# Appendix — Beadle v. Scholle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1718%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1964 - **Citation:** 377 U.S. 990 ## Text Q Sd ty? - ° % Ottice-Supreme Court, U.S. FILED OCT 15 196” ' JOHN F: Davis, CLERK sy ron Ss « ~ .¥ » fT Ps CURT. U. & ~*~ = I THE Supreme Court of ‘the United. Ptates “OCTOBER TERM, 19585 FRANK. D. BEE JOHN W.CU YOUNGER.. and PAUL ¢ AUGUST. SCHOLLE, and J tary of State ot-the State of Michigan, Ot | _. Respondents. No. - on kpMUN H Se YMOUV k KENNETH J. Kwir 120) Broadway New York 3 JEROME H. KERN - New Vi irk » I. SHEPHERD © Counsel fox Petitioners 700 American Bank & ‘Trust Building . ~ Lansine*® Of Comise! A’. Michigan . * la Appendix A » 367 Micuican Reports, [July ‘7 : .. SCHOLLE ¢. SECRETARY OF STATE. ON REMAND. 1, GonsTITUTIONAL LAW—STATE SENATORS—EQUAL PROTECTION. Provisions of State Constituyion presently setting forth districts for election of State senators held, invalid p:ospeetively as a ‘denial cf equal protection of law under the Constitution of the United States for la¢k af*a rational basis for the in- vidiously discriminating apportionment made (US Const, Am 14; Mich. Const, 1908, art 5, §§ 2, 4, as amended in 195 52). 2. Saue—Seitaronrat DISTRIC Ts—DISparITy OF POPULATION, Provisions of the Constitution of Michigaa relative to arrange- ment of senatorial districts, as such ore stood: before REFERENC ES FOR POINTS IN H&aDNOTES {1,2] 18 Am Jur, Elections § 16 et seg. |, [3,4,6] 43 Am Jur, Public Officers § 470 et éeq. 49 Am Jur, State Territories and Dependencies § 3 }&Am Jur, Elections § 16 et seq. [5] 49 Am Jur, State, Territories and a §§ 34, 54. {7,8} 18 Am Jur,Elections §§ 99-101. [9] 14 Am Jur, Coste § 91. | 18 Am Jur, Elections § 321. (176) ippendix ol 1962] © ScHOLLE v. SEcRETARY OF STATE. 177 adoption of amendments hereby declared invalid, prohibit an arrangement of such districts which would result in some dis- te tricts having more than twice the, population of others, per : Ruack, Kavanagn, Souris, and OTIs M. SMITH, ‘JJ., such disparity of population being also offensive to the equal pro- - tection clauses of the State and Federa’ Constitutions, per Brack and Kavanaau, JJ. (US Const, Am 14; Mich Const 1908, art 2, § 1; art 5, §§ 2,4, as amended in 1952). . y 3. SaAME—APPORTION MENT OF SENATORIAL DISTRICTS. Legislation relative to apportionment of senatorial districts in accordance with the State Constitution 4s it stood. before adoption of amendments hereby declared invalid,-as construed to prohibit any distriet from having .more than twice the population ef any other district, may properly be enacted by a legislature which includes a de facto senate whose existence « continued for all valid purposes for balance of current term, ak oo thereafter (Const 1908, art 5, §§ 2, 4, as amended . in 1058).° eae ‘ 4. Orricers—De Facto SENATORS. Senators in thea presently constituted State senate, although _ elected ander ors of the State.Constitution that are 1n- valid by reason heing a denia! of equal protection of laws under the Conggitution of the United States, are continued for the balance of their current-term, but not thereafter, as de facto -ofticers for all valid. purposes “(US Const, Am I4; ‘Mich Const, 1908, art 5, §§ 2, 4, as amended in 1952).° “5 ELEcTIONS—STATE SENATORS. - : The secretary of State, as chief election officer of the State, may not presentky permit the election of State senators in the absence of valid legislation or constitutional provision author- izing him to do so.* e 6. Orercers—Dr Facto SENATE. , The acts of the senate, created under an untouched provision of % the Constitution, while continuing to fuvetion after, const? tutional provisions apportioning the senatorial districts are declared voi as a denial of equal protection of law under the ‘Pourteenth Amendment of the Constitution of the United he : States, are upheld as the acts of a de facto body (US Const, in 1952) .* * See final paragraph of page 176 as to stay granted by“s justice of the supreme court of the United States.— R=ZPORTEE. An 14; Mich Const’ 1998, drt 5, §1; §$*, 4, a amended - ” A ppendiy 178° 7. ELECTIONS—STAaTe SENATORS—STATUTES—CouRT ORDER. The secretary of State is orderel to apply to the Supreme Court, in the event valid legislation is not adopted for holding of primaries and election of State senators within 33-day peried all’ wed therefor, fur instructions, and orders enabling him to. call and conduct a special State-wide primary election of ~ éandidates- 62 days hence, and conduct a State-wide election of number of senators allowed by Constitution prior to adop. tion of invalid amendment (Const 1908, art 5, §§ 2, 4, as amended in 1952) .* * _ 367 Micuican Reports. [duly 8. SAME—STATE SENATORS—JURISDICTION oF SUPREM 4 Court. The Supreme (‘outt retains jurisdiction of }:Jceeding wherein election of State senators in conformity to provisions of State Constitution as they stood prior to adoption of invalid amend ments thereto is accomplished and complete disposition of the Miatier is adequately provided (US Const, Am 14; Mich Const 1908, art 5, §§ 2, 4, as amended in. 1952). - 9. CosTs—-PUBLIC QUESTION-——ELECTION OF STATE SENATORS, No costs are allowed in phoceeding involving the election of ‘State senators, a publie question being involved (US Const, Am 14; Mich Const 1908, art 5, §§ 2, 4, a» amended-in 1952). . Cara; C. J., and Dernmers and Kewy, JJ., dissenting. Original petition for mandamus by ‘ August Scholle, in his own behalf as a eitizen and elector in the twelfth Michigan senatoria! dastrict, and in a representative capacity as president of the Michigan State Couneil, AFL-CIO, against James M. Hare, Secretary of State, to command latter in the first instance, not to issue 1960 election notices or per- form acts requisite to election of ‘State senators under the present senatorial districting, praying that amendments to article 5, §$ 2 and 4, of the Con. stitution be declared invalid as‘ violative of provi sions of the Constitution of the United States, praying that said sections in. respect to senate ap-. portion.ient or -distrieting be declared unamended, * See final paragraph of page 179 as to stay granted by a justice of the supreme court of the United States.— REPORTER. e t 2. v +4 ippendty af 1962 ScHOLLE v. SECRETARY OF State. — 179 that the Court declare that’ no apportionment or districting. act is extant, and further praying that lhe writ command defendant to declare and conduct ‘senatorial elections on an-at-large basis until an apportionment or districting act ‘an be passed, and « further praying that the Court retain jurisdiction pending reapportionment. Frank D. Beadle, senator from the thirty-fourth* distri¢t, and Albert K. Blashfield, a constituent of - the thirty. third senatorial district, on their motion, Joined as parties defendant. John W. Cummiskey, ‘a constituent of the sixteenth senatorial district, John W. Fitzgerald, senator from the fifteenth dis- trict, and Paul @. Youager, senator from the four- teenth district, on their motion to be joined as parties defendant, permitted to intervene. Prior judgment of Supreme Court of Michigan (S60 Mich 1) dismissing petition vacated upon ap- peal to supreme court of ‘the United States. Submitted on remand July 2, 1962.- (Docket No. 63, Calendar No. 48,580.) + .Writ) of mandamus granted July 187 1962, Amendments to-Constitu- ‘ tion 1908, art 5, $$ 2 and A, declared violative of Fourteenth Amendment to €onstitution of the Wnited States and therefore invalid. ' Reference miade to governor and legislature for. reapportion- ment under previously existing constitutional provi- sions, the presently constituted senate being ad- "judged to ke a@ontinuing de facto body. Jurisdie- tion retained pending transition. se ctions given as to conduct of elections for State senators. On guly 27,1962, an order was alae by a justice ° of the supreme court of the United States to stay the ‘senatorial redistricting order of the Supreme Court of Michigan pending the timely filing of a peti- tion for writ of certiorari and a further. stay pending - the final.disposal of the petition. Ja Appendix s 180 367 Micuican Reports. - | [July Rothe, Marstcn, Mazey, Sachs ¢ 0’ Connell (Theo- dore Sachs, of counsel), for plaintiff. . Frank J..Kelléy, Attorney General, and Eugene Krasicky, Solicitor General, for defendant, con- . cluding certain provisions: violative of Federal Con- stitution and suggesting remedial measures. § Edmund E. Shepherd, for intervening defendants — and intervenors. Amicus Curiae: Creighton R. Coleman, in propria persona. ‘ Ox REMAND Kavanacu, J. As we approach determination’ of ‘the’merits, following vacation by the supreme “court (Scholle vy Secretary of State, 369 US 429 [82S Ct ~ 910, 8 L ed § 2d 1]), of the judgment entered here June 6, 1960 (360 Mich 1), each unmanageable mem- ber of the Court faces an arrogant and amply head- lined threat of impeachment “if the senate districts are declaréd ilegal.”? This threat should neither hasten nor slow the judicial process.* It does call . into play Marshall's grim words (quoted in O’Dono- ghue'v. United States, 289 US 516, 532 [53 S Ct 740,. 77 L ed 1356]): “The judicial department ‘comes home in its ef- fects to every man’s: fireside; it paSses on his prop- erty his reputation, his life, his all. Is it not, to the last degree important, that he (the, judge) ee a 1 Detroit Free Press, metropolitan edition, Friday, Jens 29, 1962, front page article, under headline “Threaten to Impeach Teo Court.” 2 Today's effort to intimidate the Court, fiads its historic counter- part when, in Marshall's time,a “ seethingly hostile” congress “closed down the supreme court for a yea: That ehallenge of judicial independence, and the way it was handled ultimately by, the Marshall court, is chronicled in Rodeil’s “Nine Men,” pp 85-90 (Random House, New York 1955). - We Appendix ol - s 1962] _-‘ScHoue v. Secretary or Srare. 181 should be rendered perfectly and completely ‘in- dependent, with nothing to influence or control him but God and his conscience? *.* * I have always thought, from my earliest youth till now, that. the greatest ‘scourga an’angry Heaven ever inflicted upon’an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary.” Only an ignorant, a corrupt, or a dependent judge would cringe and pause before any such formidable threat. We choose instead to consider and execute ° ’ the duty which bas been east here by the supremacy clause and the oath alf judicial officers of Michigan have taken. ; 7 If the laws of Michigan, brought now to question again, de offend the tight of thousands upen thou- sands of Michigan citizens to federally guaranteed equal protection, and the writer did so find more than 2 years ago, .then this Court, loyal to its oath, should say so now; now that jurisdiction to Say sO has been specifically confirmed by. the Un:ted States _ Supreme court. Failing in such regard, another biennially extended election of members of the upper -hotse will have coma and gone under patently un- constitutional law; law so invidiously diserimina- ‘tory that but feeble effort is and can be made to sustain it as against the current surge of national | authority which, almost. daily, arrives from a steadily inereasing number of the States. Indeed, ¢ the position. of these intervening defendants. seems only to be that a little equality goes a long way and that too much equality goes too far. ~The Supreme Court :c. Michigan did not ask for. submission of this issue and its now unavoidable determination. Some of the veterans of the legis- lature, along with their predecessors, failed regu- larly to execute .the constitutional oath each had taker to redistrict and reapportion under original section 4 of the fifth article of the Michigan Con- u “ .~ Appendix 182 7 Micnican Reports. [July - stitution (1908). They and eet Slene are respon-_ sible for justiciable presentation and consideration of the issue before this Court.. Had the ‘y faithfully and decennially executed said section 4 the powers of this Court, and those of the United States su-. preme court, never could have been invoked ;, nor would those powers now be called to action. So much for any Suggestion that the courts: of this country are invading?®ithout Warrant the processes and powers of a separate branch of government: What the courts do is no invasion; it is no more and no less than performance of their duty to guard Vigilantly government by constitutional law. Is it not true that. this Court of last resort of a State, when it ts called upon to determine the merits-of a duly presented and manifestly decisive Federal question, sits for the required time as an inferior court of the United States? And is it not. true that, for solution of the presented question, we are obliged to hold that the Constitution ‘of the United States is coniroelting where, as found here, one of ‘its provisions stands in conthet with provi- sions of a State Constitution? For amexsr see Testa v. Katt, 880 US 386, 890, 391 (67S Ct 810, 91 L ed 967, 1i2 ALR 225), wherein Clatlin v. Mouse- man, 93 US 150 (23 Ped $33),2 was unanimously characterized as follows: “The opinion of a unanimous court in that.« Case Was strongly buttressed by historic references and -'3 Thi is yp assage. taken from the Clafin Case, exposes: the rule fully (Pp 137): ; f oth wa “The fact that a State court derives its existence and functions from the State laws is no reason why it should not aYord relief; because it is subject niso to the Jaws of the United States, and is just as much boun! to recognize these as Gperative within the State 4s it is to-recognize the State laws. The 2 together form l system of jurispruc dence, which constitutes the law of the land for .the, Stute; and the cia of the 2 jurisdictions are not forcign to each other, nor to be treated by each other as such, but as courts of, the same couutry, having jurisdiction partiy different and partly cou- current.” wos : } be y= Ka t . 367 Micrican Reports. [July ginning of .the present term, the following order for resubmission was entered (June 5, 1962): : “In this cause a_ motion is filed by plaintiff for summary Judgmen} or in the alternative to advance the cause for prompt hearing, and answers thereto having been filed by defendant and by intervening defendants, and due consideration thereof having been had by the Court, it is now-ordered that the case be and the same hereby is ordered submitted for rehearing on July 2, 1962 at 10 e’@leck in the forenoon of that date, such rehearing to be on present appendices and briefs as -filed with our clerk augmented .\by the United States supreme’ court's opinion of *April 23, 1962 in this eause,* and by such additional briefs as counsel may be advised to file on or before the oral arguments scheduled above.” In pursuance of such order the case was fully re- submitted: No further proof or pleading was of- fered. Neithe® was request made for submission of further proofs. Thus the case is before us on a record made.more. than 2 years ago; a record each then member® of the Court must have stuaied with painstaking cire prior to consideratioy and review -of the exhaustive opinions which appear between “pages 1 through 125 of the 860th Michigan Report. It is false, then, to say that meager time has been allotted for proper consideration ‘of the merits: of this all important case. Doubtless no case sub mitted to'this Court in modern times is known. so well.to the members who would protest thai our determination of the merits should be délayed the more that they may study it the more; pointedly until that determination comes too late for legisla- tive reapportionment of the senate and senatorial | ee 4°‘Schélle vy. Secretary of State, 369 US 429 (82 8 Ct 910, 8S L 2d 1).— REPORTER. 8 Justice OTIS M. SMITH is the only present; participating Susties not then a member of the Court. 10a en: Appendix oi 1962 * Scuouie v. Secretary or State. _ 185 elections this year; likewise too late for direly per- tinent advices the presently assembled constitu- tional convention should receive and heed before it, as imminently provided, passes. for all time. into the pages: of history. By Magna Carta’s fortieth grant, “To none will we sell, to none will we deny, or delay, right or justice.” © sbi Now that 2 years have intervened since the deci- sion of this Court in the case of Scholle v. Secretary of State, 360 Mich 1, we ask ourselves: Are there any intervening facts, judicially noticeable or other- wise, that would change the former finding that the present senatorial districts of Michigan lack a ra- tional, reasonable, uniform, or even ascertainable nondiscriminatory legislative purpose? None has been suggested, and we find none. A comparison of the population growth using the 1950 and 1960 Federal censuses indivates that the dis- parities are growing with the popalation increase at an average of approximate y 150,000 persons per year. A | ve The absence of any semblance of design or plan ‘in the present: senatorial districts was’ recently... acknowledged by D. Hale Brake, a Michigan lawyer and former State treasurer from 1043 through 1954, now a constitutional convention. delegate, in an. article entitled, “The Old and the New’ Constitu- tions—a Comparison and Appraisal” dated May 16, 1962, sigyfd by Mr. Brake, Director, , Education Divisigf, Michigan Association of. Supervisors, 319 snawee, Lansing 32, Michigan, and’ sent to ‘the. members of the association. Mr. Brake con- cluded with appropriate accuracy : : “Our present senate, of course, does not follow, “any plan. It is‘simply an arbitrary freezing in of Various districts.” lla’ ‘ Appendix Ae ASR ay A 186 367. MICHIGAN Reports. ; [July ‘ g Having duly considered the additional brief s sub- mitted, the oral argumentsamade by the parties and for the reasons set forth An detail in my opinion. reeorded in Scholle ;v. Secrétary of State, 360 Mich 1, we hold plaintiff has been and is being deprived of the equal protection of the laws withip the mean. ' ing of the Fourteenth Amendment to the United o States Constitution, by the provisions of article 5 of the Michigan Constitution of 1908, as amended in 1952, by which plaintiff's vote for the office of. State senator is invidiously unequal to the votes cast for State senator by other citizens of the State, the classifieation of citizens ‘In the senatorial dis- tricts being arbitrary, discriminatory, and without reasonable or just relation or felevance tothe elec. teral process. Sections 2 and 4 of article 5 of tho Michigan Constitution of 1908, as amended in 1952 are therefore declared a violation of the.F ourteenth Amendment of the United States C onsti itution and are’ void. . Seen We turn then to a consideration of the provisio: 1s of article 5, sections 2 and 4 of the 1908 Constitution without the 1952 amendment,® to test the. present senate aMportionment in the light of adjudicated cases of the Michigan Supreme, Court and the ap- plication thereto of therF ourteenth Ame ndime nt. We 6 Sections 2 and 4 of article 5 of the Mich! igan Co institution (1908 without the 1952 amendment read as follows: . - “See. 2. The senate shall consist uf : 32 members. Senators shall- , e . } ‘he elected for 2 years and by single Wistricts. Such distTicts shal! be numbered from 1 to 32, inelusive, exch of which shall choose ‘1 senator. No county shall be divided in tHe formation of senatorial districts, uniess such county shall be equitably entitled to 2 or more senators.’ “See. 4. -At the session in 1913, and each tenth veat thereafter, the jegisiatu » shall by law ‘rearrange the senatorial dist ricts and appor tion arrew the representatives among the counties and distriets aceord: ing to the number of inhabitants, using as the basis for such appe ‘tionment the last preceding. United States censits of this St Each apportionme nt so made, any the division of anys goeunts into” representative districts by its board of supérvisors, made thereunder, shall rot be altered until the tenth year ‘there after.” . o~? e “menace to free institutions.” ar 12a Appendix 4 1962 ScHOLLE v. SECRETARY OF STATE. 187 Mich 1 (16 LRA 402), considering a similar action by citizens to declare statutory rearranging of the _senate districts unconstitutional ‘and void, where Justice Grant, speaking for the Court, said (p 7): “It was.never contemplated that 1 elector should possess 2 or 3 times more influence, -in the person of a representative or senator, than another elector in another district, Each, insofar as. it is practi- cable, is, under the Constitution, possessed of equal power and inffuence. Equality in such matters lies at the basis of our free. government. It is guaran-, teed, not only by the Constitution, but by the ordi- nance of 1787, organizing the territory out ‘of which the State of Michigan .was carved.” Justice Graxi went on to say (p 8): “It (the Constitution) requires the exercise on the part of the legislature of an-honest and fair diseretion. in apportioning the districts so as te preserve; as"nearly as may be, the equality of rep- resentation.” Justice McGratn in a “concurring opinion in Giddings said (p 13): 7 “The purpose of. the constitutional énactment is to secure as nearly as pdssible equality of represen- tation. Any apportionment which defeats that’ pur- pose is vicious, contrary not only to the letter of the Constitution, but to the spirit of our ‘institutions, and subversive of popular-government... Power se- cured or perpetuated: by unconstitutiona] methods is power. usurped, and usurpation pf power is a The Court stated its conclusions as follows. (p 9): “I. The petition is properly brought. into this Court by the relator. a ree et ane - “2. The Court has jurisdiction in the matter. . find our Court in Giddings vy. Secretary of Staté, 93. ¢. hare s : : 13a ea eerie “Appendix i 188 > 367 Miciicax Daiices | [ July. “3. The apportionment. acts of. 1801 and 188) ere unconstitutional and: void. : “4. The writ of mandamus must issue, restrain ing the respondent from issuing the notice of election under the act of 1891, and direeting him to Issue the notice under the apportiotment act of TSS], tam less the executive of the Stafe shall call a special session of the legislature to Tagg uke a new apportion: ment before the time expires for giving such natice.” Fourteen years later, in the June ‘term of 1906, this.Court again had before it:similar reapportion- ment acts according to 'which certain senatorial dis- tricts had more'than double the population of others, The Court again ruled in accordance with Giddings, that such a disparity between districts made the acts unconstitutional. See Williams v. Seeretaru of ‘State, 145 Mich 447. .- : a Ht is to be noted that Justices Douglas, Black, and Murphy, dissenting in Mackougen ve Green, 335 US 281, 28s (69S Ct 1, 98 Teed 3), stated: . “None ae" deny that a State law giving seme citizens twice the vote-of other citizens.in either the primary or general election would la¢k that equality which the Fourteenth Amendment guarantees.” . We would conclude, then, under the rule of Wil- liams and Giddings as applied | by our-own Court, that any law of our State giving some citizens more than twice the votes of other citizens’ 1 ‘primary or general eléction would fack consfitu. tional equality so.as to void that-law. \ Here then, written in Williams and 48 years later by dissent. ing justi¢es in the MacDougall Case, is a maximal standard by which the legislature and the constitu- tional convention may receive fair guidance. -When a legislative apportionment. provides districts hay- ing. more than double the population of others, the 7 Ratio of representation. awe present sciatorial ap portiona nf 1950 census ap eee 7 to 1; 1960 census approximately 12 to 1. ” in either the’ Jae : | . +4 $ ; ‘ * I ppevidix | oe dda 1962] . Scuon LEY. SEc RETARY OF, Srate, 189 eons ititatoeal range ‘of ices ‘tion is violated. This 1s not té’say that less than such 2 to 1 ratio is con- “Stittitional is good. It-is to say only that peril ends: and disaster occurs when that line is crossed, We regard Mie his: in as fortunate for, unlike other States, we have in’ the W dlhiams and Gide dings Cases sate ‘a! inte rpretation in applying the identieal eon- stitutional. phrases to which the legislative destiny Sof Michigan ig now returne '. We hope the legis la- fure’will act promptly to fill the void, and that its prompt action sill eliminate need-for a State-wide at large primary and gerenal ele tion of State sena- .{ors.. ° ’ : .; The William s Case the doetrine: of which we now affirin, matrks the outermost houndary of that con- stitutional _dise ‘retion which, in 1008, the bia awarded: 10 the Jegishaturt In the name of local ; Weilus national equal protection. »Equal protec ioe, in the context of this case, does not mean arithmeti enl equality, Section 2's restric tion against division ofa county and the stated exception to suely restric Ton, alone would prevent sugh arithmetical equality, It — mean that equality. Which fairly approxi. Inates, by the st: andi rds of reasonable m indo NeTCIS~ Ine fuir-dise eretion, theet Which should-have been done decennially between TOS aigd 1952 and must now be done te emsure that reason: th lviuniform right of gov- ermmental representation Which came t odite bt im- pact of the Declaration of Independence. It means, toe, that) when any apportionment plan provides. some elective districts having more than double the poptlation of others, that Plan cannot be sustained. And so we hold. i tr) tinaal Sure nation that the Four- teenth Amendment and our own corres pondiiy o ie . € ‘|5a o Ippendix ol 190 > 867° Micnican Reports, - [July pledge of the. protection, af equal laws (art 2 , $1) do ‘require that the senatorial districts of Mich; igan be so arranged as to be consistent. with the foregoing - maximum Z-to-1 ratio. That is enough for decision of the present case. We may add, however, that other programs creating elective districts, W hether on an area versus popula- tion basis,‘or gerrymandered as to shape or want ot: contiguity, or plaared for purposes of invidious dis- crimination or iniquitous advarit age, My some day be presented, to this Court for test ‘against the national and State equality clauses, ‘but we do not’ pass on them at the present time, There could be no question, however, that they would have to meet the foregoing test set-forth in the W lhams and Giddings Cases and in Mae Dougall v. Green, supra. Perhaps they would be required to do more, but certainly not Due consideration having been given to the fore- going conchrsimis and findings, and the Cgurt being fully advised, it is now and here adjudged and or- dered as follows: . at (1) That present sections 2 and 4 0f article o of ‘the Constitution of Michigan (1908), referring spe eitiealiy to those ae ae, ae ratified at the general election held November W, 1942, do as charged by plaititt offend and therefore do fall before ihe equality clause of the Fourteenth Ame ndment of the Constitution of the’ United States. Said seetions 2 and 4 are consequently adjudged’ invatid, prospec: tively from) and after-the date hereof, : (2) That no legislation exists in Michigan, étfect edveither by statute or constitutional provision. un . eve equality of rights prote peted hy our Constitution is the same as khat yryserved bw the Fourteenth Amendment to the Fedterni Con stititiqn. In re For's Estate, 15% Mich 5.” (Quotation from \ anda tus vo Lanr, 25° Mich wie pp o4 AIR 118%, 30 NCCA-179] follawed tn Cook Coffee ©u, ¥. bidlage ‘of Blushing, 267 Mich Jo) e la elf PenadInr | 1962}. * Scuorie rs ECRETARY oF STATE. 191 idates for the’ office of State ~ senator may validly bd elected for the biennial term commencing January J, 1963. : (3) That the -primalry election of candidates for the office of State semator, scheduled now in the hitherto constituted 34 senatorial districts of Michi- van, for conduct on Angust 7; 1962, be and the same is restrained and enjoined by force of this Court's writ of «mandamus, which. writ. shall-issue forthwith _to-the defendant secretary of State. The defendant secretary, as chief election officer-of the State and supervisor of all local election officers in the perform- ance of their duties,® will by timely regulation and instruction do and perform suc’ acts as will ensure State-wide observance of the restraint directed by said writ. ‘ (4) For the purpose of ensuring validity of all levislation which, being otherwise. valid, may have been enacted into statute by the legislature prior to the date of this judgment; and for the further pur- pose of ensyring validity of legislation and: joint resolutions (for submission of any proposed consti- tutional amendment) as may hereaftes be enacted into statute or adopted by the legislature during the reraainder of the year 1962; and for the further pur- pose of providing means for the enactment of valid ‘new legislation during the present legislative, ses- sion, comperting with original sections 2 and 4 of said article 5. and for the further purpose of provid- ing means by which this judgment may receive prompt per formance and due execution, it is ad- judged that the presently constituted senate shall, from this date and until December 31, 1962, but net thereafter, fune tion § us a de facto body and that the 2 Pertinent sections e the Mic asia election law as anne eC LS 1956, § 168.21,-and CLS 19: 56, § 168.21, as amended by PA 1957, No 249 [Stat Aun 1956 Kev § 6. 1021 anu Stat Aun 1961 Cum aitied § 6.1031]). der or by which cand o fa . : [ppendix 192 367 Micuican: Repor7s. | July ‘members of the senate elected as sueh for the current term shall, from this date and until Dece anber 31, 1962, but not thereafter, func tion as-de facto officers far all, v: alid purposes. Refefence is pertinently made to the general rule that where the law creating a public office is declared void the acts of an officer continuing to function thereunder will, until he is legally succeeded, be mphets as the acts of a de facto ame er, See People v. Bichleu, 3802 Mich 12; People Russell, 340 Mich I O38 Greyhound C orp. V. Public Service Commission, 360 Mieh 578."° (>) That the governor and legislature be advised, respectfully by the judicial deparimnent, that legis lation Is urge athy required under and in pursuance of original secticns 2 and 4 of said article 5, by Which 32 senatorial districts of Michigan are ar ranged ace cordim to the number of inhabitants of the State as shown by the most recent U nited States census of Michigan, and under and in pursneince of whigh can: didates for the office of senator in eaeh of suck ne wy arranged districts may be nominated and cleeted for the coming biennial term. (6) Inevent valid Jegislation, recommende dafore- said, is not enacted with tleeessary imme diate effect onor before August 20, 162. the defendant scere- tary will apply forthwith to this Court for such in structions and orders as will eridbiles him to call and conduct a special State-wide primary election of ex ididatys for the offiee of State senator om Septem ber 11, 162, and as will enable him to eall and eon duct a State wrele election on November 6, M62, of the necessary number of State senators, o2 all, for such coming biennial tern. , (7) Phat jurisdiction of this eause be and is re nined indegimitely, pending further order or orders, until the transition from pnvalid sections 2 and 4 10° t part of the opinten of the Greyhound Case which dealt with the re va of oe fac fe otheers Was Ubahimeus. te iXa eIppendtxy .1 1962] ScHOLLE v, SECRETARY OF STATE. 193 of said article 5, to original Sections 2 and 4 of saig . article 5, is fully accomplished and complete dispo-. sition of the involved subject matter is: adequately provided, . ; It necessary, additional appropriate‘ writs: will issue by the presently seated Court for due enforce- ment of the foregoing judgment. No costs, a. public question being involved, Buack, J., concurred with Kavanaai, J. Carr, C.J. (dissenting). This ease involves an at- tack Ivy plaintiff on the validity of article 5,8 my Ot, the State Constitution (1908), as amended bY vote ~ of the people at the November election in 1952. Said section relates specifically to the State senate and the election of the members thereof by single dis- tricts, The amendment was proposed and submitted to popular vote on the basis of petitions. filed by qual- ified and registered electors of the State as provided in article. 17, $ 2, of the State Constitution as amend- ed at the general election of April 7, 1941. At the Ito2 election there was also submitted a proposed muendment requiring: that the members otf both’ houses of the legislature be selected on the basis of a Jegisiative apportionment in accordance with. pop- ulation. The latter amendment was defeated while the adoption of the am: ndment here in question was: carried by a substantial vote. The amendment now attacked was submitted on -the ballot as “Proposal No 2", its purpose being de- clared to be “to establish senatorial distriets and pro. “vide for “decernial reapportionment of répresenta- tives.” (PA 1953, p 438.) Considering the amend. ment in its eritirety as relating to the election of the members of fhe bicameral legislature, it was obvious- ly the intention of the people that members of the house of representatives should be selected from dis- 19a wl ppointdix ol 19% 367 MicuicaN Keports. (July tricts which shall contain “as nearly as may be an _equal number of inhabitants.” Insofar as the senate was concerned the people yidertook by the amend- ment to divide the State into 34 distrivts, from each of which a member of the senaté should be elected. Said districts, were specifically set forth in article 9, $2. Senatorial districts as previously existing were materially changed, and the number bivreased from 32to 34. That the facter of population was not over-’ looked is indieated by the provision of said section that senatorial districts within a cgunty shall gon: tain, as nearly as may be, an equal number of ini habitants. Unquestionably the bdsie plan of thy people as set forth in the amendment was to divide the State into designated districts, the geographic division being adopted. as stated. "The provision in the Federal Constitution for 2 senators from each State may have served to suggest such method. It must. be assumed, and it clearly appears, that ‘the people in making these provisions for selection of members of the house and senate sought a general plan for the legislative department of the State gov- ernment that would best serve the State as a whole. While population is the controlling factor as far as representatives are coneerned, it Was obviously deemed that the rights of the people living in ditfer- ent sections of the State would be best protected by the adoption of a geographical basis, in part, of ap- ' portionment as to the senate, It is, of course, appar- ent that if the members of both houses are selected on a strictly population basis the urban industrial centers, having the largest number of inhabitants, would be énabled to dominate the legislative depart- ment of the State government. [t was this kind of a situation that the framers of the amendment now in- question here,and the people adopting it, had in mind at the time. The question now presented Is, was such plan irrational? Must it be said that it consti- ’ ‘ 3 : 20a ; | Appendix al 1962) ScHouce v. SECRETARY OF STATE. .— 195 J tutes an “invidious” attempt to deprive auy section of the State, or any*portion of its inhabitants, of their just rights under‘the fundamental laws of the State and of the Nation? -.In attacking article 5, § 2, of the Constitution, as amended, plaintiff insists that it violates the equal protection clause of the Fourteenth Amendment to ‘the Federal Constitution. In his petition for a writ of mandamus to prevent the seeretary of State, de- fendant herein, from = issuing election notices’ for State senators to be chosen at the 1960 general No- ‘vember election the claim is advaneed that senatorial districts must be established on the basis of. popu- Jation. Obviously it is the claim that in electing mem- bers of a bicameral legislature population must, be the sole criterion to be followed, and thut any plan « involving an attempt to protect the interests of The less densely popucated sections of the State is invalid because not affording-equal protection to residents in heavily populated urban centers. We are aot in ae- cord with sueh theory. . - The case was instituted in this Court by petition for.a writ of mandamus against the seeretary of State requiring that official to refrain from acting und rthe Michigan election law with reference to the election’ of State senators. Said petition does not specifically allege wherein plaintiff or others whom ‘he claims to represent have actually been prejudiced as a Fesult of State senatars being chosen in Michi- gan at the last 4 general November elections. in ae- eOrdance with the amendment of 1952. There is no showing that as a resuit of such method of senatorial selection improper legislation has been enacted to the prejudice of plaintiff os of others. In view of the record of the Michigan legislatare there would seem te be no basis for any possible argument that the State of Michigan has suffered, or that any se¢men’ of its population has been prejudiced. The realistic j ae 2la Appendty 1 aoe y 196 367 Micnican Reports. ‘Maly situation presenied is that no’ section=of the State has suffered from legislative discrimination. There is no showing that either house of our legislature has failed to discharge its responsibilities to the public generally, or that the basie principle of equal protec- ‘tion of the laws has been violated because of the ohan adopted by the- people acting in’ their sovereign | capacity at the 1952 election. When the controversy first came before this Court in 1960 a majority of the justices concluded that un- der prior decisio -s of the United States supreme court. including Culegrove v. Green, 828 US 049 (66 S Ct 1198, 90 L ed 1482), and other decisions of like import cited by Mr. Justice Eowakps in his opinion, the nature of the issue did not bring it within the scope of the, jurisdiction of this Court, and that such Jssue wis not a justiciable one. Accordingly, piain- “tiff’'s petition was denied (360 Mich 1), and his subse- quent application: for rehearing was a!so denied. Thereupon plaintif? sought to appeal to the supreme court of the United States. | P Thereafter the case of Baker v. Carr, B60 US 186 (S28 Crt 69], 7 L ed 2d 665), was submitted to the Supreme Court forsdetermination. The ease was an appeal from the decision of a Federal district court rejecting an attack on legislative ‘apportionment statutes of Tennessee. In that case the’ State con. stitution required reapportionment at regular inter: vals. but the jegislature had not tuken action since 1901. In other words, there was no compliance by the State legislature with the mandate of constitu. tiotial provisions by whieh it was bound. ‘The sn- ‘preme court, Justichs Frankfurter and Harlan dis- senting. concluded that a justictable question Was In: volved and remanded for further consideration of the controversy on its merits, [n taking such action at- tention was called (p 1) to the fact that the funda- mental law of Tennessee did not provide for the ex- @¢-. 9 ee en es Ippendiy of 1962 ' ScHOLLE v. SECRETARY OF STATE. 197 ercise of the power of the initiative or the referen- dum on the'part of the electors of the State. It was suggested that under said cireumstanees no remedy -Was available other than by appeal to the court. Obviously such“is not. the situation in Michigan. Here the power to initiate, by petition; legislation and. constitutional amendments (as well as the referen-- dum) is reserved to-the people by the express lan- guage of our Constitutio.. _ Following the action taken in the Tennessee case the supreme court of the United States remanded the present controversy to this Court, directing by man- date received under date “of: May 29, 1962, that we - give the case further consid>ration in-the light’ of Baker v. Carr. We do not understand from the opinions fled by members of the court of last resort of the Nation that any question’ was determined other thin that the controversy is Justiciable. In Consequence, We are now confronted by tne question whether it must be said that the plan adopted in 1952 by the people of this State with reference to the selec- tion of inembers of its bicameral ilegislature offends the equal protection clause of the Fourfee.th Amend- ment. : . In MacDougall ©. Green; 335 US 281 (69S Ct 1,93 “Led 3), the court refused to hold invalid an Illinois statute relating to the nominatidn-of candidates for a new political party, it being contended, as in the ‘ase before us, that the Foirteenth.Amendment was veolated. Cotmmenting.on ‘the issue involved and the arguments advanced, it was said (pp 2837.284) : “To assume that political power is a function ex- clusively of numbers is to disregard thé practical- ities of government. Thus, the Constitution ‘protects the interests of the smaller against the greater by giving in the senate entirely unequal representation to populations. It would be strange indeed, and doe- trinaire, for this court, applying such bréaT consti- . | e . wl ppendir 1 “198 367 Micwidan Reports. : [ July ‘tutional concepts as due process and equal protection of the laws, to deny a State the power to. assure a proper diffusion of political initiative as between its thinly populated counties and those having concen-— trated masses, in view of the fact that the latter have practical opportunities for exerting their political weight: at the polls not available to the former. - The “Constitution—a_ praetical instrument of govern- - ment—-makes no such demands on the States, Cote- qrove Vv. Green, S28 US 549 (66S Ct 119s, GO L ed 1432), and Colearove v. Barrett, 380 US S04 (OFS Ct 973, 91 L ed 1262).” . - ° . . Ban . : : , We note that in the opiyion of Mr. Fustice Stewart, who concurred inthe holding: of -the majority in Baker v. Carr, supra, reference Was made to the | ab ove quoted éase, it being said that (pp 265, 266) : . 2 “In MacDougall v. Green, 385 US 281 (69 S Ct 1, 93 L ed 3), the court heid that the equal protegtions ~ clause does not ‘deny a State the power to assare a proper diffusion of political initis ‘ive as between its thiniy populated counties and those having concen- -rated masses, in View of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.’ yon ebeded US, at 284. In case after case arising under the equal . protection clause the court has said what it said again only Yast term—that ‘the Fourteenth Amend- ment:periuits the States a wide scope of diseretion in - enacting laws which affect some groups of citizens differently than others. MeGewany. Maruland, 566 US 420, 425 (SIS Ct 1101, 1158, 1218, 6 0 ed 24.893). ‘In case after Catt arising under that, clause we have also said that ‘the burden of establishing the uncon- stitutionality of a statute rests on him who assails it’ Metropolitan Cusualty Ins. Co. ve Brownell, 294 US 580, O84 (55 S Ct 55g, 79 L ed 1070). “Today's decision does not turn its back on these settled precedents. [ repeats the court today decides only; (1) that the district court possessec jurisdic- tion of the subject matter; (2) that the complaint © mo * QR er , 24a - eippendir of 1962] ScHoLLE v. SecRETARY OF STATE. . 199 presents a justiciable controversy; (3) that the ap- pellants have standing.” M Reference to the MacDougall Case was also made inthe opinions of other. justices. We have before us, therefore, the question hereinbefore stated, that is, whether the plan adopted by ‘he people in the 1952 amendment to the Constitution is irrational and discriminatory to a degree requiring ‘its ¢expunging from the furidamental law of this State on the ground that it violates the equal protection clause of ‘the Fourteenth Amendment to the Federal Constitution. Applying the principle announced if Ma¢cPouaall vy. ‘Green, supra, we submit that such question must be | answered in the negative. Such plan was adopted.in the light of circumstances prevailing in the State of - Michigan, with reference to varied conditions exist- ing in different parts of the State, and for the proper purpose of protecting the rights of the people ‘in the more sparsely settled sections. It was not intended - to perpetrate an undue hardship or an injustice on any part of our population, nur has tt operated to dé se. The burden of proof to establish that a provision , of the fundamental law of. the State is invalid rests. on the plaintiff, and that burden has- not been sus- fained. The 1952 amendmeni now in question was not-challenged immediately following its adoption, nor has any attemp: been made ‘to change it: by the orderly process of amendment to the Constitution by resort to the Same method of procedure that brought 2 “about wwe submission and adoption of said a@mend- ment. . : sak If a majority of the members of this Court grant. the relief sought in plaintiffs petition and hold ‘in- ralid the 1952 amendment to article o $2, of our Constitution, ar unfortunate situation will result. It must be borne in mind that the attack h-re is not on ‘he right of tue present methvers of the State senate \ 7 . Zsa 3 Ippendir , 200 * 367 Micnican Reparts. - ~ . [ July to hold their ofhees but, rather, goes to the right of existence of those offices themsely4s as established’ utider the amendment. The people hy their action tn 1952 created additional senatorial districts, and the new districts created: were not. in any instances identical with those fixed under the prior ap portion. ment statute. If the ame nmdment is adjudged inyahid. the senatorial distriets ere ated | there hw become tot existent, and for obvious reasons the members of the Senate elected’ from said districts cannot he deenied de facto officers for any purpose. There cxmnot be a de facts officer unless there is a de jire office: The law im-tits respect Was rather suecineliv stated as ‘tellows in the, opinion of the supreme court of the .U nited States in Norton v. Shelby County, Ws US 425, 445-442.(6 S Ct 1121, 30 Led 17s): “The doctriné“which gives validity to acts of of — ficers de facto, whatever defects the ‘re may’ he in the legality of their appointment or e' ection, 1s founded upon Considerations. of policy ana necessity, for the : protection of the public and andividuals hose inte? ests may be affected thereby. Ofhces are created for the- henefit of the pul lie, and private parties are not permitted to inquire into the tithe of persons clothed with the evidence of such offices and in apparent pos session of their powers and functions. Por the good order and peace’of societye their authority is to he respected and obeved ung In some reouher tmiode preseribed by taw their titl® is investigated and deter mined. It is manifest thallendless confusion would result, Tf an every proces ing before Sueh ofheers their title eould be called-an question. But the ides of an officer implies the existence of an offices which he holds. It woyld be a misapplication of terns te ‘all one an officer Whe hoids ne office, and a pull office can exist only by foreetof law. This seem te as so obvious that we shouldehardly feed Called U fron to consider Any adverse Opinion On the subject but for the carnest contention of plaintuif’s counsel that ~ teres E62] . ‘ScHOLLE, SECRETARY OF STATES 207 ns pres existence is not éssen if and that itis sufficierit it the office be provided for Ny any le gislative’ ere (cf ment. however. snuvalid. Their ‘position is, that: ) Ae eislative act, though uncoustitutional, may in terms Create an office: and nothing. furthe ‘ethan its appar-— ent ¢ Nistenecd is fece ssary to fivew alidity to the acts h. - of ite assumed ancumbent. Pht position, although ¥ not stated uv this broad form, wmounts.to nothing D- else. It is gifficuk€to meet it by any argument be- . yond this statement An- unconstitutional act is not “*attaw; kpconfers no rights; i umMposes no duties ; it Br iepen no protection; it crdgites no office; it is, in fetal conte mplation, : : oo as though it had a or been passed.” © ° In qecord with the eons dhove quote d are: c arle- » & tony. People, 10 Mich 250; People ve Payment, 109° Mich 55°; Aiedd vo McC¥nlass, 200 Tenn LU TL G9 SW 2d 40). If this Court enters judgment. in accora- Tance mith k auraceta demand that article 5, £2, of the S wie ‘onstitution 4s at] has been-fromi its in- CO} pplor a nullity, them the State of Michigan will necessarily be left withoutea State senate and. he nee, ‘rt awithout a. legislature that can function under the Constitution. Striking from the fundamental law of Méeehigan the provision for designated: senatorial dis- | tricts will obviously terminate the existence of such districts, ‘This Court is without power fo give to those previously elected theréfron: ihe’ statug of de. facto incumbents of offices that no Jonger exist. It is interesting to note that the district court of ‘the Ufited States for the middle district of Tennes- see, TOW tag the supreme court remanded Baker y. arr tor f er consideration, came to the conclu- sion (— F Supp —) that the apportionment ‘acts ‘passed by the le gislature of Tennessee were invalid, bat dec ined: to erter a judgment in accordance with -s>F-oe ——— se ‘of invalidity. The court obvi- ously realized the situation that wayld be presented in the event of a.jjudgment entered without affording a reasonable opportunity for th State legislature’ to act. \ : It was apparently recognized TOG phat he 1962 legislature, which had enacted appaytionmenht stat- utes’ during the pendency of the fitigation: and con- sidered Yhe ‘rein purtuant to stipulavion of the par- ties, but which .the ‘Court deemed invalid, could searcely be expected’ to enact a‘statute that would be sustained. For such rea@on it ayas deemed to be a realistic solution of the proble mm te withheld ¢ ntry of judgment, allowing a few legislature to be elected and giving it. a reasonable opportunity to adopt roper statutes that would not ‘offend against consti- tuttenal provisions. Commenting en, the procedure to be observed, it was said-in part (p—): “This will? pe rmit -the cite of a State rk gisla- ture under the 1962 statutes with full authority and power to-discharge validly and legally the legis lative functions of the State. sembly to act with’ th/ express sanction ‘of the court to effect, the necessary remedial measures and coy sequently in ‘good faith’ as. far as its authority eoncerned. Under. such poe he the restrictiv view of the de facto rule announeed in Aidd v. We- Canless will not apply. If it shouldbe argued ‘that ° : . . t will enable the rener; alé GSs% °° 2 po > % FO ‘ * . . —" e e. = j this is a som@gwhat techni al method to egreumvent the ruling in. that ‘ase, he auswer is threefold: First, Kadd v. McCanless Nee If represents a rather technical gffort by a court t which courts then ‘generally regaaded as involving politica! and nongusticiable issues, a view now under- eut by ‘the supreme court's decision in this os Second. ‘This r remedial method has the advantage.¢ avoiding a far-mere drastic form of relief which could conceivably entail a direct intrusion into State affairs. -Third. It is justifiable on the basis of the wide latitude of diseretion resting in the court in| devising remedies in cases of this types Accordingly, an order will be ente bod reserving: fa judgment herein on all issues until The 1963 cen. eral assémbly constituted and elected under the 1962 statutes has ‘had: an opportunity at it’s regular 1963 session to act on the matter of legislative ; apportion- ment, but not later than - Jyne 3- 1963. . After that” date, or after the date of adjournme nt of ‘the general assenthly if occurring prior, to June-3, 1968, the ease may be reopened upon application of any party or: upon the court's own mietion. . However, notwith- standing si ch time limits for reopening, full jurisdic. ‘tion is retained; and the. order will prov ide that if hecessary or proper for atiy reason, the action may | be reopengd at any time hereafter, either upon the court's own motion or upon the applies ition of any party.’ Obviously the-eourse pursued by the Federal dis- trict court in Tennessee is adapted to the prevention of a chacdtic condition in the State government, and to obviate also the adoption of some method of ap portionnient by the Court that might be subject to "question as to the requisite authorpyetheretor. ~ What-was said by the Federal distri¢t court inde. termining the appropriate precedure in Baker vy, Carr is, in large meas are. applicable in’the contro yersy bye fore us. In view of the situation existing in Mic ‘higan, it clearly onyenrs that a iike course is Nd entering-anarea, ) eg . eI } - a at Ug) : , ippendix a ° ; 3 f.. | i ; 204 367 Macniaan Reports. ee een imperative here, if a-miajorits ot this ¢ ‘our Pualiy aD ) econeludes that ‘article 5, 82. of our present Bp tution is invalid. In the judgmeryi proposed ‘hy Mr. pone Kax- ANAGHE immediate action is obviously contemplated, If the prop sed ordéy is entered as the judgment of a majority of the members of ths ourt partici pad- ing in the case the obvi ious result-would be a ehaotic coudition entailing the exerdise of doubtful powers -of this Court, jnterferjng with the election laws of the. State, and; likewis¢ interruptine the orderly course of legislatige proceedings. The: procedure . adopted by the Federal district eourt in, Baker vy. Carr found support in prior de- cisions cited therein. &n' McGraw vy. Donovan (DC Minn, July 10,1958), 163 F Supp TS4, the Federal dis- trict court of Minnesota. third division, was asked to. hold invalid a statute enaeted By the Minnesotif legis- lature in ‘1918 establishing legislative. distriets throughout the State. It was asserted that the aet Was In violation v of the State constitution. There, as Jin the Gasp ai Dar) it was urged that the equal protec . tion clause of the Fourteentit? Amendment to. the. Federal Constitution was aiso violated. “The court deferred decision on the issues presented to it in er- der to give the L959 legisiature, the.memibers of which werete be eleeted on November 4, 1998, an opportu- nity to take aetion. The followin comment in the opinion indicates the reason sér such defe sa (} 188): . eer : . . “It seems to ous that if there is to be a judicial disruption of the present legislative ap portronune nt or of the method or mac ‘hinery for eleeting members of the State legislature, it Should net take place un- less and until it ean be shown that the legislature meeting in 4 Manuary, Oo) has advisediy and dettty erately failed, and refused to perform its Comstitn tiona! duty to redistrict the State.” | ; “ e ¢ BU | 9 ’ ippendix.1 1962] ‘ ScHOLLE v, SECRETARY‘OF STATE. 205 . ad & * The supreme court of New Jersey in Asbury Park | Press, Inc., v. Woolley; 33 NJ 1 (164 A2d 705), like- wise withneld determination of Phe questions raised in a case challenging a reapportionment act, adopted by the legislature of the State, in order to afford a reasonable opportunity for legislative action. -The- case was cited by the supreme court of Colorado in its recent decision ¢rendered July 6, 1962) in the case of Stein v. General Assembly of the State of Col- grado, — Colo —., After diseussien of the practical problems involving legislative reapportionment of sehators and represent. ves, the court, referring specifically to the’decision-of the supreme court’ of New Jersey, declined to int@rvené until the next gen- - eral assembly of the State, the members of which-will be chosen at the November election in 1962, has a rea- f - i Bre . . sonable opportunity to consider the‘issues raised with reference to reapportionment. . The attitude of: the court is indicated by the following excerpt from its Opinion: — . ; . kd “We believe there. should be no judicial intrusion mito the legislative and executive affairs of the State, and we should be ever mindful of the necessity of “preserving the-integrity and independence of the coordinate branches of governmenf. “We should, therefore, exercise an appropriate ‘degree of. re- straint to see if they will carry out their duties. nly if both they and the people fail to act will it become a Judicial function to step into the void, : “It has been ealled to our Attention that in Ten- nesseé on June 22, 1962 (USDC ‘No 2724 Nashville y Div) a 3-judge Federal court acting pursuant to the mnandate of Baker v. Carr, supra (the landma@k Cise - from which flows all eurrent reapportionment litiga- tion) decided to retain jurisdiction to give the Ten- nessee legislature.tan opportunit¥at its 1963 session to enact a fair and valid reapportionment’. As au- _thority:for so doing the eourt cited similar pro- cedures in McGraw y. Donovan (DC Minn, 1958), | . ie) ¢ t _above cited. ~ a aaa herd Attention has been directed to the ‘situs OT that: Sia - A ppe nix ob, 206 1 Ree Mrcmaax Reronts. a [July ‘ sup¥a, _— v. Fortson (ND Ga, May 2 5, 1962 ),— -F Supp — (involvifig the legislature “of g teed AG and the recent Alabama case of Sims v. ieee 30 Lat Week 2512.” os It is somewhat significant that the Colorado’ court in its opinion discussed at some length the suggested procedure involving the election of members of the Jegislature /at large, and in doing so pointed out practical objections to-such course. It will. be noted | also that the decisions ‘of*State and Federal courts emphasize the neeessity for deliberate action in deal- ing-with legislative enactments claimed to be in vio- lation of constitutional prov isions. The situation im the controversy ‘before us is far more complicated in: that the attack is made on an amendment to the State Constitution, initiated by petition and, adopted by — the people of the State. If the section providing for senatorial districts and the election of senators there- . . el . . from is stricken from the Constitutio.. obviously ex-’ tremely grave questions will thereby be raised. It must be said also that there is no emergency or threatened crisis rendering hasty action imperatiye. No reason has been or can be assigned for the con- templated refusal to adopt the realistic method of proceduré suggested by the deci isions of other courts, € will be created if this Court enters immediately a Judgme n@ as proposed by Mr. Justice Kavanacu in’ his opinion, striking frem the Constitution the appor- tionment of senatorial districts within the State. As before pointed out, the atuendment of 1992 incre ased the number of senators from 32 to 34-and materially changed the limit. of distriets. In the 4 elections that have followed since the adoption of that amengiment senators have been chosen from the distriets as so specified, including, of course, the members of the present senate. No possible claim éan be made that / > 1962] - ScHOLLE 7, SECRETARY OF Static. 207 they reser ‘ut districts ¢reated bysact of the legisla- turein ace ‘ardance with the original provisions of the Constitution ef 1908. If the ex isting districts are abolished, a result necessarily following expunging article 5, § 2,‘from the fundame tal law of the State, = « the. cone lusion cannot be avoided that ‘the offices“the ¢ present semtitors were chosen to fill will no longer exist. - ae The Hroposed Judgment set for y in Mr. Fustice Kavanacn’s opinion provides for the i issuance of a> injunetion against the defendant secaptary of State to restrain'the primary election of candidates for the . office of State senator, which clection is now set “under the ge neral law of the State for August 7, ¢ 1962. °° Such an injunction will @& arly rest on-the : ~ theory, if the proposed judgment is entered, that the office of State senator as,now existing is abolished. ~ However, the proposed judgment would continue in a ~pthee the present members of the senate until Decem-. . ~ her OT, 1962, and the senate wofild be. permitted to | - function as a de facto body. It thus appears that the ar members of the de facto senate Bill, under thie pro- . ‘ - posed judgment, be acting not by’ virtue of their dive. tion by the people of the arious senatorial distriets—— ae ~~ created under the amendment.of 1952 but by fiat of — _ the m: (jority of the members of this Court payttet pating in the decision of the case. The « query nat- urally suggests. itself as* to’ the authority of} this “Court to thus ergate one.of the houses of the State legislature. The proposed judgment. entry is not °° ’ consistent with any possible theory that an incum- be nt of an oftice. existing under a law ad judged. to be | invalid may eontinué to funetion on tHe ground that he may be r regarded as a de facto official “Phe-gen- ‘eral rule of law unquestionably is that there can’ be no de facto officer unless there, is a‘de jure office, z. The decision of the supreme court of the : nited States in Horton v. Shelby ial 118 Us 25° (6 9 PN veut ng —— ° - ————K— —_—_—_— 33a ‘i. . 7 Sy “tae * Appendix 1 208 267 Micnicax erie’ . " [July S Ct 1121, 30 L i 178), above cited, declares the general rule of law on the issue with reference to the ostatus of a prior incumbent of an office previously ae existing under a statute adjudged unconstitutional. ~ Decisions involving the status*of one assuming to perform the duties of an existing office obviously are not in point. Mr. Justice Souris directs-attention to _ Attorney General, ex rel. Dingeman, v. Lacy, 180 * Mich 329, in support of the claim that an adjudica-° tion that an act creating a particular office is invalid does not prevent the incumbent from continuing to act with a.de facto status. "The Court did not so-hold in that decision. | Involved fasgan act of' the State legislature undertaking tocreate a domestic relations ° court in counties hav ingia ‘population ef more than 250,000. It applied te Wayne county only and’ was “adjudged invalid because in confitet with article D5 - § 30, of the State Constitution (190g) forbidding lo- cal acts if.a general act can be made applicable and furthér requiring the approval of all local acts by electors of the district to be affected.’ Ho was also held that thé provisions of the State Constitutibn ré- ating tothe jurisdiction of circuit and probate courts were violated. ° The purpose of the act was to relieve the circuit court of Wayne county of a portion of its ‘burden. The domestic relations court -had . futic- tioned for some time prior to ad judicdtion, and the Court declined to hold invalid prior judicial acts within, the scope of the .circuit court jurisdiction, = The gist of the decision in this respect is indicate d (p 842) in the following state ment: Beinn” — aSTmUCch as espondent, under the authority of at legislativ e enactment, assumed to exercise a por- tion of the jurisdiction of the cireuit court, which is a constitutional court, we are of opinion, that such of his judicial acts as are within thé jurisdiction of the circuit courg should be considered as\those of a de- 34a Pie ce sa pre nd: 1962 F ells v. iene oF Stare. 209 ill judge, not open to » question upon jaan: grounds.” ; It will be noted that. only acts that might have ie performed by a circu judge. were declared to be valid. Furthermore, “the Court did not hold that -the - defendant judge was entitled to continue to’ act on - the theory of a de facto status. When the judgment was entered declaring nonexistent the office that the defendant had held his functions ceased. He-was a de facto judge as to prior acts only. The case is not authority for any“ possible claim that if judgment enters invalidating the section: of the.Constitution under which the present senators were chosen such members may continue to act for the purpose of. creating a de fac to senate. Such a claim has no basis . in either‘law ar logie. - We have called attention to certain aspects of the | the —— proposed judgment as set forth in Mr. Justice Kav- © _ ANAGH'S opinion for the purpose, among others,-of ‘emphasizing the serious nature of: the problem. with ' ‘ which we are confronted. Judicial interference, as emphasizgd i in decisions above cited, in controversies - of the nature hdre’ involved, should if, possible be avoided. » ¢ refaconasration and action are im- perative. It mu borne in,mind that we are deal- ing with an attempt to. striké from our Constitution provisions that have been placed there by the people . of the State in wh all political power is inherent. ' Bearing in mind the origin of the amendment of - 1952, is there any, basis ‘for a suggestion that there Was any purpose ‘of “iny idious ' discrimination” in- volved? “As here inbefore stated, the purpose of the ee in the adoption of the anie ‘ndment.i in question was the formulation of a definite plan deemed proper-for the | protection of the people of the State and of all sec-* tidus of the State. The fundamental law ot the State, 2. Sow N we . ed ‘ » 4 . 5 \ =f Pc a ” ee : 3, ° ee . Pppendtr eae ; é | “9 210 ** 367 Miecnican Reports. (Tuly like that of the. nation, involves a series of checks and balances essential in all representative govern- ment. ‘Fhe underlying purpose and plan. of. the amendment must be determined by reference to all of thé proyisions thereof: Provision was made that > * members of the house of representatives, 110 ih num-* bers should be seleeted from districts established on. the basis of population... Such provision insured that the-more populous sectiotrs of Yhe’State Should not be discriminated against by Ynfair legislation, nor is.there any claim that such“has aceurred., Protee- ° ~ tion from such diserimination was assured te plain- tiff and others in like situation. On the other hand “it was recognized that the more thinly populated see- tions of the State shéuld not be overlooked. “It-has- -been. repeatedly, délared, and is not tented in this case, that in the Mterests of the general welfare the situation with respect to all parts of the State in any plan for thewlection, of members of the Jegislature as . . . ° should be given due consideration. . ° Mr. Justice Souris asserts that the present. sena- . torial Aistricts were established without any con- ceivable or rational basis. We disagree, How could | - syed a plan. be formulated other than by: considera- we geographie divisiens? The people of Michi- pean ‘in adopting the amendment recognized the sit- x , é&* vation existing in different sections of the State, recognized. the pecessity for protecting all sections and all people against possible injustice, recognized | the necessity for a.definite plan that would accom- .plish> that purpose, and acted accordingly. A hicameraf legislature renders feasible such ? plan. ' Plaintiff's objections to it are predicated in the final analysis on the desire to éreate a’situation by virtue ‘of’ which the legislature of the State may be con- trolled by numbers. The argument is that no appor- tionthent act is valid uniless resting on the popula. tion basis. It must be conceded, and it cannot be 367 Micuican Reports. . : : [July _ Derumers and Ketty, JJ., concurred with Carr, . C. J. Py -DetHMers, J. ‘(dtssenting). 1 coneur with what Mr. Chief Justice Carr has written and would add somewhat thereto. ; Saeko , An équal protection of the la®s problem is pot pre- sented. «Complaint is made of apportionme .c of sen- commer from other. districts.” It‘is said that plain- tiff’ vote ts pe a debased or diluted. Plaintiff.can represents his district. The same is true of every voting elector in the State, regardless of the popula: tion of his district. The rights of each elector in Michigan are, in that.respect, no more nor less than plaintiff's, whatever the nuniber of voters .residing or yoting with such elector in his district: If half the people in plaintiff's district were to move from it overright,. would plaintiff's rights in the respect here considered be doubled, or, if the direetion of the trict doyble’, would his mentioned rights thereby be sar thies 2 his vote debased or diluted ptt, re : Would the degree or extent of his. protectioh of*the laws thereby be altered? He would still have 1 vote t That is all he would have if he dwelt in wdistrict less ‘ populous. Insofar, then, as the right of exercise of the franchise is concerned, there is no diserimination, no inequality, no vote debasgment, Tio denial of the equal protection of the fews. So mich for plaintiff's right to-vote for and to have his district represented by 1 senator. - | or. Even a dissenting opinion may, now and then, give mise toan interesting question or thought worthy of pursuit.. Can it be, to paraphrase Mr. Justice ‘ators on a basis such:that the senator elected from — plaintiff's ‘district represents more electors. than-do | ndidate for senator and one senator - 3 [ppendty i1°- . ScHoue v. SECRETARY OF State,‘ 913 Frankfurter in Baker v. Carr, 369 US 186 (82.S8°Ct . 691,7 Led 2d 663), that plaintiff's real or underlying complaint is that present apportionment of the sen- ate deprives him of what‘he-conceives to:be his “pro- portionate share of political influence”? - Concerning: this, Justice Frankfarter went on-to write (p 299) } “This, of course, is the practical effect of any alloca- tion of ‘power within the institutions of government.” To put the question another way, is it contended that if plaintiff's district were cut in,two, with 1 senator * apportioned to each half, this would serve to enhance his protection of the laws? He stil céuld vote for ‘but 1 senator, and but 1 would represent his district. Assuming, however, that an elector might say, with accuracy that senate reapportionment on a strictly e 4 ° 2.6 . : pra Be population basis, as distinguished from that now ‘re- quired by State Constitution, would result in trans- forming the present senate minority. of adherents to his political faith and party into a senate majority, would it be denial of thé Fourteenth Amendment equal protection of the laws to deny that elector such ‘Senate: transformation? To pose the questidn is to highlight the ludicrousness of an affirmative answer. . _ But if the mentioned senate transformation were ac- complished by the proposed reapportionment, what, then, of the equal protection of the laws for electors of the opposite political faith or-party? It is no . answer for one to say that those of my political party. . are entitled to: more protection ef the laws because we are.in the majority. It was pr¢cisely that which. ‘the Fourteenth Amendment protection of minorities - was designed to"prevent. It is obvious, then, that an -\ equal protection of the laws question is not involved in this contemplation. Ina republican form of gev- . ernment, guaranteed to every State by the Federal Constitution,! it is in the neture of things that with _~ * 4 See US Consv, art 4, § 4.—Reporrer. —s.— renee of jaw” ates en “a / ; : 2 . 398 : aode & niece | eIppendis Ae f a4 367 Miénicas Rareiees. y [uly | « oe e _2 major parties occupying the field, exclusively, un. \less their strength vi ual, one must, for she nonce, be the mfijority and te other the minority quairty in legislative halls. No constitutional rights of party. members or other groups are thereby infringed upen nor are. they, thus denied the equal protection of the law Ss. f Or is the essence of plaintiffs complaint that the alleged malapportionme nt of the-senate has worked for him, and-others nit Michigan similarly situated, a denial of the equal protection of the laws in-that’ resultant legislative enactments. have éonferred lesser benefits or imposed greater burdens on them than upon others resident -in’ less populous senato- rial districts? This, at least, would -present some- thing,in the nateré of-an equal protection ofthe laws | question, Plaintiff's petition does not so allege nor is-there aught in the reeord to show or estab lish it. The burden of proof in that respect rests on plaintilf, It has neither been undertaken nor sustained, In Brown v, Board of Education of Topeka, 347 “US 488 (74S C t 686-98 ds “ed 873, 38 ATR 110}, the supreme court. of the Enited States held that - the equal protection clause of ‘the Fourteenth Amend: ment proliibits States from: maintaining racially seg- woes schools. On that same day it decided Bolling rSharpe, 847 US 497 (74S Ct 698, 98 Led R84 )/ holding that racial segr ‘gation in the publiesschaofs of the District of (élumbia is) a denial of the dae process of law guarantes «ul by the Fitth Amendyynt, It was the court's. view that action wlaech would vio- date the equal gees clause of the Fourfeenth 1 Amendment when pe rpetrated ¢ by a State/ ‘coald scareely be *squayed eshte oe nents = the deen Amendment's d by the. 2 ederal/y that “equal py tection a Sidhe be ws’ hiewen¥t ue process phrases, it, a -.} ove sale Ww hill ey CO} Av aid way (oo i . 40a. AP wie) elppendiy i J iss, 1962 Scno.ve v. SECRETARY oF Srare. - 215 _ nevertheless, ‘diseerned such ‘close relationship be- * tween the 2 concepts and similarity in effect and con- sequences as to cause the 2’t6 compel the same result with respect to the 2 like factual situations in the 2 noted. cases. Cited as authority therefor was Hurd v. Hodge, 334 US 24 (68 S'Ct 847, 92 Led 1187). Can it be assumed, then, with the due process clayse ot the-Fifth Amendment to the Constitution of the .. United, States, relating to the Federal government, © ~~ apparently seeming to the fotinding fathers to be left - - Mnowended hy the express provision of article 1 Ned ‘of that same Constitution for selection of 2 hi from each State, that, at a'time when the United States Senate continued, as now, to be so composed, it Mas intended by the adoption of the related equal protection clause of the Fourteenth Amendment, ap- plicable to State governments, to thereby prohibit ‘appOrtionment to the State senates on a similar basis, not keyed ‘strietly to the population levels of the several senatorial districts? Sound, reasoning forbids such conclusion. To give the Fourteenth Amendment such éffect today is to recognize some subsequent amendment! thereof: accomplished: by means other than Those prescribed by the Canstitu-. © tapnitself’for its amendment. ; _ That the United States supreme court fas not- deemed such “to be the meaning and intent of the equal’ protection clause.is evident enough from its “unanimous Opinion and decision ik Minor v. Happer- seft, 21 Wall (88 US) 162 (22 L ed 627).- There, the court held that the rights or privileges of suffrage’ were. not witHin the meaning of the equal protection clause, pointing out (p 175) that, if they were -guar- _ _dttged thereby, there would have been no oceasion ‘for adoption of the Fifteenth Aqendment providing, ‘that the riglits of citizens of the United States ta vote shall not pe abridged. “The same may be said of the Nineteenth Amendment; providing for women’s => Pod ieee, 4 ’ > 4a ? ae ee ip Ippendrr Fee ae - aes | cee ok wees a. “B67 MicHiGan REPORTS. : (July ful to their important trust. In this point of view, a senate, as a second branch of. the legislative assem- bly, distinet from, and dividing the power with, a first, must be in all cases a-salutary check on the government. It dowbles the spe urity to the people, dy requiring the coneurrence of 2 distinet bodies in - schemes of usurpation or perfidy, Where the am bition or corruption of one would otherwise be ve ficient. This is a preeatition arate st such clea principles, and now so well understood ‘in the Uni ited States, that it would be more than superfluots te enlarge oon it. | will barely remark, that as the im probability of sinister combinations’ w ill be in pre portion -to the dissimilarrty in the genius of the 2, bodies, if must be politie to distinguish them from ‘each ofher by every circumstance which will consist with a due harmony in all proper measures, and with the. genuine prinetples of republiean government.’ y aper No 62. me ape! No 63 contains this statement : . “It may be suggested, that a people spread over an extensive region cannot, hike the crowded inhabitants of a small district, be subject to the infection of vio lent passions,.or to the danger of combinipg in pur ssuit of unjust measures. J am far from denying that ‘this i is a distinction of peentiar importanee, J have, “on the contrary, endeavored in a former paper te show, that it is one of the pr inc ipal ree ommendations of a contederated re public.” ite In Paper No 51 the following is stated: “It is of great iportance in a republic not only to cuard the society agaist the oppr essien of its rulers, “but to guard one part of the society against the. in JUSTICE of the other pars. Ditfere nt mterests pecs warily exist in different classes of citizens. Tf ama. jority be united by a common interest, Uhe rights of the minority will be insecure, * * * Whilst all «authority in it (TF ‘federal republic) will be derived from and dependent on the society, the society itself . Py . a ippendry ye i 162] @. Sc HOLLE., SECKETARY orState, ., ‘219 will be broken into so many parts, interests and Classes of citizens, that the rights of indix iduals, or of the minority, will be in little dange ‘'r from inter. ested combinations of the: majority.” The above was preceded by the follenine: dut itis not possible to give each department an rh Gl power of self-defence. In republican govern- ment, the legislative : authority necessarily: predomi- - nates, The remedy for this inconveniency. is to di- vide the ini ature into different brafches: and to render themyby different modes of election and dif- vost principle s of action, as little conneeted with each other as the nature of their common functions and their common depe ndence on the. soe lety will a admit.” ° . ° These writings are indicative of the spirit and pur- Pose that occasioned the method of congressional — and legislative ,apportionments then existing in States, adopted for the Federal Government and fol. lowed throughout the United States from then until the present, : ( ae ks and balances and a diffusion of govern- mental powers have been the genius F our svgtem and the mainst: iv of the liberties of the people on our free instituti@ns thronghout our national. Ne i tory. -Whetherit be thos@inherthg ina Feder: al sys: tem. with a-division between and assignment of powers focthe central government over subjects of national concern .énd reservation to sovereign States of those of a State and local character, or in the sep- aration. of powers between the 3 branches .of the > govetnnient. ur both the } National and the State cove. ernmental structures, or in the ereation ofa bicam- . eral legislative branch, with eaeéh house a check on * the other,’ our peoplé have continued to -reeognize in them the bastions of ovr freedoms. These are ‘irritants, of course, tg those, impatient of what they “* ‘ 7 Z é, 45 \ lppendiy Jf ° ae 220 ¢ S67 Maicwican Reporrs. | July deem to be the delays of democratic processes, Who | seck the greater efficiéney, speed and forecful action * said to be characteristic of governments with un- fettered powers.. Not so tor those who eontinue in their devotion as defenders, of freedom. “These. it is evident, were therconsiderations which prompted the people of Michigay in 152° to adopt by a majority of almost 300,000 the present constitu. tional amendment for senatorial apportionment and’ to reject, at the same election, by an almost half- ‘million-vote, majority; a proposed amendment to ap- portion hoth houses &ceording te population, Bid the people, in their efforts to preserve a systent of cheeks and balances partly for the purpose of pro- tecting the interests of mmorities in sparsely popu lated areay against organized bloes in meétropolitan areas, thus create a system of senatorial apportion- ment so unreasomffble, irrational, and discriminating + as to violate the spirit of the equal protection clause ? Lam persuaded that they did not. To quote from the conelusion of the brief of intervening defendants: “AXprtiele 3 of our State ¢ ‘onstitution, as amended in 1952, merely estaldishes a rensonable,ratienat— and—perimtsstbtr system of T cheeks and balances, in State yoyernment. It has Jbeen said) that ‘liberty’ means detinitely limitingst he power of the sOveTCIgn, whether that soveretgn be a king or a ma jority,’ and it is the genius of the American pyoplé that in formulating their’Constitutions, they chose ‘to guard against excesses’ “ot sue he majority, and to exXereise voluntary self restraint. ’ . Interestingly enough, the present constitutional provision does not, as sometimes thought, provide for an apportionment and. election of senators on merely an area basis.. Area is a factor, but rep- resentation ino the Senate, is very considerably weighted toward the population eoneept.. It is not “under rural control. Out of the total of 64 senators, 2 “ — : / . Mapes aa oe ae Ippendix 7 1962 SeHoi.e v. Secretary OF State. aut s 20%-represent urban areas contdining urban com, . munities of 106,000 or more persons. Sixty-four per, > cent of the senators represent approximatal® 1/3 of the area—that is, the more populoie area—of the State. The senate apportionment is manifestly. a combination ef the population and. area: consider-- ations, with compromise and adjustment to insure. a check and balance system for the proteetion of alh= sections of the State and,.as well, of all ‘people within it. The Const#tution of the United ‘States Was and is a compromise. 'The Constitution of the State of Michigan is a compromise. The history of representative government-in this country and else- Where is a history of compromise. It is under dex: potisin that: the necessity for COMpProOmise Chases, Unlimited monarchs, dictators and other absolute rulers often have felt no. need to bother with com- promise, The same might We true under a s¥stem styled by Jefferson as an “elective despotism”, —~Where® majority: rule isunfettered by constitutional restraints. Not so here where constitutional guaran. ties and the checks and- balances of -governmental structures are expressly designed to protect mi- norities and ‘individyals ‘against unrestrained ‘ma- jorities. Se : : ° “Without taking into account the ma jor - factor of ‘disproportion eccasioned by failure of legislatures to feliow State constitutional commands to re: appor-- . tion, or such relatively minor constitutional factors of disproportion as moiety clauses, it still appears. - taat ~U of the ve States ce ustituting the Union at the * : 92a » . ” . x i e : " . ‘ ae Ippendix 1. , / . 1962] © Scnoitr rv. SecreTary or State. | 227 ‘8 time af the adoption of the Fourteenth Amendment - had in their. own constitutions provisions which pre- vented at least 1 legislatite hotse from being based’ upon the. —— of equality of popular representa- tion. “Between 1868 and the present time, ‘1 additional States have entered the Union. “As a prerequisite to such entry, the US Const, art 4, $35, requires congressional approval. His- torically, congress has required States applying for. admission to submit their proposed constitition. See Coyle vy. Smith, 221 US 559 (31'S Ct 688,55 Ted “853). Typic al of the form of approval is the. statute - by which the constitution of thie, proposed St: ite’ of Hawaii was approved and Hawaii was ad? mitted. * * “Of the 13 States whose Constitutions were ap- proved for admission, & such constitutions (for the States of Arizona, po ti Hawaii: daho, Montana, New Mexico, Oklihoma, tah)-contained provisions for election of at least’ 1 legislative house which fell ipto 1 of the 3 catégories of dispropurtion dis cussed abdye. * * /* “The ‘recent taleciul div approved constitu- tions of the new States of Alaska. and Hawaii con- tam State senatorial provisions whieh eall for spe- cific districts deseribed largely.on a geographic basis, “with a resulting: substantia! inequality’ of popular represe ntation. Inv Alaska, the newly eleeted State senator from the Ancherage- Palmer district «rep. resents 87,748 constituents, as compared with the senator from Barrow. Kobuk who represents ¢ only 0,400%—a ratio of 15:1, ° * * “Thus a majority of the States of the Union in IS6S, a majority of the States whith jomed the Ennion subsequently, and a majority of the States at the present time, had, or have, in their constitu. tions provisions us to 1 legislative house whieh have the effect of denying substantia equality of .voting strength tu some voters lgraereny in more populous e? as “a Jippendix e 367 “Micuican Rerorts. W uly sena rial “slectorit ‘atticte based on geographic; areas described in terms of counties, or groups of contiguous counties, or subdivisions of a single coufity. As we have seen, this has mgny paratlels in the/ history, of other States froni the time ef the adop- tign of the Fourteenth Amendment. downcto date. The system employed appears tobe a. variation of e 1-Senagor-per-county syste m ayhieh i is common to many other, States. “We note the suggestion that the I -senator-per- ‘ournty svstem may be alconstitutional classifieation where the variation is not. We rejeet this reason. ‘ing, however.” (The, 1-senator-per-county system would ineMichigan' produce ratios of disproportion ° exeeeding 1,000:1. We do not think. the Fourteenth ~ Amendment may be regarded as forbidding a varia- tion from the 1-per-county sy stem in the direetion. of popular Tepresent ition. “The real attack upon the classification of Michi- gan yoters resulting fyom the 1952 senate amend- ments, howevepris upof its purpose and its result. It seems clearfte UF That the general purpose of the ‘disproportionate constitutional * provisions’ which | we have reviewed was, and. is; to seek to give more thinly populated areas of a State a specific cheek npon the concentrated political power of the more populous areas. Considering that the amendment with which we dealin this ease was adopted at an election wherein another amendment (Uroposal, No 2). designed to provide equality of popular repre sentation’ in the Michigan senate, was defeated, it: seems clear that this likewise was the purpose of the majority of *Michigan voters in 1952. ~ 7 ~ : «34a ‘ : 2 : sie . ‘ {ppend hy « | ; i 1962] SCHOLLE &. SECRETARY OF STATE. 229 “This Court does not deterniine the Wisdoin of the decisions inade by the peopleef Michigan in adopting their Constitution. By its terms, all politi- cal power is inherent in them ‘(Mich Const [1908], art .2, $1), subject-only, of course, to the: United States Constitution. Me “However distasteful to some of us the rationale of the majerity of voters in 1952 may be as support tor the Classification of senatorial districts which resulted from the 1952 amendment, it clearly has been regarded to date as acceptable under the United’ States €onstitution by the United’ States supreme court. . ~ “The United States supreme court, in a ease in} Which the classifications in‘a tax statyte and ordi-. hance Were attacked) as violative of the equal pro-: tection clause of the Fourteenth Amendment, estab- lished this test as to elassification: © _ “"Kqual protection does net require identity of treatment. It only requires that classification rest on real and notefeigned differenceg, that the distine- tion have some relevance to the purpose for which the classification is nfade, and that. the different treatments be not so disparate, relatave ‘to the dif- ference in ckissification, as to be Wholly arbitrary. Cf. Dominion Hotel, Tie... Arizona, 249 US 265 (39 SCt 248, 63 Led 597): Great Atlantic & Pacific Tea Cov. Grosjean, 301 US 412 (478 (t-772, 81 L ed LISS, D2 ALR 293) + New York Rapid Trancit Corp. Vv. City of New York, 308 US 573 (98'S Ct 721, 82 Led 8024): Skinner Vv. Oklahoma, ex rel, Woliamson, 316 US .535 (62S C(t 1110, 86 L ed 195)" Walt rs ¥. City of St. Louis, 347 US.231, 237 (74 S C8505: GS T. ed 660), fy -aes ae : "En MacDougall, 835 US 28h (69S Ct 1,95 Led 3), the court saidc(p 2S4): pote. “It would be strange indeed, and dect rinaire, for this qourt, applying such broad constitutional con- ae “fe due process and equal protection of the laws, to deny a State the power to assure a proper dif- fusion of political initiative as between. its thinly 42 . ippendir af 230 - 867 Micntcax Reports. [ July! populated counties and those having concentrated masses, in view of the fact that the Jatter have practical opportunities for exerting their political weight at the polls not available to the former.’ “In the face of this history and this precedent, we find no way by which we can say that the classifica. tion we are concerned with herein is ‘wholly arbi- trary,” and hence repugnant to the Fourteenth Amendment of the United States Constitution as .the United: States supreme court has construed it to this date.” re ° . Plaintiff. -requests this Court to notify the legisla- ture that unless it enacts “time ‘ly, valid reapportion- ment legislation” the 1962 elections for State sena- tors will be conducted on an at-large basis, P laintiff asks this Court to issue a writ of mandamus ‘commanding the defendant not to issue 1962 election-notices for State se nators,” evidently realizing that he ds asking this Court to emasenlate and render powerless the Michigan ~ ction laws, and more particularly’ CLS 1956, § 168.163, as “amended by PA 1957, No 125 (Stat an 1961 C um : Supp §6. 11635, which provides: “That the secretary of State and the various county clerks shall receive nominatiftg petitions for filing im accordance with the provisions of this act up to 4 o'clock, eastern standard time, in the after- noon of the seventh Fuesday preceding the August primary. . . Plaintiff is asking this Court to declare null and void the people's mandate ‘as expressed in their Con- stitution that their serfafors be elected from sena- toriaf districts. Why this haste?) Why this drastic action?, Why ask this Court to not only deelare null and void the present plam of spportionment adopted almost 10 vears ago by the people of our State by the ofer- whelming majority of 294,000, but,.also, to- order ‘ ‘sy, a . 36a Tppeniix’ 01 - 4962] ScCHOLLE t. SECRETARY OF STATE. ° B31 an eléction that will be contrary to the constitu- tional mandate? A plan that was directed in the same direction as now urged by plaintiff was de- feated by over 490,000. ; Repez ited references have been _ to Baker vy. Carr, 369.US 186 (82 S Ct 691, 7 L ed 2d 663). Plaintiff asks the question whether Michiz: in- can be distinguished from Tennessee, and states: “Justice Harlan, for example, would. have distinguished Scholle from Baker on several counts,” 1 wholeheartedly agree with’ Justice Harlan be- cause: (1) Plaintiff's claim concerns only one body: of the legislaturé while the Tennessee claim was ‘in regard to both; (2) Plaintiff attacks affirmative ac- tion of Michigan voters, while the Ténnessee attack was on legislative inaction; (3) Miehigan’s: appor- tionment conforms to the Michigan Constitution while Tennessee's legislation’ apportionment con- flicts with the. Tennessee constitution. The Tennessee plaintiff had much greater reason to.complain than, our. present Michigan plaintiff— and yet, the Fede ral judges in ‘the Tennessee case of Baker v. Carr refused to do what plaintiff i is ask- ‘ing this Court to do, as is ably set forth in ¢ “hief Justice Carr’s. opinion. — _ Tennessee will hold an eleetion under the Teanee- see election laws .in 1962, but plaintiff insists that that must not happen in Michigan. I do not agree with plaintiff's contention in this regard. :; TBeoncur with Chief Justice Carr and Justice Deters’ opinions in their entirety and with their conclusion that plaintiff's petition should be dis- F missed, Carr, C. J., and DETHMERS, J. oincurred with Ke.xy,. J. a 57a rel ppendtx 232 367% Micnican ‘Reports. { July Sovris, J. (concurring). The facts: may be found in the dissenting a of Mr. Jtis iew K AVANAGH, reported at 860 Mich 1, on the oegdsion of\our first consideration Of this case. The principal issue’ presented for our dete rmination ‘then and | now is whether the 1952 amendments ta sections of. article 5 of ‘the Constitution of 1908 ‘offend the equality clause of the Fourteenth Amendment tq the United States Constitution. By the 1952 amend- ments: Michigan's senatorial districts were terri- torially described, cach district to be represented by a single senator; and. with no‘provision for subse- quent rearrangement of the designated districts. ‘Plaintitf claims that the senatorial districts thus constitutionally established in 1952 were and are unconstitutionally discriminatory against him = in violation of the “equality classe of the Fourteenth Amendment for the reason that the arrangement of districts was palpably irrational and arbitrary, indeed that it was deliberately designed to accom-. plish the diseriminatory result achieved, to-wit, con- stitutional permanence of pre-existing grossly dis- - proportionate senatorial representation of residents of some areas, in one of which plaintiff resides, in favor of reside nts of other areas. Our prior opinions having created some confusion on appe: al to the United States supreme. court (see Opinions on remand in Scholle v. Secretary of State, 369 US 429 [82 S.Ct 910, 8 L ed: Yd 1]), a brief suim- mary of them may be of some value. On our first consideration of this ¢: ise, only 3 of the members? of this Court held, in dissent, that the 1952 eonsti- tutional ame ‘ndments — inv idiousty — dise ruminated 1 'fwo of the 8 ‘Tomices len partidipated in the first he aring MacDouaal Vv Grree n, 335 US 28] (69 S Ct 4, 93 L ed 3): South v. Pete ra, 330 US 276 (70 8 Ct 641. 94 £. ed §$54) > Remmeuw ve Smith, 242.08 gis (72 ‘Ss c¥ Se &. 46 I, ed 685 : Anale rsoOnm Vv. Jordan, 343 VS aye (72 S Ct 4s, 96 L ed 1328); Kiddy. MV ank ss, 352 US 920 (77 8 Ct 223, 1 Led 2d 157); Radford v. Gary (Wb Okla), 445 -F “Supp S41, affirmed 352 US 991 (77 8 Ct 559: 1 Lied 2d 540): Hartsfield v. Sloan, 357 US 916 (78 8 3a2, ed. 2d 1863); Matthews y. Mandir y, hen Fk Supp $70. affirmed LS 127 (26 8 Ct 256, I. ed 2g bso), . . : 3.1f there he confusion in Washington concerning onr prior opin jons, candor-compels ou® admission that it ¢ Vists as well in’ Lansing. Our Chief Justice. savs today that the priog-ontrolling opinion, with Which he spe iuliv concurred, held only bat the Court luekrd jurisdic thon and’ the issue raised was net Pusticlable, See pp Tae, 197, supra. Mr. Justice Harlan réad that opimon as Todo, saving that it “did” hot so much as mention questions me rtuining to the ‘jurisdierion’ of tue court, the ‘standing’ of the appellant, or the ‘Justielabihity’ of dae P i] * his elaim.?’ Scholle-yv. Secretary of Stgfe, 309 US 42a. 420 : 4 gre. not | oe ‘ eoncluded, as do To that the controlling opinion, and those who eon.’ curred in it, decided against plaintiff on the merits in accordance with their then eurrent views of the United States supreme court's prior coustruction of the Fourteenth eAmendment. ‘e f AQ: Appendix vi 234 367 Micuican Reports. - [July date of supreme authority, 369 US 429: (82 S Ct 910, & L ed 2d 1), we again consider, but this time in: the light of Baker v. Carr, 369 US 186 ($2 S Ct 691, 7 Led 2d.663), plaintiff's claim that the 1952 amend- ments violate his Federal constitutional right to equal protection of the laws. Whatever doubts remain im the wake ar the ma- jority opinion by Mr. Justice Brennan in Baker v. Carr (see coneurring and dissenting opinions therein ‘and subsequent Federal and State cases‘), it seems . ee certain to me that it authoritatively disposed” of all of the grounds articulated hy our majority in pre-- viously denying this plaintiff the ‘relief he seeks. There can be no continuing doubt that the contro-. versy presented is justiciablé- and that the Federal. eases read by some of my Brothers to grant consti- tutional immunity to inequalities ‘of suffrage such as is. here involved, do not so hold. Nor can there he any doubt, in the light of language contained not -only in Mr. Justice Brennan's opinion for the ma- jovity in Baker v. Carr but also in other opinions filéd in that ease, both eoncurring and dissenting, that the traditional standards for deterinining the existence of discrimination in violation of the equality clause applicable to other claims of invid- OMS discrimination will he applied by the supreme Inc, vy. Simon (June 1, 1962), 370 US 190 (appeal from NY DC SD) (S28 Ct 1234, 8 L ed 2d 430). Moss v. Burkhart (Okla, June 19, 1962), — F Supp —-; Baker v. Carr (MD Tenn, June 22, 1962), on remaud from 369 US 186, — F Supp — . 4faesar vy. W ai ¢April 3, 19682), —- Idaho — (371 Ped 241 Sims ¢. Frink (DC Ala, April 14, siz , 2 .F Supp —:; Scholle v. Secretary of State (April 23, 19625. 369 US 429 (82.8 Ct G10, 8 L ed 22 1): Maryland Commisston v ga tee (April 25, 1962), _ “Md — (180 A2d 656)°; Sanders v. Gray (DC Ga, April 28, 1962), 203 F Supp 158, appeal granted June 18, 1862, but mation to advance denied, — US — (82 8 Ct 184, 8 Led 24 502); Wisconsin vy. Zim- merman (Wis, fog 23, 1962),— KF Supp —; Maryland Commission vy. Tawes (May 24, 1@62) Anne Arundel eounty e:reuit court, Maryland ; Toombs v. Sacteas (fsa, May 25, 1962), — F Supp —;. W.M.C.A E HUA ee, iz pendix “a be ; tose 1962] ° “Sc HOLLE 0. SECRETARY OF STATE. 235 court: in determining whether inequalities of ,suf- ‘frage such as plaintiff here asserts violate his rights to equal protection of the laws. : No Federal bar to relief now exists, if it ever did, assuming a majority of this Court finds, as I think , we must, the’ &X Xistence of invidious discrimination against plaintiff. Baker v: Carr, supra. Nor does any State policy bar relief, for in this State the Court has been quick to’ strike down invidious dis- crimination in suffrage cases. such as this where violations of our State Constitution have been proved. Board of Supervisors of Houghton County ¢. Secretary of State, 92: Mich 688 (16 LRA 432); Gidd.nas vo Secretary of State, 93 Mich 1 (16 LRA 402); and Wiliams vy. Secretary oe State, 145 Mich 447. We must ‘be-at least as quick when contempt for supreme, law permeates any aspeet of our elec- toral process such as has been proved convincingly to be the case here. Too much alre ady has been Ww ikon concerning the » details of.the 1952 amendments and their effect upon the rights of our citizens to equality in the chambers of the State’s senate. For these’ details, reference must be made to the earlier dissenting opinions of Mr. Justice Kavanacu and Mr. Jusfice Tasor Suirn, 360 Mich-1-84. In botiy opinions the “well developed and familiar” judicial standards under the equi ality clause were applied and were found | violgted: hss the T952 ainendments. In 1960 Justices KavanacH and Situ sought, but did not find, any rational basis for the arrangement of senatorial districts made by the 1952 amendments. Nor could they conceive .oftany recognizable basis upon which the classification could be justified. Mr. Justice Situ put it this way: 6 Bake v. Carr, td Us 3 186, at p 226. © ay ee) = Oh D.0 ee “2 we a om e . L& ‘No : Gla Ippendiy 236 3867 MicuicaN Reports. [July | “We hfive sought in vain to find some formula or formulae, pven roughly approxir ste, competent to explain the groupings of counties and parts of counties into setatorial districts. It is impossible. The system, if.such it is, deties eXplanation. Even Ahe defe mdants iv their briefs and appe madices offer Ho Mope thea thes Jigration and reiteratron that this is represe ntation ‘by geographteal area. But repre sentafion by geogr: iphical area, without more, is not enough. If it. were, ang’ gerryménder would be valid becuuse the gerrymander always represents some eee area, however grotesque.” 360 Mich 1, at p ob. However done, the result in 1960, based upon 1990 census. figures, Was grossly disproportionate repre- sentation: wi our State senate, the ratio of poputa-- tiog of rm SEE -t senatorial district to the largest Deine 1 fo & anal: o/ % wot the hit’ mabe ‘Ts of the senate representing Penthal 1 2 244 367 MicruGan Reports: | July -ment of this Court may be effectuated,—in other serve as de fatto offiéers. He also contemplates that fire incumbe nt senators preperly may participate in the enaetment of laws by means of which the judg- words, that the senate districts be rearranged in accordance with the provisions of reinstated sections 2 and 4 of article 5 of the Constitution of 1905 and Means Prov, ided for the nomination and election of, senators therefrom for the ensuing legislative term. The Chief Justice, relying: upon Vorfon ve Sheliw County, Vs ES as (OS Ct li2l, 380 Led 178), and citing Carleton ve People, 10 Mieh 250; People x Payment, 109 Mich 558; ahd Widd vo MeCanless, 200 Tenn 275 (292 SW2d 40), asserts that by our ruling that the 1992 amendments are void, “the senatorial distriets created thereby become riomexistent™ sand, consequently, he concludes that the imeumibents ear iot act as de facto officers ‘in the absence of dy ure offices, Presumably, it would folldw from his eon clusion, there being no de jare nor dé facto State senators following our judgment today, either that’ the full jegislative power of the State resides exclu sively in the House of representatives Which emia adone legalhy: enaet the necessary laws to étreetuate nr the Court’s Judgment, or that the whole legislative process js suspended for lack of a valid!y existing i yy . _ ° . . senate. The prospeet of an unicameral Tecishutnre, even for only the time it may take to esti ablish Hew senatorial seats pursuant to the Constitution, pre- sent? a hehdy temptation for judicial experimenta tion, The other prospeet, which one of my. Brothers eavlber? characterized as an “argument om ferrorcn, is not a practical possibility so long as-this Court exercises responsibiy its authority. TP know of no constitutionally responsible. court im the tand whic 7 Mr. ‘dialoe SLACK, Scholic v- Severe tary of State, 3860 Mieh* 1, l2u. : : . re AVUa_. ippendix 1962] ScHOLLE . SECRETARY OF State. 245 ever has, or would,. countenance such a chaotic re- sult rand, certainly, there is no compelling reason for us, to lead the way. The de facto doctrine is another of our legal fic- tions by.which the law manages somehow to’ pre- serve orderly governmental precedares when by ‘some legal defect inv alidating one’s title to public > office, his otherwise valid acts will be upheld by the courts. Otherwise, all who have business to: transact ‘with public officials would be compelled to ascertain their status as de jure officials at pain of invalidity of acts done under color of title to office.” The duc. trine has a salutary effect, thus broadly stated, but its obvious beneficial effect has been limited by some courts which have said that the doctrine does not apply where there is no de jure office. Norton vy. Shethy County, supra, relied. upon by the Chief Justice, is such a ease but, like others so limiting ‘the doctrine, it involved a situation where an office was attempted to be created, by act subsequently deelared mvalid, to perform duties constitutionally delegated to another office. Limitation of the ES trine in such cases settles what is fundamentally dispute between 2 contenders for public power—one a de jure and the other a de facto officer. In the absence of such eontlict, w here the only question is whether validity is to be given .to the acts of a de facto officer whose office is fourd to. have bee n illegally created, there appears to be no reason in logic. or law.to so restriet or otherwise limit ap- plication of the legally convenient de facte doctrine. ‘In Norton, the officers whose rights to office were - beng challenged were asserting powers constita- tionally delegated to the justices of the peace of the’ county. There were de jure officers performing such duties whereas here there is no-such conflict between warring contestants for publie office. “The factual distinction, in my view, is significant. In‘ Norton, a i Jia Append of : . 246 367 rceais Reports. [July- _faiture to find the usurpers te be de facto offieers did not result in a failure of performance of any governmental office, let atone the legislative branch ‘of government, ®s is the case here. ; In the case.now before us, it is not correct to say that the 1952 amendments which we here deelar® in- valid created the senate, or the office of State senator, nor does the Chief Justice so say. He refers to the ‘amendments as having ereated the senatorial dis- tricts and in this he is right. This distinction also is important in considering Whether the refusal to apply the de facto doctrine in the Norton ease has any applicability to our facets. Section 1 of article 9 of the Constitution of 1908, concerning the validity of which no challenge has*been made, vests the legis- lative power of the State in a senate and house of representatives, subject to a reservation of some ef such power to the people themselvesgs That is the valid constitutional provision whi ereaies the senate, membership in which the tneumbent senators claim to possess andthe powers of which have been asserted continuously since 1953 under eolor of what was a presumptively valid constitutional arrange- ment of distriets. | think no more is required to invoke the de facto doctrine to uphold the prior ae- tions of the State senate and to afford it sufficient continuing status, at least until December 51, 1962, to preserve orderly government in this State and to° provide a means by which the legislative branch of yovernment can be organized next yveur as is re- quired, by our Constitution, leest it be thought what ts here said is a novel dep: irture from the law, reference should be made to. the « opinions in Carleton vy. People, 1 Mich 250, cited by the Chief Justice aschas been noted above. There, county offieers were re ognized as officers de facto. who had heen elected to fill offices which had not vet ‘been legally ereated, the acl creating such offices ~_2 722 °° 4 Ippendye.. i 1962] SCHOLLE Y. SECRETARY-OF STATE. - 247 _ having been passed by the legislature without giving it immediate effect so us to become law before the election. In Attorney General, ex rel. Dingeman’ v. . Lacy, 180 Mich 329, the acts: of a domestic relation’s court judge of Wayne county were ‘upheld by a unanimous court as the acts of a de facto officer atter the legislative act creating the court was declared unconstitutional, the cireuit court having ‘been granted by the Constitution the jurisdiction at- tempted to be granted by the legislature to its newly . created domestic relations court. Reference should also be made to the cases cited in 43 Am Jur, Public “Officers, § 475, from which it appears that Norton vy. Shelby County, supra, is not by any means univer- sally followed by the various State courts. I see absolutely no reason in logic to follow it in this: case, nor does our law, legislative or eommon, re- quire that we do so. . The problem with which we deal is too ¢omplex for’simple solution. I have tried in this opinion to suggest some of the factors which anay be judicially considered in determining compliance in such mat- ters with the guarantees of equal protection pro- vided by our own article 2 as well as the Fourteenth Amendment... Because the judicial problem is new, - We must draw upon analegous situations in which / such guarantees of equality have been applied. This ‘can be, by the nature and magnitude of the problem, no more than a first.effort at understanding it and recognizing its-outer boundaries. For reasons. stated above, I join in Mr. Justice KavaNnaGu’s disposition of this case. , Oris M. Smira, J., concurred:with Savrts, J. ° Buiack, J. (concurring). At present writing 5 opinions of this case, aggregating 76 typewritten » my: c Appendiy 1 248 367. Micnicas Reports. ‘| July sheots, have been submitted for consideration of other members of the Court. Surely,- borrowing now from Mr. Justice Clark (Baker v. Carr, 369 US 186, at p 251 [82S Ct 691, 7 L ed 2d 665]), what we write bursts with too many words that go through so much and say so little. I would get back on the Federal track, the better to ascertain where we are, ‘and where we should and so must go. First: Palatable or not, it must be acknowledged by all that the Supreme Court of Michigan does not have the final word for the ease before us. We sit now, exclusiveiy as an inferior court, by direction of the United States supreme court, “in order that such proceedings may be had in the said cause, In con- formity with tlie judgment of this [United States Supreme] court aboye ‘stated, as aceord with right and justice, and the Constitution and Jaws of the United States, the said appeal notwithstanding.” By such mandate we are tolel to determine the merits of a presented Federal question; not to decide whether we personally prefer—or do not prefer—the questioned amendments of our State’s Constitution, and certainly not to determine whether the amount of the majority vote cast 10 years ago for such amendments is sufficient to overcome the Federal equality clause. No.majority vote east within a State. however overwhelming or even unanimous, san overcome such pre-eminent law. The reason © “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ana all Treaties made, or which shall bemade, under the Authority of the United States, ‘shall be the sn- preme Law of the Land;:and.the Judges in every State shall be bound thereby, any Thing in the Con- stitution or Laws of apy State to the Contrary not- withstanding.” United States Constitution, Art 6 2). 1 Mandate of supreme court of the United States. —REPORTER, . tit’ - ippendiy’ 1962] ScHOLLE v. SECRETARY OF STATE, 249 . Second: With triumvirate backs turned upon what proceeds apace—under Baker v. Carr—-in many of the States; a tuneful triphony is sung for preserva-. tion of what my Brother Detamers repeatedly re- fers to as “republican government.”* The song is not ended. Judging by past dissertations, the politi- cal melody will linger on until all voices are stitled by that final Judgment of this case which, sooner or | later, will be entered upon Federal precepts. “Inter-— vention” by the Federal supreme court seems to ir- ritate the more, Baker v. Carr. and Justice Kav- ANAGH’Ss Opinion having applied fresh’ salt, as our former Chief Justice beholds what to him'are the progressively lamentable doings of high court jus- dices he has dubbed “iudicial aetivists.” (See U.S. News issue cited below, p93.) Compare his stirring appeal today, for protection of “republican govertr ment™.from the meddlement of activistie Judicial offi- cers, With what was said by him 3 vears ago last December, in New York City: , “That there has been a trend toward centralization in Washington can seareely be gainsaid. Challenged at milepos‘s along the way, it has advaneed under the green light of judicial decisions, * * * “These are part of the body of decisions giving rise to a coneern that, by judicial construction, national powers are being too greatly and dangerously en- 2Mr. Justice Frankfurter, dissenting -in Baler vo Carr. declared (p $24) what regrettabiv seems to be, that “Apportionment battles ite overwhelmingly party or intraparty contests.” Ry appended footpote the justice calls attention to “an instanee of a eourt torn, in fuet ar fancy, over the politicul issues invelwed ino respportionment,” citmg State,-ex rel. Lashly. v. Becker, VOU Mo 560 (235 SW 1017 fees J have reviewed the case and discover among oth: rs this berimyg eontession (p 625 : a “Shackled ss we are with partisan bias and prejudice, it is humiliating to confess that even’ judges in our highest esurts are unable to divorce law and polities. in emergencies, great and small they have heard the Macedonian ery, and have not been disobedient - to the call.” . Yes, that Maeedonian’ éry has been audible, all lover Michig‘an, ever since thig sult was instituted in 195y. : >a) 6 s pa if ar ie 4 | ° 250 367. Micnigan Reporrs. [July ae: c : ° { larged and State and local power correspondingly contracted, Of this trend, the conference of chief justices and many others have spoken with conster vation. Great judicial self-restraint in this eritial field of Federal-State relationships was en soins. upon the supreme court by the membe Ts of the con ference. | econeur.” ‘ ‘ ® What indeed has céntributed—in Mfchigan at leas, to this trend toward “centralization” which, at Pasiddena, is said to have caused so much “eonsterna- tion’? ds it not, in fulsome part. due to the steady failure of many-times-elected -exce utrve ofheers of this and other similarly situated States (some bet ne presentiv consternated Brethren seate dd hiere) to press upon legislators-—as our Governor Groesbeck hd with sue ‘h force and effect: yn 1925-—their sworn sath to rearrange and reapportion every 10 vears? -As said in Justice Kavanagh's opinion, the issue be- fore us never could have traced its way to the Potorpac had the le vislature of Michigan, during the deeades of the 1840's and 1950's, performed faith fully according to consigation: aloath. Let us, then, hace done with erm@ismn of that te which all of us, in greater or lesser degree of course, have contrib ted as governors, attorneys general, judges and citizens. Instead, let us turn to duty directed: by the supremacy clause, the National equality ciause, and-our own fuliv prea’ pledse of the preter tion of equal laws. And Tet us Hot report back to our superior wourt that we farce qust afiscovered a technical way to evade determ tnation of the merits: sach as saving that the questioned amendments can not he judged void without dest roving thi > law é gure Which is ereative of the office of State senator. sv. 3. eee aa: Wor! Aa SAGES “Wh: at & State Chief Juastier Savs About the Supreme Court, ” Pecemt 12. 1958, pp &S8, 91, 92 addresa before the Congress of Amerie: an Industry ty “Joho RB Dethmers, Chicf Justice, Supreme Court of Michigan.” 70a 7 [ppendtr ef 1962]. ScHOLLE v. SECRETARY OF STATE. 251: As Justice Souris points out, the simple fact answer to Chief Justice, Carr's “let’s do nothing” motion is that original section 1 of article’5, the standing cre: tor of the office of State senator, lives on as hataie unaffected by and unquestioned inthis litigation.. Furthermore, Norton v. Shelby County, 18 US 425 (6S Ct 1121, 30 L ed 178), on which our Chief Jus- tice presently relies, has sinte been confined most carefully in its proper area of fact. by the United States supreme court, See Shapleigh v. San Angelo, 167 US 646, 658 (17 S Ct 957,°42 L ed 310), and Tulare Irrigation District v. Shepard, 185 US 1, 14 (22S Ct 531,46 Led 773). Shapleigh. quoted in the margin,*-is ‘a fair example of such continued: con- finement, in the courts’of the United States, of Nor- ton’s rule that where no law creates an office such an office cannot be occupied de facto: Third: We are, | repeat, diree ted to consider andy decide the merits of a Federal question the U nited States supreme court’ has sent back to us in the clothing of jurisdiction and justiciability. Is it not, then, exclusively due that we should look for judicial guidance to current federal authority, and to such of our own cases as may.accord therewith, rather than to the relevantly superseded seroll of the Fed- eralists and other writings of the Colonial era? The ‘Federalist Rapers, ably conceived for times when all west of the Alleghaniés was trackless' and savage, were written more than 175 vears ago by men who could not possibly have foresee n the. Fourt. enth 4“Norton vy. Shelby County, 118 US 425, is not to the waeeats. There certain persons who un: dertook te uct a8 county commissioners - were adivdged to be usurpers @s against others who were lawful officers, and it was held that. as the acts-of the legislature which ereated the board of commissioners was unronstitutional, there were “no de gyre offices, and, therefore, no de jure officers. But the general rule was recognized that ‘where an ofhee exists under the law, it atters net how the appointment of the incumbent is made, sa far as the validity of his acts are concerned. It is enough that he is. clothed with the imsignia of the office, and exercises its powers and functions.’ ” Z lppendiy ol 252 367 Micnican Reports. . [July Amendment, the .s¢eds from which the amendment - grew, and its final mandate of equal protection. The equality clause of the Fourteenth Amendment is an order directed to each State. It has nothing to do with the political structure of the National govern- ment and, in the context of our current problem, is an understandable contradiction of that structure. The clause pointedly prohibits each State.from deny- ing “to any pefson within its jurisdietion the equal protection of the laws.” It does, under direction of our superior, put upon us a new task, that of in- quiring into the merits of plaintiff's, claim of denial by Michigan of-Fourteenth Amendment equality of voting rights; an inquiry 3 of us resolved affirma-. tively in Schelle v. Secretary of State, 360 Mich 1, Nothing done within the borders of Michigan, whether by constitutional provision, statute, execu- tive proclamation, ordinance, jor administrative or- der, may impede the execution of that task. The supremacy clause so dictates. So do the authorities cited in Justice Kavanaci’s opinion, to which I would add Bute v. Illinois, 333 US 640 (68 S Ct 763, 92 L ed 986) ° also the adjuration. which, in 1899 and avain in 1901, wa's.declared and -epeated in the.2 Blythe Cases (Blythe v. Hinkle), 1738 US 501, 508 {19'S Ct'497, 43 L ed 783]; 180 US 333, 3388 [21'S ('t 390, 45 Led 557]).® Hence my disagreement with Justice DetuMers’ repetitious and apparently seri- ‘ous postulate that “An equal protection of the laws problem is not. presented.” “That postulate I now 8 “We recognize that the Fourteenth Amendment, as part of the ‘supreme daw of the land under heticle 6 of the original Constitution, supersedes ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’.” (Bute vy. Illinot, p 658.) 6“The Sthte courts had eoneurrent jurisdiction with the Circuit courts of the United States, to pass on the Federal questions thus intimated, for the Constitution,-laws and treaties pf the United States are as much a part of the laws of every State as its own local laws and constitution, and if the State courts erred in judgment it was mere error, and not to be corrected [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1718%3A3. Public record. Not legal advice.