Attorney General v. Detroit Common Council

• Decision Date: 14 October 1885
• Court: Michigan Supreme Court
• Parties: ATTORNEY GENERAL v. BOARD OF COUNCILMEN OF THE CITY OF DETROIT.

24 N.W. 887

58 Mich. 213

ATTORNEY GENERAL v. BOARD OF COUNCILMEN OF THE CITY OF DETROIT.

Supreme Court of Michigan

October 14, 1885

Mandamus.

CAMPBELL, J.

The attorney general applies for a mandamus to compel the respondents to take action upon certain nominations made by the mayor of Detroit of four persons, two being Republicans and two being Democrats, to act as a board of commissioners of registration and of election for the city of Detroit. Respondents refused to consider the nominations because they regarded the statute which provides for such board as unconstitutional and invalid. To an order to show cause they interpose that ground of defense. No other question is of much importance in the case. The necessity of an immediate decision, in order to allow time for the action of the city authorities in season for the coming election, made it impossible for the court to do more than announce its determination, on rendering judgment in favor of respondents as any oral statement in brief form of the grounds of their action would have been liable to some misapprehension. It was therefore thought best that the members of the court should express their views more formally in writing. The statute in question purports to amend chapter 2 and some sections of chapter 3 of the charter of Detroit, as revised in 1883. Chapter 2, which refers to the registration of voters, is entirely superseded by the present act, as is also so much of chapter 3 as provided for the choice of inspectors of election. The new statute undertakes to provide a board of commissioners to appoint ward registers and inspectors, who are to perform the duties formerly imposed on the boards made up of aldermen and their appointees, and of persons elected by the voters. The board thus provided for is required to be composed of four members holding office for four years, the first board being appointed for one, two, three, and four years respectively, so that one vacancy shall be filled each year. They are all to be resident electors of the city, and two members thereof to be from each of the two leading political parties of the said city. They are required, two weeks before the time fixed by law for the meeting of boards of registration of voters, to appoint two qualified electors of each voting district, one from each of the two leading political parties of the said city, to act as registers and form a district board of registration. The various district boards sitting together are to constitute a city board of registration. The board of commissioners are to fill any district vacancies by persons of the same political party to which the absentee belongs. The commissioners are also required to appoint for each voting district two inspectors, one from each of the two political parties "represented in the common council of said city," the electors choosing a third. Vacancies in any board of inspectors are to be filled by viva voce vote of the electors, but each vacancy must be filled by a person of the same political party as the absentee. The commissioners also appoint the various clerks of election, but have no immediate part in the work of registration by action or supervision.

The statute makes a number of new provisions upon the subject of registration and election, which were more or less discussed on the argument, but which would only be important if the law were not held to be entirely invalid, as we deem it to be. These several provisions will not, therefore, be dwelt upon. The invalidity of the statute was chiefly based on the argument upon the illegality of creating a board with such powers as those conferred by the statute, and required to be composed of equal numbers of two political parties appointed as such members, and ineligible without such party connection. Relator insists that the legislature, under its power to pass laws to preserve the purity of elections and guard against abuses of the elective franchise, has discretionary power over the methods, and that, even if the partisan disqualification is improper, the court may treat it as not essential, and sustain the commission by allowing the selection of its members without any such test. Neither of these grounds is tenable in our view of the constitution.

In order to appreciate the bearing of the considerations presented on the case, it will be necessary to make some reference to the general elective system of the constitution itself. It is needless to explain that under that system the whole scheme of government, in every department, depends upon the action of the qualified voters in their electoral districts. All male citizens of lawful age, and some whose United States citizenship is incomplete are entitled after a certain term of residence to vote in the township or wards in which they reside, Every vote, for any purpose whatever, is required to be cast in such township or ward. The only exception is in case of soldiers in the field during the war. All legislation imposing restraint or conditions upon voting must conform to the other clauses and provisions of the constitution. No part of that instrument can be allowed to override or destroy any other part. It is also well settled that our state polity recognizes and perpetuates local government through various classes of municipal bodies, whose essential character must be respected, as fixed by usage and recognition when the constitution was adopted; and any legislation for any purpose which disregards any fundamental and essential requisites of such bodies has always been regarded as invalid and unconstitutional. There is nothing in the constitution which permits the legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. And as the right of voting is the same everywhere, it is obvious that the conditions regulating the manner of exercising it must be the same in substance everywhere. The machinery of the government differs in its details in cities, villages, and townships, and of course in methods and officers to administer the election laws. But it cannot be lawful to create substantial or serious differences in the fundamental rights of citizens of different localities in the exercise of their voting franchises.

It is also a most important principle under our constitutional system that no one shall be affected in any of his legal and political rights by reason of his opinions on political subjects or other matters of individual conscience. The political right to freedom of belief and expression is asserted in the most distinct way, and applies to every privilege which the constitution confers. No one has ever supposed that any new condition could be added to those which the constitution has imposed on the right of suffrage, beyond such as are necessary to guard against double voting, or to prevent its exercise by those who are not legal voters. The only legitimate object of registration laws is to secure a correct list of actually qualified voters. Any attempt to inquire into the sentiments of the voters is not only an abuse, but one which it is the chief purpose of the ballot system to prevent. The ballot is a constitutional method which cannot be changed, and its perpetuation means the security to vote without any inquisition into the voter's opinion of men or measures; and it would be entirely meaningless if the voter's choice of candidates for any office must be made from any particular party or number of parties. But the constitution has made this more specific, (although this was hardly necessary,) by providing, after giving the form of an official oath, that "no other oath, declaration, or test shall be required as a qualification for any office or public trust."

It is manifest that any important function of government comes under one or the other of these heads of "office" or "public trust." The board of registration commissioners consists under this statute of persons holding permanent offices. The district registers, clerk, and inspectors perform functions connected with the most vital and important action of citizens in their capacity as choosers of the officers of government. The constitutional rule covers them all, literally as well as impliedly.

It was urged on the argument that if the term "test" can be held applicable to inquiries into party affiliation, it is equally applicable to those other qualifications often required for public service, such as education, scientific acquirements in surveyors and other specialists, legal knowledge in law officers, and the like. But this is not so. Not only is it evident from the other provisions in this clause that all the exemptions referred to are such as would be applicable in all sorts of offices, but the use of the word "test" is especially significant because its recognized legal meaning in our constitution is derived from the English test acts, all of which related to matters of opinion, and most of them to religious opinion. Such has been the general understanding of the framers of constitutions. If this were not so, and if the power of the legislature in imposing conditions of office is at the same time only restrained by express clauses applying in terms to officers and to no one else, it would not be difficult for any dominant party controlling the legislature to perpetuate its power until overthrown by revolution. But such discriminations are as repugnant to the rights of voters in selecting as to the rights of those chosen in assuming office, and this clause is but an additional assertion of a principle found in other parts of the constitution, expressed or clearly implied. In the case of People v. Hurlbut, 24 Mich. 44, it was not disputed by any of the...