*1 TERM, APRIL I960* v. SECRETARY OF SCHOLLE STATE. Interpretations by Supreme Law —
1. Constitutional Court the United States. Interpretations Constitution of the United States supreme authority court United States are final and con- guidance (US supreme stitute exclusive for a State court Const, 3, 2; 6, 2). art art § § Equal 2. Same —Senatorial Protection —Absence Districts — Remedy.
Equal process protection and due clauses of the Eourteenth Amendment, presently supreme construed court of prohibit, wholly arbitrary do the United States as a classi- fication, State constitutional amendment which establishes substantially unequal voting power in districts for election of senators, per Dethmers, J., State Kelly, Carr, C. JJ., Edwards, Supreme powerless and State Court is to hold duly-adopted invalid a amendment of the State Constitution higher authority doing of a absence for so than State itself, per Black, J., hence, petition Constitution for writ of Constitution, mandamus invalidate amendment State set- ting generally along forth county senatorial districts lines and generally favoring thinly populated densely opposed areas as populous ones have inequality districts substantial population, Const, (US 14; 2; dismissed art am Mich § 2, 4, Const art as amended §§ * Continued from Volume 359.
[1]
[3]
[2]
Inequality
sentation.
35 Am
14 Am
18 Am
Jur,
Jur,
Jur,
References
Frank Blashfield, constituent of. and Albert K. district, motion, thirty-third district, senatorial on their the joined Cummiskey, parties defendant. John W. district, of the sixteenth senatorial a constituent John W. Fitzgerald, from the fifteenth dis- senator Younger, the four- and Paul senator from C. trict, joined par- on motion to be their district, teenth permitted to intervene. defendant, ties Secretary oe (Calendar February 25, Submitted 1960. No. 48,580.) Petition for writ dismissed June 1960. Rehearing July appeal 1960. denied Notice of Supreme filed in ber Court of the United Decem States 1960. Masey, (Theo- Rothe, Marston, Sachs & O’Connell counsel), plaintiff. dore Sachs, of Attorney Paul Adams, L. General, Samuel J. Torina, Solicitor General, Faville, Stanton S. Chief Attorney Douglas Clapperton Assistant G. General, Attorney and Leon Cohan, S. Assistants General, for defendant of State. Shepherd,
Edmund E. for defendants Beadle and Blashfield, and intervenors.
Amici Curiae:
Jerome R. B. Brooks, Erwin Ellmann, Bruce A. Metropolitan Miller, and Norris, Harold for Detroit Branch, American Civil Liberties Union. Klimist, Otis, Sheldon L. Sheldon and LuVerne
Conway, Chapter, for Detroit Americans for Demo- cratic Action. (dissenting). original J. an This is Kavanagh, challenging
action of mandamus amend various Michigan (1908) being to the ments as Constitution equal protection provision of the violative Michigan (1908), § 2, 1, Constitution art and of the equal process protection and due of clauses the Fourteenth Amendment to the United States Cons titution.1
instituted Const to the State wherein “All “All (1908), jurisdiction thereof, persons political power for art their born 2, 1. they § or equal naturalized reside. No State shall mate or is inherent benefit, are citizens security the United of people. and United States States, protection.” Government enforce subject and of Mich any is Michigan a citizen of the United States of
Plaintiff, Michigan, Michigan of resides twelfth State qualified a elector senatorial district therein. taxpayer city Royal He is a and freeholder of the of county, Michigan. brings Plaintiff Oak, Oakland president individually and of Michi- suit this gan AFL-CIO. State original secretary defendant is who, such, is chief election official of of State Michigan. Among the duties the secre- of State required perform tary are: of State (1) Giving (2) senators.2 notices election State
Receiving nominating petitions filing or fees including sena offices, State of candidates State county. comprising more than tors districts Certifying (3) of candidates have the names who duly for nomination.4 filed Issuing
(4) candidates, election to certificates including comprising senators districts State county.5 than more one
By Court, Beadle, Frank D. a State order Blashfield, citizen, were senator, and Albert K. parties defendant in the cause. added as John W. Fitzgerald, Cummiskey, and Paul John citizen, W. permitted Younger, senators, to inter- were State C. provisions pursuant § 612.11 to the CL vene 27.663). (Stat §Ann seeks:
Plaintiff Proposition (1) A declaration Court general November, 1952, election No 3 of law which life, any Ann [2] the United CLS Const, CLS CLS CLS person within 1959 Cum liberty, Cum 1956, 1956, 1956, 1956, Supp am shall 14, § § Supp § States; nor shall § § 168.845 168.648 property, 168.552, § 168.163, 6.1552). abridge its 1. § 6.1163). jurisdiction the (Stat Ann 1959 Cum (Stat Ann 1956 Rev as amended without due as amended privileges any by *4 equal protection of the laws.” process by PA PA or § Supp 1958, immunities deprive 6.1648). 1957, § law; No 25 6.1845). any No nor of citizens (Stat person deny (Stat Ann oe State. Michigan to the Constitution amendment invalid an Michigan §§ (1908), insofar as the 5, 4, and art plaintiff and concerned, denies senate other equal protection Michigan citizens process of law under Fourteenth due and the laws and States Constitution United Amendment the (1908), § Michigan 1. 2, art Constitution by (2) there exists A this Court declaration districting apportioning act extant no valid senate in (1908), Michigan pursuance of the Constitution §§2 unamended. and 5, 4, art
(3) peremptory and mandamus out of writ of A commanding the de Court, seal of this under the secretary not to issue 1960 of State fendant election perform to otherwise senators, for nor notices those acts State holding requisite of elections to the prescribed according to districts State senators §§ (1908), Michigan art by 5, Constitution Proposition by colorably 3No of amended 4, and general PA 1952, and November, election adopted pursuant until thereto, and 77,6 No Michigan legislature valid enacts time as the such reapportioning legislation dis senatorial the State Michigan in accordance with the Constitution tricts (1908), §§ and the last unamended, 2 and as art decennial census. Federal jurisdiction
(4) retaining cause of this following such determination this Court pending oppor- an a writ of mandamus issuance reappor- timely, tunity valid for the enactment legis- legislation by present tionment secretary defendant declare and failure of which the lature, on conduct be directed to further State at-large on an senators 1960 election for steps appropriate necessary all to take basis only at-large until to continue therefor, method 2.27 CLS [2]). §§ 4.601, 4.602 (Stat Ann 1959 Cum Supp §§ 2.27[1], *5 Michigan legislature Michigan legis- as enacts time such reapportioning the State senatorial districts lation Michigan (1908), Constitution art pursuant unamended, and in accordance §§ 4, 2 a.id as 5, census. decennial last Federal Michigan petition forth sets Plaintiff’s respecting §§ (1908), 3, 2, 4, and art Constitution apportionment districting color- legislative and Proposition general by No ally 3 amended Bay, nearly pewa, counties; Monroe sixteenth and number by Lapeer eighteenth, Allegan and Calhoun and Ionia esee Oceana, Mason, counties; twentieth, Tuscola, ford, ford, Benzie, Montmorency, Alpena divided counties; tonagon counties; elect counties; ceola, adoption counties; numbered within n sleeted such counties convenient “The law.” arranged Ottawa county; Oscoda and Alcona Midland Clare, Mackinac, as for senator. and Saint Clair into senatorial of senators counties; and senate may seventh, and from counties; thirty-second, Baraga, Keweenaw, Houghton twelfth, boundary thirty-first, Marquette, twenty-ninth, twenty-first, Gladwin, Barry counties; during years counties; Branch fifteenth, Clinton, seventeenth, Grand be and 1 to and Lake shall Counties entitled to assembled Luce, Schoolcraft, Alger, an tenth, Cass amendment, thirty-third, and twenty-second, Saginaw Oakland contiguous Sanilac lines to be 34, inclusive, Constitution equal Isabella Traverse, counties; consist of Arenac, and and Manistee twenty-fifth, Mecosta, Montcalm, by single and Berrien districts counties; Wayne county; counties. Charlevoix, Emmet, Cheboygan, Otsego, year Jackson number of inhabitants elected; Presque Kent the counties at such and Huron county; fourteenth, Iosco, Ogemaw, counties; territory; Washtenaw as sixth, Kalkaska, Shiawassee as 34 members. twenty-seventh, Missaukee, and districts. county; (1908), and Hillsdale Dickinson, Each of follows: said districts Isle herein time by counties; counties; shall eleventh, Kalamazoo counties; existing the board of nineteenth, Lenawee counties; twenty-sixth, and said districts and Ingham twenty-third, Muskegon art more consist Leelanau provided county; Menominee Such districts county; and Eaton First place eighth, Iron Roscommon, twenty-eighth, Senators at the Macomb senators 2.§ and shall consist shall contain as thirteenth, counties; and St. and thirtieth, twenty-fourth, through districts as thirty-fourth, and equal and Antrim Van time supervisors Livingston prescribed and Delta Newaygo, counties; and On territory shall be shall be Gogebic shall be county; Gratiot Joseph Burén, ninth, Craw Wex Chip fifth, shall shall Gen and Os representatives “The house of shall consist of not more than Representatives years 110 members. shall be for 2 chosen single except provided herein, districts as otherwise which shall may nearly equal contain be an number of inhabitants contiguous territory. shall consist of convenient ratio representation representative quotient districts shall be the oe other Among 1952. November held election increased the size amendment the 1952 things, mined resentative obtained census when of tation. the board additional shall territory, it in its of And township shall be divided districts, tory of the such then such habitants but and the official That a such of eounty is entitled that districts 1 representative Michigan population whieh entitles district: may representation, representatives inhabitants with not annexed to when a representative provided township in be it has attained present by the secretary by Federal be divided population thereof In the case prescribed whieh containing or equal Constitution of 100. representative township or Provided, district, every city dividing the total city supervisors representative less than latest in further, decennial consisting or shall contain in the formation of and shall Eaeh an to such districts shall be entitled to more than of eities by law, eounty entitled and city State and districts, at existing the shall composed as a or eaeh That whieh it county, the population in addition (1908), That when shall elect number of near law, 2 nor more than 3 city eensus: for shall be entitled to of convenient according and eounty hereafter consist the city, specifying the district each additional as divide shall be divided into succeeding as clerk of sueh or assemble at such shall be shall cause to art average nearly population Provided, may group of counties the more than 1 territory equal entitled; line or to more 5, of convenient thereto, any representatives to the latest the until organized territory 3.§ representative be as general to number of inhabitants township a official same into and nearly equal may lines: Provided an the That no [50] separate in number of each district eounty except than 1 shall be entitled to representatives full ratio of be equal per more next contiguous thereof representative, be or created ticket time and Federal decennial filed or eaeh [5] cent of the ratio an or township that when sueh and State as deter- representatives, *6 forming apportionment: than 1 representative, to whieh number of representative district, except representative representative description equal city in the offices shall the contiguous succeeding possible.” represen- territory, place contains or terri- further, number number county, remain in or a such then rep- city any per in- as [1] for ular thereafter, United States decennial eensus of this State: any the board of State among of this representatives with the That convening of said be effective Constitution “Within that special session, and each tenth should article, using the counties purpose, provisions the first of the first days, session (1908), or after for legislature shall the next legislature following accordance with canvassers, called for art of this article and districts as the basis for sueh year the apportion regular days shall 4.§ convening thereafter, succeeding January within the first 180 after within 90 that session, apportion anew such districts the in accordance with section 3 purpose, and sueh 1, fail convening fall elections.” 1953, or after any special days mandate anew apportionment following January and each tenth apportionment after apportion Provided, of the first days representatives session called in accordance convening expiration after anew Michigan however, article, shall year reg- last 1, elected from members, from 32 to to be the senate as to 2 identical, except member districts single districts. Fur- the pre-amendment changes, with apportionment No 3 toas senate ther, Proposition aon reapportionment pop- the decennial abandoned required thereby per- previously ulation basis no districts, matter existing froze such petually population disparities great changes what take place throughout thereafter might have they since (as actually forth sets the districts The also petition in the 1952 amendment were estab frozen effect 1,8 PA No rough 1925 by lished 29 'census. 1920 Federal decennial upon the reliance despite the requirement states petition provisions9 the legisla- constitutional of previous assemble at vided, shall eause to clerk of such divide be shall apportionment. ulation such of such a to a titled specifying the number for shall torial 2 or or county, except 64 nor 1 senator. as convenient elected “The separate representatives may territory numbered representatives “The senate shall CL moiety township territory remain more be divided years to districts, the same That that when a more it which entitles house of be an more than 1 may representative senators.” No and and § in such of the ratio of annexed than county from 1 4.1 years as equal county be the ease of cities hereafter unless its by When into contiguous filed (Stat time and in representatives may eity to which such divided at to which it present single eity representative, the formation representative number to to consist members. description such Ann 1952 shall any Michigan shall be' by single when it has attained a an each districts, to more than 1 attached township composed representative place inclusive, county be divided territory; representation. elect offices existing of inhabitants the district Rev Constitution Representatives county of such shall be county as shall by districts. shall of the entitled. which shall contain districts the board of thereto, of § members. or of each of city, 2.1). general and but no in a consist of eity territory be is entitled line representative representative the formation secretary district population the organized equitably equal In and shall consist representative, shall shall be entitled Such Each or prescribed *7 which shall ticket (1908), township Senators every county territory supervisors lines: And population equal in shall be chosen contain a to until districts county, by law, more the number thereof entitled art or less as districts, the shall of by district, number or created thereof than nearly choose sena- shall with then next than shall pop- law, pro- and eity and § ac- en- to of to 2. oe neglected reapportion- and its ture failed decennial duty that, at the time of election, so the 1952 ment exceeding 8 1 in there existed variations to district example, population, persons thirty- 61,000 in the (Baraga, Houghton, Keweenaw, second district Ontonagon eighteenth and counties) compared 544,000 to (Wayne county) district and 530,000 (Oakland the then twelfth district and Washtenaw counties). points petition pro- out that on the basis
jected figures, plaintiff’s district will have thirty-second persons, 724,000 smallest, while the only have 1. 49,000, will variance of 15 to district, average projections for 1970 an dis- show Similar persons, largest, population 298,000 trict the district, to have small- 1,056,000, twelfth thirty-second 41,000 to hut district, have est, persons, a variance of 25 to 1. alleges, it is not
Plaintiff further denied any that in the election defendants, primarily from urban areas elected senators were average population in which districts figures) (according the 1950 census to 266,118 people. represent Twenty-two senators 3,193,417 population average from were elected districts large, repre- slightly more than half 144,470,or According- people, 3,178,349. a total of sent fewer population ly, of the State there- than half of the less by gained of almost control 2/3 senate. Michigan Constitution enumeration.” preceding cording the last (1908), art 3.§ year thereafter, and each tenth “At session shall rearrange districts law the senatorial
legislature representatives among dis- the counties and apportion tricts anew using inhabitants, basis according to the number preceding States census the last United apportionment for such made, division of apportionment and the so this Each by super- any eounty representative its board of districts into year thereunder, visors, thereafter.” until shall be altered tenth made (1908), art 4. Michigan Constitution § Michigan Reports. petition the net all illustrates that effect of right foregoing plaintiff’s that the vote and is (accord- representation in the senate voting projections) ing those but is 1/15 thirty- representation rights a citizen and district. second that the districts under
It further disclosed is Proposition no correlation between size No 3 have by representation. that the It is exhibit and average shown square Wayne miles, the 1,677 district is size square average county miles, size 86.7 district twenty-eighth thirtieth are and districts while respectively large, being 5,471 and 90 times as square points out miles. Plaintiff further 7,832 and drastically vary that other size and districts by (presumably having actually districts side side characteristics) thereby comparable regional have population. great in area and similar variations Finally, plaintiff correla- that no uniform shows political exists. units tion between district size and of division of that the method Plaintiff contends arbitrary capri- palpably senatorial districts is cious and has relation- no criterion to determine ship another. of one district to alleges by
Plaintiff virtue of the above-stated equal protection he denied due facts laws and process under the Fourteenth Amendment to law Michi- States and under the United Constitution (1908), gan § art 1. He a dec- Constitution asks 1952amendment invalid laration that the be declared inoperative, through relief writ seeks of mandamus. petition secretary
Defendant answers saying: requires sought plaintiff
(1) solu- The relief political of a issue cannot resolved tion judicial decision. *9 oe Scholl® districting (2) on a of area basis does Senatorial government. republican deny a form of
not protection provision equal (3) of tbe laws Tbe to the United Amendment States tbe Fourteenth not since— violated, is Constitution unit; (a) within a no There discrimination is proper representation (b) (c) valid; Area voting apply Negro to the cases do not question; and seeking
(d) admission to of States Constitutions legislative apportion- providing for Union, and population, have been than on basis other ment some subsequent by Congress approved and the President adoption to the Amendment of the Fourteenth to the Constitution. United States process
(4) the Fourteenth clause of The due States Constitution to Amendment the United as— violated representation
(a) the due not violate Area does process Constitution; clause United States representation
(b) conforms with our Area traditions. democratic require
((cid:127)5) representation To would forbid area representative of similar methods elimination repre- throughout system our democratic such as on— sentation supervisors; county (a) The board of City (b) (c) precincts; and representation. area levels of
Other plaintiff prayed (6) cannot be The relief following granted for the reasons: (a) declares the amendment If this Court (1908) 5 of the Constitution to article body legislative either no invalid, there will remain jure power rearrange sena- de de facto reapportion legislature; torial districts Michigan Reports. (b) holding by Under this Court that a de facto legislature composition exists, of the State unknown; senate would be (c) legislature, jure, If the whether de or de facto reapportion, power
refuses compel this Court has no action mandamus or otherwise; *10 (d) (1908) prevents The Constitution holding large elections at for the officeof State sena- tor; and (e) plaintiff adequate remedy by The an has seek-
ing by amendment of the State Constitution vote the electors. petition alleging
The other defendants answer the arguments. in substance the same Briefs have been on filed behalf of all the de- fendants, and, in addition thereto, amicus briefs have by Metropolitan been filed Detroit Branch of the American Civil Liberties Union and the Detroit Chapter of Americans for Democratic Action. present controversy
The is not a new one. It is representative government. old It has been kept through by people seeking new the centuries rights, their natural under the freedom, banner of tyrannical rights. from denial of these The first expression rights natural real of these in the found Independence, part Declaration of in reads as follows: self-evident, hold these to be all “We truths that equal, they by men are created are endowed rights, certain their with unalienable Creator among liberty pursuit life, to secure these these are and the
happiness. rights, govern- —That among deriving just men, are instituted ments their powers governed.” from the consent of the conception Country From the its moment of this equal application of been to the our has laws. dedicated Following adoption the United States questions Constitution, when as to whether arose of State. part equal application of our laws was of our the Fourteenth Amendment was Constitution, adopted to elimi equal States, in and ratified any question respect nate for all time During protection rights of citizens. bloody fought history a war was of our civil
course past years equality. name of Within participated Na have been world wars this justice. Free tion the interests of freedom equal representation during last elections and several foreign policy. years dominated our have Germany, and Poland are few of the Korea, but attempted in which we to obtain for countries the controversy have present oppressed equal justice law. under Country subject been has litigation in of considerable both and Federal It a constant of in courts. has become source creasing national concern and attention. The sub ject treatment under the has received extensive legislative reapportionment heading of in numerous magazines law editorial review articles, *11 Parenthetically, newspapers. comments would not be ludicrous our of it we, our interest were establishing system justice equality our of under law in other of find ourselves world, nations the to losing segregationists it at home. To most southern amusing argument presented it be hear would to the right people wrong” a that “the have to be deprived people the can be of their constitutional rights guaranteed by the Federal Constitution as by long as it constitutional amendment rather is done desiring segre than statute. Some of States passed gated have amendments to their schools .such either them constitutions, but have seen stricken voluntarily or down have abandoned courts position Bir their mingham under them. Shuttlesworth v. (ND Supp Ala), Education 162 F
Board of Board Public Instruction 372; Gibson v. Dade of (SD County, Fla), Supp F 454. Florida State, In Hamilton v. 212 Mich joined hy who was Justice Justices Brooke Fellows, dissenting opinion, referring to Clark (p proposed State constitutional amendment said 43): abridges privileges “If it or immunities of the liberty deprives property or of life, citizen him process
without due of law it must fall before the superior Constitution mandate the Federal wheth- provision er it Constitution.” or a of a statute State opinion majority question pass did not on this they since ruled that the writ of mandamus must require present secretary issue to to of State proposed people, constitutional amendment to the indicating right pass Court had no to on adoption. a constitutional amendment until after Certainly, they disagreement did not indicate a quotation opinion the above from the of Justice Fellows. Similarly bearing right people on the adopt any they desire, kind amendment when the people Oregon by adopted by initiative measure, people, requiring amended their school law parents having young and others control children primary them send State, schools supreme the United States court in the of Pierce case Society Sisters, US S Ct 468), L 39 ALR held such an act violated the Federal Constitution and struck down. In Bute Illinois, (p 670):
L ed the court said province “It practice our to decide whether although the Illinois court in these cases, *12 admit- tedly conformity with the law of Illinois, sowas clearly procedure at constituting variance with ‘due Secretary oe v. process the Fourteenth of law’ under Amendment completely he must invalidated.” these sentences that districting on contend senatorial
Defendants also deny republican not a form of of area a basis government. does admittedly rely upon not Plaintiff does §4, Constitution, of the United States article guaranteeing republican government, form jurisdiction or relief. Defendants further either for representation would that forbid area contend require to representative the elimination similar supervisors, county as the board methods, such representa- precincts, city other of area levels question us; and do have this before tion. We reasoning not think defendants’ did, if we would we do necessarily follow. allege if the amend further
Defendants remain no invalid, there would ment is declared legislative body power rearrange with senatorial legislature. reapportion This districts and argument There at little discussion. exists needs charged by present legislative body time invalid) (if the 1952amendment is Constitution rearrange duty re districts and senatorial apportion legislature. can This do. must We legal duty its and constitutional is assume when legislature carry pointed it, out to will out its any regard responsibility without need legis compulsion. presumed It not to be to take action as neces lature would refuse such sary comply duty under the with its State Con deliberately not believe it would stitution. do We perform duty. Experience its teaches us that fail to Michigan, legislatures Minnesota, acted so Giddings following court decisions. See: Hawaii 402); State, LRA Mich Dyer Supp Magraw (Minn), 163 F 184; v. Donovan (Hawaii), Supp 138 F 220. Kazuhisa Abe *13 Michigan 16 appear remaining that the contentions
It would plaintiff and the of the can defenses defendants be following questions: under the best discussed (1) suit, aDoes mandamus directed to the secre- tary challenging State, the amendment to Michigan §§2 5, Constitution, article and of the on 4, grounds of conflict with the United Constitu- States Michigan Fourteenth and tion, Amendment, the Con- (1908), present justiciable § 1, a stitution art controversy jurisdiction? of which Court this has
(2) Does the initiative amendment article (by “Proposition 3”), respecting §§2 and 4 the Michigan equal protection senate, violate the process the laws due clauses Fourteenth Amendment to the United States Constitution § 1, article Constitution?
(3) May grant remedy and should the Court the prayed invalidity declaration of of the 1952 —a initiative amendment as to the senate, mandamus holding to restrain the of 1960 under elections the districting, retaining jurisdiction pend- the ing timely reapportionment pre- due and under provisions vious constitutional and the last Federal only legislature itself, decennial census and-— prior legislative duly in the event of failure re- apportion holding large? at elections —the congressional It is defendants’ view that or even legislative apportionment purely political ques- tion and, therefore, should avoided the courts. rely mainly upon Defendants Federal cases this regard, beginning Colegrove with the case of Green, Ct S 90 L ed supreme In case court refused to consider validity equities inequities or the of a con- gressional apportionment statute of Illinois with possible resulting congress its conflict between justices sitting. In State. this case 7 were Four justices jurisdiction believed the court had to decide oe jurisdiction; justices it lacked believed issue; concurring opinion, agreed Rutledge, in a Justice believing equity juris- jurisdiction but, had court discretionary, of lack of time and because diction machinery congressional change election he the exercise involved, therefore, districts deny Thus, relief. voted to discretion, court’s majority position, contrary justices to defendants’ *14 Colegrove participating decision felt in the jurisdiction the issue. to decide court had MacDougall Green, 281 v. case of US In the injunc- 3), complainant sought (69 an of Illinois L93 ed 1,CtS against of a tion the enforcement statute requirements political setting for a new out the The party. jurisdiction want court found of Federal district injunction. supreme
and denied the opinion, per States, in its curiam court observed of State United power, pursuance in that the has the State proper polit- policy, a to assure diffusion thinly populated counties and ical initiative between masses, that would not the concentrated and provisions any violate of the Federal Constitution. per deny- justices joined opinion in Five curiam Colegrove ing jurisdiction for forth reasons set supra. Rutledge again Green, concurred Justice ground equity on the should decline to exercise jurisdiction question presented its because the days only away, election, on the eve of national grant unquestion- relief at that time would ably groups disenfranchise certain of voters. Jus- Rutledge opinion (p tice concluded his as follows 287): “Accordingly, express opinion concerning no I questions presented. and other constitutional As Colegrove Green, US S Ct in which,
L ed the I think the stated, one case is properly, may reasons this court jurisdiction equity. should, decline exercise its
Accordingly, solely agree but for this reason, I judgment refusing injunctive relief should be affirmed.” Douglas, Murphy
Justices Black, dissented, holding (p 288) : very “Free and honest are the elections foundation * * * republican government. form of our against group any or Discrimination class citizens protected constitutionally exercise these rights of citizenship deprives process the electoral * * * integrity. deny giving
“None that a law would some citizens twice the vote of other citizens in either the primary general equality election would lack that guarantees. which the Fourteenth Amendment See ed Herndon, Nixon v. 71 L 759).” important language
It is to be noted that the per opinion “proper curiam is the diffusion.” disagree. proper this, To With we do constitute diffusion, there must be rational of all treatment population within If class. not the rational cri- Proposition naturally terion under it3,No follows *15 uniformly, rationally, that some other and criterion, nondiscriminatorily applied, must It is be used. necessary apportionment population by that the be apportionment, perfect exact. In even in fact, exactness if removed obtainable, would be sub- sequent birth death or of an individual. su- preme Attorney State, court of ex rel. Wisconsin Cunningham, (51 General, v. 81 440 724, Wis NW 561), (p 484): 15 LRA said apportionment according “Perfect exactness required to the number of inhabitants is neither # * * possible. nor If, case, this there departure such wide and bold from constitu- possibly justified by tional rule that it cannot any judgment exercise of or and that discretion, v. oe State. part legislature an intention on the of the evinces ignore disregard utterly and the rule of the Con- promote object in order to other than some stitution apportionment, then the conclusion a constitutional is inevitable legislature any judg- that the did not use whatever.” ment discretion (70 Peters, v.
In the cases South US 834), Turman L Fortson and 641, 94 ed Cook v. CtS (67 596), 91 L ed Duckworth, S v. US Ct Gary, L ed 2d 559, 1 352 US Ct v. S Radford 540), McCanless, 223, 1 Ct Kidd v. S cited the de L 2d and other cases supreme States fendants, the court United (with opinions merely per sev curiam entered supra, Colegrove dissents) citing Green, eral authority MacDougall supra, for the Green, consistently position refused courts had that Federal arising equity powers from in cases to exercise their geographical of electoral distribution State’s political strength among All other subdivisions. its courts, which, Federal are from lower cases cited MacDougall Colegrove authority have on the field. declined to enter the 3-judge
A court in the district court of the United for middle Nash- Tennessee, States district on case of division, ville Baker v. December clearly Supp Carr, F forth the set per position opin- in a curiam the Federal courts (p 826): they ion in which said question political “The of the distribution of strength legislative purposes has been before supreme court of the on United numerous States
occasions. From a review these decisions there can be no doubt that the rule, Federal as enunciated applied supreme court, is that Federal or jurisdiction whether courts, from a from lack of inappropriateness subject ju- matter for *16 dicial will consideration, not intervene cases 360
20
type
compel legislative reapportionment.
this
Colegrove
(66
Green, 328
v.
549
US
1198,
S Ct
90
1432);
L ed
Cook v. Fortson and Turman v. Duck
(67
596);
worth, 329
675
21,
US
91 L
S Ct
ed
Cole
grove
(67
Barrett,
v.
330
804
973,
US
S
91 L
Ct
ed
1262); MacDougall
(69
Green,
v.
US
S Ct
3);
(70
L93
ed
1,
641,
S
Peters,
South v.
US
S Ct
834); Remmey
(72
L94 ed
Smith,
v.
In v. Kazuhisa Abe, F 234, United States district court for the district of February Hawaii, on 10, 1956, said, since was a ruling respect Federal court with of territorial Colegrove supra, ficers, Dougall Green, rules Mac supra, apply. Green, others, did position regard It same as State ruling respect court would inbe officials. State authority The United States district court had over territorial officials. The area of State-Fed delicate Colegrove, supra, eral relations mentioned MacDougall, supra, was not involved. apparent,
It is relied then, that cases by the defendants do not that a court decide constitutionality cannot of a determine the Federal *17 v, Secretary 21 of State. provision State statute or State constitutional which apportions legislative Inferentially districts. at they least, hold that the State court the one to questions. consider these The United States su- preme duty court has held it is the of State interpret courts to and enforce obedience to the Constitution of the United States to restrain any violation thereof.
In the Drainage of In case re Green River Area, Supp citing Connolly, 127, 147 F v. Robb 111 US (4 542), 624, 637 Ct 28 L 544, S ed the court said (p 148): “Upon equally courts, the State with the courts obligation guard Union, rests and en- right every by force secured Constitution and rights laws of the United whenever States those are any proceeding involved suit or before them.” supreme
The United States court in United States v. Bank Co., New York & 463, Trust 296 US 479 (56 331), employed 80 L 343, ed the identical language quoted holding above that both State obligation and Federal every have the courts enforce right constitutional secured the United Katt, See, also, States Constitution. Testa v. 330 (67 225). 386 91 L 967, US Ct ALR 810, S ed 172 (79 Dowd, In Irvin v. 359 L US 394 Ct 3 825, S (p 404): 2d court said way, supreme view, “In this our court State discharged obligation rests ‘the State * * * equally courts, Union, of the the courts protect right guard, every granted enforce, or Robb v. secured the United Constitution States.’ Connolly, 111 637.” 624, US Garage writing in Book Tower v. Justice Butzel, (p 587): 295 Mich 580, No.
Local said duty as the as well is the of the courts “It .State every guard Nation to and enforce courts Michigan Reports. right by the Federal Robb secured Constitution. Connolly, 542) ; S L ed US Ct Mooney Holohan, Ct S L ed is ALR The Federal Constitution supreme judges land; and the law every thereby, any Thing in the shall State be bound Contrary any Constitution or to the Laws notwithstanding.’ (Art 2).”§6, apparent
It that, then since the Federal courts *18 supreme to have refused enter the and since the field court of the question not ruled the United has on States illegal reapportionment of lates the Fourteenth an vio- whether to Amendment Constitu- clearly having tion jurisdiction States, Court, of United this dispose duty to to case, hear has question justiciable of the raised a been since issue has by action. this reapportionment Legislative not before the Su preme Michigan of for the first of Court State subject rulings by for it was the of this Court time, Houghton Supervisors early 1892—Board of of Secretary County Mich 638 LRA State, 92 v. of Giddings Secretary Mich 1 State, 93 of consequence, we have to a do not LRA As whether to look outside this determine justiciable controversy over which this Court a exists jurisdiction. has supra, Secretary Giddings State, establishes of jurisdiction precedent adequate for Court’s Supreme Court There, this suit. to failed which a of this State statute struck down comply reference with provisions the Constitution opinions equal representation. Three to situa- a factual laid Court a unanimous for written gerrymander- applicable equally to tion which is adoption place prior ing to and took dis- Proposition the Court There No 3. the 1952 presented objections are all cussed why Court this case as the defendants Scholl®.-y. oe State. jurisdiction controversy! does not have tice 4, 'Jus- writing (pp for the there Court, said Grant, 9)7, : appears attorney “It conceded the learned general legislature that the is not in the exercise of political discretionary power acting when provisions, under these constitutional is has it only people, amenable to the and that this Court jurisdiction, properly it, in a ease to deter- before question. constitutionality mine the the act provides: The Constitution of this State “ Supreme general super ‘The Court shall have intending control over all inferior shall courts, and power corpus, have issue habeas error, writs quo procedendo, mandamus, warranto, and other original writs, and remedial and to deter hear and appel mine the same. all In other have cases shall jurisdiction only.’ late jurisdiction general “The of this Court de constitutionality legislative termine the enact involving ments is not limited so as to exclude laws political rights. The Constitution Wisconsin, conferring jurisdiction upon supreme its court, is nearly language identical in with the Constitution *19 supreme of this The court of Wisconsin has recently ably thoroughly most and discussed and jurisdiction determined the similar in of the court in a case principal present and its facts to the one. Attorney Cunningham, State, ex General, rel. Wis 440 724, 15 LRA NW The author support jurisdiction ities the of are collated, there and power made from them. citations Were the legislature conferred one of absolute dis express rearrange cretion, then the mandate, ‘shall according inhabitants,’ the number of be would any meaning, except might void of force or that it regarded expressive opinion be of that framers of the such method would Constitution (now 1908, 7, §4).— Const (1850), 6, art Const art § Reporter. Michigan equitable fair. and We have no doubt of the * * * jurisdiction of the Court. contemplated “It never that elector should possess person 3or more influence, times representative of or than senator, a another another elector practi- Each, in cable, far in so as it district. is possessed equal Constitution, under the of is,
power Equality in lies and influence. such matters government. guaran- It at free the basis our is only by Constitution, not but the ordi- teed, nance of organizing territory out of * * * was carved. are: therefore “Our conclusions “1. The petition brought properly into by the Court relator. jurisdiction in the “2. matter. The Court has apportionment 1885 are “3. The and acts and void. unconstitutional restraining issue, must “4. The writ of mandamus issuing respondent notice of election the under notice under the from directing him to issue the act of apportionment unless act special session call shall executive the State apportionment legislature make a new expires giving notice.” for such time before the opinion concurring in the ain Justice Chief Morse 11) (pp : case said same legislature apportionment in the senatorial “The beyond any legitimate discretion, far 1891 went equity, the rules when it was and violated * * * necessary, twenty-seventh proper, so. even do twenty-ninth lie con- districts tiguous no other, to each so that there was excuse only people putting 40,033 97,330 one other.” 11) say (p neith- went on to
The Chief Justice apportionments er were of the senatorial rights “arranged of or the view Constitution true the electors of this State. While *20 inquired an not the motive of act need into to test constitutionality, plain I believe its that the time for speaking outrageous in arrived relation to has practice gerrymandering, which has become so long indulged common, and has been in, so without only peace that it rebuke, threatens not of the people, permanency but of our free institutions. respect, rights alone, The courts in this can save the people, give and to them a fair count and equality strated that representation. in It has been demon- people right themselves cannot They wrong. may change political majority legislature, they have often done, but new proceeds majority apportion- at once an to make unequal party, ment in the interest of its and politically repeals. as the vicious one There intelligent boy is not an school but knows what is legislative apportionments, the motive of these and it is idle for the courts to excuse the action grounds, keep other or to silent as to real rea- the than nothing partisan son, which is more nor less advantage taken Constitution, defiance of the disregard rights in utter of the citizen.” opinion concurring Justice in a McGrath, speaking equality representation, same case, 13): (p said “Any apportionment purpose which defeats that contrary only vicious, letter of the spirit Constitution, but to the our institutions, popular government. subversive of Power secured perpetuated power unconstitutional methods usurped, usurpation power is a menace free institutions.” strong
These are words, but if the situation called strong year for words situation stronger ones, demands even because the ex- tenuated circumstances from 1892 date have reaped greated prefer an even reward those who unrepresentative government. *21 respect jurisdiction is found rule with to
The same
Houghton
Supervisors
County v. Sec
in Board of
of
retary
State,
It is admitted defendants Michigan Supreme has ruled Court several that the times equal protection meaning of of on the provisions the Michi- of the United States and laws gan Tomlinson, In Tomlinson v. Constitutions. (p 278) : Mich this Court said equal guaranty protection of “The laws apxolication equality operation or to of not one or rather one nation, all citizens of but State operation applicability par- equality within must, of affected, which classification ticular class be reasonable.” course, pp § MLP, forth the Law, 202, Constitutional following rule:
sets protection equal “Accordingly, of the laws does by, prevent, not and reasonable violated applies by legislative enactment, if classification persons plass all within reasonable such alike making grounds between those exist distinction who do not.” fall within such and those who class in Little has followed our Court This rule been Dearborn, 645; Mich State Bank v. American Village Phillips, 636; Mich Tribbett v. In Marcellus, re Michigan Unem 607; 294 Mich v. Godsol Compensation ployment Commission, Mich 652 (142 ALR type respect of classification what rule with The People permissible case of v. was discussed
is
Hall,
Judge
Kelley
Re-
290 Mich
oe
co
Court Detroit,
rder’s
law,
admit
that it has been the law in
supreme
and the law as defined
court of the
*22
great many years.
United
trolling
a
States for
The con
Michigan Haynes
Lapeer
.case in
Cir
Judge,
(LRA1918D, 233).
cuit
public expense public institutions State this provide penalty and to a for the unauthorized use operations provided of the for.” Briefly manage- this act authorized the summarized any publicly ment of maintained institution of the custody State, authorized to hold in individuals who adjudged by competent juris- had been a court of mentally insane, diction defective or to render in- capable procreation, by operations mentioned, subjects proper inmates determined to be the physicians such treatment. The surgeons boards, State and charge charged of the institutions were authority to examine such and inmates to deter- advisability operation upon mine the Notice of such them. given parents guardians, towas and, they objected, if the matter was to be referred to the probate county court of the in which the institution probate was located. The court then was authoxized question sanity to determine the and the neces- PA No 34. a was filed petition sity operation. of the Such for performing- court of Lapeer county the probate patients. one the female an operation such an order denying entered judge The probate a writ sought The medical superintendent petition. circuit judge compel Lapeer of mandamus judge denying of the probate the order vacate the ques- cause raises The order to show petition. and the of the deprivation legislation tion of class under equal guaranteed citizens rights United clauses Constitution protection Michigan. Constitution States affirmed held, circuit judge legislation, in the enactment of this Court, be termed might selected out of what legislature had al- those only persons defective mentally class from restraint, immune leaving public under ready whom the kind to of like all others operation its normally and remedy is legislative for the reason Extending immunities least, applicable. at equally, which are group part to one privileges legis- is invalid class remaining part denied to (p 145): in affirmance This lation. said Court *23 are constrained to concur in opinion the “We circuit framed judge the learned this law as it that scope, by does not equal its those affected afford, under the guaranteed by the laws protection Constitution, of defectives so limits class its legis- covered to class by clearly provisions lation without within consti- substantial distinction tutional inhibition.”
The No at- legislature by PA again to tempted provide for sterilization of feeble-minded children any they are to persons support who unable and whose children would be- might have, probably come The evident of the public charges. purpose was to legislature enacting provision prevent this chil- from to being required support public v. oe State. mentally persons. petition dren defective A "Waynecounty probate'court in the filed to sterilize 16-year-old boy duly adjudged a who had been to be by probate Wayne county feeble-minded court of Lapeer. and was confined in the home at proceedings by appoint- resulted in an order court ing physician tomy boy X-ray by a to treat or vasec- incapable procreation.
in order to render him
guardian
boy sought
The
of
ad litem for
a
reversal
brought
order
this
certiorari to this Court.
Judge
speaking for the
in Smith
Court,
McDonald,
Wayne
Judge,
v.
Probate
This followed Court numer- following times, ous evidenced cases: Manfg. Co., Davidow Wadsworth Mich 605); Housing ALR In re Brewster Street *24 Michigan Reports. People Chapman, Site, 339; 301Mich 313, 291Mich v. Burgess City 269. 584, 597; Detroit, v. 359 Mich of supreme Turning the United decisions States Corrigan, (42 in court, Truax v. US (pp 375), 254, 66 L ed 27 ALR the court 124, said 333) : predicated system law on the of whole is “Our ap- principle equality general, fundamental equal plication law. ‘All men are the before government of laws and not ‘This is men/ law/ showing the are all maxims man is above ‘No law/ legislatures, spirit and executives, in which expected apply laws. make, execute, courts are adopters of this amendment the framers But were depend on mere minimum not content process spirit by or clause, the due secured might equality which not be on local insisted opinion. They spirit public therefore embodied guaranty. specific ain guaranty was aimed at favor and undue “The privilege, hand, on the one or class individual oppression in discrimination or at hostile equality, sought equality of other. It an on persons, though enjoyed even all of all treatment process. Field, protection of due Mr. Justice opinion delivering Barbier Court 923), Connolly, 28 L ed Ct S US legislation, equality discrim clause, said—‘Class the inating against favoring pro others, is some and carrying pub legislation which, out a but hibited, application, purpose, if within is limited its lic persons operation alike sphere similarly it affects all of its not within the amendment.’ In situated, is Hayes Missouri, 120 30 L ed S Ct justice speaking through the same court prohibit Amendment ‘does the Fourteenth Said objects legislation to which which, limited either which territory within directed, it merely requires operate. It all tois legislation subjected persons shall be treated to such *25 31 oe alike, under like conditions, circumstances and both privileges conferred and in the liabilities imposed.’ guaranty Thus was intended to equality protection only secure not for all but against similarly protection all situated. Indeed, protection Immunity is unless it so. does granted having to a class, however limited, deprive effect to class, another limited, however personal property right, clearly just of a is a equal protection denial of class as if the of the to the latter laws immunity dep- in favor of, were or the right permitted against, larger rivation of class. worked Hopkins, “Mr. Matthews, Justice in Yick Wo v. (6 220), speaking 356, 369 1064, US S Ct 30 L ed process equality the court of both the due and the clause of the Amendment, Fourteenth said: “ provisions appli- ‘These are universal their persons jurisdic- cation, to all within the territorial regard any tion, without differences of race, nationality; equal protection color, or of and the of” pledge protection equal laws is laws.’ say (pp 338): The court went on to 337, “Classification must be reasonable. was said As Gulf, Colorado & Santa Fe Ellis, R. Co. v. 165 US (17 150, Ct 41 L S ed classification always upon ‘must rest some difference which bears just respect a reasonable and relation the act in proposed, to which the classification is and can never arbitrarily be made and without basis..’ such As was Magoun Savings said in v. Illinois Bank, Trust & 1037): 42 L US ‘The rule equality clause] [i.e., is not a substitute for municipal only prescribes law; that that law have operation, equality equality the attribute operation operation not mean indiscriminate does persons persons merely according such, on but on 'principle repeated to their relations.’ same is Greene, R. and enforced Southern Co. 536): 287, L reason- Ct 54 ed S ‘While [June1 permitted, doing classification without vio .able lence to the is equal protection laws, such classifi cation real based some substantial must just bearing a relation distinction, to reasonable respect things to which classification such arbitrarily imposed; cannot be and classification any basis.’ Classification made without substantial processes. reasoning inveterate our most consciously speak scarcely without think or can ¡We unconsciously exercising It therefore ob it. must or tain real things, *26 regard legislation; it but must in determine and between real differences and resemblances persons, in them accordance and class and purpose pertinence in hand. to the Classi their with fication is dealing here which we are with the one like philosophic development be to of the said legal opening to the door thought ized attempted subject is world and rights are thus experiment. fundamental When may away, well however, we taken to be judgment. The experiment to attentive such very purpose was, to its intended, Constitution experimentation the fundamental prevent through Mr. Jus said rights individual. We of the (28 Oregon, Ann Cas 412,420 208US Muller in v. Brewer, tice 957), ‘it is the 551, 13 L 324, 52 ed CtS places constitution a written peculiar value legislative ac unchanging form limitations stability permanence gives a tion, and thus lack would be government otherwise popular ing.’ ” 330): (pp 329, court also
The stated any right is “It that no one a true has vested particular law, rule common is also true but it legislative power only that the of a State can n exerted subordination princi- fundamental ples right justice guaranty which the of due process in the Fourteenth Amendment is intended preserve, purely arbitrary capri- and that a power whereby wrongful of that a exercise cious injurious highly property rights, invasion of practically stripped sanctioned and the owner here, v. oe State. remedy, wholly of all real at variance with those principles.” (62 In the case Oklahoma, of Skinner v. 316US 535 1655), dealing S L ed a Ct with sterilization supreme statute from Oklahoma, the United States (p 541) say court had this to : guaranty ‘equal protection “The of the laws equal pledge protection ais laws.’ Tick Wo Hopkins, lays
v.
369.
the law
US
When
an
unequal hand on
who
those
have committed intrin-
sically
and not the
quality
the same
of offense and sterilizes one
other,
it has made as
invidious discrim-
race or
particular
if
ination as
it had selected a
oppressive
nationality for
treatment. Yick Wo v.
Hopkins, supra;
Canada,
ex
Missouri,
Gaines,
rel.
(59
208).”
232, L
83 ed
US 337
having
case,
to Smith
court
reference
Wayne
Judge,
ALR
Probate
formula of words if such art- ificial drawn.” lines could be In Steam Boiler Harrison, Ins. Co. v. Hartford *27 (57 301 1223), violation of the US 459 81 838, S Ct L ed in which Georgia the court held a statute equal protection clause of the Federal Constitution, McEeynolds, speaking Mr. Justice for the court, said (pp 462): 461, applicable principle respect “The of classifica- tion often has been announced. will suffice to It quote paragraph from Louisville Gas & Electric (48 Co. Coleman, v. 37, 277 US 38 32, 423, S Ct 72 770). L ed “ may generally equal protec- ‘It be said that the rights persons tion clause means of all must upon rest the same rule under similar circumstances, Kentucky (6 Cases, Tax Railroad 115 321, US 337 Magoun 414); Ct L 57, 29 ed v. Illinois Trust & S Michigan Reports.
34 360 (18 Savings Bank, 283, 594, 170 293 S 42 L ed US Ct applies it to the exercise of all the powers affect the of the State can individual including power property, or his taxation. County (Cal), R. v. Southern Pac. Co. Santa Clara (Cal), 388-399; 13 F 385, F Railroad Tax Cases 18 722, however, classification; 733. forbid not, It does power classify purposes to the State range flexibility, provided taxation is of wide of always, reasonable, that the “must be classification ground arbitrary, upon and must rest some not having relation to a fair and substantial difference the ilarly ster Guano Co. v. object persons legislation, sim that all so Roy alike.” be treated circumstanced shall (40 Virginia, 412, 415 Ct 253 US S Air-Way Corp. Day, 989); 71, 266 v. Wiscon L US 64 ed 560, 169); Schlesinger (45 69 12, L ed 85 S Ct (46 sin, 557, 43 240 S L ed US Ct 1224). say, ALR That is to mere not difference is always enough: rest and classification is arbitrarily S. attempted “must classification a to which some difference which bears reasonable respect just the act in relation to proposed, be made and can never any Gulf, & and without such basis.” C. (17 255,41 Ellis, 150, 155 F. R. Co. US an unusual character L Discriminations of especially suggest to deter careful consideration they constitution obnoxious mine whether are Compare provision. Martin v. District Colum al 743); (27 Bell’s 440,51 L ed Ct bia, 135, 139 S US Pennsylvania, Gap US R. Co. v. 892).’ Ct 533, L ed S “Despite range discre- broad State’s if the a limit be maintained has which must tion, safeguard overthrown. is not be constitutional supported by mere are Discrimihations fanciful v. conjecture. Farm Products Co. Borden’s edL 194, S Baldwin, 293 Ct they 281). They if of- reasonable cannot stand as plain sense.” of common fend the standards *28 v. 35 oe Hughes, US 1 (64 of v. In. case Snowden 321 497), 11):' (p 397, 88 the court Ct L ed wrote S sufficiently the, discrimination is “Where shown, right equal protection to relief under the clause is’ diminished fact that the discrimination rights. political Blacker, relates to McPherson v. (13 869); 23, 146 24 36 1, 3, US L ed S Ct Nixon v. (47 759); 536, Herndon, L 446, 273US 538 S Ct 71 ed (52 Condon, Nixon v. US S Ct L ed Pope 458); Williams, 984, ALR see US 817).” 48 L ed S Ct Greene, In R. Southern Co. Day, speaking L Mr. the. Justice (pp 413):
court, said “The only Federal elementary Constitution, it is say, supreme to is the law the land, and all its applicable provisions upon binding are all within the territory protec- of the United States. its Whenever tion is invoked the courts States, United both rights guar- State and Federal, are bound to see anteed the Federal Constitution are not violated by legislation provisions of the State. ofOne binding the Fourteenth Amendment thus every any prevents State the Federal Union State denying any person persons from within its * * * jurisdiction equal protection laws. equal protection subjection “The of the laws means equal applying laws, alike to all in the same person plaintiff situation. If is a within the jurisdiction of Alabama within the 'mean- State ing Amendment, of the Fourteenth it is entitled to upon equal enjoy stand before the law terms, rights belong to, same to bear the same imposed upon, persons burdens are in a other * #* like situation. “ ‘The inhibition amendment that no deprive any person jurisdiction shall within its equal protection designed.-to the prevent the laws was person being persons any or class of from *29 360
36. special subject discriminating singled out as a ” legislation.’ hostile and Similarly, Cahoon, case of Smith v. 283 US 1264), (51 582, 553 75 L ed strik court, S Ct ing on face no a Florida statute which its made down private a a between common carrier and distinction (pp 567): 566, said carrier, guaranty equal protec “But the constitutional interposed against tion of the laws is discriminations entirely arbitrary. determining In what that are range of discretion and what is arbi is within trary, regard particular subject must be had to the * * * action. far the statute the State’s So public safeguard respect designed with highways, we that the to ination makes between think discrim the use of private carriers necessity obtaining certificates are relieved appel giving security, a carrier such as and and arbitrary wholly a violation constituted lant, was right. appellant’s a clas constitutional ‘Such of the sification is anything having relation on not based Air-Way Corp. purpose it is for which made.’ to the 169); (45 Day, 69 L ed 71, 12, 85 v. 266 US S Ct Connolly Pipe Co., 540, 563, 184 US Sewer Union v. 679); (22 R. Co. v. 46 L Southern 431, ed 564 Ct S 536); (30 287, 54 L ed Ct Greene, 400, 216 417 S US (42 Corrigan, 333 S Ct 312, 332, 257 US Truax v. 375); & Elec Louisville Gas ALR 254, 66L 27 124, ed (48 423, 72 Coleman, 37 S Ct 32, US tric v. Co. 770).” L ed supreme court case decided In United States Cooper Aaron, September US 1958, v. 12, L 2d ed 3 L 2d ed Ct 1399, 78 S speaking supreme refer- court, L 2d public in Little integration schools to the ence 17-19): (pp said Rock, Arkansas, “ position public under ‘Whoever, virtue of *** away government, or takes denies State oe State. equal protection the laws, violates the con inhibition; stitutional acts in as he the name and State, for the clothed with the State’s power, his act is of the State. This so, must be or the constitutional prohibition no has Ex meaning.’ parte Virginia, 100 US L ed 676). Thus the prohibitions of the Fourteenth Amendment ex all tend to action of the State denying equal protec laws; tion of the whatever agency the action, Virginia see taking Rives, (25 L ed 667); Pennsylvania v. Board Directors *30 City 806, 1 L Philadelphia, Trusts (77 353 230 US S Ct of Shelley ed 2d 792); Kraemer, 334 1 (68 US 836, Ct 92 L ed 1161, S 3 ALR2d 441); or whatever the mer in which it guise taken, is Derrington see v. Plum (CCA 240 F2d 5), 922; Department Con of Development servation and v. Tate (CCA 4), 231 F2d 615. In the short, constitutional of chil rights dren not to be discriminated against school ad mission grounds on of race or by color declared court in the Brown Case v. Board Edu [Brown Topeka, (74 cation Ct 98 L ed US S 873, 38 ALR2d L 1180), (75 US S Ct 99 ed 1083)], can neither be nullified and openly directly by or legislators State executive or judicial State officers, nor indirectly nullified them eva by through for sive whether ‘in segregation attempted schemes Texas, or geniously Smith v. ingenuously.’ (61 164, 85 L 84). _ “What has been said, light the facts developed, enough dispose to of the case. How- ever, we premise should answer actions are not governor legislature they bound our It necessary the Brown Case. holding only to recall constitutional propositions some basic which are settled doctrine.
“Article 6 of the Constitution makes Consti- tution the of the land.’ In ‘supreme law Chief a Marshall, (cid:127)Justice speaking court, unanimous to the referring and Constitution as ‘the fundamental paramount law of the Nation,’ declared Marbury (5
notable case of Madison, 1 Cranch. US) emphatically 137, 177 L ed that ‘It is province duty judicial department * * * say what the law is.’ It follows interpretation of the Fourteenth Amendment enun supreme ciated this court in the Brown Case is law the land, article of the Constitution binding makes it of ‘anything effect on the States any Constitution contrary or laws of State to the * * * notwithstanding.’ legislator judicial “No State executive or officer against can war violating the Constitution without undertaking support his it. Chief Justice Mar spoke saying shall for a court in unanimous that: legislatures may, ‘If the will, several States at the. judgments annul the courts the United destroy acquired rights States, and under those judgments, the Constitution itself becomes solemn mockery.’ (9 US), United Peters, States v. 5 Cranch power governor L ed A 115, 136 who asserts nullify similarly a Federal court order is re power, If he strained. had such said Chief Justice Hughes, in 1932, also for a unanimous ‘it is court, governor, that the fiat of a manifest and not the Constitution of the United would be the States, supreme law of the that the land; restrictions of the Federal Constitution the exercise of State *31 impotent power phrases.’ Sterling would be but v. (53 Constantin, 378,397, S Ct 77L ed US 375).” Again Texas, Hernandez US CtS 866), dealing 667, 98 L sys ed the court, awith persons tematic exclusion of of Mexican descent from jury (p service as 478): commissioners, said “When existence of a distinct class is demon- strated, and it is further shown that laws, as applied, single written or out that class dif- ferent treatment not on based some reasonable clas- guarantees sification, the of the Constitution have been violated. The Fourteenth Amendment is not oe State. Scholl® solely against directed class tween discrimination dne to ‘two- theory’ is, differences based be- —that Negro.” ‘white’ and Phillips Again in Co. Chemical v. Dumas Inde pendent District, School (p 385):
L 2d the court said power classify indeed, is, “The State’s extreme- ly tutional only and broad, its discretion is limited consti- rights by the doctrine that a classifica- may arbitrary.” palpably tion not be question disposition Propo- then is: Does equality operation sition No appli- constitute cability within the class affected? The defendants argue every par- that it does, since citizen within a equal right ticular senatorial district an has to cast for a vote senator with all other citizens within the same senatorial district. this Is the test? Clear- ly, it not. is The test is found the determination voting of the class. The class is those within the Michigan for State of the office of State senator. Therefore, the test would be: Has each citizen vot- ing for State senator
right equal cast a vote for State senator with that they of all other citizens? If I not, do think it agreed they clearly is do then not, all within the same equally. classification have not been treated This necessarily alone, declare however, under law would amendment in violation of the due process clause. There is another factor has to be and that Is considered, is: unreasonable? this discrimina- palpably arbitrary tion Is there any up reasonable criterion set to determine the area spelled In districts out the amendment? examin- ing they certainly we find that situation, are population not alike so far concerned. When admittedly question area, comes there is Certainly, it no between districts. resemblance *32 Michigan Beports. not a similarity interests, since there ais substan- tial distinction between districts which are located by side side insofar as population and area are con- even cerned, they though have common regional characteristics and interests.
I have searched in vain in the for, briefs and the oral have arguments failed to submit, any reasonable or rational classification or criterion upon which existing the constitutional amendment could up be held. In oral arguments before the it Court was ad by mitted both sides no criterion such existed. In fact, was the argued by defendants that none needed —that was had a people to make right any kind of classification desired, rational they or other wise. It appears from the record, and a matter is of common knowledge, that gross population inequal ity among exists the senatorial In short, districts. there is rational correlation in no the present sena torial forth in the districts as set 1952 amendment representation area, between inter political units, ests, combination population, any of these. How then were the for lines drawn the present amend ment ? very The answer simple, and one that every boy known to school girl State of and one of which Michigan, certainly this Court can judicial take notice. It done for the arbitrary purpose maintaining and intentional control of legislative of a government hands Prior relatively few people. legislature, for had the responsibility reapportioning according population,12 senate failed Michigan numbered from 1 to senator. amendment. legislature portion senators.” districts, elected “At “The senate anew the unless such No shall session county years shall consist of 32 members. representatives among law shall county Constitution 32, inclusive, rearrange single shall be divided and eaeh tenth (1908), districts. Such the senatorial districts and equitably eaeh art formation of senatorial counties which shall entitled year § Senators shall be districts shall be 2, prior thereafter, 2to and districts ehoose or more to 1952 ap- *33 S cholle State. obligation duty carry constitutional and from its out legislature, year violat- to 1952. The so the ing mandate, created districts constitutional gave control it wanted. it in 1952 the kind of which designed Proposition amendment, the3,No promoted very purpose admittedly for the and existing freezing so this control could districts perpetuated. we find as fact. This be project into even such a the future short
If we an minor- we will even smaller 1970, find that time as Michigan. ity governing people un- will be The any representative be able senate would to veto' legislation, progressive otherwise, to the eventual or Michigan designations downfall of itself. given only the 1952 that can discriminatory, arbitrary, palpably are
amendment and legislation it unreasonable, such is and class as deprives plaintiff other of Michi- and citizens rights gan in violation Fourteenth of their Constitution. to the States Amendment United by questions questions in- Both asked Court. Two were of our of violation State Constitu- volved procedural questions. find the tion. Both were We plaintiff and 1952 amendment in that denies void protection equal Michigan other citizens contrary to the laws Fourteenth Amendment no valid Constitution, and we find United States apportioning districting in existence senate act (1908), pursuance Michigan Constitution §§5, 4, 2 and as not discuss art any unamended. We need questions.
of the State out of under issue and of mandamus should Writ commanding Court, of this defendant seal inhabitants, using according number basis for sueh to the apportionment preceding States the last United census of county made, any into apportionment Each representative so division of by thereunder, supervisors, districts its board of made year Michigan altered until shall not be Constitution the tenth thereafter.” 4, (1908), prior art to 1952 amendment. § Michigan secretary issue 1960 State election notices perform senators, nor to otherwise those requisite holding acts senators to the of elections for State
according prescribed by to the districts Michigan colorably (1908), §§2 Constitution art 5, Proposition gen
amended 3No of the eral election of November, PA adopted pursuant 77,13 No as the thereto, until such time Michigan legislature legislation enacts valid reapportioning the State districts in ac senatorial (1908), §§ cordance with the and Constitution as4, and the last unamended, Federal decennial *34 census. by of
Jurisdiction this cause should be retained this pending opportunity an Court for the of enactment timely, reapportionment legislation by valid the present Michigan legislature. legislature If the fails days filing to so act within 60 from the date of the opinion, secretary this the defendant of State should petition be directed to for in- this Court further parties may peti- structions. Plaintiff other so they tion if desire. public question being
A no al- involved, costs are lowed. (dissenting). J. This case the involves Smith, right to
citizens’ vote. It involves, their well, representation right equality legisla in their right “a ture, inestimable to them and formidable only.” tyrants petition original have We before us an writ defendant, mandamus directed to the the secre- tary Through plaintiff of State. such writ the seeks prohibit conducting the defendant from the forth- coming in elections senatorial accordance with 2.27 Declaration of [2]). CLS §§ Independence. 4.601, 4.602 (Stat Ann Cum Snpp §§ 2.27[1], oe State. districting. present system of That senatorial the prescribed system 2 of 5 of article section is general at the elec- amended Constitution present system, en- 1952. The of November tion briefly, amendment, establishes acted senatorial territorially described, districts, (The districts, senatorial until Constitution. legislature under the been
had constitutional lation.) established representation by popu- mandate plaintiff’s petition simply is that The basis for vio- amendment to the Constitution is protection process equal clauses of the due lative of to the United the Fourteenth Amendment States United States violation Constitution. asserted is establishment
Constitution senatorial a classification districts citizens any explanation, groups lacking reasonable into arbitrary, capricious, and unreasonable classifica- urged dis- It that establishment tions. there no ration- unreasonable because tricts is thus pre- for the or, indeed, discernible, basis districts al, they fact, no are, amendment, scribed in territory. arbitrary more than allotments not an at the outset this is It be noted should only “apportionment” To it will case.2 so describe fundamentally simple inject into the issue *35 confusion to will, true, it advert court. cases the We before sufficiently malapportionment become had wherein attempted action, or self- court warrant serious to only degree help by citizenry,3 to the neces- the but tionment, tives, ment of the ment ment suit was districts makes agencies. [2] [3] “In some States “John W. of State determined the In most boundaries of Keogh, defending allotment Legislative the distinction eases, the a distinction unsuccessful to each legislature, a foreclosure suit. Districts, however, legislative unnecessary." county plaintiff may 37 Ill the existence districts redistricting, L in a its Representing made Rev Walter, quota performed by loeal previous apportion 20, between 21. single the Reapportion himself, representa rearrange reappor member he 360 44 then, are not, out their differences. We
sary
point
to
with
cases wherein the
concerned
chosen
directly
e.g.,
be
representation,
population,
has
basis
in the
through
population,
shifts
come distorted
centers, and
of an inac
through
cooperation
its
The
character of
insidious
tive legislature.
type
4
has
fully
been
gerrymander”
exposed,
of “silent
that
for the moment
to
stress
is not
but suffice
related thereto.
Thus
us, though
case
cases
before
compel, directly
seek to
aggrieved
in which
citizens
its
indirectly,
legislature
perform
constitu
on the
duty
prescribed
tional
of reapportionment
in
are
point.5
not asked
squarely
are
We
basis
acting illegally
legis-
were
argued
Illinois courts
since the
judge
stop
failed to redistrict. When the
tried to
lature had
Keogh pulled
gun.
lawyer
argument,
opposing
was shot and
gun
Keogh
get
away.
explained
he tried to
killed as
he
lawyer
forcibly
bring
public
killed
‘to
attention
his contention
supreme
illegal body
that
failure to
Apportionment
court of Illinois was an
because
”
reapportion legislative
Lewis, Legislative
districts.’
Courts,
L
the Federal
71 Harv
Rev
n 77.
4
provisions
legislative
respect
“State constitutional
re-
apportionment
servance. This is a rather curious
are more honored
their breach than in
ob-
their
phenomenon
country
in a
placed
has
mueh
qua
so
store
written
non
constitutions as the sine
popular sovereignty
Short,
and the rule of law.”
States That Have
Requirements,
Not
Their
Contemp
Met
Constitutional
Law &
17
Prob
377.
See, generally, Symposium
Legislative
on
Reapportionment,
17
Contemp
253; Lewis,
Law &
Legislative
1057;
Prob
Apportionment and
Courts,
L
Walter,
Federal
71
Harv
Rev
Reapportionment
Legislative
Districts,
State
20;
37 Ill L
Durfee,
Rev
Apportion
Representation
ment
The
Legislature,
Tabor,
43
L
1091;
Mich Rev
Gerrymandering
Legislative
State and
Districts,
Federal
16
277;
Md L Rev
Congressional
Court Review of
Apportionment, 3-
129;
Stan L Rev
L
659;
Harv
Rev
1080;
Columbia L Rev
43.
180;
Ill L Rev
593;
La L Rev
Comment,
125;
LWis
Rev
Comment, 1949
761;
Wis L Rev
127;
56 Yale LJ
18 Temp
388.
LQ
interest,
Also of
Farmer, Legislative
Alabama,
pp
43;
Process
20—
Ahl, Reapportionment
California,
22 Am
977-980;
Pol Sei Rev
Mott, Reapportionment
Illinois,
598-602;
Am Pol Sei Rev
Stewart,
Study
A
in Gerrymandering in Kentucky,
Ky
417, 426;
LJ
Apportionment of the New York
Assembly,
L.'
St. John’s
345;
Rev
Salle,
Korsak & Di
Legislative Apportionment
in Penn-
sylvania, 12 U Pitt L
Rev
222-243.
Colegrove
McCanless,
E.g.,
Green,
What validity aof State constitutional amendment. applicable precedent is The case before us without yet peculiar own it, its facts. Closest to some- factually legally, and removed, what both is sit- a to which citizen seeks the constitu- uation test validity recently apportioning of a enacted law tional ground a The on chosen basis. attack the State n often situation is that made in the law does not such n conform and is, therefore, to the Constitution State infirmity legislation may in the con- The invalid. equality population practical in a lack of sist requirement despite a constitutional districts the that equal prac- nearly legislative as be districts may invalidity irreg- population. be ticable shaped (gerry- unreasonably ularly districts and provision mandered) teeth a constitutional contiguous. in- Such convenient be districts this situation can be fully instance of found comparable No party, actually who is an liti- interested law—one Anglo-American judgment judge jury. The there is being also the gant, n be left to who will imme- apportionment is those be to an is not voters) vitally as affected. (but diately States, to in this area. Certain in- act been slow The States have n cluding the States, Alaska, adopted Hawaii and have recent responsibility apportion- provisions to take constitutional ment Illinois, reapportion California, away political branch. Such States are: from the Texas, special Dakota, board is directed to where a South specified time; legislature fails to so within if do secretary State; given to power same is 'Oregon, where the Missouri, power given entirely is Ohio, Arkansas, where secretary given Arizona, complete is board; and where the governor of Alaska and Hawaii In the constitutions power. reapportion. power to .given the exclusive supra, op 1089, 1090, Lewis, cit nn at point generally, see On 187-194. made, Mr. Justice Stone in Regarding point here a comment Co., Products States Carolene United worthy 4, is of reference: 82 L ed note legislation unnecessary which to consider now whether “It ordinarily expeeted be processes can political those restricts subjected legislation, bring repeal is to about of undesirable general prohibitions exacting scrutiny judicial under more legislation.” types other Amendment than are most the fourteenth *37 [June- well, arise
validity may, from the splitting in the formation counties of legislative districts,, under circumstances forbidden expressly by Constitution, and it even may reach the extreme of for providing representatives in senators excess of the number in specified the Constitution.
This case is these. any We have mentioned them merely keep to the issue before us in clearly focus. Their arise from similarities the fact that in each a statute is weighed against the charge that it inis violation of palpable superior name authority, ly, Constitution of the So, State. here, appeal an made to authority higher than the State Con i.e., stitution here involved, to the Federal Constitu tion. The “supreme Law of the Land” is not the- Constitution Michigan, that of any other State, “any Thing Constitution or Laws- of any State to the Contrary notwithstanding,” but the Constitution of States, the United and we, “the- in shall Judges every State be bound thereby.”7 their Despite, then, differences, each through runs a thread in the fabric of the fundamental right which, vote. for They provide us basic principles will contribute to our solution. We will from time- time refer to them, and we will draw also upon, that landmark of cases, emanating series from the courts, Federal which have sought preserve to-the- Negro most of all precious a demo- rights cratic society.
In order situation may be seen its proper constitutional perspective, to- necessary set forth some detail not only the facts pleaded by but parties, also certain historical matters allud- to in and appendices. briefs Prior to the of the amendment now adoption under- scrutiny, the Michigan senate consisted of 32 sena- Const, art 2.§ oe single each elected district. tors, Beginning and each 10th year thereafter, Constitution directed that: rearrange the law senatorial “the shall legislature anew the apportion representatives districts according to the and districts among counties inhabitants, the basis such using number of n apportionment the last United States preceding n census Art 5, (Emphasis supplied.) of this State.” 1908. 4, Const .§ occurred of the legislature
The last apportionment 1920 census.8 in the main in 1925, relying *38 in the Michi- system representative 1950 this By decennial- to be constitutionally directed senate, gan basis, had dis- on a become ly apportioned population and shifts population due to growth torted a total failure combined with thereof, the centers mandate the constitutional obey to of the legislature of population. on the chosen basis reapportion to sen- largest figures, the 1950 census According 544,564 while people, contained atorial district Thus, the smallest 61,008. only smallest contained through lapse was given district, thirty-second, an voice equal legislative action, lack of of time and To district. eighteenth that of the largest, among in population disparity indicate the extreme most vari- glaring a few of the districts, only dis- of this smallest population in the ratio of .ances cited need be areas other more populated tinct to the table: in the following
[8] PA No [291] (CL § 4.1 [Stat Ann 1952 Rev § 2.1]). Michigan Reports. 360 48
TABLE District Counties 18 12 21 Population Baraga, Macomb, Lapeer, Part of Part of Part of Part of Part of Oakland, Genesee Keweenaw, Ontonagon Wayne Wayne Wayne Wayne Wayne Houghton, Washtenaw the amendment senatorial districts Saint Clair Population 475,753 270,963 270,255 282,247 530,607 in 1950 312,354 544,564 525,955 1952. 61,008 prior District to Patio of Smallest 4.5 to 4.4 to 4.6 to 8.9 to 8.7 to 7.8 to 5.1 8.6 to 1 to gerrymander” clearly The “silent liad thus proportions reached timid. offensive even to the most nearly The voice of one citizen times as charting influential gov- another’s the course of ernment in this State. malapportioned
The districts noted in the table, only flagrant examples. we observe, were the most malapportioned The remainder, well, were degree only gross. to a somewhat less In these particularly, enumerated districts, the citizen ivas although might repre- told that he have a senatorial representative speak many sentative, would many times as the voters as his co-senator from one speak areas, favored he but would no louder. votes 9 citizens in Oakland and Washtenaw *39 Wayne parts county, counties, or -of were worth no approximately, than, more that of 1 citizen in Baraga, Houghton, Ontonagon and Keweenaw, gov- counties. The distortion in the structure of our ranged ernment downward from this as extreme, 1 table indicates.
Under the 1952 amendment to article 5 of the Con- stitution, the number of increased senators was to 34. Each member now from a elected district
[9] See plaintiff’s exhibit D. 49 oe geographically in the described amendm which is subject so are not The set boundaries ent.10 population. change In of fluctuation because except changed they may not constitution be fact, of the senate as The new districts amendment. al are identical with the in this amendment established 11 exceptions. 2 districts, with old representative in this scheme If the basis population, then the division were amendment grossly un- would he into 34 chosen districts clearly 2 to table indicates: as a reference fair, 212 TABLE
Population ratios under constitutional District [21] 13 11 Macomb [18] [4] [2] 1 5 [3] Counties of Part Part of Part of Part of Part of Part of Part Genesee Oakland Baraga, Hougliton, Keweenaw, Ontonagon Wayne Wayne Wayne Wayne Wayne Wayne Wayne amendment Population 1952. in 1950 354.961 184.961 352,890 340,738 344,136 344,986 333,498 364,026 396,001 270,963 61,008 Patio the smallest district to 3.0 to 5.5 to 5.6 to 5.6 to 5.6 to 5.8 to 5.8 to 6.0 6.5 to 4.5 to 1to Districts New 134,606 127,393 33 34 2.2 to 1 1 2.1 to Washtenaw Lapeer, Saint Clair be numbered from to ritory fifth, Saint Lapeer, Saint Clair counties. time and Monroe ty; elected for Washtenaw 10Michigan “The senate The twelfth and the eleventh, See eighteenth, within the plaintiff’s eleventh thirty-third, adoption counties;” counties, Clair, Const Macomb years shall district, twenty-first, exhibit district which boundary and Macomb counties was divided into (1908), and of this was divided consist of et cetera. county; Washtenaw 34, inclusive, G, pt by single art amendment, lines of the counties Wayne county; 1. 5, 2, formerly prior § into county. districts. members. and shall consist of the ter- amended, provides: thirty-fourth, comprised twelfth, follows: amendment nineteenth, Such districts Senators existing Oakland coun- Pirst Oakland Lapeer comprised Lenawee shall districts, through at shall *40 thirty-second
The smallest district still the largest, although twelfth, the latter has been population, through splitting reduced population 2 counties, to The 396,001. ratio of of to the is, nevertheless, district smallest 6.5 to 1. change The in ratio of the eleventh district to the although smallest is now 3.0 to it was before 5.1 re- Wayne county representation to 1. Within upon average, manifestly dispropor- mained, plaintiff merely tionate. attacks this scheme as malapportionment,” one of “constitutionalized vio- lative Fourteenth Defendants, Amendment. argue representa- however, of that since this scheme place tion has been of into Constitution, written representation of our former scheme based apportionment by population, valid. it is question attempt- no that,
There is
but
if
were
this
provisions
ed under the
of
unamended
article
legislation
providing
would be unconstitutional as
districts,
obviously
unrepresentative
for
unfair and
question,
there is no
moreover,
we would
have entertained suit thereon.
It is settled
in
hesitates to
law
jurisdiction
that this
neither
Court
apportionment
constitutionality
scrutinize
acts
provisions
nor
hold
them invalid should their
of-
Supervisors
our basic charter.
fend
Board
of
of
Houghton County Secretary
State,
v.
it. held Thus we unconstitu- Supervisors Houghton County tional in Board Secretary supra, apportionment State, an act standing, years including, holding inwell, our invalidity, intervening equally an act, offensive requirement to the our Constitution. op cholle S holdings in our our last
We stress cases cited be *41 they grounded principle a cause are not to be disputed, dispositive of the case at bar. Our undisputed, people right, a have inalienable and to representation. equality right The is not to be will neither to the diluted chicanery diverted. It succumb apathy crafty, nor to the of those our constitutional act whose failure to officers accomplishes clear accordance its mandate gerrymander.” the “silent zens’ majority Nor, indeed, the citi is right power vulnerable to the a massive nothing through
which disenfranchises less than amendment of our itself. Davis Constitution (SD Ala), Supp per v. Schnell 81 F affirmed (1949), curiam L 1093), infra.
They forget, group, those of the latter that our appeal only higher to a disenfranchised authority. us but to respect rights Even with reserved States, the laws of the individual cannot States supervene the Federal Constitution. accomplished by a
That a disenfranchisement is majority sought vote and to be made effective through gives constitutional amendment it no im- munity tongue scrutiny. from We would neither hold our stay Negroes
nor our hand if all the in our wholly were, constitutional dis- amendment, protestants, enfranchised, nor the white nor the any group, Masons, Free nor no other and we see deprivations difference between such and the case at bar, where those have flooded into our who vast only part given industrial are a of the vote centers given parts citizens other of the State. urged
In defense of what has done it been representation. “area” has now become the basis questioned seriously It has need not area representa- may fashioning been, tive be, factor in question the real the defendants districts, but accept must in issue is whether court are putting be- simply valid this scheme representation representation,” an “area form of cause it is labeled ip verbis, must be valid. sis though, system such involves the basic necessarily made argument In apportionment, any apportionment. theory and man’s government history representative various forms for a “democratic society,” search In there have been utilized. each representation representation. some for the scheme of “value,” basis employed, to the classification substance gives This law, reason,”13 “in roots them or, as is said “some relevance to having the distinctions made is made.”14 Vari for which the classification purpose for a time Popular have been employed. ous devices *42 into “functional division” of population and economic inter the same sharing social groups Carolina, from 1808 to the Civil in ests. Thus South was the War, this division making one means fact, in day,- paid. present amount taxes To in of the sen factor determining apportionment amount of taxes is the direct Hampshire ate of Newr have been of voters groupings In paid.15 Europe, nationality, profession, upon based such factors affiliation, e.g., occupation, factory university employment. that is are told classification
In case we far as area alone But, area. so grounded upon district, com the twelfth concerned, we see16 than square larger 1 233 miles only county, prising 1 coun district, comprising only also thirteenth than the territory miles less 6,955 square it but has ty, some coun- encompasses which district, thirtieth L98 15 16 New Plaintiff’s 100 L ed Griffin Walters v. 660). Hampshire 891, Illinois, exhibit City 55 ALR2d Const H. 351 US St. (1783), part 1055). Louis, 12, 347 US (concurring opinion) art 26. (76 S Ct oe square district, turn, The thirtieth has 7,188 ties. approxi- more the thirteenth than district miles square territory mately 7,401 miles more than the comprise districts, sixteenth seventeenth county. we Thus, Kent discover from senators county approximately representing each Kent county square one senator from miles, Oakland square representing 877 senator from the miles, one counties) twenty-eighth (comprising district representing square 5,471 miles, and the senator (7 counties) representing from the thirtieth district square 7,832 miles. representation employed clearly,
The “area” is, haphazard. fact, there, in a formula Is which this so, result vealed to been achieved? If has has been re- us, either submitted materials parties, representations or the made oral argument, any nor does our research reveal clue. recognizable We conclude that area as to alone no (far rational) employed. less criterion been has possibility exists, of course, it is area plus something In else. our own colonial there times districting according governmental was some boundaries, such as towns counties. The town representation unit still exists limited form in Opinions some areas. Justices, See 101 NH 523 A2d As counsel for the defendants has painstakingly appendix, so forth set in his the coun- ty representation many still forms basis *43 England In involving State senates. this scheme, the corporate boroughs, towns and led to the infamous boroughs,” “rotten and the resultant reforms.
The United States senate still chosen on this basis, but, it will be observed, this is not the “area” representation form of that would defendants argue. through system It is apportion- election a upon governmental ment units. Area is involved only in any governmental the sense that unit occu- Michigan any just,
pies indeed, as human activ- area, does some representation adoption ity. for of this form The compromise by a was senate United States giving up part in for a return colonies smaller sovereignty. political not, how- We need the their develop history of this selection ever, representation for the United States form of agree on the elemen- the writers senate, adopted only tary point when it was Convention verge was on the the Constitutional collapse. Federal was union The Union willing sovereigns, people of whom each sovereignty government relinquish chosen to its solely according numbers. a senate elected Thus, legislatures, through was the States, their particularly, compromise. point See, on this following: Legislative Apportionment and Lewis, (1958), 1057,1071; Harv L the Federal Courts Harvey, Reapportionment Rev Legislatures—
of State Legal Requirements (1952), Contemp Law & Prob Theory Apportion- 365; Grazia, de General (1952), Contemp 256; ment & Durfee, 17 Law Prob Representation Apportionment Legislature Papers, (1945), 1091,1095; 43 Mich L Rev Federalist quoted MacDougall (1948), 62, No v. Green 93L 281,289, This ultimate US decision thus statement made has been well summarized “ people, ought ‘In branch, that: one ” represented; Far- other, the States’ (1787), of the Federal rand, Records Convention supra, p quoted op. cit., Lewis, n 85. It must be that no effort was made stressed apportion according amendment to to the existing political we not reach the units, and thus do question political whether or not an unit, historic life once related to the on a realistic largely people, rational basis, and and acreage, but now devoid of representative only despoiled of cut-over and representation.
is a constitutional basis for *44 oe with, apportionment was not done relation to assuredly, comprise counties, some since counties while districts, several others are combined to form It one district. has not done been with relation to townships, villages, precincts, any cities, wards, or political Area, other unit. then, is not related political any recognized great subdivision, either arguments and thus falls small, defendants’ aof constitutional invalidation amendment based upon solely, arbitrary here, as will areas, mean the invalidity of all within classifications our based State upon political inferentially, units, well, traditional as those of other constitutions as selected based their political units. postulated
We have other criteria in an effort to any recognizable ascertain whether there is basis employed for the classification in the determination geographical areas, whether such basis, any process. if found, has relevance to the electoral obviously All have are failed. There wide variances in the various senatorial districts, areas, as toas populations, counties, the to rural nonfarm as to urban numbers populations, as to rural farm populations, to commercial farms, and as to the manufacturing existing number establishments in the districts.17 Michigan Sheets, published The State Economic Data October, 1959, research division of the economic development department, disclose the twelfth senatorial dis (Oakland county) following population trict total, had the in 1950: urban, 396,001; 286,928; nonfarm, 95,795; rural farm, rural 13,278; 1,249 Similar and in had commercial farms and 1051 manu facturing figures establishments. for the thirteenth district (Genesee county) population, are as follows: 270,963; total urban, commercial 201,857; nonfarm, 53,421; rural farm, 15,685; rural farms, 1,617; manufacturing establishments, 286. Sim figures ilar districts, for the comprised sixteenth seventeenth county, are,
in Kent taking average an for each district: total population, 20,470; ing establishments, 144,146; population, 113,408; urban nonfarm, rural farm, 10,267; farms, rural 1,246; commercial manufactur twenty-seventh comprises 388. Tlie district Antrim, counties of Traverse, Wexford, Benzie, Grand Missaukee, Leelanau, figures and Kalkaska. Similar for such district are: Michigan Reports. sought in vain to find some formula or have
We *45 approximate, competent even to formulae, roughly of counties and of coun- groupings parts explain districts. It is The impossible. ties into senatorial is, if such explanation. it Even system, defies offer no appendices their briefs and defendants reiteration than iteration that more area. But by geographical repre- is representation area, without is not more, geographical sentation If it would be valid enough. were, any gerrymander always represents some gerrymander because Upon however what area, grotesque. geographical basis are the citizens of Kent en- county conceivable and the citizens of 7 coun- titled to senators some ties, instances, another, and some 10 counties Wayne county only Why senator? entitled to from do the 7 Why senators? senators given on the almost twice Wayne county average represent from rep- the citizens that the senator Washtenaw than times number And better resents? Keweenaw, from Baraga, Houghton, senator for fact is the explanation What Ontonagon? which, (Oakland county), district the twelfth in area the combined sixteenth equal nearly while contains al- (Kent county), districts and seventeenth the num- citizens, nearly 3 times more 108,000 most establishments, yet entitled manufacturing ber county has senators? Kent while only senator in a representative government formula No 32,411; urban, 27,399; nonfarm, 86,955; rural population, total rural farms, 3,176; manufacturing es- farm, 27,145; commercial comprises twenty-eighth district the coun- tablishments, 171. The Gladwin, Arenae, Iosco, Ogemaw, Roscom- Osceola, Clare, ties of mon, Alcona, figures such Oscoda, Crawford. Similar for nonfarm, urban, none; 82,453; rural population, are: total district manufacturing farms, 4,290; farm, 49,462; 32,991; commercial rural comprises establishments, 150. thirtieth counties district Schooleraft, Luee, Chippewa, and Menominee, Delta, Alger, 124,007; population, figures total Mackinac. Similar urban, mercial therefor are: farm, 64,237; nonfarm, 36,741; 23,029; rural com- rural establishments, farms, 3,080; manufacturing 403. I960] ox Scholls society “practical equality is valid if democratic representation destroyed.”18 on the chosen basis is practical any equality Here there no on basis. We many pos above, concluded after examination of criteria, sible that the scheme of the amendment de explanation. any does, fies But So on rational basis. explanation
although no on a basis of rational scrutiny, classification will withstand a reason for districting suggests simple the vious fact petuation itself. The and ob per
seems be that the scheme is the malapportioned population basis in only by grace existence, of defiance of the Constitu adoption tion, at the time of the amendment. malapportionment existing The reproach at this time was a process to.the democratic and monument in *46 legislative gained nothing indifference. It has respectability validity or the new in which form cast. possible
No conclusion save this amend Michigan equal ment to the Constitution the violates protection clause the Fourteenth Amendment. right The to vote in citizens’ is eroded some instances multiplied in and basis. We have hypothetically by others no discernible posed
reached, in fact, the situation Douglas MacDougall Mr. in Justice v. Green:19 deny giving law
“None would some the of other citizens citizens twice primary vote in either the general the election would lack that equality guar- 'which the Fourteenth Amendment antees.”
Although directly brought in into issue the parties, arguments we note that in there is only amendment an invidious discrimination not [18] State, 335 US NW2d ex rel. Thomson. v. Zimmerman NW2d 93 L 300). (1953), Wis through attempt against interests, the urban malapportionment, but also constitutionalize against no there is interests, the nonurban since groups counties classification rational the outstate area. twenty- Considering only the districts, twenty-eighth, can and thirtieth we seventh, thir- The and irrational classifications. see obvious people (almost 37,052 tieth more district has 45% more) twenty-seventh 4,534 than district territory (considerably square double), than more more miles yet comprises 7 counties. each district comparable population twenty-eighth district is (4,502 persons) twenty-seventh less but with the (over larger), yet larger square miles 2,173 60% encompasses twenty-eighth 10 counties. some district twenty-eighth Considering in relation to district twenty-eighth ap- find that the has thirtieth, we population proximately of the thirtieth 65% square (41,554 people) terri- miles less 2,361 less tory, yet encompasses that the thir- 3 more counties carry illustration no tieth further. need district. We indefensibility of what has here The constitutional analy- clarity upon with the utmost is seen been done support arguments First, thereof. made sis of many political pointed use it is out that States counties) (e.g. representation the basis of unit the senate. So
they have Political scientists do. advantages repre- years whether debated outweigh by political the disadvan- unit sentation *47 frequent- inequalities tages population therefrom of popu- ly are more since some counties encountered, our all of is irrelevant to than others. But lous political Michigan employ unit not the does case. basis. employed population the a basis before It employed in amend- the the amendment, and basis trying to Such constitu- are discover. ment itself we precedent provisions are for what not, then, tional was done this State. S cholle oe State. defendants
But, continue, even if does employ county repre- the not basis for senate employ parts sentation, at it does least of counties, multiples making whole counties, of counties up representation. its units senatorial That, precisely why plaintiff however, is inis court. says conglomerations these He put of areas have been
together upon They rational no basis. are not political they they units, are not industrial units, are they population not farm are not units, units, nor they recognizable any are combinations of these. they general merely a matter fact As are malapportioned population continuation of the old districts. The fact that
they are described terms parts multiples whole counties, counties, exactly nothing. may always means counties Land described. There no area so State, no capriciously deliberately gerrymandered acreage, that could not be described in these terms.
question remains, still what has unanswered, basis together parts been used to bundle counties, these multiples counties, and thereof into districts? analysis, argument
In the final much of defendants’ majority people down comes this: of our voting rights have limited of certain of their majority fellow citizens, and since a has acted so argument we will not interfere. The denies years of American constitutional law and it is more properly English addrosed to than courts our principal own. One of the we of reasons the United guard have a written States against Constitution majority. enough excesses of the It is not majority They that with act. must act in accordance “supreme Law of tire Land.” reach now We core the case. The Constitu- require, tion of the United we States does equal protection, precise construe that there be weights mathematical ac- correlation between *48 Michigan precision of not demand the It does votes. corded 'right physicist. it does voter’s But demand subject gross, equality not be to substantial deprivation, no and it is deliberate, to wilful more accomplished palatable on it be to us larceny petty through of the grand than scale Classic, 313 US United States v. ward heeler. Saylor, 1368); L United 85 ed States CtS L Nor are verbiage, disentangle, matter as a save able we sought suffrage im inequality thus origin, inequalities of race or national posed, from everyday in particularly life, the one so when, in extricably It is clear with the others. intertwined portions are set out- of which census, from the many partial- areas footnote,20that vast pt Foreign Kalamazoo Macomb Wayne Kent Saginaw Oakland Genesee (6th Sen. St. See Joseph Michigan, ch B. Born 2 US Bureau Dist.) Population 350,028 18,029 32,766 21,746 10,015 17,682 8,123 (Table Census, 48a) Negro Population (Table 48) Census of Population: 335,414 14,060 18,124 4,262 7,067 9,086 3,003 foreign born Total 603,735 (Table 24) in State foreign born Urban 24) 490,537 (Table in State Negro Total population) (6.9% the total State 442,296 (Table 14) Negro Urban population) (9.4% total urban 14) 421,917 (Table Negro nonfarm Rural population) 15,470 (1.3% rural nonfarm (Table 14) Negro farm Rural 14) 4,909 (0.7% population) rural farm (Table county Wayne Foreign born (Table 42a) 81,878 Canada 59,632 Poland Italy 29,044 England 22,901 Wales oe ly pre- disenfranchised are *49 cisely are those wherein concentrated the res- areas manpower necessary to onr ervoirs of industrial emigrants might, the from from South, foreign problems, prob- racial soil. The social suffrage problems and the are here lems, brewed together ain cauldron. The brew vast cannot be separated ingredients, pinch into a of and a partial dash of that. The disenfranchisement only part, insepa- a citizens before us is but it anis part, comprehensive problem. aof much rable more many It is no coincidence that of are these citizens groups problems the same inadequate that face the of both improper .housing.
schools and In the latter areas the have courts moved solu- towards principles. tions consonant with our constitutional remedial action Similar should not here denied. Democracy problems, will find the solutions for these only but if it is allowed to work. It cannot work people intelligence if the are denied both the to make opportunity it work and the for its exercise. ample
Of this there is demonstration. Distin guished exposed again again have scholars consequences long disastrous of the view that has so prevailed, that no one can an correct unconstitutional deprivation suffrage profit of save those who deprivation.21 actually What has resulted political the base which our built, structure was namely, “one one man, vote” has been into distorted privileged many amply justify “some men, votes,” ing, prescient argument see, shall we of majority Charles Francis Adams that “the moment republic in a assumes to draw a distinction enjoy intent that certain men shall be enabled political power equal twice or thrice the which an possess, number of other men are to that is the hour lative See Apportionment Baker, Rural and tie Federal versus Urban Political Courts, Power; Lewis, Legis- Harv L Rev 1057. (cid:127) tyranny begins.”22
when In the train of the break down of constitutional law enforcement has come minority representatives wherein the a- rule, people many. few paying control the Those welfare of the only a
the bulk of the taxes have minor representation.23 exploding popula Communities helpless cope problems tion are with the created problems press schools, numbers, sheer transportation, decay great population of centers, increasing problems flight to the and the ever- suburbs, vast concentrations early life, become, industrial areas those who too to work. old vigilant why courts not been have the
But repeated appeals made to them? answer the objection we have most often heard is that *50 capable “political question,” presented not a injected Nothing by more the courts. has resolution confusion a clear notion, law the than the into area of political rights misconception, neces non), questions, political sarily therefore involve many cases, justiciable true, were issues. If this by literally of all hundreds, the courts decided recently including as own as jurisdictions,24 our supreme as court United States the 1944,25 by adjudicated recently courts which- 1953,26 were “political deciding by improperly a issue.” acted pre- attempt define made herein to bewill No question.” “political 'The of the so-called limit cise the thread of maze, constitute decisions escape com- even the most astute at times seems Lansing -of Baker, 1152). [24] [23] [26] [22] [25] Mayors. A Baker, Quoted Terry Stenson v. sampling supra, v. Ingham v. supra, p Adams 9. Lnee, Secretary County pp 3 Legislative (1953), 345 US eases Clerk appears 4, citing (1944), Principles, pp at (1944), 2 ALR [461] 308 Mich United States Conference (73 [308] 1337. 346, S 560. Mich Ct 347; quoted 809, 48; [97] City L ed 63 v. oe application In certain mentators.27 its situations arising out Questions clear. of the conduct of our foreign (1829), relations, such as Foster v. Neilson (27 US) (7 415), ques 2 L Pet 253 ed wherein the validity grant tion involved the of a made Spanish government strictly political 1804, are questions. involving Questions a decision department sovereign executive as to of a who is political particular territory questions, are Williams (38 (1839), US) v. Insurance Co. 13 Pet 415 Suffolk (10 226). L ed Likewise, determination whether particular person duly diplomatic a agent ais accredited United in a court States involves political question, (1890), (10 In re 135 Baiz 403 US 222). 34 Led 854, S Ct import involving a
Of similar are cases determina treaty tion of whether or in effect, is still Ter (22 (1902), linden 184 v. Ames US S Ct 484, 534); Kelly (1913), L ed 447 Charlton 229 US (33 57 L S Ct ed LRA 397), groups competing purport NS which of ing authority represents to act the lawful government (1849), of a State, Luther v. Borden (48 US) (12 proof 581), required ed 7 How L (1892), that a statute has been Field v. Clark enacted, 36 L S Ct ed or a ratified, constitutional amendment Coleman Miller (1939), L 307 US 1385, 122 ALR as In addition the courts have characterized “political,” questions relating to the termination *51 27 Weehsler, Federal System, Hart and Courts and the Federal (1953); Dodd, Judicially pp 192-209 Non-Enforeeable Provisions Constitution, (1931) ; L Field, 80 Pa Rev 54 U of The Doe- Courts, in the trine of Political 485 338 Federal 8 Minn L Rev Questions Finkelstein, Self-Limitation, (1924) ; Judicial 37 L Harv Rev Questions, Weston, L (1924); (1925); Political 38 Harv Rev 296 Self-Limitation, Finkelstein, Further Notes on Judicial 39 L Harv note, (1925); (1927); 221 L Sutherland, Rev 41 Harv Rev 232 1 Statutory (3d Horaek), (1943); note, Construction ed 201-230 §§ Cooley, 17 La L 593 (1957); Rev 1 (8th Constitutional Limitations ed), pp (1927). 101-103 360
64 of Jersey wars, Commercial Trust Co. New v. of (1923), (43 Miller 262 US 51 L 67 ed republican govern- and what constitutes a form of adoption ment, such as of the initiative and referen- Telephone Telegraph dum, Oregon States & Co. v. Pacific (32 (1912), 223 118 Ct 224, S 56 L US ed 377). many
In emphasis of these cases considerable has placed theory powers. separation been There is no of of applicable that
doubt the doctrine when directly the issue is whether court should issue Fergus e.g., legislature, a writ of to the Ill mandamus (152 (1926), 46 Marks NE ALR 960), or to an official a branch of the of coordinate government of to control the exercise executive dis Georgia (73 (1868), US) Stanton cretion, Wall 721). L is more than a form of It mild re powers government for one branch of to assume volt properly the exclusive domain of another. within good government equally it is offensive However, powers committed one branch refuse to exercise separation such event the doctrine it. In government brings powers itself wheels complete stop, under the doctrine no area to properly that which has can assume other branch rightful guardian. It is for its abandoned been this powers separation that the doctrine reason exercised action must corrective be as deterrent years, not, recent It utmost caution. has way condemnation our observe, stood we presidential29 gubernatorial28 improper exercise power. capsule any presumptuous to tender be It would powers Pos- separation of doctrine. definition attempted than precision sibly greater should no Ct Faubus v. Youngstown L ed United States 1153, 26 ALR2d Sheet & Tube Co. v. (CCA 8), 254 F2d Sawyer, 797. S *52 v. oe State. say, paraphrasing Hart 'Weehsler,30 that it department of which involves determination government say should have final the matter merely poses indeed, This, under examination. an any cpiestion, separation it, but as to under other powers analysis, only there can be one answer question palpable when the concerns an obvious and pre of the Fourteenth violation Amendment. In serving usurp the ballot intact we no function con government, to another but, fided branch rather, perform guarding our function time-honored guarantees people. constitutional of our preservation equal the free and ballot as judicial cognizance a matter of such and solicitude had has ample implementation that it is difficultto make apt plethora selection from of decided cases. possible The clearest are found in enunciations relating Negro series cases to the exclusion of the primaries.31 political race from the It is held to be Negro partic “an evil” to bar voters from effective ipation government in the of their If this principle may point departure, be taken as a by may what conceivable distinction it be said that may par the voters before us denied effective ticipation government of their State? The right equally equally individual to them and se cured the Federal Constitution.32
Nor,
observed,
we
does the circumstance that
sought
accomplished
the restrictive action is
to be
statutory, pro-
State constitutional, rather than
deprivation
any
vision invest the
cloak of
respectability.
type
The classic
case
Davis
(SD Ala),
Supp
per
v. Schnell
81 F
872, affirmed,
(1949),
(69
curiam
tution of Alabama was the Fifteenth Amendments. Fourteenth and *53 Particularly revealing, also, to the as asserted jurisdictional problem us, in the case are before those supreme court, where with cases out reference to the United States obstacle, here-asserted has con such validity legisla apportionment sidered the of State system. tion within the framework of the Federal (52 Smiley 397, Holm, v. 285 355 76 See US S Ct Flynn, (52 795); Koenig L 285 403, ed v. 375 Ct US S 805); (52 Becker, L Carroll v. 380 76 ed 285 US 807).33 L 402, 76 ed damages, early
In at for the actions law juris supreme court has the United States diction of the Federal sustained courts in matter of in right fringements The to vote. case (21 Wiley Sinkler, 58 S 45 L ed v. 179 US Ct accept 84), for where a cause of action refusal congress a member of vote for was found citizen’s jurisdiction, early furnished to’be within the court’s precedent. arising out The series cases famous Negro attempt by Texas to exclude the from of an primaries, voting, particularly In followed. judicially primary noted vote was these cases the electoral of the essence of courts to be (1927), process. 536 Nixon Herndon In v. US 759), damages (47 for L ed suit 446, 71 CtS judges in a against declara of election resulted Negro prohibiting legislation that the Texas tion ment was such. as perfecting portionment at gubernatprial no bill In the large ordinarily In these legislation was was were ordered. Smiley enacted, the bill bill; eases used. veto and Carroll thus, passed a concurrent elections into law was If “legislation” within the In the no question for decision was whether it legislation had been enacted and elections were, at Cases the Koenig Case, large then the required. were ordered. governor resolution. governor’s The court meaning of the term legislature had Here, vetoed the usual held that to avoid a apportion- too, duty since ap-- it v. S oe cholle primary from election direct .contravéri- political' tion of the Fourteenth Amendment. To the question argument, Mr. speaking Holmes, Justice very pointed (p for made court, answer : 540) objection subject “The political that the matter of the suit play upon is little more than a words. Of political petition course the action 'but concerns alleges private damage. and seeks to recover private damage may polit That be caused such may ical action and for in recovered a suit at-law hardly years, has been doubted for over 200 since Raym Ashby (92 Eng Rep 126); White, 2 Ld Raym (92 Eng Rep Ld and has rec been ognized by Wiley court. Sinkler, Giles v. US 58, 84). 47 64, 65 17, 45 L Harris, S Ct 909).” Ct L ed S subsequent (to step by repeal Texas this law *54 replace empowering it with one the executive political party a committee of qualified to decide who was primary) in to vote also came before (1932), the courts, with like Nixon result. v. Condon (52 458). 286 73 ed 88 484, 984, US S Ct 76 L ALR In one the final series, cases Smith v. All wright (1949), (64 321 649 987, US S Ct 88 L ed 757, 1110), damages, 151 ALR an action for wherein “State action” was condemned under the Fifteenth part, (pp in Amendment, held, 661, was 662, 657): may postulate right “It be taken a now that the primary
to vote in a such nomination candi- by dates without State, discrimination like the right general right to vote in is a election, secured by the Constitution.” free limit “Texas is to her conduct elections only may her electorate as she wise, deem save may prohibitions by her action of the affected powers United Constitution conflictwith States or. 360 68 govern-
delegated national to exercised ment.” prosecutions provisions criminal under the rights acts of Federal elec-
the civil tion both State and probably officialsare the most famous and oft- parte Yarborough (1884), Ex 110 US cited cases. (4 274); 152, L 651 28 ed United States v. S Ct (35 (1915), Mosley 904, 238 383 59 L ed US CtS (1941), 1355); States v. Classic 299 United US Saylor (61 1368); 1031, L ed United States S Ct (64 (1944), 1101, 88 L are 322 US ed S Ct examples. leading Basic conclusion (that proper prosecution Court these cases law) that a Fed- under Federal is the determination right erally protected been violated. has question beyond action It “State process equal protection of the laws denies due right suffrage prohibited in the by exercise and that :35 Amendment,”34 the Fourteenth sufficiently shown, the discrimination is “Where protection equal right clause is under the to relief that the discrimination the fact not diminished rights. political Blacker, McPherson v. relates to 869); (13 Nixon v. 36 L 3, ed S Ct 1, US 759): (47 446,71 L ed 536,538 Herndon, S Ct 273 US 484, 76 L ed Condon, 286 Nixon v. US Pope 458); Williams, ALR see necessity 48 L But the CtS showing purposeful no less discrimination is any political rights involving other.” than a case have acted the courts the above cases In all of political voice, vigor preserve each citizen his *55 question” objection, “political right to The vote. his The result same been dismissed. has raised, when is remedy sought regardless to be reached 497). 34 Davis v. [35] Snowden v. Schnell Hughes (SD (1944), Ala), [81] 321 US F Supp 1, 11 872, 876. (64 397, [88] L ed Secretary v. oe State. 69 In criminal employed. prosecutions, in mandamus of against or secretary State like in officials, ad- in visory opinions, declaratory judgments, in of prohibition writs and certiorari the courts have not hesitated to preserve the integrity of ballot from bias, discrimination, fraud, malapportionment, or other unconstitutional activity.
A court
whether or
deciding
not a particular
issue
justiciable
must
take cognizance of the rea
soning employed by other courts,
as well
State
as
Federal,
considering
cases,
similar
even though
are not
they
binding precedent on the Federal ques
tion of justiciability.
Generaly speaking,
courts have not hesitated to act in order to protect
vote,
and often
right
without
discussing
jurisdictional question. Thus many
includ
courts,36
of this
ing those
have
considered
validity
State,37
of
enacted to apportion
laws
the State into legisla
to a
according
tive districts
constitutional mandate,
with the
requirement
constitutional
comply
of cont
limitations
of
numbers
senators
iguity,38
adherence
county
ward
representatives,39
equal
that districts be
as
population
nearly
lines,40
well as the
may
of
validity
ap-
practical,41
Harv
Am
Mich
447;
Secretary
Ill
242).
trict
Clerk,
70 prin upon legislation portionment the “fundamental representation.”42 equality ciple of of (113 Long, Tenn 471 SW2d v. 172 in Gates Thus, sought to law the court invalidated compulsory system primary elec- of re-establish ' permitting purpose and re- of both for the tions quiring pro- participate. It was the electorate any county-unit vote of the maximum vided that county county’s popula- of the of should 1% l/8th arbitrary infringe- striking an tion. In the law (p rights citizens, the court said ment of the 477) : primary right respect their to vote in the “With supreme party, court their of
election that citizens were en- has 3 times cases said Texas protection the Fourteenth Amend- of to the titled ment (Citations Federal Constitution. to the they omitted.) would be en- For the same reasons protection 8 article 1, of section of titled to the of Ten- 11, 8 article constitution section equal protection (1870), That law. nessee is to right say one confer this cannot the State deprive another class voters of voters class justified right can be unless the discrimination such rational basis.” on some
the constitutional 567). Am St [224] v. principle [124] 865, 869, Parkinson v. Donovan [42] Moran Denny Brown v. Attorney Parker Brophy Canaday (1875), Neb 527 Mass (113 Rep 17) ; v. NE v. [598] 128 Am St v. v. v. State, Bowley, Saunders, (156 General v. Suffolk equality State, Suffolk 1040). Holzman, (113 Watson, Ballantine v. NW Ragland 144 Ind 503 provision regarding NE Willey (1893), ex [347] County Apportionment Commissioners, 225 159 Va 28 Rep rel. 581). 8 Ill2d 87 [4] NC Ill 148 representation. Utah2d Powell, v. Anderson 242) 1069, 1070) ; (42 NE (179 County ; (166 [191] In (132 133 Ind [3] NE Ragland, SE Idaho (291 NE2d Apportionment Commissioners, (1907), 526). People, 105). Harte Moorehead Am joining 31 LRA P2d [178] [496] 501). Rep the court subordinated 400). v. (32 ex rel. (31 726). Ky NE P counties to Van 994, 997, Bokkelen, (100 18 LRA (1916), Mass SW [95] oe Continuing drawing the tradition of the funda- right suffrage protective mental under the cover- ing process equal protection of due Preisler 62) Calcaterra, 362Mo SW2d noted *57 effectively restricting L Va the wherein a Rev law right representation the to on board of election right challengers and to commissioners the and polls largest political parties watchers at the to the equal protection. was found violative of See, to (1922), also, State, Witt, rel. Bernon ex v. 11 Ohio 318. Law Abst pointed by in
As was
out
the court Preisler v. Cal
supra,
recognized
caterra,
it has
well
also become
validly require
legislature may
that the
than-
more
percentage
a small, minimum
of the
at
vote cast
the
specified
signatures
last
or a
election,
number
to
petitions,
party
for
or a candidate to be accorded
privileges
certain
aat
later election.
laws,
These
subject
however,
to
in
are
constitutional limitations
legislature
that the
the
standard fixed
the
as
basis
privilege
arbitrary,
for the
must not be
unreason
lacking uniformity. Examples
able, or
of such laws
People,
that fell
the
constitutional mandate are
(99
(1912),
Hotchkiss,
ex rel.
v. Smith
There is no need further to accumulate cases. It abundantly safeguard clear that ballot against both denial and dilution has- been accom plished despite appeal scores cases doc question. political trine of But a rea formidable namely, son inaction been has cited to us, a series commencing Colegrove of Federal cases (1946), Green L 1432), (MD culminating and in Baker v. Carr Supp Tenn, 175 F 649. cases, These argued length, interesting present atus some and problems, precedent but are not
complex legal they in the matter us. before Colegrove are familiar to all facts students
The briefly and need be reviewed. problem only in- sought declaratory judgment plaintiff The relief in the Federal district court against junctive State, the auditor secretary governor, ex Illinois, members State as oficio The object board. suit primary certifying from action talcing pre- was to restrain the board election under an ap- to the November paratory legislature act enacted portionment legisla- The claimed invalidity 1901. vio- congressional districts, tion, apportioned as it of 1911, act Federal reapportionment lated the territory equality lack of through compactness act. the Federal required by of population, a majority in a did court, decision wherein decidendi, to the ratio the relief. refused agree *58 the case was court stated that Three members Wood Broom.43 As an additional controlled v. by justices expressed the same 3 for decision ground who had dissenting with the 4 justices agreement dis in the Wood Case that should be suit stated fourth vote The decisive equity. missed want in intervene that should point equity Rutledge, who, Mr. Justice situation by this was cast : 565) result, (p stated in concurring that I “Assuming controversy justiciable, in character, think the cause so delicate view noted, jurisdic- of the considerations above compelling tion be exercised the most only should circumstances.”
The other members of the court
agreed
should
controversy
justiciable
equity
and that
intervene here
it had
other
cases.
right-to-vote
1,
131).
L ed
(1932),
(53
the indefensible against appellants discrimination heavily populated districts. The all other voters equal protection clause the Fourteenth Amend per It does not discrimination. ment forbids such qualified pick certain citizens mit the out States deny right groups them the to vote citizens Herndon, all. Nixon v. 273 US at See 759); Condon, Nixon 71 L v. Ct S 88 ALR No one 76 L ed protection deny equal clause would would that the expressly give prohibit certain a law that would also a full a half vote and others vote.” citizens majority jurisdic- Thus, a of the court decided that type majority tion the exist in does this of case, but a differently composed, court, decided that in case it should not be exercised. A on the decision merits, as discussed Mr. Black, Justice was never reached. Following Colegrove Green, court Mac
Dougall unanimously accepted jurisdic Green,44 question, although Eutledge tion of the Mr. Justice again days felt that the lateness of the hour, be compel equity fore the election, should to decline to jurisdiction, solely exercise its “but for this reason.” majority A of the court decided that the Illinois stat required, prerequisite ute which a to the forma by, polit tion of, and nomination of candidates new party, petitions signed by ical 25,000 voters, with signatures by in each voters of at least 50 counties, was not violative of the Federal Constitu *59 discussing jurisdic tion. Without merits problem, majority (p 283): tional declared that 44 (1948), 281, 284, 335 US S 93 L Ct policy require that can- “It is allowable State support for office not
didates should have State-wide locality. to a limited concentrated This is not a policy.” unique vigorous Again, there Mr. dissent Justice joined Murphy (p Douglas, Black and Justices 288): against any group “Discrimination of citi- class constitutionally pro- of these zens in the exercise rights citizenship deprives the
tected electoral * * * process integrity. giving deny that a “None would State law some thq of other citizens twice the vote citizens either primary general or the election would lack that equality guarT Amendment the Fourteenth antees.”
Defendants derive considerable comfort from Mac- Dougall. applicability apparent Its not is so to us. complained What the case before us is a parceling arbitrary having into State units no any relation rational scheme of classification, geographical, popu- whether social, economic, or of lation. whimsicality
Should such exist there is support validity shred thereof for constitutional MacDougall’s permissible holding that it is policy candidates State-wide offices support. have State-wide (1950), The case of South v. Peters affirming (ND Ct S L ed however,
Ga), Supp F 672, involves considerations more complex. holding The essence of the in the case, (p 277) it, as we read that: consistently “Federal courts refuse exercise equity powers posing political their cases issues arising geographical from a State’s distribution among strength political its electoral subdivisions.” *60 v. 75 oe State. say inclusive that the much too South It seems proposition that Federal for the courts Case stands with the electoral ma interfere State will never may chinery. mean that know better. It "VYe against a recalcitrant not, will Federal courts government, amounts to the what shoulder State overall devising enforcing voting fair and
burden of polity. procedures in That, that the entire State question case. before course, is not us is validity challenged merely amendment. point forward burden rests on the From cannot assumed un authorities which be State ready, unwilling, may to act. it mean Or, or unable upon political representation based that electoral government will not invalidated units the State broadly Federal "Whether thus courts. stated principle constitutionally need defensible we the not vex. there is no rec
For in the case before us employed ognizable unit classifications made. arbitrary no an division of the have more than We capricious. wholly into it best is In either event areas. At' deliberate, worst, At the it is
wholly conclude that v. We South indefensible. precedent against holding our Peters is such violation Fourteenth classification is significant it is that the Federal Amendment. To us Colegrove supra, commencing Green, v. cases Colegrove continuing through Barrett,45 v. Rem- in this failed refused cause ment Federal Ga), 329 US [45] 330 US appeal 68 F act. The the court refused to in the action to suit to hear question. Mr. Justice Supp 624; dismissed as enjoin supreme (67 Cook S Ct S all future elections under Turman enjoin moot, Ct court dismissed for want 118, 199, grant 973, Turman Rutledge v. [91] Duckworth November, 91 L rehearing L Cases. ed ed concurred 1262). Colegrove, 701, 703), (ND Í946, Cook v. Fortson the 1901 Colegrove Ga), of a election, sought and because it 91 L substantial apportion result v. F having Green, Supp (ND be
mey
Perry
Smith,46
McCanless,47
Kidd
v.
v.
v. Fols
Gary,49
Carr,50
Baker v.
om,48
and Ma
Radford
graw Donovan,51all
an
involve
unsuccessful at
tempt
invalidate,
Federal constitutional
mandate.
more
holding elections thereunder.
Minnesota
porlionment
session;
the action
convened
tionment
were denied for the usual reasons.
December
Subsequently
179 F
apportionment
of the district
the lieutenant
granted a motion to dismiss.
ground that
equity,
equity
process
preme
Jordan,
accord with the Alabama
apportionment
California
restraining
plaintiff’s
refused relief
20 US Law Week
holding elections until an
ment act
particularly
appeal
curiam.
through
validate
legislature
dismissed
(72
51 (Minn),
(Minn),
(Minn),
50 (MD Tenn), 175 F
49 (WD Okla), 145 F
48 (ND Ala), 144 F
S Ct
premised upon
200 Tenn 273
(ED Pa),
opportunity
Supp
jurisdiction
court
and relief was
dismissed,
and
therefore,
the
In
act was
but
368,
The
1 L ed 2d
opinion
*61
for want of a substantial
legislature
177 F
rights
to
163 F
further
824.
this case
equal
[1921]
act
equity
equity
Tennessee declared
the failure
159 F
1959, the
in
on
refused to
reapportion
because
court retained
court on the motion to
governor,
act —the
96 L ed
legislation
the
invalid and
December
dismissing
to correct
Supp
protection
under
questioned
Our reading Federal cases suggests to us have been far too they broadly interpreted. They do not, our opinion, for stand generalities attributed to them. Particularly are we disinclined to their broad construction when such construction brings us conflict with basic constitutional guar- antees and involves an abdication of our judicial The function. cases are not authority the uses sought to be of them, made nor for the distortion of legal principles at times attributed thereto. it a vote, true, is right political is but do right, we not gather these from cases that the issue before the Court deprivation its is “political” always and nonjusticiable. The doctrine separation is not powers involved necessarily simply because is a or a wrongdoer sheriff: selectman. If were, it public our vaults would be open to on a pillage scale only matched deprivation of before us. rights It is true that we will not mandamus coordinate- of government branch but we are required not so do, more than court is any required to mandamus pass a town council to a proper peddler’s licensing; if the ordinance ordinance condemned discrimina- tory. proper Most offensive to resolution of the before question misapplication us the doc- will not trine that we do can- indirectly which we do It directly. bogs question not to assume that what we are asked to “do” is forbidden. weWill refuse to enforce a criminal statute can- because we pass the first Are in- place? we “doing *63 my ability.” aeeording (1908), to tlie best Mich Const art 2.§ duty reapportionment senate, prior The to the 1952 amend- ment, imposed by (1908), was Mich Const art §4. ok punishing directly” (in kidnapping) that we could directly (pass forbidding kidnapping) not do law ? expressed by fear The often courts, also not properly attributable to the Federal cases, that may, although they great in common with numbers deplore deprivation suffrage, of others, and al though they power jurisdiction have the and the to may they act, ignored not, because their decrees be should conflict thus, inevitable impotence public may recalcitrant, the of the courts judicially ly he laid bare. In other that it is words, sagacious publicly pub more be than to indifferent licly impotent. cherishing eminence those compels philosophy deference, our both to thought expressed and to them. thus Yet was persuasive Marshall54 nor neither Chief Justice (“quocl Jtomine, non rex debet esse sub to Lord Coke55 lege”) Deo et and it does not itself sed commend sub our do lack for the to enforce to us. We decrees. not means public proclamation some forces are that But our n so mighty dare risk the battle breeds that we contempt that be law must itself a kind weighed nonenforceability, perils against every- actually will, exist. truth We should such n one petty pursue hare the hound the some knows, of the Four- if violation Yet staffer. ballot-box teenth lative legis- accomplished by Amendment be ac- constitutional or affirmative nonaction, graved while waxen are stand we tion, philosophy ravage law continues. With this My thorough disagreement. am in the most I years ago, with expressed thought hundreds of .sed sub Veo et should n “with Prohibitions Beveridge, which the I said, under lege.” Life of king was Del Braeton law, Roy, 12 John which was saith, greatly Marshall, Co quod Rop offended, and, said, treason to rex non debet p 551. (77 Eng Rep affirm, as he esse sub said; then homine, 1342): he *64 the simplicity, utmost Lord Coke, in his reply to I: “The James under king is the law.” in So, truth, hold, majorities I are all of our people.
When we courts silently stand acquiescent under these circumstances we nurture double standard constitutional morality, one the law for mighty, another for the weak. is little “There flagrant doubt,” as Grazia56 commented, de “that a contradiction between law and as practice, such the exists between legally stipulated ap criteria of portionment and the actual in a num apportionment States, ber of American causes moral great uneasi ness discontent.” we turn deaf to When ears pleas relief from of their people’s pillage basic we freedoms abdicate our constitutional func will, tion. Let those who our words he say would keep we no empty, armory. since We keep mightiest armory man, known to con sovereign give our science. It voice to its duty is demands implement as well our As as decress. have, it: “The work the court can put Rostow wisely have, and when exercised does effect not but of inhibiting releasing encouraging democratic American life. dominantly forces The historic reason for is that Ameri paradox can and to fulfil a life in all far-reaching its aspects is moral code. an attempt * [*] * express The court supreme derive prestige authority from inter the fact that it is ultimate accepted many of im American most preter of the code its portant applications.”57 not, much for dissection of cases. We need
we our Brothers our ad- assume, join protesting on herence to Federal Federal authority questions. & Contemp Harv Rev Eugene General L Prob V. Theory Eostow, 2.10. 262. Apportionment, The Democratic Character of Symposium, Judicial supra, Review, Law oe State. difficulty with this But case is the lack of precedent problem, hut its Our al- abundance. ways, precedents. the choice between is Here, opinion, controlling precedent our Federal ample precedent, to has reference been made, may, process, holding people our no be disen- point to be stressed that we do franchised. not, *65 us, in confront the situation the case now before rightly wrongly, interpret or the in which the courts, prayed them hurry the construction of a new relief in a structure, and at that. electoral State Our problem rule as to con- is far different. the We partial validity disenfranchisement stitutional of through operation great group citizens of of of a theory are of -whichdefendants classification explain are to discover. Our and we unable to unable assumption ity once its invalid- course, that be, will of government exposed, proper organs of
is rectify wrong. will hasten to question concerning
An additional has raised been validity respect in its of the 1952 amendment requires compliance § in 17, 3, with article impartial than “a true and not more 100 words ques purpose of the amendment or statement prejudice language in as shall create no tion such proposal.” against we words, or such In other for say people did not at this time the know are asked they in This we cannot do. what 1952. voted upset. provisions lightly to are Constitutional only we after serious consideration that It is most presently-stated violation of have concluded the equal protection guarantee the amend of invalidates City Rev v. Commissioner ment. Jackson See of General, Auditor enue, 694; 316 Mich Romano v. Miller, 348 Mich 533; see, also, Mich Graham v. 684. plaintiff to the asserted “laches” of the in seek-
As ing argument the relief of the that he Court, has (Reports.
delayed
doing,
an
in
unreasonable time
we cannot
so
years
adoption
since the
this
hold
few
plaintiff,
any
citizen,
amendment that
other
objections
in-
has waived his
to the constitutional
validity
government.
change
There
our
public wrong
right
and wo
never
vested
in a
against
indulge every
presumption
reasonable
(See Empsak
States,
It a is somber and to take from people democracy in a right equal their to an vote. We rob them at one stroke of their sword powerless. and their shield. We render them We exploitation. perpetua- invite their We insure the body politic malignant tions of the most growths. cynicism contempt We breed for the processes government. sorry catalog The minority part, abuses of rule, here shown small government by only part amply demonstrates pernicious people both and destructive. is responsive yoke to the needs of those on must be The Every recourse at our com- neck it rests. whose protection of the devoted to the mand should be equal right guaranteed of the free and ballot. to the that the 1952 amendment conclusion is
Our in violation State Constitution of the Amendment equal protection Fourteenth clause of the void.
and null and questions argued. is no merit additional There The prayed re- issue as writ of mandamus should secretary performance specting acts implementation preparatory and in of State statutory provisions respect- the constitutional ing senators. This should the election of Court awaiting jurisdiction corrective retain cause appropriate prescribed by the branches action and of constitutional government in accordance with the unamended Failing action within
mandate. such petition days should entertain hereof this Court specifically upon by any party to rule hereto remedy. matter of public question. costs, a
No
ADDENDUM: the case of Minor reliance
Defendants’ misplaced. L Happersett, brought “almost under the now was Minor Case privileges forgotten immunities clause upon, not here relied Amendment,”58 Fourteenth necessary suffrage asserting inci was that female citizenship. It that it was was held Federal dent of not. having holding from a that those is far But this subject suffrage may to discrimination made abundantly made thereof. This the exercise (56 [58] S Ct Stone, 252, C. J., [80] L dissenting 299, [102] in *67 Colgate ALR 54). v. Harvey, 296 US 404, [443] Michigan 360 84 later CruiJcshanlc clear the Case59 Here Mr. Chief who had himself Waite, Justice written for the court Case, Minor the discussed the to application that case of the of constitutional principles equality, and discrimination, {Minor, that prohibitions holding supra), although right 555, 556) of suffrage (pp not a attribute of national necessary citizenship,” “is from nevertheless, “exemption discrimination that on account of right exercise of et race, cetera, is.” He continues: “The to vote right States comes from the but right exemption States; from the discrimination comes from the prohibited United States.” efforts, moreover, distinguish
Defendants’ Case, supra, on the ground right Nixon protected upheld by part therein was reliance vote Amendment, rejected by the Fifteenth Mr. upon wrote for the in the first Holmes who Court Justice find it (pp 540, 541): unnecessary,” Nixon “Wo Case Amendment, consider the Fifteenth be held, he “to us hard to more direct imagine it seems to cause of the Fourteenth.” Smith infringement and obvious clear 660): supra, equally (p Allwright, v. 60 equal under Cases 61 were decided Nixon “The Fourteenth Amendment.” clause of the protection supra, or dis Colegrove discuss opinion, did Nor Fifteenth Amend any Nixon upon Cases tinguish deprivation It is clear ment ground. classification, arbitrary from an arising to vote right dependent us, presented the situation Amendment. the Fifteenth Smith, concurred J.
Souris,
J.,
Reporter.
759)
88 ALR
[59]
Nixon v.
United
(1949),
;
Nixon
458).—Reporter.
States
Herndon
Condon
US
Cruikshank,
(1932),
Petitioner a declaration seeks this Court that provisions of the 1952 amendment to article §§ 2 of the Constitution of the State of Michigan equal rights process violate the and due provisions Fourteenth Amendment of the United States Constitution and hence should be declared void this Court. existing
The 1952amendments to article froze 30 unreapportioned Michigan senate into districts Constitution existing divided into 4 districts 2 other very populous senate in 2 districts areas. any The amendments removed constitutional re equal quirement apportionment. result prescribed constitutionally representation by geo graphic (consisting single counties, districts groups contiguous counties, or subdivisions single county) unequal population. size and provision objected The constitutional does indeed grant totally disproportionate representation Michigan senate to certain counties opposed (including peti to others one wherein resides1), tioner the discrimination this re gard appears generally to favor rural voters as opposed thinly populated to urban voters and areas opposed populated densely areas. only
1. There can be, course, authoritative interpretation of the Constitution of the United supreme States —that of the court of the United population, 6-1/2:1. 12-1/2:1. population The senate district Employing preliminary any. disproportion, Comparing it petitioner employing to that district figures, resides contains the 1950 census haying disproportion figures, the smallest largest by majority opinions. expressed as art its
States
Virginia,
(19
§
3, 2;
Cohens
Wheat
Const,
(WD Okla),
257);
Gary
US)
264 L ed
Radford
Supp
F
affirmed
Once
involving
question
Constitution, all
Federal
on a
including ours, are bound
land,
in this
other courts
*69
Garage,
by
Inc.,
Tower
v. Local
Book
its decisions.
Country Motors, Inc.,
415, Mich
Town &
580;
No.
295
People
46;
v.
26,
355 Mich
Union No.
v. Local
328,
Gonzales,
It is even true, this be still problem by was left essential much so doubt supreme the United States that this court’s decisions right opposite to reach an Court has result. We vague. do not find these so decisions Colegrove, supra, In the earliest of cases, these by been cited and relied on has the court majority (see recently supra), Kidd, as 1957 syllabus gives following (p 549): summary persons qualified “Three who were to vote in con- gressional districts which have Illinois much larger populations congressional than other districts brought of that State, in a suit Federal district court declaratory judgment Illinois, under the act, to arranging restrain officersof the from for an congress election, in which members of were to be pursuant provisions chosen, of an law of Illinois governing congressional 1901 plaint alleged population, districts. com- changes that, of later reason congressional districts created compactness territory Illinois law lacked approximate equality population; prayed declaring provi- decree, relief, with incidental *70 sions of the law invalid State as violation of provisions various of the Federal Constitution and reapportionment in conflict with the act of 1911, as amended. The district court dismissed the com- plaint. complaint Held, of dismissal the is affirmed.” MacDougall sought
In Case, the relief on the basis of the Fourteenth an Illinois Amendment from requiring petition law a 25,000 from includ- voters, ing a minimum of from of at 200 each least 50 of political 102 party in the form a State, counties new registered when lived State’s voters 52% county majority in Cook alone. The of the court (pp saying 284): 283, relief, refused political power a function ex- “To assume that clusively disregard practicalities of numbers is to 360 88 protects government. Thus, the Constitution against greater giving of the smaller interests representation entirely unequal in the senate populations. strange indeed, It would be doc con applying such broad trinaire, court, for equal protec concepts process and as due stitutional deny power laws, a
tion of the to assure proper political initiative between a diffusion having thinly populated and those con counties its centrated have masses, view of the fact the latter exerting opportunities polit practical their polls Aveight ical at the not available to the former. govern practical instrument of The Constitution—a no on the Cole ment—makes grove such States. demands (66 Green, 328 549 90 L ed v. US CtS Colegrove (67 1432), Barrett, v. 330 US 1262).” 973,91 Led (77 Gary, And in v. Ct US S Radford by per 540), supreme court, curiam 1 L ed 2d opinion citing Colegrove supra, Green, v. affirmed 3-judge court of United States decision district district of Oklahoma court for the western asked to make the same in which that court had been Colegrove reappraisal Avhichthe instant sort majority opinion There, the make. case asks us to Gary, (Radford district court of the Federal F 544): 541) (p Supp said Colegrove reappraise “Finally, are asked to we philosophy light its successors rights Board cases, Brown v. the recent civil Topeka, 686, Ct 347 US S Education of 1180); (75 Ct Id., 349 S L 38 ALR2d US ed Bolling Sharpe, 1083) ; L 753, 99 supreme 98 L ed wherein CtS adopted entirely an different to have court concept said equal protec of the transcendent effect of applied of the Fourteenth Amendment clauses tion *71 policies. political noth There is social to State indicating rights ing a cases in so-called civil or disposition modify, repudiate reverse, the rules firmly in the former established cases, so and it is psychoanalyze the function of this court to not justices supreme court order to divine the supreme It is sufficient that the trend decisions. authoritatively spoken question court has on the be- speaks again. until and we are hound it us, fore “The motion to is the action dismiss sustained and is dismissed.” present
It should he noted that in the case we are not asked, were the Federal in the courts cases petitioner (Dyer relied v. Kazuhisa Abe Supp Magraw [Hawaii, 138F 1956], 220; v. Donovan Supp unequal [Minn, 1958], 163 F to restrain application unlawful of a or territorial State guaranteed equal repre Constitution or law which sentation. In are case, this we asked to declare void portion organic duly law of this State adopted by people provides terms, its its which, constitutionally for 1 senator for each described substantially senatorial district, districts were unequal population adoption at the time of Dyer, Macjraw supra, the amendment. In supra, organic territory law of the or State required equality representation. concerned The equal only Fourteenth Amendment was looked application of the law. Dyer Case,
Indeed, distinction emphasized, (p 236): saying with the court saying always are not “We each citizen have must may the same vote. Political institutions invoke geographic representation.” say Nor accurate to that the we have cases solely upon cited rest a reluctance of the Federal problem. purely courts to the first intervene In place, problem by our current no means purely right a State here is a one. asserted
,90 560 Michigan right in claimed to be found the Federal
Federal Constitution. directly point, however, more is the
Even (Kidd, supra, 2 cited in of the cases fact that Anderson, supra), supreme court the United States supreme upheld courts which of de- decisions State (requested on the of the Fourteenth basis nied relief Amendment) unequal apportionment
from
State
per
opinion
legislative
curiam
districts.
In
supreme
Anderson, the
court cited
United States
per
Colegrove MacDougall. In
more recent
Colegrove
opinion Kidd,
it cited
and An-
curiam
majority
Any
Cole-
doubt about
court
derson.
grove,
applied
or whether it
to elections
State
by
opinions.
but definite
these brief
settled
offices,
dispute
prin-
beyond
in the
where,
It seems
cipal
Fourteenth Amendment
above,
cases cited
reapportionment
stat-
did not
void
attacks
serve
spite
inequality
produced
utes which
substantial
apportion-
equal
mandates of
constitutional
State
prohibit
may
from
held to
ment, it
not be
producing
by
constitu-
similar results
.affirmative
provision therefor.
tional
necessary
hardly
to add that
It
seems
granted
Supreme
relief
cases, wherein
Court
unequal apportionment
the
app
against
statutes
equal
mandates
of State constitutional
basis
present
inapplicable to our
became
equal apportionment
ortionment,2
provision
case when
pertaining
was re
to the senate
State Constitution
amendment.
the 1952 constitutional
moved
Negro
involving
right-to-vote
may cases
Nor
contrary precedent.
regarded
Nixon
citizens
(47
759);
446, L ed
Herndon, S Ct
US
v.
(52
L ed
Condon,
Nixon v.
US
92
1
Mich 638
Board
LRA
402); Williams
(16
Supervisors
LRA
432) ;
Houghton County
Giddings
Secretary
v.
Secretary
State,
lines which result substantial inequality representation favoring thinly of voter populated opposed populous ones, areas as as Michigan done in its has Constitution. And we read supreme previously States court United cases controlling of cited our decision in this ease and requiring the dismissal of writ. this spite supreme 2. In prece of United States court contrary, however, dent we are told that the really simple; issue here is the Fourteenth guarantees equal protection Amendment laws; adopts voting provi that, therefore, when a State gives greater weight which one sion man’s vote than inequality prohibited another’s, an results which is by the Fourteenth Amendment. argument yet successfully To date this has
appealed majority to the of the United States supreme ignore court. It also seems to much of history. American very founding republic,
From this this political nation has contained diverse forces—one espoused pure democracy, of which has and the other sought actually has to check it. There were great compromises writing adoption of the Constitution itself without which indeed the might of America never
United States have come being. into Rights. the conflict of these was
One over Bill thought unnecessary them either Federalists those who much or undesirable. But about were concerned liberty thought pure democracy individual the first 8 to the Con- Amendments United States they delayed so vital that ratification stitution legislatures by the colonial until the Constitution drafting passage Bill of assured of the Rights. History The Beards’ Basic of the United p States, 133 //. great compromise was at in
The other arrived drafting suc The Federalists Constitution. taking great powers In from ceeded States. they give equal representation in the had to return, regardless population. to all of size or senate States Papers, inequality 62.3 No Federalist voting Substantial strength as to the United senate was States long the Four into the- before thus built Constitution teenth Amendment. distinguished present case, fact in our
If, *74 compromise historic conditions as a based certainly parallel Michigan, it is in which find no we distinguish legislative electoral similar difficult States, provisions of other both in the Constitutions adoption Amend- of the Fourteenth at the time subsequently. ment interpretation Amendment of Fourteenth
The protection would equal for herein contended clause having any scheme constitutional from forbid for any representation on legislative in either house in substantial which results than one other basis voting equality.4 Constitution, p Warren, Making of The ff. any short, discrimina- contention, in that plaintiff’s “It basic him otherwise, which effect ‘geographic’ or
tion, deprives^ whether rights him those of box denies equality the ballot at of substantial guaranteed by process clauses due equal-proteetion-of-tlie-laws v. of Scholl® may bring No matter what the future in relation certainly interpre- contention, to this placed tation of the Fourteenth Amendment thereon by adopted which it. Nor is it the States ratified congress subsequently in admit- United States ting interpretation to the Union. Nor is it the States among majority current of the 50 of States present. Union at recognize, interpretations of course,
We any body the United other States Constitution supreme than the United States court final lack authority. adoption history But the of the time of general understanding and the that time of the Amendment at subsequent history relevant any interpretation. effort at Lockwood Commis sioner Revenue, Mich Bacon Kent- 517; Metropolitan Authority, Ottawa Water Mich 159. 354 nine had con- in 1868,
Of the Union States provisions representatives stitutional for election of legislatures to at least the houses of their representation constitutionally based legislative on described constitutionally with
districts allocated representation pretense any guarantee without equality popular representation. These States Hamp- are Vermont, Island, Rhode New Connecticut, Jersey, Maryland, shire, New Delaware, Caro- South lina, and Nevada. resulting disproportion popular representa- greater
tion inwas some far instances than that complained of In herein. instances Vermont, (all Connecticut, and Rhode Island States which ratified Amendment), representation the Fourteenth upon political in 1 graphic geo- house was based unit, city. boundaries, known as a town or of As Burling- 1870census, while the towns Victory ton and in Vermont were each entitled to 1 *75 of the Fourteenth Amendment to the United States Constitution.” brief, Plaintiff’s pp 20, 21.
94 360 popu Burlington representative5 a liad in the house, Victory 263.6 a Thus, while had 14,387 lation Victory than more vote in well-named was worth Burlington house a times of vote Vermont’s representatives. provided elec for the
Rhode Island’s constitution city in the tion each town senator from possess Providence The 1870 census shows State.7 ing population had 68,904, while Jamestown a 182:1. 378.8 The ratio here was for in 1868 called Connecticut, In the constitution present representation as at same “the house, representatives in practiced Two and allowed.”9 of Hart towns to the house were thus allocated the ford and popu a had of 1870 Hartford as Union.10 population of a had while Union 37,743, lation of Again, a ratio of 60:1. 627.11 had, relation to the senate, these States Pour of constitutionally representation by prescribed coun- single (consisting electoral districts ties or contiguous groups counties, or sub- sub- counties, or single county), resulted divisions stantial disproportion. per Jersey’s for called senator
New .constitution resulting county,12 between Essex and ratio May 17:1.13 Cape 1870 of counties as Maryland’s constitution,14 and that of South per county, provided senator also Carolina,15 city except population, for Baltimore regardless of 2, 5 6 (1793), 7. eh Const § Vermont (1870), p 351. 9th Compendium Census 6, (1842), art 1. Const Island § Rhode (1870), p 8 9 324. 9th Census Compendium 3, (1818), 3. art Const § Connecticut (1870), pp 132; 22 Bar Conn J Compendium 9th Census. <1948), p 136. (1870), pp 9th Census 132. Compendium (1844), 4, 2. Jersey art New Const § 13 14 p (1870), Compendium 9th Census 74. Maryland (1867), 2. art Const § (1868), Const art 8. South Carolina § *76 95' cholle S oe State. (3 senators) county (2 senators), and Charleston respectively. approxi 1870 ratios could be found mating Maryland,16 9:1 in and 4:1 in South Carolina.17 provision
In 1868 Nevada had constitutional describing allocating- electoral senate districts and entirely comparable thereto which was senators adopted by Michigan in 1952.18 The districts single groups counties, consisted or counties, to which were allocated various numbers of senators, county 1 which was 4 allocated senators. Based dispro on allocations, these the 1870 census showed portionate ratios of as much 4:1.19 Hampshire,20 provision
In New the constitutional (and now) appor in 1868 for called senate districts paid.21 tioned amount of direct In Delaw taxes by county are,22 constitutional allocation of seats population resulted half 1870 over located county electing only in New 3 Castle senators out of of 9.23 senate remaining had States constitutions purported legislative- for to call some sort of reapportionment by population. Many of these con- requirements however, stitutions, also contained or Baker, Rural from the ingly enough, however, popular constitution, constitutional county and Baltimore and Charleston 23 Compendium obvious, however, Compendium 17Compendium [19] 16Compendium Storey county. Delaware No New Nevada Const representation, figures Hampshire principle versus Urban Political Const provision county. currently are available 9th Census 9th Census 9th Census 9th Census (1864), that the of (1831), Const city. New equality were close to art (1783), pt 2, Hampshire, method art (1870), p achieved apportionment (1870), p to indicate what (1870), p (1870), p § equality 3.§ popular 6. employed Power, 30. art 26. 88. 215 and 72. representation. p 17. the same of senate districts. popular Cf. Cf. results, the New completely Chesterfield p Esmeralda 56. principle representation. in terms of Cf. Hampshire Interest- divorced Calvert county county in its It Michigan Beports. actually prevented any reappor-
restrictions which equality. tionment on based substantial provisions require The commonest of these awas representatives ment of a minimum number of (usually 1) (or per county parish), coupled senators with a maximum number of seats in con the house In above, cerned. addition to States discussed provision. States had kind of were These States *77 Georgia,25 Alabama,24 York,28 Kansas,26 Louisiana,27 New North Carolina.29 provision affecting equality adversely of Another representation specific popular in 1 a house was upon disproportionate limitation constitutional political representatives from subdivi of number counties) largest popu (usually containing the sions provisions in 5 other 1868 existed lations. Such Missouri,32 Flori Massachusetts,30 Maine,31 States— Pennsylvania.34 da,33 and major factor of taking account the into Without legislatures disproportion failure of occasioned reappor- to commands constitutional to follow State tion, relatively factors constitutional minor such appears moiety clauses, it still disproportion as constituting at the the Union 37 of the States that 20 adoption Amendment Fourteenth time of pre- provisions constitutions own in their had being legislative from based house 1 at least vented representa- popular equality upon principle tion. 32 33 [24] 34 Pennsylvania 26 Kansas [25] Alabama North Carolina Florida Const Georgia Massachusetts Maine Missouri New Louisiana York Const Const Const Const Const Const Const (1819), art Const (1859), art (1868), Const (1868), art Const (1865), (1867), art (1868), (1846), art (1838), art (1780), (1868), art art 4— arts 2, 4. 3, pt 8, § 3, § ams 20, § art § 2; 3. 1st, §§ 2. 1. 21. art 21, 22, of 1857. § 2, §§ (am7 §§ 5. 10, 5, §§ 3. 6. 1857 to 1, 2. § oe State. present 1868 and the time,
Between additional have entered the Union.35 States prerequisite entry, a As such the US Const, requires congressional approval. §4, 3, art ically, congress Histor- required applying States for
has proposed their constitution. to submit admission Coyle 688, L Smith, US 559 Ct S See ed 853). Typical approval the form is the proposed constitution which the statute approved of Hawaii and Hawaii ad- State was : mitted subject of provisions 1. That, “Sec. to the of this proclamation required act, issuance
by hereby 7(c) act, section of this Hawaii is declared to be State of the United States America, is declared admitted union into the on an equal footing respects with the other in all States pursuant whatever, and the constitution formed provision legislature of the act of the territorial provide of Hawaii act entitled ‘An constitu- adoption tional convention, of a State constitu- forwarding congress tion, and the same to appropriating money of the United States, and *78 approved May (Act therefor,’ 20, 1949 No 334, 1949), adopted by Session of Laws Hawaii, people of vote of Hawaii in the election held on hereby republican November 7, 1950, be found to conformity in form and in with the Constitution of principles the United States and the the Declara- of Independence, hereby accepted, tion and is ratified, of * * * (Emphasis supplied.) and confirmed. “Sec. 3. The constitution of of Hawaii State always republican shall be form and shall not repugnant to the of the United Constitution States principles Independ- and the Declaration Supp, ence.” 73 4 Stat USCA 1959 ch 3, Cum P 35 admitted, We Rave although formally treated Hawaii as her 4, Statehood July does not take effect until 1960.
98' 360
Of the 13 States whose constitutions were ap (for admission, for 8 proved such constitutions Arizona,36 Hawaii,38 Alaska,37 Idaho,39 States Montana,40 Mexico,41 New con Oklahoma,42 Utah43) for 1 election of at least provisions legislative tained into 1 of the categories dispro which fell 3 house above. discussed portion (admitted example
Montana, required of 1 senator county.44 the election per its constitution Silver Bow with county The 1890 census showed ratio 2,06545 with 23,744, county Yellowstone —a of 11:1. 1912) in its cons provided Arizona (admitted county 2 from with titution46 for Cochise senators and 1 from Mohave 34,591 census, senator 3,73347 ratio 5:1. county —a Hawaii and Alaska admitted recently States constitutionally provided further illustration offer below. will be detailed disproportion substantial disproportion present, 1868 and the Between has in- legislatures in State representation popular major from 3 has resulted markedly. This creased provisions constitutional first, State factors: cited; second, a tremendous previously 3 categories and, areas; urban rural from shift population many legislatures on part a refusal third, of a constitutional in the face even reapportion it. demanding mandate
ing 44 45 40 41 § Idaho Arizona gee TJtah Oklahoma gee Alaska Hawaii New Compendium 13th Census Compendium líth Census Montana 41. n n Mexico Const Const 40, supra, 36, supra, art Const Const Const Const Const Const (1896), (1890), art (Í956), (1950), (1910), art (1889), art art (1907), 6, 5. (1911), art art art art § § 21(1). 3, art 6, 3, (1910), (1890), p 29. 4, pt §§ §§ 5, 4; art §§ § 2, 4; § 2. 2, 7; § 2, 4. 4, 10. *79 p § Apportionment art 32. art (1). 6, 19, 14, §§ §§ § 4, 2. 1, 5. 2. section, follow- ,99 oe State. Again omitting pertaining the third factor, legislative reapportion,48 failure to we find that 27 majority present States, 50 States, have con stitutionally prescribed inequality representation legislative at in least house. n provi Fourteen now have States house which make no constitutional pretense to 1 basing sions as representation population equality.49 on or vote The disproportion many ratios of these States have enormously.` increased representa
Thus Connecticut and retain Vermont tion of towns,50 house with extreme instances disproportion exceeding Similarly, now 600:1.51 Jersey provision New retains a constitutional for 1 per county. disproportion senator between the largest and smallest now counties is 26:1.52
Arizona, Idaho, Mexico, New Carolina, South and'Montana have uniform Nevada, also number of county,53resulting each 1950 ratios senators McNally, p 293. tables. Atlas and McNally figures L Rev Lewis, Legislative Reapportionment serious Alaska Const New Mexico Const Nevada Const Hawaii Maryland New Arizona Const Montana Const Delaware Const Idaho Const South 50 51 Illinois Const Vermont See n nSee Cf. Cf. Failure Connecticut Const 1057, Jersey inequalities Union Sussex Carolina Const Marketing Const 1060. Const supra. supra. Const (1890), art reapportion (1956), county (1870), (1950), (1864), (1912), are Const (1889), (1793), (1897), (1867), than affirmative (1947), taken from (1911), Hartford Guide (1955), 34,423, (1895), art am art am art am art art 3, am 6, 1954, 3, 1950, 4, art (90th ed, 1959), pp 101, § am 1924, 5, §§ 2, 1956, § generally pt 2. art and Essex 177,397. art § 4, 2(1). 2. 2.§ 1949, 2, art 4; 2, art 3, § eh 7; 3, art § art 4, 3.§ 4, 5. 1950 US Bureau 2, i(l). § art State constitutional art 3, § 6. § 6, regarded § 14, 4, § Rand 13. §§ county 905,949. 2. 3.§ Federal § 4, 2. 5. McNally Cum ' occasioning Courts, 102. The Rand Supp). Commercial the Census provisions. 71 Harv Rand more *80 100 360 Michigan ;57 ;58 54:1,59 ;55 ;56
of 39:1 48:1 18:1 82:1 ;54 77:1 and re-spectively. and have Maryland constitutionally
Delaware in the senate districts specified representation Delaware, In lines.60 along county city described had county, Kent, 37,870 popu in 1950, the smallest 5 senators, largest lation and was allocated while the 218,879 only and 7 senators.61 Castle, New had county, 1950, city In of Baltimore Maryland, had 6 allocation of and popula constitutional senators 949,708, tion of where the county smallest for a Kent, population had 1 senator State, 13,677.62 constitutional recently adopted
Three have States (quite compara- to their State senators provisions as 1952) amendments ble to popular apportion- eliminate any requirement districts, and for senatorial ment, provide specific inequality representa- which result substantial tion. allo Illinois constitutional amendment
A 1954 county,63 seats Cook 24 of 58 senate cated contained Cook county although 52% were seats reserved Thirty-four population. the population.64 48%
Rand p 135. Rand Rand McNally, p 281. Rand 64Ib, [61] Ib, 62 Ib, nSee See n Cf. Cf. Cf. Cf. Cf. Cf. McNally, p 63. McNally, p 303. McNally, p 267. McNally, p 393. Rand Rand Rand Clark Petroleum McCormick Esmeralda Harding county Mohave p supra. McNally, McNally, p supra. McNally, p county county county county county 214. 141. 209. 8,510, 3,013, 1,026, 9,577, Ada and Washoe and Yellowstone and Greenville county Bernalillo Maricopa 70,649. county county 331,770. county 145,673. county county 55,875. Ib, 50,205. Rand 168,152. McNally, Ib, Rand Ib, Ib, Ib, IT), oe State. congressionally The recent approved constitu tions the new States of Alaska and Hawaii provisions contain State senatorial spe which call for largely cific districts described geographic on a bas resulting with a is,65 inequality substantial popu representation. lar In newly Alaska, the elected Anchorage-Palmer State senator from the district represents 87,748 compared constituents, as represents senator from Barrow-Kobuk who *81 only 5,70566 of ratio 15:1. —a Any thought Dyer that the v. Kazuhisa Abe Case, supra, equality representation achieved of in both legislature, houses of the Hawaii either before or illusory. Dyer after Statehood is The Case dealt legislature with the refusal of the Hawaiian to re- apportion the seats the house and the senate as required by organic terms Hawaiian act (48 562) [1958 organic § ed], USC law of the —the territory. Dyer opinion
The was written a Federal dis- granted trict court case which no relief other than to deny February a motion to dismiss. It was decided congress 10, 1956. theOn of heels this decision, organic August amended the Hawaiian act on 1,1956 7), require § reapportion- Stat ch governor equal- ment of the house ity in terms of popular representation (48 [1958 of ed], USC § But the same amendment increased the sen- require- ate from 15 to 25 members, eliminated all reapportionment equality representa- of ment tion, along of specified generally senate electoral districts previously existing of lines counties [1958 §§ ed], USC and so allocated the 25 among designated seats to maintain districts as Population. Preliminary 65 66 Press See a 49, supra. release US Election District Totals Dept, of Commerce Alaska, May 16, 1960, entitled, Census gross inequality greatly favoring thinly the more
populated opposed populous districts as Oahu. disproportion very The same into been carried has recently congression the senate in the ally approved drafted and Thus, constitution.67 State sen of the new Hawaii, ate the island of Oahu State population Hawaiian will elect sena 79% population “neighbor while tors, islands” on 21% will elect 15 senators.68 incidentally, are districts, senatorial drawn along existing except previously counties, lines county into 2 for the is divided of Honolulu which senate districts. category (consisting
The second whose States pay lip reapportionment, service to constitutions requirements negate likewise contain but equality) presently of Alab contains 7 States ama,69 Louisiana,71 North Kansas,70 York,72 New Mississippi.75 These consti Carolina,73Utah,74and require legislative at tutions representative as to house least regard popu without
or senator providing a maximum number lation while likewise study in a All are listed of these seats.76 having legislative representation,77 im serious *82 opposed as to urban in favor of rural areas balance areas. [70] [69] 67 68 Dept. of Alabama Const Kansas Cf. nSee Honolulu 49, Interior, Const supra. eounty 449,910, (1859), (1901), Hawaii, 1959, p art art 2, 4, § § [2] 50; 10. (adopted 1873); remaining art 9, §§ 198, 199, 201, counties art 10, 135,115. §§ 202. 1,
votes must have been east the house of 77Baker, [71] 72 73 74 75 76 Louisiana New North Utah Const Mississippi Kansas, York Const Carolina Const Rural versus Urban Political representatives. supra, Const Const (1896), n (1921), (1894, (1890), 70, art (1868, in a as is 9, art art §§ am a 3, am county 2-4. slight-exception 13, 1937, 1945), §§ §§ 2, 5, 6. Power, pp 16,17. 254-256. art entitle it to 1 art 2, § 3, in 5. §§ 2-4. member [250] legal in 103 of State. In the third category (consisting with States reapportionment provisions, hut an arbitrary maximum limitation counties districts with States, largest we find populations), Californ Florida,79 ia,78 Georgia,80 Oklahoma,81 Rhode Isl and,82 Texas.83 The imbalance be these States tween urban and rural voters favoring latter even more than in severe relation to the States category.84 second
California will to illustrate serve the dispropor tion which can result. The California constitution provides that no can more county have than sena tor. a provides It also maximum of 3 number as the of counties which can be form a grouped single senatorial district.85 The result Los Angeles has 1 county senator while the 4,151,687 people, 28th senatorial (consisting Mono, district Inyo, Alpine counties) 14,014 senator for peop has The ratio is 296:1. le.86 Thus majority States Union in 1868, majority States joined the Un- ion and a subsequently, majority the States at had, the present time, or have, in their constitutions as to 1 provisions legislative house which have the effect of substantial denying equality voting to some voters strength (generally in more popu- lous areas), compared to other (generally voters in thinly populated areas). if not
Many, most, provisions such other are directly States comparable constitutional (1928). 78 California 86Ib, 84Baker, 80 Georgia nSee Rhode Oklahoma Const Texas Const Florida Rand 78, supra. Rural versus Island Const Const McNally, p Const (1876), (1885), (1945), Const (1907), (1879), Urban Political art 77. (1842), am art art am 1924, 3, §§ 1926, § 2, 25, art § art pars 1, 10. 1942, 7, 28. Power, §1, 3.§ 2. art p 4, 16. amended 6.§ art *83 Michigan . resulting disproportion
principle and to 1lie 1952 Michigan’s to Constitution. amendments did to 1952 amendments was draw sena- "What geographic on areas based torial electoral districts groups con- counties, or in terms of described single county. tiguous counties, of a or subdivisions many parallels in the seen, we have this has As history adop- from the time of the other States down to date. a of the Fourteenth Amendment tion appears system employed to variation The be 1-senator-per-county system which is common many other States. to 1-senator-per- suggestion
noteWe county system may a constitutional classification be reject reason- this the variation not. We where ing, 1-senator-per-county system however. disproportion Michigan produce ratios of would exceeding think the do not Fourteenth 1,000:1. We forbidding regarded may a varia- Amendment tion from 1-per-county system in the direction representation. popular upon Michigan the classification of attack The real resulting the 1952 senate amendments, from voters upon purpose its result. It its seems however, purpose general dispro that the clear to us provisions portionate constitutional we have thinly give was, is, more reviewed seek specific populated check areas of State power political populous of the more concentrated areas. Considering that the amendment with which adopted at an this election where we deal in case was (Proposal designed in another amendment No equality popular representation provide Michigan defeated, clear senate was seems purpose majority likewise Michigan in 1952.87 voters the wisdom of the
This does not determine Court Manual pp 461, 462.—Reportee. *84 105 oe v. adopt- people in made tbe decisions political By ing all terms, its their Constitution. (Mich art
power [1908], Const inherent them subject only, 1),§ States course, the United 2, Constitution. the rationale of us distasteful some
However may support majority in 1952 be as voters of senatorial districts for the classification clearly has amendment, the 1952 from resulted acceptable regarded under the United to date been as supreme by the United States Constitution States court. supreme court, in a case States United and ordi- in a tax statute
which the classifications nance were attacked tion equal protec- as violative Amendment, estab- of the Fourteenth clause this as to classification: test lished require identity “Equal protection not does requires only that classification rest treatment. It feigned that the distinc differences, not on real and purpose for which have relevance to tion the classification is treatments be some and that the different made, disparate, the dif relative to not so arbitrary. wholly to be classification, ference Arizona, 265 Hotel, Inc., 249 US Dominion v. Cf. 597); (39 Atlantic & 63 Great Ct L ed S Pacific (57 jean, 772, 81 412 Ct os 301 S Tea Co. v. Gr US LR, Rapid 293); A York Transit New L ed (58 Corp. City 82 York, US Newof 1024); Oklahoma, ex rel. William L ed Skinner v. 1655).” Wal L 1110,86 ed son, S Ct City Ct S Louis, St. 347 US ters L 505, supra, 284): (p MacDougall, court said In strange for doctrinaire, indeed, “It would applying con- constitutional such broad court, equal protection of the cepts process and due proper power deny to assure laws, Michigan Reports. political thinly initiative as its diffusion "between having populated and those counties concentrated prac- fact masses, view of the that the latter have exerting political opportunities weight tical at the their polls available to the former.” history precedent, In the face of this and this we way by say find no tion we are which we can that the classifica- “wholly concerned herein is arbi- trary,” repugnant and hence to the Fourteenth Amendment the United States Constitution as supreme *85 the United States court has construed it to this date. greet
3. plea These are cold words which to a rights equality voting of which has at a least kinship Independence. with the Declaration of Nor chapter we final do has believe been written struggle fully those who between would em principle equality brace the who would hold it in check. of of man and those Nearly century, great a a civil war, consti- and tutional amendments intervened between that Dec- laration of and end its most manifest contra- slavery. diction in American life—the institution of Neither the the Declaration, words of nor those of grant the the Amendment, Fourteenth to served women equal right years popular to vote. It took agitation and the Nineteenth Amendment to achieve this. nearly only recently,
And after centuries, has equal are the notion that all men lated into created been trans prohibition against legally enforced ra segregation. cial Brown v. Board Education Topeka, 98 L 347 US S Ct ed ALR2d changes by great
2 While of these were achieved which resulted movements constitutional social amendment, interpre- by achieved an last which may of the Fourteenth Amendment tation authors, which been considered its have never weight precedent against had a certainly great it. asserts, the Con- petitioner recognize, as
"We document. not a static stitution States, 217 US Weems v. United In court said (pp L supreme 374):
“Therefore to be be principle vital must capable than the application of wider mischief which gave This is it birth. true of constitutions. peculiarly are ephemeral enactments, They designed are, meet of occasions. passing They use words Marshall, ‘designed Chief Justice approach immortality as human institutions can nearly ap it.’ The future their proach for provision care of good events and bad no tendencies can be In prophecy stitution, made. of a con application our cannot be
therefore, contemplation of what only may has been but what be. Under rule a other constitution would indeed be any would in efficacy as it deficient easy application would have little power. general principles Its into and be converted precedent impotent value declared words Nights and lifeless formulas. *86 recog lost in And been
might nized. tion have reality. be this has the of Constitu meaning vitality narrow and restrictive developed against in an this Cum example There is of construction. 4 Missouri, (71 US) (18 mings v. State Wall ex post prohibition against
L ed where application a more extensive laws was given facto been minority thought a of this court had what than US) (1 L ed Bull, (3 3 Dall in Calder v. given (71 US) Garland, parte 4 Wall 648). See, also, Ex Fourteenth 366). L ed The construction (18 one of lim it is example for is also an Amendment not unthoughtful In itations of Constitution. doubt great Miller expressed Mr. Justice
opinion whether that Amendment would ever he held as be ing against any directed action of a State which did ‘against Negroes not discriminate a class, Slaughterhouse on account their race.’ Cases, 16 (21 US) 394). Wall L ed To what extent expanded beyond the Amendment has tion need not be instanced.” that limita supra, (pp 493): Brown,
inAnd the court said approaching problem, “In this we turn cannot [Fourteenth] clock back to 1868 when the Amend- adopted, Plessy ment was or even to 1896 when Ferguson [163 256)] 41 L public written. We must consider education light development present place full its and its throughout Only in American life the nation. way segregation pub- can it if determined deprives plaintiffs equal pro- lic schools these tection of the laws.” To democracy those to whom the essence of is
equality voting rights, poses this case an unsolved importance. deep issue of tremendous Buried body politic of America the conflict mi- over nority legislatures power rural control or veto of, in, State
aas result of affirmative State consti- reapportion tutional discrimination or failure legislative pop- in accordance with the shift of seats Legislative Apportion- ulation Lewis, cities. ment and the Federal Harv L Rev Courts, 71 (1958); Gerrymandering Tabor, and Fed- State (Fall, Legislative 16 Md L Districts, eral Rev 277 1956); Right Congressional Dis- Constitutional (1946) Equal Population, ; Yale tricts of LJ 127 Already The Next Election is Strout, Lee, Richard Rigged (Harpers, Nov., may
It well be that the relative abdication of resolving great problems influence in urban (slum day redevelopment, clearance, our un- urban few) employment, security, and social to name *87 oe largely pure democracy due to the restrictions governmental built into the thus structures of the ironically, Thus, those who States. have advocated rights, along popular on with checks democ- State’s racy, thrusting by have indirection aided added responsibility upon government. the Federal population metropolitan of
The shift to areas has not ceased. From a nation rural in 1790, 95% changed we have to one urban in 1950.88 It is 64% impossible predict may migration go to how far this creating greater responsive even denial of toward democracy legislatures presently elected. power people, course, The of have the solve piecemeal problem of their amendment either byor amendment United State constitutions89 difficulty of these solu Constitution. States is tions obvious. problem may represent too,
Possibly, this the next legal progress great debate area Amer- equality. interpretation The case ica toward of prohibition Amendment Fourteenth against directed toward urban vot- discrimination eloquently stated Justices ers has been most Colegrove Douglas in their dissents in the Black and MacDougall Cases. sharp to the rea- stand contrast These dissents majority supreme soning court quoted MacDougall we have and which Case controlling current de- our have held we MacDougall reason- obvious that It cision. history prece- weight great ing a behind has reasoning equally obvious It dent. concept pure any democ- be reconciled cannot racy^^_
2,3. States simple majority vote Taeuber and In (1958), p 112 Michigan, amendment Taeuber, The et of those seq. voting of the State Changing on the proposition. Population Constitution Art requires United §§ *88 recognize may ultimately that these dissents We prove prophetic. they quoted But the fact that are frequently argument in and relied on so before- chiefly us that of' us serves petitioner’s to remind the essence effectively presented,
case has been thor- oughly rejected in the court of final' considered we decision have cited. cases problem If the is to in- answer be found judicial is of vast national decision, it one terms impact requires prior and it the reversal much supreme Plainly, precedent. court United States by existing su this Court is bound United States preme precedents contrary court un to the until and majority less the of that convinced court becomes equality that this new advance toward is one of “the- felt decision, of the time.”90 This and its- necessities timing, are for that court. Supreme
It ill would behoove the of Michi Court gan (particularly ing juncture history at the follow great decision Brown v. Board Educa Topeka, supra) right tion to claim the in an dependent interpretation of the Constitution of the- United States. question presented.
4. No other meritorious is given, petition For the reasons for writ of man- public question is No a costs, damus dismissed. be- ing involved. (concurring). J.
Black, “You do a right, have Federal constitutional but just you any remedy!” don’t have Judge writing rebelliously Wallace, twin (WD Gary Okla), case of Supp 145 F Radford (affirmed [77 L ed 540]), 2d way complainant so characterized the Rad- ford was Sympathizing turned out court. Oliver Wendell Holmes, Tlie Common Law, p 1 (1881). oe Ill judge’s for dissent in the Case, the I am nevertheless case— reasons Radford convinced that we must—in this “paradoxical pronouncement”;
make the same plaintiff right a has constitutional no but remedy. Admittedly, supposedly in a case which principles, equitable governed great our this stultifies “Equality equity” “Equity will maxims: — remedy.” wrong without And it is to not suffer say many when courts, faced words a so political challenged by gross violation power equality nor au- neither the clause, have thority preserve integrity of the Fourteenth “to *89 Amendment.”
This case cannot be on decided non-Federal question ground. The decisive whether the 1952 is justi amendments of article 5 of our Constitution ciably plaintiff’s equality, rep right offend the of apparently guar vote, resentative value of his anteed as by the Fourteenth Amendment. The men have to the of modified, tioned amendments extent Michigan’s original guaranty of manifest conflict, equal protection (Constitution 1908, ar laws provision yield §2, “the earlier ticle Hence must (Thoman City Lansing, to the later” v. 315 Mich by 566, 579; the writer and followed Justices Smith Miller, 684, in Graham v. 348 Mich Voelker Michigan’s 697).1 is that The result Constitution no fact it the relief said .authorizes relief—in denies provides 2 latest of this cases article otherwise —in flagrant showing due been made dis where has against citizens in the exercise of their crimination rights. political adoption prior relief amendments, of such
Once, (Williams freely granted Sec v. cases in these Giddings Secretary retary v. 447; 145 Mich State, .adopted [1] My procedures reasons by people, by for holding appear 1952 amendments Graham Case. Court cannot were submitted examine, to and now, [June- 360 402]). State, [16 1Mich LRA we are- Now powerless to act unless this Court, seated to presented question, jurisdic decide the tionally Federal supremely authorized to decree that au protection “pledge equal thoritative laws” (Yick Hopkins, [6 Wo v. 1064, US CtS 220]) crescently iniquitous 30 L ed overcomes discriminatory pro effect local constitutional visions such confront us here. Question.
First: The Federal
Colegrove
(66
Green,
For there no all 3 compared contemplative cases care, I can only supreme compulsive- conclude that the court has ly all advised courts of the land that the Fourteenth equality among Amendment, insofar it calls *90 voting rights, in the exercise citizens of their im- poses obligation depends bidding an for its political solely upon legislative or In action. such regard Federally right equal protec- the declared to guarantee by repub- tion lican form of like the article of “a government,” say, that is to it is not enforeible in the courts.
Assuming they obey judges of that subordinate (see right speak a have to courts their views Colegrove Ill), Supp example (ND v. Green F (MD Supp Tenn), Baker Carr 179F 632, 634; oe respectfully suggest the that dissenters were I day, right Some in all 3 of the above cited cases. justici- inevitably, supreme authorize the court will equality employment of the clause cases able present yet political day But that has not nature. arrived. swiftly advancing
Already, half of second this Century, it more and more becomes the Twentieth apparent stable,” while it “must law, cannot still.” “stand utility if demands of social later, “Sooner existing sufficientlyurgent, operation anof if the
are hardship productive sufficiently or incon- rule is venience, triumph. utility ‘The view to will tend any- legal system a never closed book was dogma thing purely of the schools. a theoretical but long Jurisprudence to run able in never been has successfully a economic need social or resist ” just.’ strong of the Law, The Growth pp 118. Cardozo, greater pres progressively times now exert employ on to sure the courts more and more —in great principles equality
types one of cases—the equity and the mandates of the maxims finds cons National Constitution and most State Equity’s greatest sore needed— titutions.2 —and immediately period to the law lies ahead. service equality Nonetheless, clause. that of So does “political thicket” becomes the in cases where protection, thorny path equal the Federal courts to Problems taxpayers, prevails in Professor assembly, title grips “It grave “Legislative Reapportionment” may (Duke Short, an consequences of failure to most provide take a unexpected Univ of our situation, ‘rotten-borough1 School necessary University of States, a dramatie sitdown strike of urban new or an increased judicial Law), p impetus condition in 17 Law and attitude of provide Minnesota, writing 385. to aetion awareness of citizens to much worse truly willingness on representative Contemporary under problem.” than come now *91 :il4 present
—and for the case this includes Court— yet ready to are move. question being exclusively vanguard one for by supreme authority,
determination we have no precedents power of as in re-examination of local right presently inferior cases, and no court as exhilarating opportunity of “to embrace the antic- ipating may time, be in the womb of doctrine which (Judge Hand, whose distant” but dissenting birth is Learned Spector [CCA Motor Service v. Walsh suggest, in a 2], 139 F2d Which tois point- light Judge parenthetically aside, that Hand’s (see Spector ultimately epigram ed and Motor honored McLaughlin, [65 Service 101]), L 152, 89 ed must have been written with the passage from Macbeth in trenchant “seeds mind. That Brethren time” repeat passage my I cherished now they tug over the continue and sweat punctuation of ma- construction, declination, jority opinions MacDougall South: you
“If can look into seeds of time, say grain grow And which will not, will Speak beg then to me, who neither fear nor your (Act 3.) Your nor favors hate.” 1, sc opinion reported Colegrove, Yes, each Mac- Dougall, planted and South ais time. But seed of group no man or men assembled at our confer- say judgment ence table can of a terms de- —in grains grow, cree of will Court—which of the authority and which will not. We lack the as well ability so do. Second: The Position a State Court with Re- spect to a Question. Decisive Federal
It Colegrove, is said with considerable force that MacDougall, controlling and South are ad- directives *92 I960]' v. op 115 solely dressed to subordinate Federal courts," and jurisdiction they govern pow- the or the do not disagree, I far of courts. ers State so as concerns at the case bar.
Writing
previous
recognized
in
cases, I have
the
continuing
“equally
obligation
this Court,
of
guard
every
Union,”
the courts
right
the
and enforce
by National
secured
Constitution whenever
rights
properly
right or
are
asserted here
such
(Connor Herrick,
201, 206;
349
v.
Mich
New York
Detroit,
637,
354 Mich
R. Co. v.
Robb
Central
542)
Connolly,
624
28 L ed
544,
111
v.
US
S Ct
Tropical
(followed Plaquemines
v.
Fruit
Hen
in
Co.
[18
1126];
685, 42 L ed
derson, 170
511
S Ct
US
[55
Mooney
Ct
Holohan,
340,
v.
This concurrent ways. Any Federal courts—both courts as right interposes bar Federal defendant who equally sought ground entitled, relief on Federal opponent, judicial determination that with his rights is decisive. asserted one or the other of such petitioner appeals for relief under Here the Fourteenth pleading con-
Amendment due vincing proof invidious discrimination; discrimi nation effected by the 1952 amendments before us. Standing against grant such all relief de fendants allege and rely upon another Federal right; of power of a State to discriminate political ly justiciable here —without offense to the Fourteenth —as .Ame ndment. Thus respective contenders insist on Federal contradictory rights.
It is the duty of this Court to resolve such ques- tions under the exclusive guidance of authoritative decisions of the supreme court. South As said Carolina Bailey, 77 L our function “to administer *93 * * * prescribed
law the by Constitution United States, as construed by [United States supreme] court.” I have proceeded and shall pro- ceed on that fundament.
The Fourteenth Amendment no assays richer the than in State courts courts the United If States. on corresponding submission of this case n —in one of courts of the Union4 —the Fourteenth Amendment would not serve to authorize equitable then relief, it no provides ground for relief here. The reason is that our on jurisdiction proper pre of a sentment Federal right is coextensive co and terminous with that of the Federal sit courts. We in these a court jurisdiction cases as concurrent with that of the inferior Federal courts; literally as a court have the United States. We to authority relief on a strength right advanced under grant laws when ancl when an Fed only national inferior court could and do on a similar presen eral would so tation.
quoted as follows:
What
4 Say,
“Defendants’
The answer
of it?’
before
” (64
of defendants
answer is
3-judge
F
Supp
Federal court convened at Detroit.
632, 633).
expressed briefly
is that of the defendants
and
tersely.
‘Granted—
Colegrove,
oe State.
leading
dictating
case
this conclusion is Claf
Houseman, 93
L
lin v.
US
from
(p
following
137):
taken
is
“The fact that a
court
its
State
derives
existence
why
functions from
the State
no reason
laws is
subject
relief;
it
to the
should
afford
it is
because
also
just
laws
States,
United
much
is
as
recognize
operative
bound to
as
these
within the State
recognize
together
it
as
the State laws. The two
system jurisprudence,
form one
the law of the
which constitutes
for the
land
the courts
State; and
jurisdictions
foreign
the two
are not
to each other,
by
nor to be treated
of the same
each other
but
such,
as courts
country, having jurisdiction partly
dif-
partly
ferent and
concurrent.”
supreme
recently
Of
court more
has
Claflin
(Testa
[67
said
v. Katt, 330
386, 390,
225]):
L
91 ed
172 ALR
opinion
“The
unanimous
that
court
case
strongly
buttressed
historic
references
persuasive reasoning.
repudiated
assump
It
tion
Federal
laws can be considered
though they
emanating
States
were laws
from a
foreign sovereign.
teaching
Its
Consti
passed pursuant
tution and the
laws
are supreme
binding
land,
laws of the
alike
States,
people, ‘any Thing
courts, and the
in the Constitu
Contrary
any
tion or Laws
notwith
*94
standing.’
obligation
It asserted that the
of States
to enforce these Federal
is not
laws
lessened
rea
they
son of the form in which
are
the rem
cast
edy
they provide.”
45 L
courts
intimated,
are
and constitution.”
“The State
To same effect
ed
169,
much a
of
the United
for the
56 L
and
courts had concurrent
part
Constitution,
see
Second
States,
Blythe
Employers’ Liability Cases,
In
laws
to
Blythe
laws and
Hinckley,
pass
every
this
on the Federal
jurisdiction
treaties of
State as
passage
its own local laws
appears
the United
with the circuit
questions
All this considered must said grant pleading proof cannot relief on and court and otherwise actionable violation of an invidious correspondingly equality unless. on clause proper proof pleading an inferior and court of the do so. This the order could should Union It to us of the second division is addressed Constitution. Article. Sixth MacDougall, Particular, Determines Third: Today’s Question. Merits Constitutional per (pp MacDougall curiam form holds, 284): political power “To assume that a function ex- clusively disregard practical- of numbers is to government. protects ities of the Thus Constitution against greater by interests the smaller
giving to entirely unequal representation in the senate populations. strange It would be indeed, and applying doctrinaire, for court, this such broad con- concepts process equal pro- stitutional as due deny power laws, tection of the assure a tween a State the proper political diffusion of initiative as be- thinly populated its counties and those hav- ing concentrated masses, in view the fact that practical opportunities exerting the latter have political weight polls their at the not available to practical the former. The Constitution —a instru- government ment of no such on demands —malees the States.” accepting meritoriously I am not alone in writing pursu- Corwin, authoritative. Professor ance of “Senate Joint Resolution 69” the “Consti- (United tution of the United States America” Printing 1953), analyzes States Government Office, Colegrove page first on volume. Then he MacDougall majority writes, turns opinion: *95 v. of State. MacDougall Green, “In however, the court justiciable regard question the seemed to validity the provision of the of the Illinois election code petition requiring didates a the can- that nomination of political party signed by a new 25,000 be including at least 200 from each of at least
voters 50 tain on to counties, went sus- State’s for per provision opinion.” curiam brief (Emphasis supplied.) Kanper,
And Law Professor School Michigan,6 MacDougall University in his views (Pren and Materials on Law” “Cases Constitutional way: “Language tice-Hall, used per opinion curiam that the decision was indicates question.” (p 60.) on the merits the constitutional recently 3-judge But court hear assembled to (MD Tenn), Supp 824, Baker Carr F con (p 828): cluded as I conclude plaintiffs’ argument legisla- “With the guilty
ture of Tennessee is aof clear violation of the rights plaintiffs State constitution and of the entirely agrees. agrees the court It also that the evil is one which serious should be with- corrected delay. out situation remedy further But so the even in this clearly does not lie courts. It has long recognized accepted been and is doctrine that rights guaranteed by there are indeed some the Con- stitution for the violation of which the can- courts give redress.” though impressed may Much we the search ing preseiently I view and—as written minor them— ity (in opinions Douglas of Justices Black Cole MacDougall, grove, South), myself I unable find present than conclude other asserted say, from is to last word defendants, supreme may court is that a State —unfettered Liberty” (1956). Author of “Frontiers Constitutional Reposts. *96 juridically the Fourteenth Amendment—deter- policy a mine as matter of State shall “a what be political proper diffusion of initiative” as between heavily populated thinly and areas of the State. proper inquiry, ju- terminates our likewise our So function, in this case. risdictional Argument Fourth: “In or Terr em”. point
I write from this for the future con- and its (or tingencies. may This one of indeed be case cases) opinions dissenting past where of the are nationally supreme due to become law. We cannot yet prepare foretell, course, of now should for the dispose then, would, event it occur. should I now of argument, confronting defendants’ fearsome us as grant any present in all that relief cases, like of through- legal political would result and chaos partial out the government. and destruction of the State State possessed authority If were this Court to rule, duly rule, and had decided that the amendments question equality offend and so fall before the judgment clause, the immediate result of our and simply prospective decree would reinstate- original ment of sections 4 of and article 5 said (Const 1908). equity, determined to Courts do prevent justice disruption uncertainty (the “desegregation example), recent cases” are an presumably shape can and needs will their to the decrees at hand. have con- case We said so as (Herpolsheimer jurisdiction our A. B. cerns own Realty Herpolsheimer Co., 344 Mich so hypothesized it would be event. supreme court loan the Fourteenth
Let Amend employment courts—for ment to the where cases a create and the constitution laws of State inequality voting power gross , insure and citizens— experience difficulty in will little courts those I960]' oe working continuing general ont needed observ equality clause. There will ance be no devas Michigan, possible ruination if tation or on case the 1952 of this review amendments are in held picture frightful impending This valid. desola part figment tion “for the most of excited (Politically add.) I excited, brains.”7 must can,We proceed, if authorized to control the effect our orderly, decree or decrees that transition so becomes making provision prospectively, effective retrospectively, effective one ter, effective instan others proof adjustment may all as and indicated re quire. procedural regard, See, in such Certain-Teed Corporation Township, Products v. Paris 351 Mich *97 434; Ib., 302; 355 Mich and Brown v. Edu Board of Topeka, cation 483, 495, 347 US 98 L 873, 38 ALR2d Opinions. The Merits as Discussed in Other Fifth: expects nicety No one that mathematical of vot ing equality can be worked out or ever would be ef by fected the election laws of a State. Reasonable always latitude has been for allowed classification question legislation fair bases. whether by statutory of a State—effected its constitution or arbitrarily or law—does does not discriminate in deg equality usually violation of the clause is one of that, and a’ Nevertheless, when it or is ree.8 legislation by rep dained local and assured that the many value of an resentative times elector’s vote shall be greater goes more and more as time so —and a created a nuisanee which my becomes itself a Cardozo’s “The Nature óf the Judicial question one as he estimates the measure question See “It conduct, is a quotation, Park v. note. degree question impairs my liberty unduly. degree question whether the whether degree may degree, Employment Security Comm., law whether in accurately which takes abated Process,” pp 161, use of he I So also the have been is a by my my my useful loosely.” property neighbor. own negligent. duty judge land, 162. Mr. Justice of a and limits 355 Mich or a It 1 have judge It poor is a is Reposts. sole of another elector whose offense on—than that area, a heavily populated living that of is color to Federal should its right change presented justiciable question. of a received hospitably that 2 of said we find that section amendatory Here discriminates article and progressively 5 ruthlessly a mi in favor of masses against great citizens popu least Those residing of citizens. nority steadily are guaranteed of the State portions lous control, votes, their of legislative measure greater remainder of residing than are those which was far, than now, by The result is worse supra. In Giddings, vigorously condemned so itas bids sub more just flagrant deed has become the 1960’s.9 during stantial disfranchisement said, however, It that discrimination effected is not actionable for sepa- the 1952 amendments inequality voting rate that substantial reason; long “built into the be- strength Constitution The reference fore the Fourteenth Amendment.” article (by fixed original presently right to the of each 17) article State sen- amendatory all quite is left it is and the inference ators, clause— equality the command right despite— of senatorial inequality representa- gross build of a because structure legislative tion into to make tion has Detroit it be, Santa Written only for each. representation, will continue as deplorably To this situation “If is ALR Truax v. As this to use increased has more than hard Fe R. Co. this is not a 375), Dree Press has to conceive what shortchanged [1960] supplemental Corrigan, guaranty is 73.6%.” expression of directly applicable: Ellis, Census denial of the doubled in a deeade and would seem Yet Macomb by just footnote Figures”) US amended section would be. To hold it Mr. equality reported 312, before with an allotment of Justice Brewer equal is written that “Macomb and Oakland clause ‘a (under heading protection the conclusion of (42 S Ct 2 in that (May 21, 1960) rope terms of senatorial Oakland not Gulf, counties, already *98 county’s popula- 41 L “A sand.’ Colorado laws, L be, Message county’s ed senator would ” court, then & among done and such was is done now the States. point As a to this I have word must of rebuttal based judicial opinion. on than facts rather Every schoolboyknows the historic reason for the right “built-in” of each to 2 State senators. The reluctantly Federalists consented to such feature legislative of the national structure for recorded fully compromise. reasons debated The Consti- accordingly tution has ordained since ratification provision concluded in 1790. But this became part part a an exclusive the National edi- —and —of only. fice The Fourteenth Amendment, on the other part hand, did not become of the Constitution un- years til 78 from later. Section that amendment, far
complementing inferentially approving plan represen- each the National State of senatorial tation, was now a “built-in” order directed to deny State; each an order that no shall State “to any person” equal protection within that of the So the article 1 laws. Constitution “built permanent into” its National that which framework prohibited the Fourteenth Amendment has each relevantly reasonably doing with- State— —from (supported Article 1 later amend- its borders. atory 17) guarantees rep- inequality article value of a vote so far as concerns resentative man’s the Fourteenth Amend- the National whereas senate; approximation guarantees ment very substantial opposite govern- within the framework way factually—the ment of each State. This — present. great Instrument at stands agree fully presen- Kavanagh’s with Mr. Justice I especially tation of the case and with his conclusions proven I admitted well as facts. But MacDougall agree, considered, do the and South showing made This here relief. Court authorizes *99 by excepting
cannot invalidate the 1952 amendments higher authority, arriving force of here virtue of jurisdiction with concurrent Federal being jurisdiction, applicable no courts. There to such against local the discrimination law cases pro- representative value we cannot vote, of man’s ceed. pursuit
Finding than that of due no alternative MacDougall majority opinions South, I and the petition. plaintiff’s to dismiss vote (concurring). are J. We in accord with the Carr, paragraphs introductory and with 1 and sections opinion, Mr. Justice and concur in his Edwards’ proposed disposition of the case. Plaintiff has based right sought by his the writ of mandamus him on Federal the Fourteenth Amendment the Consti- purpose, scope, practical applica- tution. The controversy of the char- tion of acter now before us has been amendment in said
repeatedly considered supreme States, the and this the court of United rendered. the decisions must follow Court (88 US) Happersett, In Minor v. Wall adoption shortly after L ed decided supreme question, court Federal amendment rejected is claim that in a unanimous decision suffrage privilege were involving right sues scope in con viewed amendment, within Constitution, provisions of the other with nection adoption underlying thereof. the reasons repeatedly cases. in later cited been has decision Said with supreme taken has position court that the clearly ap nature respect to controversies subsequent decisions Case, pears Minor from de approval, the numerous citing case at has called Mr. Justice to which cisions tention. Edwards opinion Minor pointed out As providing Amendment, (p 175), Fifteenth Case oe right *100 of citizens of United States to vote abridged specified for denied or rea- should unnecessary if have been the Fourteenth sons, would applicable controversy be- Amendment was may Like comment be made with to fore the Court. relating Amendment reference to the Nineteenth suffrage. woman sought agree that in the instant case the relief
We petition plaintiff and the denied, should he dis- missed, without costs. J., J., concurred
Dethmers, C.. Kelly, J. Carr, AMERICA COMPANIES OF NORTH COMPANY
INSURANCE RAILWAY COMPANY. NATIONAL v. CANADIAN Judgment Pendency in Federal Court. Action oe Same — 1. dismissed, the same where another action on should be An action pending prior to instant action and is was commenced cause (Court try Rule having jurisdiction to Federal court in a [1945]). No l[d] § Remand—Subject Appeal Matter —Parties. and Error — 2. for there of court determination to circuit is remanded Cause same eause of relates to the not the instant case whether parties as it is between the same or not and whether action pending to dismiss as motion defendant’s one mentioned [1945]). (Court Rule No court § l[d] in a Federal district Points in Headnotes References Jur, 247-249. 14 Am Courts §§ '1] Jur, Appeal and Error 3 Am 14 Am 14 Am 1215. § Jur, Courts Costs 95. '3' 246. § Jur, ‘4] §