Board of Sup'rs of County of Houghton v. Blacker

• Citation: 52 N.W. 951,92 Mich. 638
• Parties: BOARD OF SUP'RS OF HOUGHTON COUNTY v. BLACKER, Secretary of State.
• Decision Date: 28 July 1892
• Court: Supreme Court of Michigan

52 N.W. 951

92 Mich. 638

BOARD OF SUP'RS OF HOUGHTON COUNTY v. BLACKER, Secretary of State.

Supreme Court of Michigan

July 28, 1892

Petition by the board of supervisors of the county of Houghton for a mandamus to compel Robert R. Blacker, secretary of state, to give notice of the election of two representatives from said county, and to disregard the apportionment of representatives made by Pub. Acts 1891, No. 109. Writ granted directing the secretary of state to give notice of election of members of the state legislature under the apportionment made by Pub. Acts 1881, No. 255.

Allen F. Rees, (T. L Chadbourne and Hubbell & Gray, of counsel,) for relator. A. A. Ellis, Atty. Gen., for respondent.

LONG J.

The legislature, by Act No. 109, Pub. Acts 1891, apportioned anew the representatives in the legislature among the several counties and districts of this state. The number of representatives was fixed by the first section of the act at 100, in accordance with section 3, art. 4, of the constitution, agreeably to a ratio of 1 representative to every 20,938 persons, including civilized persons of Indian descent, not members of any tribe, in each organized county and 1 representative to each county having a fraction more than a moiety of said ratio, and not included therein, until 100 representatives are assigned. Under the United States census of 1890 it appears that Houghton county had a population of 35,389, or a ratio and a fraction more than a moiety. Under the above apportionment act, however that county was divided, and the townships of Adams Chassell, Duncan, Franklin, Hancock, Laird, Portage, Quincy, Schoolcraft, and Torch Lake made to constitute one representative district, while the townships of Calumet and Osceola, of Houghton county, and the whole of the counties of Keweenaw and Isle Royal, were constituted one representative district; that is, two townships of Houghton county were cut off and put into a district with Keweenaw and Isle Royal counties. This is a petition for a mandamus to compel the respondent, as secretary of state, to give notice of the election of two representatives from the county of Houghton, and disregard the division of the county as made by the legislature under the act.

It is claimed that the constitution is violated by this act in two particulars: (1) In dividing the county by putting two of the townships into a representative district outside of it; (2) in refusing to give to the county two representatives, it having a ratio and a fraction over a moiety. Section 3, art. 4, of the constitution, provides: "The house of representatives shall consist of not less than 64 nor more than 100 members. Representatives shall be chosen for two years and by single districts. Each representative district shall contain as nearly as may be an equal number of inhabitants, exclusive of persons of Indian descent, who are not civilized or members of any tribe, and shall consist of convenient and contiguous territory; but no township or city shall be divided in the formation of a representative district. When any township or city shall contain a population which entitles it to more than one representative, then such township or city shall elect, by general ticket, the number of representatives to which it is entitled. Each county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate representative when it has attained a population equal to a moiety of the ratio of representation. In every county entitled to more than one representative the board of supervisors shall assemble at such time and place as the legislature shall prescribe, and divide the same into representative districts equal to the number of representatives to which such county is entitled by law, and shall cause to be filed in the office of the secretary of state and clerk of such county a description of such representative districts, specifying the number of each district, and the population thereof, according to the last preceding enumeration." After the act of 1891 took effect, the board of supervisors of Houghton county assembled, and, acting under what is claimed to be the power of said board conferred by this provision of the constitution, proceeded to divide the county into two representative districts, it having a ratio, as fixed by the act, and a moiety over, under the last preceding enumeration. A description of such representative district was offered for filing in the office of the secretary of state. By resolution of the board of supervisors the county was divided into two districts; the townships of Calumet, Schoolcraft, and Torch Lake, containing a population of 18,758, constituting district No. 1, and the townships of Adams, Chassell, Duncan, Franklin, Hancock, Laird, Osceola, Portage, and Quincy, containing a population of 16,631, constituting district No. 2. It is expressly provided by the section of the constitution above set forth that where a county is entitled to more than one representative the board of supervisors shall assemble and divide the county into representative districts. This power is therefore vested in the board of supervisors, and not in the legislature; so that, if the county of Houghton is entitled to more than one representative, the act of the legislature, so far as it attempts to divide the county into districts, is void and of no effect.

At the time of the framing of the constitution the convention adopted a schedule, which was made a part of it, and ratified by a vote of the people. The purpose of this schedule, as stated in the preamble, is as follows: "That no inconvenience may arise from the changes in the constitution of this state, and in order to carry the same into complete operation, it is hereby declared," etc. Section 22 of this schedule provides: "Every county, except Mackinaw and Chippewa, entitled to a representative in the legislature at the time of the adoption of this constitution, shall continue to be so entitled under this constitution; and the county of Saginaw, with the territory that may be attached shall been titled to one representative; the county of Tuscola and the territory that may be attached, one representative; the county of Sanilac and the territory that may be attached, one representative; the counties of Midland and Arenac, with the territory that may be attached, one representative; the county of Montcalm, with the territory that may be attached, one representative; and the counties of Newago and Oceana, with the territory that may be attached, one representative. Each county having a ratio and a fraction over equal to a moiety of said ratio, shall be entitled to two representatives, and so on above that number, giving one additional member for each additional ratio." At the time of the adoption of the constitution of 1850 there were seven organized counties in the upper peninsula of the state, including Houghton county, and thirty-three organized counties in the lower peninsula. The county of Houghton, by the terms of section 22 of the schedule, was then entitled to one representative at least; and each organized county, except Mackinaw and Chippewa, was regarded as a unit for representative purposes, and to be dealt with by the legislature only as a whole. By the plain provisions of section 3, art. 4, of the constitution, and of section 22 of the schedule, it is manifest that the legislature, in apportioning the representatives, should take into consideration the fact that certain counties had been organized prior to the adoption of the constitution, and such counties, except Mackinaw and Chippewa, would be entitled to one representative at least; and that, where a county was thereafter organized, with such territory as might be attached thereto, it should be entitled to a separate representative when it had attained a population equal to a moiety of the ratio of representation, and that each county was to be regarded as a unit. Also, that when any county then organized, or thereafter organized, should be entitled to more than one representative, such county should be divided into districts by the board of supervisors; but that such county was also to be regarded as a unit. Again, if not alone entitled to one representative, it must, as a whole, be joined with other entire counties and other territory to send one representative. These limitations by the constitution are placed upon the power of the legislature in apportioning representatives to the various counties of the state. No other legislature since the adoption of the present constitution, in 1850, has ever given any other interpretation to the constitution. It has never been thought that the legislature has the power, under the constitution, to divide a county in making representative districts, until the present act was passed by the legislature of 1891. By no one of the eight apportionment bills passed since 1850 has this been attempted; but, on the contrary, in every bill so passed, the county has been regarded as a unit. This has not arisen from matter of accident in the apportionment, but by the various acts there is a distinct recognition of the fact that the legislature has no power, under the constitution, to divide a county. The first apportionment act after the adoption of the constitution recognized the limitation of power. Act No. 104, Laws 1855. That act provided that "the house of representatives shall hereafter be composed of members elected agreeably to a ratio of one representative for every 7,000 white persons * * * in each organized county." And the acts of 1861, 1865, 1871, 1875, use the same language. The act of 1881 further says: "And one representative to each county having the largest fraction more than a moiety of said ratio."...