consti- or urban versus rural lines does not necessarily nicipal if the rationale such methods protection tute denial of equal contention, We are in full accord such can be justified. but true that historical recourse to such apportion- it is equally if it results in dis- ment formulae cannot invidious justified of electors The dilution of the of majority crimination. vote is, of that one fourth others enjoyed our so by opinion, unjust invidiously discriminatory.” v. Gray, also 203 F. Supp. (N.D., See Sanders Ga.), election vote Georgia primary unit rule. involving Prob- able has been noted but jurisdiction an application advance nom., case, in that argument denied sub Gray Sand- ers, Court. That Court did not U.S. adopt view of Mr. Harlan that leave should be Justice granted appellants stay issued injunction District the determination of the pending appeal. refer also to the remarks of two University Virginia *19 scientists, political Messrs. Paul T. David Ralph Eisen- at berg, the recent annual convention of the American Political Association in Washington. Science need discussed They for representation with reasonable regard thereon, both state houses legislature expressed views reported as in the Post of Washington September 1962 (pp. 1 and A in8) general accord ours.
In the case we think that the present gross disparities which exist in relative power which are even dis- voting (and , puted, for cannot cast they be) upon proponents apportionment the burden of existing a rational basis showing for such departures regard from basis any population as a estimation, burden, in representation. This has not our been met. have here much than provisions Such as we seem more restraint, to assure diffusion required proper of political paraphrase political diffusion initiative spoken Green, Neither the MacDougall long at 284. U.S. continuance of nor disparities phrase “Federal magic seems to us to furnish the rational basis for such analogy” disparities to save them from constituting necessary Amendment, “invidious under discriminations” the Fourteenth we think Amendment has been inter- authoritatively preted above referred cases recently decided Court.
We, therefore, think that decree of the Circuit Court should have been reversed.
APPENDIX B Maryland Comparison Representation the Senate of City Populous of Baltimore and the Four Most Counties
and of Other Counties *21 Marbury, JJ., filed the separate following Prescott dissenting opinion. therein,
As we concur in fully indicated the able dissenting addition, of Chief Bruñe. In opinion Judge we deem ap- to call attention to the propriate contrast between the conclu- present sion reached the majority and what was said opinion on the first majority appeal two on the present appeal concurred. majority
Plaintiffs’ bill complaint alleges malapportionment both and the House of Delegates. State Senate first case reached us after the trial court sustained demurrers to the bill. reversed, stating Supreme Court made “a had in the implication Baker decision strong that there must be some reasonable voters, relationship population, or eligible representation the General if an Assembly, is to the label escape of constitutionally-prohibited invidious discrimination.” thenWe remanded case with directions to chancellor determine whether representation in either or both Houses of the General Assembly was apportioned basis such discrimination. The involving chancellor found that in the House was mal- unconstitutionally but apportioned, made no as to the finding We again Senate. for decision remanded as to the It is Senate. elementary if the well-pleaded of the bill allegations failed to state a cause of action with reference to representation in the neither remand insofar as it concerned that branch of the Assembly was proper. Upon the no remand testimony whatever was taken. The defendants filed an answer which admitted they all of the of the substantially allegations bill to mal- relating but, even apportionment, though the majority opinion stated above, what we defendants quoted stated their answer “representation Maryland need be based on nor related to the reasonably present Counties Baltimore City present opin- [and ion sustains this Essentially, case reaches us contention].” in the same posture now as the first appeal, difference only that in the first being appeal demurrers admitted the well- bill, pleaded allegations present appeal *22 answer admits them with minor insignificant exceptions. held on the On those facts which were sufficient first appeal House, state action a cause of as well as the finds now present majority “nothing Supreme Court malapportionment cases has been decided case [no our first since opinion] support appel- claim of invalidity Mary- lants’ land Senate.”
GREENE STATE Term, September [No. 1962.] 9, 1962. Decided October
The cause before the full argued Court. Reamer for the
Irving S. appellant. Wittstadt, General, Gerard Assistant Attorney Wm. General, Finan, whom were B. A. Attorney Thomas Saul