Scholle v. Hare

• Citation: 116 N.W.2d 350,367 Mich. 176
• Decision Date: 18 July 1962
• Docket Number: No. 63,63
• Parties: August SCHOLLE, Plaintiff, v. James M. HARE, Secretary of State of the State of Michigan, Defendant, and Frank D. Beadle et al., Intervening Defendants.
• Court: Supreme Court of Michigan

Page 350

116 N.W.2d 350

367 Mich. 176

August SCHOLLE, Plaintiff, v. James M. HARE, Secretary of State of the State of Michigan, Defendant, and Frank D. Beadle et al., Intervening Defendants.

No. 63.

Supreme Court of Michigan.

July 18, 1962.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for plaintiff.

Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., Lansing, for defendant Hare.

Edmund E. Shepherd, Lansing, for intervening defendants.

Creighton R. Coleman, Battle Creek, submitted brief amicus curiae.

Before the Entire Bench, except ADAMS, J.

KAVANAGH, Justice.

As we approach determination of the merits, following vacation by the Supreme Court (Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1) of the judgment entered here June 6, 1960 (360 Mich. 1, 104 N.W.2d 63), each unmanageable member of the Court faces an arrogant and amply headlined threat of impeachment 'if the senate districts are declared illegal.' ¹ This threat should neither hasten nor slow the judicial process. ² It does call into play Marshall's grim words (quoted in O'Donoghue v. United States, 289 U.S. 516, 532, 53 S.Ct. 740, 743, 77 L.Ed. 1356):

'The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. It is not, to the last degree important, that he (the judge) should be rendered perfectly and completely independent, 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 scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.'

Only and 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 has been cast here by the supremacy clause and the oath all judicial officers of Michigan have taken.

If the laws of Michigan, brought now to question again, do offend the right of thousands upon thousands 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 United States Supreme Court. Failing in such regard, another biennially extended election of members of the upper house will have come and gone under patently unconstitutional law; law so indiviously discriminatory 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 increasing 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 of Michigan did not ask for submission of this issue and its now unavoidable determination. Some of the veterans of the legislature, along with their predecessors, failed regularly to execute the constitutional oath each had taken to redistrict and reapportion under original section 4 of the fifth article of the Michigan Constitution. They and they alone are responsible for justiciable presentation and consideration of the issue before this Court. Had they faithfully and decennially executed said section 4 the powers of this Court, and those of the United States Supreme 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 without 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.

It is not true that this Court of last resort of a State, when it is 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 controlling where, as found here, one of its provisions stands in conflict with provisions of a State Constitution? For answer see Testa v. Katt, 330 U.S. 386, 390, 391, 67 S.Ct. 810, 813, 91 L.Ed. 967, wherein Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833, ³ was unanimously characterized as follows:

'The opinion of a unanimous court in that case was strongly buttressed by historic references and persuasive reasoning. It repudiated the assumption that federal laws can be considered by the states as though they were laws emanating from a foreign sovereign. Its teaching is that the Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, 'any-thing in the Constitution or Laws of any State to the contrary notwithstanding.' It asserted that the obligation of states to enforce these federal laws is not lessened by reason of the form in which they are cast or the remedy which they provide.'

Lest some one might suggest that we are not speaking in this context of State constitutional provisions and State statutes alike, we would refer them to the rule of Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 577, 39 S.Ct. 380, 382, 63 L.Ed. 780:

'For the protection of the Federal Constitution applies, whatever the form in which the legislative power of the state is exerted; that is, whether it be by a Constitution, an act of the Legislature, or an act of any subordinate instrumentality of the state exercising delegated legislative authority, like an ordinance of a municipality or an order of a commission. Great Northern Ry. Co. v. Minnesota, 238 U.S. 340, 35 Sup.Ct. 753, 59 L.Ed. 1337; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 286-288, 33 Sup.Ct. 312, 57 L.Ed. 510; Oregon Railroad & Navigation Co. v. Fairchild, 224 U.S. 510, 32 Sup.Ct. 535, 56 L.Ed. 863; Grand Trunk Western Ry. Co. v. Railroad Commission of Indiana, 221 U.S. 400, 403, 31 Sup.Ct. 537, 55 L.Ed. 786.'

The decision of the Supreme Court, reversing our majority decision and remanding the case for further consideration in the light of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, was handed down April 23, 1962. Accordingly, and at the beginning 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 judgment 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 o'clock 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 cause, and by such additional briefs as counsel may be advised to file on or before the oral arguments scheduled above.'

In pursuant of such order the case was fully resubmitted. No further proof or pleading was offered. Neither 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 ⁴ of the Court must have studied with painstaking care prior to consideration and review of the exhaustive opinions which appear between pages 1 through 125 of the 360th 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 submitted to this Court in modern times is known so well to the members who would protest that our determination of the merits should be delayed the more that they may study it the more; pointedly until that determination comes too late for legislative reapportionment of the senate and senatorial elections this year; likewise too late for direly pertinent advices the presently assembled constitutional 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.'

Now that 2 years have intervened since the decision of this Court in the case of Scholle v. Secretary of State, 360 Mich. 1, 104 N.W.2d 63, we ask ourselves: Are there any intervening facts, judicially noticeable or otherwise, that would change the former finding that the present senatorial districts of Michigan lack a rational, 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 indicates that the disparities are growing with the population increase at an average of approximately 150,000 persons per year.

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 1943 through 1954, now a constitutional convention delegate, in an article entitled, 'The Old and the New Constitutions--a Comparison and Appraisal' dated May 16, 1962, signed by Mr. Brake as 'Director, Education Division, Michigan Association of Supervisors, 319 W. Lenawee, Lansing 33, Michigan,' and sent to the members of the association. Mr. Brake concluded with appropriate accuracy:

'Our present senate, of course, does not follow any plan. It is simply an arbitrary freezing in of various districts.'

Having duly considered the additional briefs submitted, the oral arguments made by the parties and for the reasons set forth in detail in my opinion recorded in Scholle v....