In Re Apportionment of State Legislature—1964

126 N.W.2d 731, 372 Mich. 418

• Court: Michigan Supreme Court
• Decided: May 26, 1964
• Docket: Calendar 95, Docket 50,705
• Status: Published

Opinions

Dethmers, J.

(dissenting). The powers of this Court derive from the Michigan Constitution of 1963. Article 6, § 4, confers upon it power to issue, hear, and determine prerogative and remedial writs and appellate jurisdiction. The exercise of any of that power or jurisdiction is not here to be undertaken because this matter was not initiated or brought and, hence, has no existence under the authority of article 6, but only that of article 4 hereinafter considered. ■

Before this Court are proposed plans for apportionment and districting of the Michigan senate and house of representatives, submitted by members of the commission on legislative apportionment, under the provisions of the seventh paragraph of section 6 of article 4 of the Constitution, because of inability of a majority of that commission to agree on a plan. The sole function, power and duty of this Court in the premises, as in that article, section and paragraph prescribed, is to “determine which plan complies most accurately with the constitutional requirements.”

What are the constitutional requirements for districting and apportioning the Michigan legislature? Pertinent provisions of article 4, §§ 2, 3, 4, 5, and 6, read as follows:

"Senators, number, term.

“Sec. 2. The senate shall consist of 38 members to be elected from single member districts at the same election as the governor for four-year terms concurrent with the term of office of the governor. “Senatorial districts, apportionment factors.

“In districting the State for the purpose of electing senators after the official publication of the total population count of each Federal decennial census, each county shall be assigned apportionment factors equal to the sum of its percentage of the State’s population as shown by the last regular Federal decennial census computed to the nearest one-one hundredth of one percent multiplied" by four and its percentage of the State’s land area computed to the nearest one-one hundredth of one percent. “Apportionment rules.

“In arranging the State into senatorial districts, the apportionment commission shall be governed by the following rules:

“(1) Counties with 13 or more apportionment factors shall be entitled as a class to senators in the proportion that the total apportionment factors of such counties bear to the total apportionment factors of the State computed to the nearest whole number. After each such county has been allocated one senator, the remaining senators to which this class of counties is entitled shall be distributed among such counties by the method of equal proportions applied to the apportionment factors.

“(2) Counties having less than 13 apportionment factors shall be entitled as a class to senators in the proportion that the total apportionment factors of such counties bear to the total apportionment factors of the State computed to the nearest whole number. Such counties shall thereafter be arranged into senatorial districts that are compact, convenient, and contiguous by land, as rectangular in shape as possible, and having as nearly as possible 13 apportionment factors, but in no event less than 10 or more than 16. Insofar as possible, existing senatorial districts at the time of reapportionment shall not be altered unless there is a failure to comply with the above standards.

“(3) Counties entitled to two or more senators shall lie divided into single member districts. The population of such districts shall be as nearly equal as possible but shall not be less than 75 percent nor more than 125 percent of a number determined by dividing the population of the county by the number of senators to which it is entitled. Each such district shall follow incorporated city or township boundary lines to the extent possible and shall be compact, continguous, and as nearly uniform in shape as possible.

“Representatives, number, term; contiguity of districts.

“Sec. 3. The house of representatives shall consist of 110 members elected for two-year terms from single member districts apportioned on a basis of population as provided in this article. The districts shall consist of compact and convenient territory contiguous by land.

“Representative areas, single and multiple county.

“Each county which has a population of not less than seven-tenths of one percent of the population of the State shall constitute a separate representative area. Each county having less than seven-tenths of one percent of the population of the State shall be combined with another county or counties to form a representative area of not less than seven-tenths of one percent of the population of the State. Any county which is isolated under the initial aliocation as provided in this section shall be joined with that contiguous representative area having the smallest percentage of the State’s population. Bach such representative area shall be entitled initially to one representative.

“Apportionment of representatives to areas.

“After the assignment of one representative to each of the representative areas, the remaining house seats shall be apportioned among the representative areas on the basis of population by the method of equal proportions.

“Districting of single county area entitled to 2 or more representatives.

“Any county comprising a representative area entitled to two or more representatives shall be divided into single member representative districts as follows :

“(1) The population of such districts shall be as nearly equal as possible but shall not be less than 75 percent nor more than 125 percent of a number determined by dividing the population of the representative area by the number of representatives to which it is entitled.

“(2) Such single member districts shall follow city and township boundaries where applicable and shall be composed of compact and contiguous territory as nearly square in shape as possible.

“Districting of multiple county representative areas.

“Any representative area consisting of more than one county, entitled to more than one representative, shall be divided into single member districts as equal as possible in population, adhering to county lines.

“Annexation or merger with a city.

“Sec. 4. In counties having more than one representative or senatorial district, the territory in the same county annexed to or merged with a city between apportionments shall become a part of a contiguous representative or senatorial district in the city with which it is combined, if provided by ordinance of the city. The district, or districts with which 'the territory shall be combined shall be.'determined by such ordinance certified to the secretary of State. No snch change in the boundaries of a representative or senatorial district shall have the effect of removing a legislator from office during his term.

“Island areas, contiguity.

“Sec. 5. Island areas are considered to be contiguous by land to the county' of which they are a part.

“Commission on legislative apportionment.

“Sec.-. 6. A commission on legislative apportionment is hereby established consisting of eight electors, four of whom shall be selected by the State organizations of each of the two political parties whose candidates for governor received the highest vote at the last general election at which a governor was elected- preceding each apportionment. If a candidate for governor of a third political party has received at such election more than 25 percent of such gubernatorial vote, the commission shall consist of 12 members, four of whom shall be selected by the State organization of the third political party. One resident of each of the following four regions shall be selected by each political party organization: (1) the upper peninsula; (2) the northern part of the lower peninsula, north of a line drawn along the northern boundaries of the counties of Bay, Midland, Isabella, Mecosta, Newaygo and Oceana; (3) southwestern Michigan, those counties south of region (2) and west of a line drawn along the western boundaries of the counties of Bay, Saginaw, Shiawassee, Ingham, Jackson and Hillsdale; (4) southeastern Michigan, the remaining counties of the State. * * *

“Call to convene; apportionment; public hearings.

“Within 30 days after the adoption of this Constitution, and after the official total population count of each Federal-decennial census of the State and •its political subdivisions is available, the secretary of State shall issue a call convening the commission not less than 30 nor more than 45 days thereafter. The commission shall complete its work within 180 days after all necessary census information is available. The commission shall proceed to district and apportion the senate and house of representatives according to the provisions of this Constitution. All final decisions shall require the concurrence of a majority of the members of the commission. The commission shall hold public hearing’s as may be provided by law.

“Apportionment plan, publication; record of proceedings.

“Each final apportionment and districting plan shall be published as provided by law within 30 days from the date of its adoption and shall become law 60 days after publication. The secretary of State shall keep a public record of all the proceedings of the commission and shall be responsible for the publication and distribution of each plan.

“Disagreement of commission; submission of plans to Supreme Court.

“If a majority of the commission cannot agree on a plan, each member of the commission, individually or jointly with other members, may submit a proposed plan to the Supreme Court. The Supreme Court shall determine which plan complies most accurately with the constitutional requirements and shall direct that it be adopted by the commission and published as provided in this section.

“Jurisdiction of Supreme Court on elector’s application.

“Upon application of any elector filed not later than 60 days after final publication of the plan, the Supreme Court, in the exercise of original jurisdiction, shall direct the secretary of State or the commission to perform their duties, may review any final plan adopted by the commission, and shall remand such plan to the commission for further action if it fails to comply -with the requirements of this Constitution.”

It will be noted in said seventh paragraph that “If a majority of the commission cannot agree on a plan, each member of the commission, individually or jointly with other members, may submit a proposed plan to the Supreme Court” and “The Supreme Court shall determine which plan complies most accurately with the constitutional requirements”. This does not contemplate apportioning or districting by this Court or even its picking and choosing of parts of 1 plan together with portions of others submitted by the commissioners. Determination is to be made as to which 1 of the plans submitted by commissioners for apportioning and districting the Michigan legislature complies, not exactly but most accurately. Having so determined, we are to direct the commission to adopt that plan.

As will be observed from a perusal of the above quoted constitutional requirements, the steps to be taken in districting and apportioning the State for electing 38 senators are:

(1) To assign to each county apportionment factors (hereinafter called factors) equal to the sum of its percentage of the State’s population, multiplied by four, and its percentage of the State’s land area; (This gives rise to the term “80-20 formula”; that is to say, the components of a county’s factor total consist 80% in population and 20% in area.)

(2) To place counties having 13 or more factors in 1 class which shall be entitled to senators in the proportion that the total of factors of that class bears to the total of factors of the State; (There are 5 such counties, thus entitled, as a class, to a total of 18 of the State’s 38 senators.)

(3) To allocate 1 senator to each of 'such counties in that class and then distribute thé remaining senators to which the counties in that class are entitled among those counties by the- method of equal proportions applied to factors;

(4) To divide the counties thus entitled to 2 or more senators into single member districts with populations as nearly equal as possible, with a permissible variance from such population equality of not less than 75% nor more than 125% of a number determined by dividing the total population of the county by the number of senators to which it is entitled. These districts shall follow incorporated city or township lines to the extent possible and shall be compact, contiguous, and as nearly uniform in shape as possible;

(5) To place counties having less than 13 factors in another class which shall be entitled to senators in the proportion that the total of factors of that class bears to the total of factors of the State; (There are 78 counties in this class which is entitled to 20 senators.)

(6) To arrange the counties of the latter class into districts that are compact, convenient and contiguous hy land, as rectangular in shape as possible and having as nearly as possible 13 factors, but in no event less than 10 nor more than 16 factors. Insofar as possible, existing senatorial districts at the time of reapportionment shall not be altered unless there is a failure to comply with the above standards.

The method for districting and apportioning for the election of 110 members of the house follows:

(1) Divide the counties in 2 classes, first those having .7% or more of the State population (20 counties) and, second, those counties having less than .7% of the State’s population (63);

(2) Each county of the first class shall constitute a separate representative area.

(3) Counties of the second class shall he' combined to form separate representative areas having not less than .7 % of the State population. The districts shall consist of compact and convenient territory contiguous by land.

(4) A representative shall be assigned to each representative area.

(5) After assignment of 1 representative to each representative area, the remaining house seats shall he apportioned among the representative areas on the basis of population by the method of equal proportions.

(6) Counties entitled to 2 or more representatives shall be divided into single member districts as follows:

a. Of as nearly equal population as possible, with a variance permissible of not more than 125% or less than 75% of a number determined by dividing the area’s population by the number of representatives to which it is entitled.

b. Which shall follow city and township boundaries where applicable and be composed of compact and contiguous territory as nearly as possible square in shape.

(7) Representative areas consisting of more than 1 county, entitled to more than 1 representative, shall be divided into single member districts as equal as possible in population, adhering to county lines.

We are advised that failure of a majority of the commission to agree on a plan resulted, at least in part, from differences as to interpretation of the constitutional requirements for districting and apportioning. Included among the differences were the following:

(1) Whether, in the creation of senatorial districts consisting of more than 1 county, the paramount criterion is, (a) to cause each to have as nearly as possible 13 factors or, (b) to leave unaltered, insofar as possible, senatorial districts existing at the time of reapportionment so long as they stay within the 10 to 16 factor range?

The applicable language of subsection 2 of section 2 requires that such districts have as nearly as possible 13 factors, with permissible deviations not to exceed the range of from 10 to 16 factors. This discloses an intent that coming as nearly as possible to 13 factors is to be preferred over coming at a figure further from 13 even though within the permitted range of deviation. In the order of appearance in the subsection 2, the commission is to try first for 13 or as near thereto as possible. Thereafter, insofar as possible, says the concluding sentence of subsection 2, the commission shall try to retain existing districts unaltered unless not compatible with compliance with the previously stated standards, including, of course, that of staying as closely as possible to 13 factors. Furthermore, it is to be noted that elsewhere in article 4 the term “apportionment” is uniformly used. Only in the noted sentence of subsection 2 of section 2 is the word “reapportionment” employed, indicating that the provision for leaving existing senatorial districts, insofar as possible, unaltered has prospective application to reapportionments subsequent to the initial apportionment under this article. This would evidence an intent that once the senate districting and apportioning has been accomplished under the factors formula of article 4, apportionment commissioners should not thereafter be permitted to redistrict, willy-nilly, perhaps unseating incumbents thereby, unless a changed factors situation should require it. We hold that, certainly as to this initial apportionment, and as well to subsequent reapportionments, prior consideration must be given to arranging-the multicounty senatorial districts, so that, each has as nearly as possible 13 factors before looking to the possibility of leaving existing districts; unaltered. ■■ ,

(2) "Whether the northern and southern peninsulas of Michigan are “contiguous by land” within; the meaning of article 4?

It is to be observed that the terms “contiguous” and “contiguous territory” are used in providing for dividing counties entitled to 2 or more senators or representatives into single member districts. When providing, however, for arranging or combining counties, not entitled to 1 or more senators, into districts the term “contiguous by land” is employed, .as it is also in the first paragraph of section 3, presumably applicable to combining of counties into single member representative districts. The difference in the 2 situations seems to reflect the recognition that counties may be traversed by rivers or other bodies of water but no county is partly in the northern peninsula and partly in the southern peninsula. The use of the term “contiguous by land” only with respect to combining and arranging 2 or more counties into single member senator or representative districts, and not with respect to dividing counties into districts, reveals the intent to refer only to the waters separating the 2 peninsulas and not to rivers or waters within counties and, hence, only to prevent combining counties on opposite sides of the straits of Mackinac into single member senatorial or representative districts. It is said that the erection of the Mackinac bridge and the adoption of the constitutional requirement that no person shall be denied the equal protection of the laws which allegedly would restilt from “gross distortions of population between districts” occasioned by “a separation at the straits” have served, in effect-, to make the 2 peninsulas contiguous by land within the meaning of article 4. Although the bridge is referred to by tbe commissioners proposing this theory as “Mighty Mac” and the “equal protection of the laws” provisions of both Federal and State Constitutions are being accorded constantly expanding force and application, it would hardly seem that either the bridge construction or the noted constitutional language has served to move the 2 peninsulas one' whit closer together.' They remain contiguous, still, by water, not by land.

(3) Whether, in the division of multidistrict counties with respect to which it is required that, where ‘applicable or to the extent possible, incorporated city and township boundary lines shall be followed,, account is to be taken of annexations of township territory, into cities' after the- date of the,,Federal decennial census, April 1, 1960? This language speaks as of the time the districting and apportioning is being done by the commission, not some antecedent date. In our opinion, the lines in effect at that time are the ones to be followed.

(4) Whether the commission’s', (or this Court’s) concept of the equal protection of the laws provision of article 1, § 2, nlust or'may be applied to the apportioning and districting process so as to circumvent or change the express provisions and requirements of article 4? As noted at the outset, we are not now in the exercise of our usual judicial powers stemming from article 6, § 4, and, accordingly, it is not open to us in this matter to determine Federal constitutional questions, as in Scholle v. Secretary of State, 367 Mich 176, but only to perform the office specified for us in the seventh paragraph of article 4, § 6. Our assignment is to determine which one of the plans submitted to us by the members of the commission complies most accurately “with the constitutional requirements.” If it be suggested that the test thus laid down for us is broader than that of the immediately succeeding eighth paragraph in which, at the application of any elector, we review- any- 'final plan and remand it to the commission for further action “if it fails to comply with the requirements of this"Constitution”, it can only be concluded that action, under the seventh paragraph is but a practice round, inconclusive, because it is subject to final review and¹, remand, under the eighth paragraph, if the plan fails'to comply with the requirements of this Constitution..

What are “the requirements of this Constitution’*' governing districting and apportioning the legislature? They are those prescribed in article 4, as above reviewed. It is said, however, that because article 4, § 6, paragraph 7, lays down the broader test of which plan complies most accurately “with the constitutional requirements” or, as stated in paragraph 8, “with the requirements of this Constitution” and not the expressly stated narrower one of compliance with the requirements of article 4, it follows that the broader test was intended, inasmuch as it would have been simple and easy to have worded it to express the narrower test of compliance with article 4 if that had been intended. In this connection it is also said that nowhere in the Constitution of 1963 is it stated that the terms “constitutional requirements” or “requirements of this Constitution” mean or are limited in their meaning to article 4 requirements. This is simply not correct. The third paragraph of article 4, § 2, in providing for arrangement of districts, reads in part, “* * * the apportionment commission shall be governed by the following rules”. Section 2 of article 1 does not follow but precedes this. There do follow all of the above quoted provisions of article 4 setting forth rules in detail to be used for the purpose of apportioning and districting. Nowhere else in the Constitution are any rules set forth which are therein stated to be for that purpose. After section 2 of article 4 thus directs the commission to follow, the.-rules stated, in article 4, then section 6 of that article, in its fifth paragraph, requires the commission to proceed to district and apportion the senate and house “according to the provisions of this Constitution”. There being no other provisions in the Constitution referring to legislative apportionment or stating how it is to he done, the conclusion cannot be ‘escaped that the “constitutional requirements” referred to means the only requirements in the Constitution expressly directing how the districting and apportioning is to be done, namely, those in article 4.

Realizing that in the instant proceedings the authority of this Court to consider whether article 4 formulas deny equal protection of the laws, if permissible at all, must come from our assignment under article 4 to determine which plan complies most accurately with the constitutional requirements, the commissioners who are urging such consideration upon us (Austin and Kleiner), say that article 1, § 2, is a part of the “constitutional requirements” test to be applied. With this we disagree for reasons already stated. These commissioners say that the factors plan required by the specific provisions of article 4, with the so-called 80-20 formula for districting the State and apportioning for the election of senators and the not less than .7% of population formula for districting and apportioning for election of representatives would result in gross disparity in the population of the several districts and thus constitute a denial of the equal protection of the laws in violation of the general provisions of article 1, § 2. They concede at this point that “In the normal situation the general requirement gives way to the extent necessary to allow the specific requirement to be fulfilled.” This is, undoubtedly, the law. They contend, however, that this is not the normal situation. They see here one calling for following the general requirement as they see it, and, though they seem reluctant to wholly admit this, abandoning the specific requirement accordingly. They then proceed, in their submitted plan, to delete the 2 formulas and to substitute a straight population formula for the 80-20 factor formula for fixing senatorial districts and for house districts remove the .7% figure stated in article 4 and replace it with one of their own making, .91%, which they say is the resultant “quotient” arrived at by dividing 100% of population by 110, the number of representatives to be in the house. If ever there was an attempt to render a constitutional mandate utterly meaningless, this is it. The express and detailed districting and apportioning directions set forth in article 4 could better, under such short shrift, have been omitted altogether by the framers.

If there were a conceivable conflict between the general declaration of rights in article 1, § 2, and the specific requirements of article 4, and we are satisfied there is not, this manifestly would be a case in which the general should yield to the specific. Not this Court, but the members of the commission are empowered and directed, by the language; of article 4, to district and apportion. There is -no other language for that purpose in the Constitution. By the express terms of article 4 the commissioners are told precisely how to do it. They are not authorized by the Constitution to determine whether article 4 or any portion thereof is unconstitutional under either the Federal or State Constitution or at variance with some other portion of the latter. Neither is that included within our assignment which comes exclusively from that article. Ours is but to determine which plan submitted by commissioners complies most accurately with those constitutional requirements specifically set forth by article 4 for observance by the commissioners. How clear it is from all this that the constitutional convention delegates, and the people in adopting the Constitution, never intended that districting and apportioning should he other than as in article 4 provided. This is equally clear from debates of the convention. Article 1, § 2, was debated as a part of the declaration of rights and as a safeguard of civil rights against discrimination on racial or religious grounds. Apportionment or districting for election of legislators was not so much as mentioned in debates thereon. On the other hand, debates on article 4 were vigorous, extended and they highlighted, above everything else in importance in that connection, the “80-20” formula and the “not less than .7%” formula, leaving it beyond peradventure that their inclusion in the article and their adoption was not through inadvertence, but by informed, reasoned, well-considered, and express design. The convention’s address to the people and. the public press; radio, and television explained in detail to the people, before the election of adoption, the meaning of article 4 and districting and apportionment under it. Thus, the people were fully informed of its meaning. Not once was it then publicly .said that article 1, § 2, would override article 4 and require apportioning on a .straight population basis in both houses. The framers and adopters had no intention that article 1, § 2, was to supersede or -overrule article 4. .As well say that the requirement of article 2, § 1, that a citizen must be 21 years of age to vote is superseded by the equal protection clause of article 1, § 2, because the Court does not deem the over age of 21 years classification to be reasonable and considers citizens of 18 years of age equally competent to vote and, hence, that ■they have been denied equal protection of the laws. It is ludicrous to even imagine that it was the intent of the constitutional framers and adopters to create a legislative apportionment commission empowered to district and apportion, in utter disregard of, the requirements of article 4 and in any manner which they might think, with this Court’s agreement, would comply with the commission’s or this Court’s concept of equal protection of the laws. Inasmuch as the intent and purpose of the delegate-framers and the people in adopting the Constitution is so manifest, the language quoted with approval by Mr. Justice Black in his controlling opinion in Bacon v. Kent-Ottawa Metropolitan Water Authority, 354 Mich 159, 176, is particularly apt.. It reads as follows :

“Constitutions do not change with the varying tides of public opinion and desire; the will.of the people therein recorded is the same inflexible law until changed by their own deliberative action; and it cannot be permissible to the courts that in order to aid evasions- and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They must construe them as the people did in their adoption, if the means of arriving at that constructio'n are within their power.”

So, too, in John Hancock Mutual Life Insurance Co. v. Ford Motor Co., 322 Mich 209, 221, 222, this Court said:

“Here we are not confronted with a statute which must be strictly construed, but rather with a constitutional provision, a part of our fundamental organic law, which should be given a reasonable and practical interpretation which gives: effect to the intent and purpose of its framers and the persons who adopted it. Words used therein are to be given their- natural, obvious and ordinary meanings and not a technical meaning.”'

In Romano v. Auditor General, 323 Mich 533, 538, 539, the Court said:

“May we conclude that the people, in amending article 5, § 9, incorporated into the Constitution language which they intended should have no meaning, purpose or effect? We quote with approval from State, ex rel. Jameson, v. Denny, 118 Ind 382, 391 (21 NE 252, 4 LRA 79).

“ ‘It is not to be supposed that a single word was inserted in the organic law of the State without the intention of conveying thereby some meaning.’ ”

The United States supreme court stated the rule applicable here in Billings v. United States, 232 US 261, 282 (34 S Ct 421, 58 L ed 596):

“It is also settled beyond dispute that the Constitution is not :self-destructive. In other words, that the powers which it confers on the one hand it does not immediately take away on the other; that is to say, that the authority to tax which is given in express terms is not limited or restricted by the subsequent'provisions of the Constitution or the amendments thereto, especially by the due process clause of the Fifth Amendment. McCray v. United States, 195 US 27 (24 S Ct 769, 49 L ed 78), and authorities there cited.”

To accept the mentioned construction causing article 1, § 2, to overthrow article 4, or most of its vitals at least, would make the Constitution, to borrow from Billings, self-destructive.

From materials submitted by Commissioners Hanna, Huhtala, LaPorte, and Brucker, objecting to the Austin-Kleiner plan, we quote with approval the following:

“In summary, the Austin-Kleiner argument must be rejected because:

“1. It would require the exercise of ‘a power to remake constitutional provisions which the Constitution has not given to the courts.’

“2. It would deny to the clear language of article 4, any meaning, purpose, or effect, and, as stated by Mr. Chief Justice Marshall, ‘such a construction is inadmissible.’

“3. It would render the Constitution ‘self-destructive.’

“4. It would not give effect to the intent and purpose of the framers of the Constitution and the persons who adopted it, but would be directly contrary to that intent and purpose.”

“The Austin-Kleiner plan is objectionable because:

“1. It does not even purport to comply with the constitutional requirements spelled out in detail in article 4.

“2. It deliberately ignores the limited and entirely administrative function of the Court in this matter, and seeks to convert it into an adversary proceeding between litigants, to try issues which are not and cannot be before this Court.

“3. It asks the Court to destroy whole sections of the Constitution adopted by the people of this State in 1963.”

Accordingly, we reject the Austin-Kleiner plan because, so far from accurately complying with, it is completely and avowedly violative of, article 4 requirements which, we hold, must control.

Being satisfied, because of the origin and nature of this proceeding, that the merits of the equal protection of the laws question is not properly before us for decision in this matter, and that, therefore, it ought not to be considered, nevertheless, anticipating the possibility of a contrary view, we would touch on it briefly. Scholle v. Secretary of State, supra, is not authority for the proposition that the formulas of article 4 are unconstitutional as a denial of equal protection of the laws. Scholle was predicated on the position that there was no rational basis for the senatorial apportionment provisions of the 1952 State constitutional amendment, then before the Court, which involved population disparities between the several districts. Mr. Justice Kavanagh quoted (p 185) one of the delegates to the State constitutional convention to the effect that the 1952 amendment did not follow any plan but was simply an arbitrary freezing in of various districts. Justice Kavanagh found that the amendment lacked a rational, reasonable, uniform or even ascertainable; nondiscriminatory purpose. It is otherwise with thq article 4 plan of the new Constitution. Here there is á uniform, ascertainable, nondiscriminatory plan and purpose which is rational and reasonable. As stated in the material of commissioners supporting it:

“The senate ‘80-20’ formula reflects the differing economic and social interests of Michigan citizens, such as the following:

“(1) The concentration of heavy industry in the southern lower peninsula and of light manufacturing in the southwestern and western lower peninsula;

“(2) the agricultural interest of the out-state;

“(3) the concentration of mining in the upper peninsula;

“(4) the concentration of logging and wood products in the upper peninsula and the upper portion of the lower peninsula;

“(5) the concentration of large economic and business interests in the southern portion of the lower peninsula.

“Also, there are the differing economic activities in each section. The economic interests of Michigan are divergent. Therefore, the problems of each section differ. The apportionment formula affords the people of all parts of Michigan the representation necessary for a fair opportunity to express their distinctive needs. The ‘equal protection’ clause does not compel this Court to ignore the fact that the needs of the Houghton county miners are funda> mentally different from those of Wayne county tool and die makers. Each person is not a digit, whose right to an adequate voice in the legislature depends solely upon the extent of the population concentration of the area in which he lives.”

Delegate Dr. John Hannah, president of Michigan State University, during debate before the constitutional convention said:

“The committee, after a good deal of thought, came to the conclusion- — and I am sure the committee was correct — that the best interests of this State are going to be served if 1 house of the legislature is apportioned on some basis other than straight population. The committee decided that it would be the senate that would be apportioned on some basis other than straight population. It then gave. consideration to what factors .should be given consideration : obviously area was 1 factor. The suggestion was made and it would be appropriate to take into consideration economic interests because of the diversity of interests in some areas. And there were other suggestions. Finally, because of the difficulty of identifying anything but area, the committee concluded that area and population were the only factors that it could recommend to this convention.”

“It’s based 80% on population and 20%, on area because it is a fact that it is fairer and more nearly in the best interests of the state to make certain that there are a reasonable number of senators representing that vast geographic area in the upper peninsula, a reasonable number representing that vast area in the northern half of the lower peninsula.”

It follows that Justices of this Court who signed the controlling opinions in Scholle are not, by reason thereof, constrained to adopt the Austin-Kleinér position here. - .-

- Attention is drawn to the recent decision of the United States supreme court in Wesberry v. Sanders, 376 US 1 (84 S Ct 526, 11 L ed 2d 481) 32 LW 4142. The court held a Georgia statute districting and apportioning Georgia for election of members to the United States congress invalid because the population of 1 district thereunder is grossly out of balance with that of the other 9 congressional districts of that State. This was predicated on the proposition that article 1, § 2, of the United States Constitution, provided for election, by the people of the several States, of congressmen on a population basis and that they should be apportioned among the several States according to their respective numbers. The views expressed were buttressed by statements of delegates to the national constitutional convention made during debates on the subject. The Fourteenth Amendment’s guarantee of equal protection of the laws was not made the basis for the decision. The case is not authority for the proposition that both houses of a State legislature must be apportioned on a straight population basis or that failure to do so works a denial to persons of equal protection of the laws.

Likewise, mention has been made of' Gray v. Sanders, 372 US 368 (83 St Ct 801, 9 L ed 2d 821). In that case the court held invalid Georgia’s county unit system as a basis for counting votes in a democratic primary election for the nomination of a United States senator and statewide officers. It was said that the practical effect of the system is that the vote of each citizen for those statewide officers counts for less and less as the population of his county increases. The discrimination there complained of was the relative weighting or diluting of the votes of different electors casting their votes for the same statewide office. As Mr. Justice Stewart, joined by Mr. Justice Clark, said in their concurrence-with the court’s opinion (pp 381, 382):

“This case does not involve the validity of a State’s apportionment of geographic constituencies from which representatives to the State’s legislative assembly are chosen, nor any of the problems under the equal protection clause which such litigation would present. We do not deal here with ‘the basic ground rules implementing Baker v. Carr, 369 US 186 (82 S Ct 691, 7 L ed 2d 663).’ This case, on the contrary, involves statewide elections of a United States senator and of State executive and judicial officers responsible to a statewide constituency. Within a given constituency, there can be room for but a single constitutional rule — one voter, one vote. United States v. Classic, 313 US 299 (61 S Ct 1031, 85 L ed 1368).”

Thus Gray is equally as inapplicable as Wesberry to the matter before us.

In MacDougall v. Green, 335 US 281, 283, 284 (69 S Ct 1, 93 L ed 3) the court said:

“To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. * * * It would be strange indeed, and doctrinaire, for this court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.”

In Colorado the electors, in 1962, adopted a constitutional amendment, providing for house apportionment on population basis and a senate apportionment which was more largely on an area than population basis. In Lisco v. Love (DC Colo), 219 F Supp 922, 931, 932, the court said of this, the following :

' “The highest ratio, that of districts Nos. 11 and 12 over district No. 23, is 3.6 to 1.

“The heterogeneous characteristics of Colorado justify geographic districting for the election of the members of 1 chamber of the legislature. In no other way may representation be afforded to insular minorities. "Without such districting the metropolitan areas could theoretically, and no doubt practically, dominate both chambers of the legislature.

“The plaintiffs make much of the disparities in senatorial representation which vary downward from 3.6 to 1. They say that the deviations from, per capita standards are impermissible. We do not agree. The distributive scheme of amendment No.. 7 may not be perfect but it does recognize the geographic diversities, the historic grouping of counties, and the accessibility of a candidate to the voters and of a senator to his constituents. The realities of' "topographic conditions with their resulting effect on population may not be ignored. * * *

“The contention that the voters have discriminated against themselves appalls rather than convinces.”'

Also, at this point, it is helpful to keep in mind that in Michigan, as distinguished from the Tennessee-situation discussed in Baker v. Carr, 369 US 186 (82 S Ct 691, 7 L ed 2d 663), the right of initiative and referendum is reserved to the people by the 1963' Constitution, thus affording them an opportunity for correction and relief whenever a majority of them shall determine that present article 4 formulas deny equal protection of the laws.

In Nolan v. Rhodes (DC SD Ohio), 218 F Supp 953, the court, after noting that in Ohio the senate-is apportioned, in substance, by population and the-house by area and population, said (p 958):

“Ohio’s constitutional apportionment takes into-account the varying interests of its citizens engaged in different occupations in the 88 counties of the State. It reflects a determination of the people to-give representation to each of the counties even though some of them are thinly populated.”

In Germano v. Kerner (DC ND Ill), 220 F Supp 230, the court described Illinois’ senatorial districts .as being on an area basis, and said (p 232):

“The result is obvious, the one voter-one vote ratio Is neither sought or desired and of course is not ■attained. The figures, graphs and statistics set forth in plaintiffs’ complaint correctly and unequivocally depict a clear picture of population disparities in State senatorial districts. Dividing the State’s population, 10,081,133, by the number of senatorial districts, 58, we find that if such districts were to be based on population, there should be 173,812 voters * * * in each district. Such is not the case. By way of illustration the average district in the city •of Chicago has some 196,994 voters; the remainder of Cook county excluding Chicago averages 263,000 voters per district. Moreover, within Chicago itself, as well as ‘down-state’, discrepancies exist in r elative district "population figures. And finally, unlike the lower house no reapportionment or redistricting is provided for. ,. . ..

“Plaintiffs’ complaint alleges that the above discriminates against certain voters, particularly ■against those such as themselves who live in metropolitan as opposed to rural areas. This fact can hardly be denied. However, I am of the opinion that -these conditions do not constitute, as contended by plaintiffs’ complaint, even an unreasonable much less an invidious discrimination as prohibited by the ■Fourteenth Amendment.”

No reported decision of any court has held that failure to apportion both houses of a State legislature on a straight population basis constitutes a denial of the equal protection of the laws, much less that apportionment on a rational basis and under a reasonable plan for protection of all of the State’s Interests, peoples and areas, as prescribed by article 4 of the Michigan Constitution, is invalid. We say that it is not.

Because, therefore, on the merits of the equal protection question article 4 is valid and because that is not properly a question for determination by the commission in the performance of its duly assigned task or by this Court in this matter, we reiterate that the Austin-Kleiner plan, being grossly violative of article 4, is not entitled to consideration. It cannot be said to be the one which complies most accurately therewith. It must be rejected.

Three other plans have been submitted by commissioners. Each of these purports to follow article 4 requirements as interpreted by their respective formulators, without benefit of emasculation by article 1, § 2, considerations. We proceed to their consideration to determine which complies most accurately with the article 4 requirements.

First is that of Commissioner Brown. For apportionment of senate seats he adheres to the inters pretation, that maintaining existing districts unaltered is a prime requisite superior to the criterion of making each district as nearly as possible possessed of 13 factors. We have already expressed our disapproval of that interpretation. For house apportionment he adopts the plan of Commissioner Dongvillo, one we shall discuss later.

Commissioners Hanna, Huhtala, LaPorte, and Brucker submit the so-called Hanna plan. It most accurately complies with article 4 formulas and requirements, both as to senate and house districting and apportionment. It is in accord with our above expressed views (1) as to the primacy of the criterion of 13 factors as nearly as possible over that of retaining existing districts, (2) that the 2 peninsulas are not contiguous by land, (3) that changed city and township boundaries caused by annexations since the 1960 census should be followed, and (4) that article 4 requirements alone control without modification by article 1, § 2, considerations.

Commissioner Dongvillo also has submitted a plan, the expressed theory of which is similar to that of the Hanna plan. That brings us to a consideration of criteria so far not discussed in this opinion. These are that with respect to senatorial districts created by combining counties, they shall be “compact, convenient, and contiguous by land, as rectangular in shape as possible”; that with respect to senatorial districts carved out of a single county, they “shall follow incorporated city or township boundary lines to the extent possible and shall be compact, contiguous, and as nearly uniform in shape as possible”; and that with respect to house districts they “shall consist of compact and convenient territory contiguous by land” and “be composed of compact and contiguous territory as nearly square in shape as possible”. These may be termed antigerrymandering provisions. Viewing the Brown, Dongvillo, and Hanna plans in the light of these criteria, we are persuaded that the Hanna plan is the 1 of the 3, or for that matter, of the 4 submitted, that complies most accurately therewith. The same is to be said with respect to the requirements that senatorial districts formed by combining counties shall have as nearly as possible 13 factors, that senatorial districts formed by dividing a county shall be as nearly equal in population as possible, that representative areas formed by combining counties shall have house seats apportioned to them on the basis of population, and that representative districts formed by dividing a county shall be as nearly equal in population as possible. The overall statewide picture regarding these requirements show the Hanna plan to be in the most accurate compliance therewith of any of the plans. As previously stated, we do not pick parts and parcels.

For all of the above reasons we determine that the-Hanna plan for senatorial and representative districting and apportionment, statewide and in the-several areas, most accurately complies with the constitutional requirements referred to in the seventh paragraph of article 4, § 6, of the Michigan Constitution of 1963. The Hanna plan, herein approved,, consists of the following for senate apportionment:-

Statewide Senate Plan No. 6

Genessee county Senate Plan No. 1

Macomb county Senate Plan No. 2

Oakland county Senate Plan No. 6

Wayne county Senate Plan No. 4

and the following for house of representatives apportionment :

Statewide house plan No. 9

Bay county house plan No. 2

Berrien county house plan No. 1

Calhoun county house plan No. 4

Genessee county house plan No. 6

Ingham county house plan No. 4

Jackson county house plan No. 1

Kalamazoo county house plan No. 3

Kent county house plan No. 10

Macomb county house plan No. 4

Muskegon county house plan No. 4

Oakland county house plan No. 7

Saginaw county house plan No. 3

St. Clair county house plan No. 2

Washtenaw county house plan No. 4

Wayne county house plan No. 8

Kelly, J., concurred with Dethmers, J.

1 Scholle v. Secretary of State, 360 Mich 1; Scholle v. Secretary of State, 367 Mich 176 (on remand from the United States supreme-court, 369 US 429 [82 S Ct 910, 8 U ed 2d 1]).