Giddings v. Blacker

Grant, J. The Constitution of Michigan contains the following provisions, found in article 4: “ Section 1. The legislative power is vested in a Senate and House of Representatives. “ Sec. 2. The Senate shall consist of thirty-two members. Senators shall be elected for two years, and by single districts. Such districts shall be numbered from one to thirty-two, inclusive, each of which shall choose one Senator. No county shall be divided in the formation of "'Senate districts, except such county shall be equitably entitled to two or more Senators. “ Sec. 4. The Legislature shall provide by law for an enumeration of the inhabitants in the year 1854, and every ten years thereafter, and, at the first session after each enumeration so made, and also at the first session after each A enumeration by the authority of the United States, the ij/Legislature shall rearrange the Senate districts * * * .¡¡according to the number of white inhabitants, and civilized ¡Ipersons of Indian descent not members of any tribe.” Acting under these constitutional provisions, the Legislature passed the senatorial apportionment act, No. 175, Laws of 1891. By the census of 1890 the population was 2,093,889. The ratio of each district would therefore be 65,434. Eight of the districts under this act contain populations as follows: Seventh, 91,420; tenth, 82,697; fourteenth, 88,678; eighteenth, 86,129; twentieth, 84,694; twenty-fifth, 82,556; twenty-seventh, 97,330; thirty-first, 82,213. These are the eight largest districts. Eight other districts contain populations as follows: Twelfth, 41,245; — 3 — eleventh, 42,210; sixteenth, 46,626; twenty-second, 42,546; twenty-third, 89,727; twenty-eighth, 43,701; twenty-ninth, 40,033; thirtieth, 53,068. Under this apportionment eight Senators would represent constituencies numbering in all 695,717, while eight other Senators would represent constituencies numbering in all only 349,156. The county of Saginaw is given two Senators, although it contains a population of only 82,273. The twenty-seventh district is composed of nine counties, with a population of 97,330, while the twenty-ninth, with eight counties, five of which adjoin a like number of counties of the twenty-seventh, contains a population of only 40,033. The relator is a citizen and an elector in the seventh district, composed of the counties of Kalamazoo, St. Joseph, and Branch, with a population of 91,420, and prays for the writ of mandamus to restrain the respondent, the Secretary of State, from giving notice of the election of Senators under the act of 1891, and to compel him to give notice under the apportionment act of 1885. The petition also contains a prayer for general relief. The basis upon which relief is sought is that the power delegated by the above provisions of the Constitution to rearrange the senatorial districts is limited; that this limitation was wholly disregarded by the act in question, and the act is therefore unconstitutional and void. It appears conceded by the learned Attorney General that the Legislature is not in the exercise of a political and discretionary power when acting under these constitutional provisions, for which it is only amenable to the people, and that this Court has jurisdiction, in a case properly before it, to determine the constitutionality of the act in question. The Constitution of this State provides: “The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo war — 4 — ranto, procedendo, and other original and remedial writs* and to hear and determine the same. In all other cases-it shall hare appellate jurisdiction only.” The general jurisdiction of this Court to determine the constitutionality of legislative enactments is not limited so as to exclude laws involving political rights. The constitution of Wisconsin, in conferring jurisdiction upon its supreme court, is nearly identical in language with the Constitution of this State. The supreme court of Wisconsin has recently most ably and thoroughly discussed and determined the jurisdiction of the court in a case similar in principle and its facts to the present one. State v. Cunningham, 81 Wis. 440 (51 N. W. Rep. 734). The authorities in support of the jurisdiction are there collated, and citations made from them. Were the power conferred^ upon the Legislature one of absolute discretion, then the'] express mandate, “ shall rearrange according to the number j of inhabitants,” would be void of any' force or meaning* ( except that it might be regarded as expressive of the opinion of the framers of the Constitution that such method would be equitable and fair. We have no doubt| of the jurisdiction of the Court. But it is insisted by the Attorney General that, inasmuch as the relator is a private citizen, having no interest in the matter above every other citizen, he has no standing in court, because, prior to filing his petition, he made no application to the prosecuting attorney of his county, the Attorney-General, or other public officer, to apply to this Court for a mandamus touching the matter here at issue. In support of this claim he cites People v. Regents, 4 Mich. 98 ; People v. Inspectors of State Prison, Id. 187; People v. Green, 39 Id. 121; People v. Supervisors, 38 Id. 423. In People v. Regents the application was to compel the regents to appoint a professor of homoepathy in the medical department of the University. The Court expressed its — 5 — ■conviction that that was a case in which the action of the Attorney General would have been proper and necessary, .at the same time saying: “We do not intend to say that a case may not arise in which this Court would allow an individual to file such a •complaint, particularly if the Attorney General were absent, ’•or refused to act without good cause.” In People v. Inspectors of State Prison a private citizen applied for the writ of mandamus to restrain the respondents from teaching to convicts in the State prison the mechanical trade of wagon-making. The main question was disposed of upon its merits, the Court expressing some doubt whether the relator had such clear legal right and special interest as to entitle him to make the application. In People v. Green the application was to compel the county clerk and register of deeds to keep his offices at a •certain place, he claiming that the county-seat had been lawfully removed. Relator’s convenience in having access to the offices was the ground of his petition. It was held that he had shown no such special interest as to authorize him to proceed without application to the proper public officer. In People v. Supervisors the application was to compel the allowance of claims alleged to be owing from the county to the city. The city authorities were, of course, the proper parties to institute the proceedings. In People v. State Auditors, 42 Mich. 422, this precise ■objection was made, and the Court said: “In the present case the officer whose duty it usually is to enforce the rights of the State in this Court has, in the performance of his official functions as adviser of the State •officers, placed himself in an adverse position, and appears for the respondents on this application.” The present case comes directly within that decision. The law does not require unnecessary things to be done. — 6 — When the Attorney General appears for a respondent, it certainly follows that he is adverse to the position of the relator, and that an application on the part of the relator to him to commence the proceedings would be met with a non-compliance. This Court, as appears from the authorities above cited, has taken care to prevent officious inter-meddling by the use of this discretionary writ, and at the same time has swept away technicalities where public interests are involved and prompt action is necessary. We have quite uniformly overruled this objection in cases of' the latter class. The unconstitutionality of the act is clear. The county; of Saginaw, with only 16,839 inhabitants in excess of the ratio, is divided into two senatorial districts, one having 25,707 less than the ratio, and the other having 22,888 less than the ratio. There is no basis, constitutional or otherwise, for such an apportionment. It is contemplated by the Constitution that the ratio shall govern so far as is practical. This is apparent from the provision that— “ Each county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate Bepresentative when it has attained a population equal to a moiety of the ratio of representation.” The Constitution of the United States provides that— “The number of Bepresentatives shall not exceed one for every 30,000, but each state shall have at least one Bepresentative.” Under the first census, which showed the total number of free persons, with three-fifths of the slaves, to be 3,606,-397, Congress fixed the number of Bepresentatives at 120, being one for every 30,000. In the apportionment, Massachusetts was entitled to 15 Bepresentatives, with an excess of 25,327, for which she was given an additional Bepresentative. Other states with a similar large excess were treated likewise, .while those states which had a small excess — 7 — received no additional representation therefor. President Washington, by the advice of Jefferson, Randolph, and Madison, vetoed the bill as unconstitutional, giving the following reasons: “First. The Constitution has prescribed that Representatives shall be apportioned among the several states according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the states, will yield the number and allotment of Representatives proposed by the hill. “Second. The Constitution has also provided that the number of Representatives shall not exceed one for every 30.000, which restriction is by the context and by fair and obvious construction to be applied to the separate and respective numbers of the states, and the bill has allotted to eight of the states more than one for every 30.000. ” A county having an excess of only about one-fourth of the ratio is not, in the language of the Constitution, " equitably entitled to two or more Senators,” while one district composed of nine counties, and containing nearly two and a half times the population of each district into which the former county is divided, receives but one Senator. Equity has no definition applicable to such a case. It was' never contemplated that one elector should possess two or three times more influence, in the person of a Representative or Senator, than another elector in another district.. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in. such matters lies at the basis of our free government. It is guaranteed, not only by the Coiistitution, but by the. ordinance of 1787, organizing the territory out of which, the State of Michigan was carved. State v. Cunningham, supra. Aside from considerations of equity and justice, it is apparent that the framers of the Constitution understood that a county, to be entitled to two Senators, must have a — 8 — ratio and a moiety of a ratio of population. Constitutional Debates of 1850, pp. 113, 119, 123, 361, 368, 374, 376. The State cannot be divided into senatorial districts with mathematical exactness, nor does the Constitution require it. It requires the exercise on the part of the Legislature of an honest and fair discretion' in apportioning the districts so as to preserve, as nearly as may be, the equality of representation. This constitutional discretion was not exercised in the apportionment act of 1891. The facts themselves demonstrate this beyond any controversy, and no language can make the demonstration plainer. There is no difficulty in making an apportionment which shall satisfy the demand of the Constitution. It is not the purpose or province of this Court to inquire into the motives of the Legislature. Courts will not discuss the motives of legislative bodies except as they appear in the public acts or journals of such bodies. The validity <of an 'act does not depend upon the motive for its passage. The duty of a court begins with the inquiry into the constitutionality of the law, and ends with the determination of that question. The petition prays that the respondent be directed to give notice of the election under the apportionment act of 1885. The constitutionality of this act is therefore directly involved in the controversy, unless it be held to be removed from question by the fact that the people have acquiesced in its validity by acting under it for three elections. It must be conceded that this act is affected with .the same constitutional infirmity as the act of 1891. It is unnecessary to determine whether such infirmity exists to an equal or a greater or less degree. It is sufficient to say that it is not in accord with the Constitution, and for the same reasons which apply to the act of 1891. It is therefore insisted with great force by the Attorney General that no election should be ordered under the former act, and he — 9 — also urges in consequence that no relief can be granted. It is also said by him that, so far as he has examined other apportionment acts, they are all subject to the same objection. Under this reasoning it would follow that, if the act of 1891 is held to be void, there is no remedy, except the Executive of the State decides to call a special session of the Legislature. In such case there would be no apportionment law under which the people might elect a Legislature. While the Constitution requires the Legislature to rearrange the districts at the next session after each enumeration, yet we are of the opinion that each apportionment act remains in force until it is supplanted by a subsequent valid act. It was my opinion that the respondent should be directed to give notice under the act of 1885, inasmuch as the people have acquiesced in its validity by so long acting under it. But I yield my opinion to that of my brethren, who are of the opinion that the notice should be given under the law of 1881, the validity of which is not here brought in controversy, unless the Executive shall call a special session of the Legislature. Our conclusions therefore are: 1. The petition is properly brought into this Court by the relator. %. The Court has jurisdiction in the matter. 3. The apportionment acts of 1891 and 1885 are unconstitutional and void. 4. The writ of mandamus must issue, restraining the respondent from issuing the notice of election under the act of 1891, and directing him to issue the notice under the apportionment act of 1881, unless the Executive of the State shall call a special session of the Legislature to make a new apportionment before the time expires for giving such notice. No costs will be allowed. Long and Montgomery, JJ., concurred with Grant, J.