Giddings v. Blacker

• Decision Date: 23 July 1892
• Citation: 52 N.W. 944,93 Mich. 1
• Court: Michigan Supreme Court
• Parties: GIDDINGS v. BLACKER, Secretary of State.

52 N.W. 944

93 Mich. 1

GIDDINGS v. BLACKER, Secretary of State.

Supreme Court of Michigan

July 23, 1892

Mandamus on the relation of Theron F. Giddings against Robert R. Blacker, secretary of state, relative to the issue of notice of the election of senators. Writ granted.

Moses Taggart, (F. A. Baker, of counsel,) for relator. A. A. Ellis, Atty. Gen., for respondent.

GRANT J.

The constitution of Michigan contains the following provisions found in article 4: "Section 1. The legislative power is vested in a senate and house of representatives. Sec. 2. The senate shall consist of thirty-two members. Senators shall be elected for two years, and by single districts. Such districts shall be numbered from one to thirty-two inclusive, each of which shall choose one senator. No county shall be divided in the formation of senate districts, except such county shall be equitably entitled to two or more senators." "Sec. 4. The legislature shall provide by law for an enumeration of the inhabitants in the year 1854 and every ten years thereafter, and, at the first session after each enumeration so made, and also at the first session after each enumeration by the authority of the United States, the legislature shall rearrange the senate districts according to the number of white inhabitants and civilized persons of Indian descent not members of any tribe." Acting under these constitutional provisions the legislature passed the senatorial apportionment act, No. 175, Pub. Acts 1891. By the census of 1890 the population was 2,093,889. The ratio of each district would therefore be 65,434. Eight of the districts under this act contain populations as follows: Seventh, 91,420; tenth, 82,697; fourteenth, 88,678; eighteenth, 86,129; twentieth, 84,694; twenty-fifth, 82,556; twenty-seventh, 97,330; thirty-first, 82,213. These are the eight largest districts. Eight other districts contain populations as follows: Twelfth, 41,245; eleventh, 42,110; sixteenth, 46,626; twenty-second, 42,546; twenty-third, 39,727; twenty-eighth, 43,701; twenty-ninth, 40,033; thirtieth, 53,068. Under this apportionment eight senators would represent constituencies numbering in all 695,717, while eight other senators would represent constituencies numbering in all only 349,056. The county of Saginaw is given two senators, although it contains a population of only 82,273. The twenty-seventh district is composed of nine counties, with a population of 97,330, while the twenty-ninth, with eight counties, five of which adjoin a like number of counties of the twenty-seventh, contains a population of only 40,033.

The relator is a citizen and an elector in the seventh district, composed of the counties of Kalamazoo, St. Joseph, and Branch, with a population of 91,420, and prays for the writ of mandamus to restrain the respondent, the secretary of state, from giving notice of the election of senators, under the act of 1891, and to compel him to give notice under the apportionment act of 1885. The petition also contains a prayer for general relief. The basis upon which relief is sought is that the power delegated by the above provisions of the constitution to rearrange the senatorial districts is limited; that this limitation was wholly disregarded by the act in question, and the act is therefore unconstitutional and void. It appears conceded by the learned attorney general that the legislature is not in the exercise of a political and discretionary power when acting under these constitutional provisions, for which it is only amenable to the people, and that this court has jurisdiction, in a case properly before it, to determine the constitutionality of the act in question. The constitution of this state provides: ^[1] "The supreme court shall have a general superintending control over all inferior courts and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only." The general jurisdiction of this court to determine the constitutionality of legislative enactments is not limited so as to exclude laws involving political rights. The constitution of Wisconsin, in conferring jurisdiction upon its supreme court, is nearly identical in language with the constitution of this state. The supreme court of Wisconsin has recently most ably and thoroughly discussed and determined the jurisdiction of the court in a case similar in principle and its facts to the present one. State v. Cunningham, 51 N.W. 724. The authorities in support of the jurisdiction are there collated, and citations made from them. Were the power conferred upon the legislature one of absolute discretion, then the express mandate, "shall rearrange according to the number of inhabitants," would be void of any force or meaning, except that it might be regarded as expressive of the opinion of the framers of the constitution that such method would be equitable and fair. We have no doubt of the jurisdiction of the court.

But it is insisted by the attorney general that, inasmuch as the relator is a private citizen, having no interest in the matter above every other citizen, he has no standing in court, because, prior to filing his petition, he made no application to the prosecuting attorney of his county, the attorney general, or other public officer, to apply to this court for a mandamus touching the matter here at issue. In support of this claim he cites People v. Begents, 4 Mich. 98; People v. Inspectors of State Prison, Id. 187; People v. Green, 29 Mich. 121; People v. Supervisors, 38 Mich. 423. In People v. Regents the application was to compel the regents to appoint a professor of homeopathy in the medical department of the university. The court expressed its conviction that that was a case in which the action of the attorney general would have been proper and necessary, at the same time saying: "We do not intend to say that a case may not arise in which this court would allow an individual to file such a complaint, particularly if the attorney general were absent, or refused to act without good cause." In People v. Inspectors of State Prison a private citizen applied for the writ of mandamus to restrain the respondents from teaching to convicts in the state prison the mechanical trade of wagonmaking. The main question was disposed of upon its merits, the court expressing some doubt whether the relator had such clear legal right and special interest as to entitle him to make the application. In People v. Green the application was to compel the county clerk and register of deeds to keep his offices at a certain place to which he claimed the county seat had been lawfully removed. His convenience in having access to the office was the ground of his petition. It was held that he had shown no such special interest as to authorize him to proceed without application to the proper officer. In People v. Supervisors the application was to compel the allowance of claims alleged to be owing from the county to the city. The city authorities were of course the proper party to institute the proceedings. In People v. State Auditors, 42 Mich. 422, 4 N.W. 274, this precise objection was made, and the court said: "In the present case the officer whose duty it usually is to enforce the rights of the state in this court has, in the performance of his official functions as adviser of the state officers, placed himself in an adverse position, and appears for the respondents on this application." The present case comes directly within that decision. The law does not require unnecessary things to be done. When the attorney general appears for a respondent it certainly follows that he is adverse to the position of the relator, and that an application on the part of the relator to him to commence the proceedings would be met with a noncompliance. This court, as appears from the authorities above cited, has taken care to prevent officious intermeddling by the use of this discretionary writ, and at the same time has swept away technicalities where public interests are involved and prompt action is necessary. We have quite uniformly overruled this objection in cases of the latter class.

The unconstitutionality of the act is clear. The county of Saginaw, with only 16,839 inhabitants in excess of the ratio is divided into two senatorial districts, one having 24, 189 less than the ratio, and the other having 23,334 less than the ratio. There is no basis, constitutional or otherwise, for such an apportionment. It is contemplated by the constitution that the ratio shall govern as far as it is practical. This is apparent from the provision that "each county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate representative when it has attained a population equal to a moiety of the ratio of representation." The constitution of the United States provides that "the number of representatives shall not exceed one for every 30,000, but each state shall have at least one representative." Under the first census, which showed the total number of free persons, with three fifths of the slaves, to be 3,606,397, congress fixed the number of representatives at 120, being one for every 30,000. In the apportionment, Massachusetts was entitled to 15 representatives, with an excess of 25,327, for which she was given an additional representative. Other states with a similar large excess were treated like wise, while those states which had a small excess received no additional representation therefor. President Washington, by the advice of Jefferson, Randolph, and Madison, vetoed the bill as unconstitutional, giving the following reasons: " First. The...