McPherson v. Blacker

• Court: Supreme Court of Michigan
• Writing for the Court: MONTGOMERY
• Citation: 92 Mich. 377,52 N.W. 469
• Decision Date: 17 June 1892
• Parties: MCPHERSON et al. v. BLACKER, Secretary of State.

92 Mich. 377
52 N.W. 469

MCPHERSON et al.
v.
BLACKER, Secretary of State.

Supreme Court of Michigan.

June 17, 1892.

Application by William McPherson, Jr., and others for a writ of mandamus to compel Robert R. Blacker, secretary of state, to give notice of an election of electors of president and vice president of the United States. Writ denied.

[52 N.W. 470]

Henry M. Duffield, ( F. A. Baker, Henry A. Haigh, and B. M. Cutcheon, of counsel,) for relator. A. A. Ellis, Atty. Gen., ( John W. Champlin, Otto Kirchner, and T. E. Barkworth, of counsel,) for respondent.

MONTGOMERY, J.

The relators, who are candidates for the office of electors of president and vice president, placed in nomination by the Republican party, ask for a mandamus to compel the respondent to give notice of an election to be held on the first Tuesday after the first Monday in November, to fill said offices, under the statute in former years providing for an election of electors by the state at large. The relators allege that Act No. 50 of the Public Acts of 1891, known as the “Miner Law,” is unconstitutional and void. It is first averred that the law in question is in conflict with article 2, § 1, of the federal constitution, in this: that it attempts to delegate to portions of the state fixed as districts by the legislature the power to name electors, whereas the section referred to, it is contended, confers this authority and duty upon the state at large, acting as a corporate unit in its corporate capacity. Secondly, it is contended that, even though the legislature may thus delegate the authority to districts, the law enacted is fatally defective in the following respects: ( a) That it violates article 4, § 20, of the constitution of this state, which provides that no law shall embrace more than one object, which shall be expressed in its title, in that it provides for an election of alternate electors, whereas the title relates only to choosing electors; ( b) that the act is inoperative, for the reason that it fails to provide means for canvassing the votes for electors in those portions of Wayne county which constitute the first and portions of the second, sixth, and seventh electoral districts; ( c) that, even if the election of alternate electors is valid, the act makes no provision for filling the office in case both the elector and the alternate shall die or become disqualified before performing their duties.

Most evidently the question of greatest importance is that relating to the true interpretation of section 1, art. 2, of the federal constitution. The provision of that section is that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the congress.” On both sides it appears to be conceded that the word “state,” as here employed, means the body politic and corporate. On the part of the relators it is contended that the state must, in the choice of electors, act as a unit, and cannot delegate the authority to name electors to any fractional part of the state, as a district fixed for that purpose alone, or for that and other political action. On the part of the respondent it is contended that the section in question gives the legislature plenary power to prescribe how and in what manner the state may choose its electors, whether by the legislature, or by all the electors voting for a general ticket, or by electors voting in districts.

In Story on the Constitution, (volume 2, p. 304, 4th Ed.,) it is said: “It is observable that the language of the constitution is that ‘each state shall appoint, in such manner as the legislature thereof may direct,’ the number of electors to which the state is entitled. Under this authority the appointment of electors has been variously provided for by the state legislature. In some states the legislature have directly chosen the electors themselves; in others they have been chosen by the people by a general ticket throughout the whole state; and in others by the people in electoral districts, fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenuous minds, has been firmly established in practice ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.”

If the question were to be determined solely by reference to the language employed, it may be admitted that there would be much force in the contention that the state must act as a unit, and that no lesser body could be delegated to perform any portion of the duty vested in the state as a body corporate, and it might possibly be held that the words, “in such manner as the legislature thereof may direct,” conferred only the limited power of directing how the state acting as an entirety shall make its appointment. But, in my judgment, these words are clearly susceptible of a construction which confers upon the legislature the power to say how the state action shall be voiced. In

[52 N.W. 471]

such a case resort is properly had to contemporaneous construction. Judge Cooley, in his work on the Constitution, says: “Contemporaneous construction may consist simply in the understanding with which the people received it at the time, or in the acts done in putting it in operation, and which necessarily assume that it is to be construed in a particular way. In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always necessarily be vague and indecisive. But where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that strong presumption exists that the construction rightly interprets the intention.” Cooley, Const. Lim. p. 67. This rule has been so frequently recognized both by this court and the supreme court of the United States as to require little more than a reference to the authorities. Martin v. Hunter's Lessee, 1 Wheat. 351;Bank v. Halstead, 10 Wheat. 63;Ogden v. Saunders, 12 Wheat. 290;People v. Dean, 14 Mich. 406;Bay City v. State Treasurer, 23 Mich. 499;Railway Co. v. Mills, 85 Mich. 646, 48 N. W. Rep. 1007. Speaking of this rule, in Ogden v. Saunders, Mr. Justice JOHNSON says: “It proceeds upon the presumption that the contemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them.” In Bay City v. State Treasurer, supra, it was held that constitutions are to be construed as the people construed them in their adoption, if possible, and the public history of the times should be consulted, and should have weight in arriving at that construction. See, also, People v. Harding, 53 Mich. 481,18 N. W. Rep. 555, and 19 N. W. Rep. 155.

The practical construction which was placed upon the section under consideration was certainly such as to maintain the contention of the respondent that the contemporaneous interpretation was that by this section plenary power was reposed in the several legislatures of the states to prescribe methods for choosing electors other than that by a vote of electors of the entire state, or by any agency which, in the performance of other public functions, represented the entire state. In the first presidential election Maryland and Virginia each adopted the district plan. Maryland continued to so choose her electors down to and including the year 1832. Massachusetts in 1788 adopted a plan of nominating electors in districts by a vote of the people, to whom the legislature was limited in making a choice. In 1796 they were chosen by districts. In New York the method of choosing electors first adopted was by vote of the legislature, but in 1825 the district system was adopted, and was in use in the election of 1828. In North Carolina the district system was adopted in 1803, and in use in 1804 and 1808. In Kentucky the district system prevailed until 1828. In Tennessee the district system prevailed from 1796 to 1836. In Indiana the district system was used in 1824 and 1828. In Illinois the district system prevailed from its admission into the Union until 1827. In Maine also the district system prevailed from 1820 until and including the election of 1828. It will be seen, therefore, that the exercise of the right to choose electors by districts began at the first election held under the constitution, and continued to be exercised by some of the states for a period of 40 years. Nor was an abandonment of this method due, except possibly in a single instance, to growing doubts as to its constitutionality. The states in which it had been invoked adopted a general ticket method, it is believed, not because of any doubt of the authority to choose electors in districts, but in order that more power could be wielded by the state in political conventions. Madison, who acted as a member of the committee which reported to the federal convention the method finally adopted for...