Scholle v. Secretary of State

104 N.W.2d 63, 360 Mich. 1

• Court: Michigan Supreme Court
• Decided: December 12, 1960
• Docket: Calendar 48,580
• Status: Published

Opinions

Kavanagh, J.

(dissenting). This is an original action of mandamus challenging various amendments to the Michigan Constitution (1908) as being violative of the equal protection provision of the Michigan Constitution (1908), art 2, § 1, and of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.¹

Plaintiff, a citizen of the United States and of the State of Michigan, resides in the Michigan twelfth senatorial district and is a qualified elector therein. He is a taxpayer and freeholder of the city of Royal Oak, Oakland county, Michigan. Plaintiff brings this suit individually and as president of the Michigan State AFL-CIO.

The original defendant is the Michigan secretary of State who, as such, is the chief election official of the State of Michigan. Among the duties the secretary of State is required to perform are:

(1) Giving notices of election of State senators.²

(2) Receiving nominating petitions or filing fees of candidates for State offices, including State senators in districts comprising more than 1 county.³

(3) Certifying the names of candidates who have duly filed for nomination.⁴

(4) Issuing certificates of election to candidates, including State senators in districts comprising more than one county.⁵

By order of the Court, Frank D. Beadle, a State senator, and Albert K. Blashfield, a citizen, were added as parties defendant in the cause. John W. Cummiskey, a citizen, John W. Fitzgerald, and Paul C. Younger, State senators, were permitted to intervene pursuant to the provisions of CL 1948, § 612.11 (Stat Ann § 27.663).

Plaintiff seeks:

(1) A declaration by this Court that Proposition No 3 of the general election of November, 1952, was an invalid amendment to the Michigan Constitution (1908), art 5, §§ 2 and 4, insofar as the Michigan senate is concerned, in that it denies plaintiff and other citizens of Michigan equal protection of the laws and the due process of law under the Fourteenth Amendment to the United States Constitution and the Michigan Constitution (1908), art 2, § 1.

(2) A declaration by this Court that there exists no valid senate apportioning or districting act extant in pursuance of the Michigan Constitution (1908), art 5, §§ 2 and 4, as unamended.

(3) A peremptory writ of mandamus out of and under the seal of this Court, commanding the defendant secretary of State not to issue 1960 election notices for State senators, nor to otherwise perform those acts requisite to the holding of elections for State senators according to the districts prescribed by the Michigan Constitution (1908), art 5, §§ 2 and 4, as colorably amended by Proposition No 3 of the general election of November, 1952, and by PA 1953, No 77,⁶ adopted pursuant thereto, and until such time as the Michigan legislature enacts valid legislation reapportioning the State senatorial districts in accordance with the Michigan Constitution (1908), art 5, §§ 2 and 4, as unamended, and the last Federal decennial census.

(4) The retaining of jurisdiction of this cause by this Court following such determination and the issuance of a writ of mandamus pending an opportunity for the enactment of timely, valid reapportionment legislation by the present Michigan legislature, on failure of which the defendant secretary of State further be directed to declare and conduct the 1960 election for State senators on an at-large basis and to take all necessary and appropriate steps therefor, the at-large method only to continue until such time as the Michigan legislature enacts legislation reapportioning the State senatorial districts pursuant to the Michigan Constitution (1908), art 5, §§ 2 a.id 4, as unamended, and in accordance with the last Federal decennial census.

Plaintiff’s petition sets forth that the Michigan Constitution (1908), art 5, §§ 2, 3, and 4, respecting legislative districting and apportionment was color-ally amended by Proposition No 3⁷ in the general election held November 4, 1952. Among other things, the 1952 amendment increased the size of the senate from 32 to 34 members, to be elected from single member districts identical, except as to 2 changes, with the pre-amendment districts. Further, Proposition No 3 as to senate apportionment abandoned the decennial reapportionment on a population basis previously required and thereby perpetually froze such existing districts, no matter what great changes or disparities of population might thereafter take place throughout the State (as they actually have since 1952).

The petition also sets forth that the districts in effect frozen in the 1952 amendment were established in 1925 by PA 1925, No 291,⁸ in rough reliance upon the 1920 Federal decennial 'census.

The petition states that despite the requirement of previous constitutional provisions⁹ the legislature neglected and failed its decennial reapportionment duty so that, at the time of the 1952 election, there existed variations exceeding 8 to 1 in district population, for example, 61,000 persons in the thirty-second district (Baraga, Keweenaw, Houghton, and Ontonagon counties) as compared to 544,000 in the eighteenth district (Wayne county) and 530,000 in the then twelfth district (Oakland and Washtenaw counties).

The petition points out that on the basis of projected 1960 figures, plaintiff’s district will have 724,000 persons, while the smallest, the thirty-second district, will have only 49,000, a variance of 15 to 1. Similar projections for 1970 show an average district population of 298,000 persons, with the largest, the twelfth district, to have 1,056,000, and the smallest, the thirty-second district, to have hut 41,000 persons, a variance of 25 to 1.

Plaintiff further alleges, and it is not denied by any of the defendants, that in the 1958 election 12 senators were elected from primarily urban areas in which the average population of the districts was 266,118 (according to the 1950 census figures) to represent 3,193,417 people. Twenty-two senators were elected from districts of average population of 144,470, or slightly more than half as large, to represent fewer people, a total of 3,178,349. Accordingly, less than half of the population of the State thereby gained control of almost 2/3 of the Michigan senate.

The petition illustrates that the net effect of all the foregoing is that the plaintiff’s vote and right of representation in the Michigan senate (according to 1960 projections) is but 1/15 of those voting and representation rights of a citizen in the thirty-second district.

It is further disclosed that the districts under Proposition No 3 have no correlation between size and representation. It is shown by exhibit that the average district size is 1,677 square miles, the Wayne county district average size is 86.7 square miles, while the twenty-eighth and thirtieth districts are 63 and 90 times as large, being respectively 5,471 and 7,832 square miles. Plaintiff further points out that other districts vary drastically in size and that actually districts side by side (presumably having thereby comparable regional characteristics) have similar great variations in area and in population.

Finally, plaintiff shows that no uniform correlation between district size and political units exists. Plaintiff contends that the method of division of senatorial districts is palpably arbitrary and capricious and has no criterion to determine the relationship of one district to another.

Plaintiff alleges that by virtue of the above-stated facts he is denied equal protection of the laws and due process of law under the Fourteenth Amendment to the United States Constitution and under the Michigan Constitution (1908), art 2, § 1. He asks a declaration that the 1952 amendment be declared invalid and inoperative, and seeks this relief through writ of mandamus.

Defendant secretary of State answers the petition saying:

(1) The relief sought by plaintiff requires solution of a political issue which cannot be resolved by judicial decision.

(2) Senatorial districting on a basis of area does not deny a republican form of government.

(3) Tbe equal protection of tbe laws provision of tbe Fourteenth Amendment to the United States Constitution is not violated, since—

(a) There is no discrimination within a unit;

(b) Area representation is proper and valid;

(c) The Negro voting cases do not apply to the question; and

(d) Constitutions of States seeking admission to the Union, and providing for legislative apportionment on some basis other than population, have been approved by Congress and the President subsequent to the adoption of the Fourteenth Amendment to the United States Constitution.

(4) The due process clause of the Fourteenth Amendment to the United States Constitution is not violated as—

(a) Area representation does not violate the due process clause of the United States Constitution; and

(b) Area representation conforms with our democratic traditions.

(•5) To forbid area representation would require the elimination of similar representative methods throughout our democratic system such as representation on—

(a) The county board of supervisors;

(b) City precincts; and

(c) Other levels of area representation.

(6) The relief prayed for by plaintiff cannot be granted for the following reasons:

(a) If this Court declares the 1952 amendment to article 5 of the Michigan Constitution (1908) invalid, there will remain no legislative body either de jure or de facto with power to rearrange senatorial districts and reapportion the legislature;

(b) Under a holding by this Court that a de facto legislature exists, the composition of the State senate would be unknown;

(c) If the legislature, whether de facto or de jure, refuses to reapportion, this Court has no power to compel action by mandamus or otherwise;

(d) The Michigan Constitution (1908) prevents holding elections at large for the office of State senator; and

(e) The plaintiff has an adequate remedy by seeking amendment of the State Constitution by vote of the electors.

The other defendants answer the petition alleging in substance the same arguments.

Briefs have been filed on behalf of all the defendants, and, in addition thereto, amicus briefs have been filed by the Metropolitan Detroit Branch of the American Civil Liberties Union and the Detroit Chapter of Americans for Democratic Action.

The present controversy is not a new one. It is as old as representative government. It has been kept new through the centuries by people seeking their natural rights, under the banner of freedom, from tyrannical denial of these rights. The first real natural expression of these rights is found in the Declaration of Independence, which reads in part as follows:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. — That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

From the moment of its conception this Country has been dedicated to the equal application of our laws. Following the adoption of the United States Constitution, when questions arose as to whether the equal application of our laws was a part of our Constitution, the Fourteenth Amendment was adopted in 1868, and ratified by the States, to eliminate for all time any question with respect to equal protection of the rights of citizens. During the course of our history a bloody civil war was fought in the name of equality. Within the past 50 years 2 world wars have been participated in by this Nation in the interests of freedom and justice. Free elections and equal representation during the last several years have dominated our foreign policy. Germany, Korea, and Poland are but a few of the countries in which we have attempted to obtain for the oppressed equal justice under law. The present controversy in this Country has been the subject of considerable litigation in both State and Federal courts. It has become a constant source of increasing national concern and attention. The subject has received extensive treatment under the heading of legislative reapportionment in numerous law review articles, and in magazines and editorial comments of our newspapers. Parenthetically, would it not be ludicrous were we, in our interest in establishing our system of justice and equality under law in other nations of the world, to find ourselves losing it at home. To most southern segregationists it would be amusing to hear the argument presented that “the people have a right to be wrong” and that the people can be deprived of their constitutional rights guaranteed by the Federal Constitution as long as it is done by constitutional amendment rather than by statute. Some of the States desiring segregated schools have passed .such amendments to their constitutions, but either have seen them stricken down by the courts or have voluntarily abandoned their position under them. Shuttlesworth v. Birmingham Board of Education (ND Ala), 162 F Supp ; Gibson v. Board of Public Instruction of Dade County, Florida (SD Fla), 170 F Supp 454.

In Hamilton v. Secretary of State, 212 Mich 31, Justice Fellows, who was joined hy Justices Brooke and Clark in the dissenting opinion, referring to a proposed State constitutional amendment said (p 43):

“If it abridges the privileges or immunities of the citizen or deprives him of life, liberty or property without due process of law it must fall before the superior mandate of the Federal Constitution whether it be a State statute or a provision of a State Constitution.”

The majority opinion did not pass on this question since they ruled that the writ of mandamus must issue to require the secretary of State to present the proposed constitutional amendment to the people, indicating that the Court had no right to pass on a constitutional amendment until after adoption. Certainly, they did not indicate a disagreement with the above quotation from the opinion of Justice Fellows.

Similarly bearing on the right of the people to adopt any kind of amendment they desire, when the people of Oregon by initiative measure, adopted by the people, amended their school law requiring parents and others having control of young children to send them to the primary schools of the State, the United States supreme court in the case of Pierce v. Society of Sisters, 268 US 510 (45 S Ct 721, 69 L ed 1070, 39 ALR 468), held such an act violated the Federal Constitution and struck it down.

In Bute v. Illinois, 333 US 640 (68 S Ct 763, 92 L ed 986), the court said (p 670):

“It is our province to decide whether the practice of the Illinois court in these cases, although admittedly in conformity with the law of Illinois, was so clearly at variance with procedure constituting ‘due process of law’ under the Fourteenth Amendment that these sentences must he completely invalidated.”

Defendants also contend senatorial districting on a basis of area does not deny a republican form of government. Plaintiff admittedly does not rely upon article 4, § 4, of the United States Constitution, guaranteeing a republican form of government, either for jurisdiction or relief. Defendants further contend that to forbid area representation would require the elimination of similar representative methods, such as the county board of supervisors, city precincts, and other levels of area representation. We do not have this question before us; and if we did, we do not think defendants’ reasoning would necessarily follow.

Defendants further allege that if the 1952 amendment is declared invalid, there would remain no legislative body with power to rearrange senatorial districts and reapportion the legislature. This argument needs little discussion. There exists at the present time a legislative body charged by the Constitution (if the 1952 amendment is invalid) with the duty to rearrange senatorial districts and reapportion the legislature. This it can do. We must assume when its legal and constitutional duty is pointed out to it, the legislature will carry out its responsibility in this regard without any need for compulsion. It is not to be presumed that the legislature would refuse to take such action as is necessary to comply with its duty under the State Constitution. We do not believe it would deliberately fail to perform its duty. Experience teaches us that legislatures so acted in Michigan, Minnesota, and Hawaii following court decisions. See: Giddings v. Secretary of State, 93 Mich 1 (16 LRA 402); Magraw v. Donovan (Minn), 163 F Supp 184; Dyer v. Kazuhisa Abe (Hawaii), 138 F Supp 220.

It would appear that the remaining contentions of plaintiff and the defenses of the defendants can be best discussed under the following 3 questions:

(1) Does a mandamus suit, directed to the secretary of State, challenging the 1952 amendment to article 5, §§ 2 and 4, of the Michigan Constitution, on grounds of conflict with the United States Constitution, Fourteenth Amendment, and the Michigan Constitution (1908), art 2, § 1, present a justiciable controversy of which this Court has jurisdiction?

(2) Does the 1952 initiative amendment to article 5, §§ 2 and 4 (by “Proposition 3”), respecting the Michigan senate, violate the equal protection of the laws and due process clauses of the Fourteenth Amendment to the United States Constitution and article 2, § 1, of the Michigan Constitution?

(3) May and should the Court grant the remedy prayed — a declaration of invalidity of the 1952 initiative amendment as to the senate, mandamus to restrain the holding of 1960 elections under the 1952 districting, the retaining of jurisdiction pending due and timely reapportionment under the previous constitutional provisions and the last Federal decennial census by the legislature itself, and- — only in the event of prior legislative failure to duly reapportion — the holding of elections at large?

It is defendants’ view that congressional or even legislative apportionment is purely a political question and, therefore, should be avoided by the courts. Defendants rely mainly upon Federal cases in this regard, beginning with the case of Colegrove v. Green, 328 US 549 (66 S Ct 1198, 90 L ed 1432). In this case the supreme court refused to consider the validity or the equities or inequities of a congressional apportionment statute of Illinois with its possible resulting conflict between congress and the State. In this case 7 justices were sitting. Four justices believed the court had jurisdiction to decide the issue; 3 justices believed it lacked jurisdiction; Justice Rutledge, in a concurring opinion, agreed the court had jurisdiction but, believing equity jurisdiction is discretionary, and because of lack of time to change the election machinery in the congressional districts involved, he therefore, in the exercise of the court’s discretion, voted to deny relief. Thus, contrary to defendants’ position, a majority of the justices participating in the Colegrove decision felt the court had jurisdiction to decide the issue.

In the case of MacDougall v. Green, 335 US 281 (69 S Ct 1, 93 L ed 3), complainant sought an injunction against the enforcement of a statute of Illinois setting out the requirements for a new political party. The district court found want of Federal jurisdiction and denied the injunction. The supreme court of the United States, in its per curiam opinion, observed that the State has the power, in pursuance of State policy, to assure a proper diffusion of political initiative between thinly populated counties and the concentrated masses, and that this would not violate any provisions of the Federal Constitution. Five justices joined in the per curiam opinion denying jurisdiction for reasons set forth in Colegrove v. Green, supra. Justice Rutledge again concurred on the ground that equity should decline to exercise its jurisdiction because the question was presented on the eve of a national election, only 12 days away, and to grant relief at that time would unquestionably disenfranchise certain groups of voters. Justice Rutledge concluded his opinion as follows (p 287):

“Accordingly, I express no opinion concerning the constitutional and other questions presented. As in Colegrove v. Green, 328 US 549 (66 S Ct 1198, 90 L ed 1432), I think the case is one in which, for the reasons stated, this court may properly, and should, decline to exercise its jurisdiction in equity. Accordingly, but solely for this reason, I agree that the judgment refusing injunctive relief should be affirmed.”

Justices Douglas, Black, and Murphy dissented, holding (p 288) :

“Free and honest elections are the very foundation of our republican form of government. * * * Discrimination against any group or class of citizens in the exercise of these constitutionally protected rights of citizenship deprives the electoral process of integrity. * * *

“None would deny that a State law giving some citizens twice the vote of other citizens in either the primary or general election would lack that equality which the Fourteenth Amendment guarantees. See Nixon v. Herndon, 273 US 536 (47 S Ct 446, 71 L ed 759).”

It is to be noted that the important language in the per curiam opinion is the “proper diffusion.” With this, we do not disagree. To constitute proper diffusion, there must be rational treatment of all within a class. If population is not the rational criterion under Proposition No 3, it naturally follows that some other criterion, uniformly, rationally, and nondiscriminatorily applied, must be used. It is not necessary that the apportionment by population be exact. In fact, perfect exactness in apportionment, even if obtainable, would be removed upon the subsequent death or birth of an individual. The supreme court of Wisconsin in State, ex rel. Attorney General, v. Cunningham, 81 Wis 440 (51 NW 724, 15 LRA 561), said (p 484):

“Perfect exactness in the apportionment according to the number of inhabitants is neither required nor possible. # * * If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the Constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion whatever.”

In the cases of South v. Peters, 339 US 276 (70 S Ct 641, 94 L ed 834), Cook v. Fortson and Turman v. Duckworth, 329 US 675 (67 S Ct 21, 91 L ed 596), Radford v. Gary, 352 US 991 (77 S Ct 559, 1 L ed 2d 540), Kidd v. McCanless, 352 US 920 (77 S Ct 223, 1 L ed 2d 157), and other cases cited by the defendants, the supreme court of the United States merely entered per curiam opinions (with several dissents) citing Colegrove v. Green, supra, and MacDougall v. Green, supra, as authority for the position that Federal courts had consistently refused to exercise their equity powers in cases arising from a State’s geographical distribution of electoral strength among its political subdivisions. All other cases cited are from lower Federal courts, which, on the authority of Colegrove and MacDougall have declined to enter the field.

A 3-judge court in the district court of the United States for the middle district of Tennessee, Nashville division, on December 21, 1959, in the case of Baker v. Carr, 179 F Supp 824, clearly set forth the position of the Federal courts in a per curiam opinion in which they said (p 826):

“The question of the distribution of political strength for legislative purposes has been before the supreme court of the United States on numerous occasions. From a review of these decisions there can be no doubt that the Federal rule, as enunciated and applied by the supreme court, is that the Federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment. Colegrove v. Green, 328 US 549 (66 S Ct 1198, 90 L ed 1432); Cook v. Fortson and Turman v. Duckworth, 329 US 675 (67 S Ct 21, 91 L ed 596); Colegrove v. Barrett, 330 US 804 (67 S Ct 973, 91 L ed 1262); MacDougall v. Green, 335 US 281 (69 S Ct 1, 93 L ed 3); South v. Peters, 339 US 276 (70 S Ct 641, 94 L ed 834); Remmey v. Smith, 342 US 916 (72 S Ct 368, 96 L ed 685); Anderson v. Jordan, 343 US 912 (72 S Ct 648, 96 L ed 1328); Kidd v. McCanless, 352 US 920 (77 S Ct 223, 1 L ed 2d 157); Radford v. Gary, 352 US 991 (77 S Ct 559, 1 L ed 2d 540).

“In view of this array of decisions by our highest court, charting the unmistakable course which this court must pursue in the instant case, it is unnecessary to consider decisions by lower Federal courts.”

In the same case the court further said (p 828):

“With the plaintiffs’ argument that the legislature of Tennessee is guilty of a clear violation of the State constitution and of the rights of the plaintiffs the court entirely .agrees. It also agrees that the evil is a serious one which should be corrected without further delay.”

In Dyer v. Kazuhisa Abe, 138 F Supp 220, 234, the United States district court for the district of Hawaii, on February 10, 1956, said, since it was a Federal court ruling with respect to territorial officers, the rules in Colegrove v. Green, supra, MacDougall v. Green, supra, and others, did not apply. It was in the same position in this regard as a State court would be in ruling with respect to State officials. The United States district court had authority over territorial officials. The delicate area of State-Federal relations mentioned in Colegrove, supra, and MacDougall, supra, was not involved.

It is apparent, then, that the cases relied upon by the defendants do not decide that a State court cannot determine the Federal constitutionality of a State statute or State constitutional provision which apportions legislative districts. Inferentially at least, they hold that the State court is the one to consider these questions. The United States supreme court has held that it is the duty of State courts to interpret and enforce obedience to the Constitution of the United States and to restrain any violation thereof.

In the case of In re Green River Drainage Area, 147 F Supp 127, citing Robb v. Connolly, 111 US 624, 637 (4 S Ct 544, 28 L ed 542), the court said (p 148):

“Upon the State courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by the Constitution and laws of the United States whenever those rights are involved in any suit or proceeding before them.”

The United States supreme court in United States v. Bank of New York & Trust Co., 296 US 463, 479 (56 S Ct 343, 80 L ed 331), employed the identical language above quoted in holding that both State and Federal courts have the obligation to enforce every constitutional right secured by the United States Constitution. See, also, Testa v. Katt, 330 US 386 (67 S Ct 810, 91 L ed 967, 172 ALR 225).

In Irvin v. Dowd, 359 US 394 (79 S Ct 825, 3 L ed 2d 900), the court said (p 404):

“In this way, in our view, the State supreme court discharged the obligation which rests upon ‘the State courts, equally with the courts of the Union, * * * to guard, enforce, and protect every right granted or secured by the Constitution of the United States.’ Robb v. Connolly, 111 US 624, 637.”

Justice Butzel, writing in Book Tower Garage v. Local No. 415, 295 Mich 580, said (p 587):

“It is the duty of the .State courts as well as the courts of the Nation to guard and enforce every right secured by the Federal Constitution. Robb v. Connolly, 111 US 624 (4 S Ct 544, 28 L ed 542) ; Mooney v. Holohan, 294 US 103 (55 S Ct 340, 79 L ed 791, 98 ALR 406). The Federal Constitution is The supreme law of the land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ (Art 6, § 2).”

It is apparent then that, since the Federal courts have refused to enter the field and since the supreme court of the United States has not ruled on the question of whether an illegal reapportionment violates the Fourteenth Amendment to the Constitution of the United States, this Court, clearly having jurisdiction to hear the case, has the duty to dispose of the question since a justiciable issue has been raised by this action.

Legislative reapportionment is not before the Supreme Court of the State of Michigan for the first time, for it was the subject of rulings by this Court as early as 1892 — Board of Supervisors of Houghton County v. Secretary of State, 92 Mich 638 (16 LRA 432), and Giddings v. Secretary of State, 93 Mich 1 (16 LRA 402). As a consequence, we do not have to look outside this State to determine whether or not a justiciable controversy exists over which this Court has jurisdiction.

Giddings v. Secretary of State, supra, establishes adequate precedent for the Court’s jurisdiction of this suit. There, the Michigan Supreme Court struck down a statute of this State which failed to comply with the provisions of the Constitution with reference to equal representation. Three opinions written for a unanimous Court laid a factual situation which is equally applicable to the gerrymandering that took place prior to and in the adoption of the 1952 Proposition No 3. There the Court discussed all of the objections that are presented by the defendants in this case as to why this Court does not have jurisdiction of the controversy! 'Justice Grant, writing for the Court, there said (pp 3, 4, 7, 9) :

“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 ease properly before it, to determine the constitutionality of the act in question. The Constitution of this State provides:

“ ‘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 principal and its facts to the present one. State, ex rel. Attorney General, v. Cunningham, 81 Wis 440 (51 NW 724, 15 LRA 561). 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. * * *

“It was never contemplated that 1 elector should possess 2 or 3 times more influence, in the person of a representative or senator, than another elector in another district. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in such matters lies at the basis of our free government. It is guaranteed, not only by the Constitution, but by the ordinance of 1787, organizing the territory out of which the State of Michigan was carved. * * *

“Our conclusions therefore are:

“1. The petition is properly brought into this Court by the relator.

“2. The Court has jurisdiction in the matter.

“3. The apportionment acts of 1891 and 1885 are unconstitutional and void.

“4. The writ of mandamus must issue, restraining the respondent from issuing the notice of election under the act of 1891, and directing him to issue the notice under the apportionment act of 1881, unless the executive of the State shall call a special session of the legislature to make a new apportionment before the time expires for giving such notice.”

Chief Justice Morse in a concurring opinion in the same case said (pp 10, 11) :

“The legislature in the senatorial apportionment of 1891 went far beyond any legitimate discretion, and violated the rules of equity, when it was not necessary, or even proper, to do so. * * * The twenty-seventh and twenty-ninth districts lie contiguous to each other, so that there was no excuse for putting 97,330 people in one and only 40,033 in the other.”

The Chief Justice went on to say (p 11) that neither of the senatorial apportionments were

“arranged in view of the Constitution or the rights of the electors of this State. While it is true that the motive of an act need not be inquired into to test its constitutionality, I believe that the time for plain speaking has arrived in relation to the outrageous practice of gerrymandering, which has become so common, and has so long been indulged in, without rebuke, that it threatens not only the peace of the people, but the permanency of our free institutions. The courts alone, in this respect, can save the rights of the people, and give to them a fair count and equality in representation. It has been demonstrated that the people themselves cannot right this wrong. They may change the political majority in the legislature, as they have often done, but the new majority proceeds at once to make an apportionment in the interest of its party, as unequal and politically vicious as the one that it repeals. There is not an intelligent school boy but knows what is the motive of these legislative apportionments, and it is idle for the courts to excuse the action upon other grounds, or to keep silent as to the real reason, which is nothing more nor less than partisan advantage taken in defiance of the Constitution, and in utter disregard of the rights of the citizen.”

Justice McGrath, in a concurring opinion in the same case, speaking of equality of representation, said (p 13):

“Any apportionment which defeats that purpose is vicious, contrary not only to the letter of the Constitution, but to the spirit of our institutions, and subversive of popular government. Power secured or perpetuated by unconstitutional methods is power usurped, and usurpation of power is a menace to free institutions.”

These are strong words, but if the situation called for strong words in the year 1892, the situation in 1960 demands even stronger ones, because the extenuated circumstances from 1892 to date have reaped an even greated reward for those who prefer unrepresentative government.

The same rule with respect to jurisdiction is found in Board of Supervisors of Houghton County v. Secretary of State, 92 Mich 638 (16 LRA 432), Williams v. Secretary of State, 145 Mich 447, and Stevens v. Secretary of State, 181 Mich 199. These present adequate answers as to whether the State Court has jurisdiction to decide the questions involved, particularly with reference to the question of a political issue.

It is admitted by the defendants in their briefs that the Michigan Supreme Court has ruled several times on the meaning of the equal protection of the laws provisions of the United States and the Michigan Constitutions. In Tomlinson v. Tomlinson, 338 Mich 274, this Court said (p 278) :

“The guaranty of equal protection of the laws is not one of equality of operation or apxolication to all citizens of the State or nation, but rather one of equality of operation or applicability within the particular class affected, which classification must, of course, be reasonable.”

6 MLP, Constitutional Law, § 202, pp 157, 158, sets forth the following rule:

“Accordingly, equal protection of the laws does not prevent, and is not violated by, a reasonable classification by legislative enactment, if it applies alike to all persons within such plass and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.”

This rule has been followed by our Court in Little v. American State Bank of Dearborn, 263 Mich 645; In re Phillips, 305 Mich 636; Tribbett v. Village of Marcellus, 294 Mich 607; Godsol v. Michigan Unemployment Compensation Commission, 302 Mich 652 (142 ALR 910).

The rule with respect to what type of classification is permissible was discussed in the case of People v. Hall, 290 Mich 15, and in Kelley v. Judge of Recorder’s Court of Detroit, 239 Mich 204, where this Court said (p 214):

“The fundamental rule of classification is that it shall not he arbitrary, must be based on substantial distinctions and be germane to the purpose of the law.”

The defendants have no quarrel with this rule of law, and admit that it has been the law in this State and the law as defined by the supreme court of the United States for a great many years. The controlling .case in Michigan is Haynes v. Lapeer Circuit Judge, 201 Mich 138 (LRA1918D, 233). In this case the Court considered the constitutionality of a legislative act,¹¹ the title of which read as follows:

“An act to authorize the sterilization of mentally defective persons maintained wholly or in part by public expense in public institutions in this State and to provide a penalty for the unauthorized use of the operations provided for.”

Briefly summarized this act authorized the management of any publicly maintained institution of the State, authorized to hold in custody individuals who had been adjudged by a court of competent jurisdiction mentally defective or insane, to render incapable of procreation, by the operations mentioned, inmates determined to be the proper subjects for such treatment. The State boards, physicians and surgeons in charge of the institutions were charged with authority to examine such inmates and to determine the advisability of such operation upon them. Notice was to be given to parents or guardians, and, if they objected, the matter was to be referred to the probate court of the county in which the institution was located. The probate court was then authoxized to determine the question of sanity and the necessity of the operation. Such a petition was filed in the probate court of Lapeer county for performing-such an operation upon one of the female patients. The probate judge entered an order denying the petition. The medical superintendent sought a writ of mandamus to compel the Lapeer circuit judge to vacate the order of the probate judge denying the petition. The order to show cause raises the question of class legislation and the deprivation of the rights of the citizens guaranteed under the equal protection clauses of the Constitution of the United States and the Constitution of the State of Michigan. The circuit judge held, and was affirmed by this Court, that in the enactment of this legislation, the legislature had selected out of what might be termed a class of mentally defective persons only those already under public restraint, leaving immune from its operation all others of like kind to whom the reason for the legislative remedy is normally and equally, at least, applicable. Extending immunities and privileges to one part of a group which are denied to the remaining part is invalid class legislation. This Court said in affirmance (p 145):

“We are constrained to concur in the opinion of the learned circuit judge that this law as framed does not afford, in its scope, those affected by it that equal protection under the laws guaranteed by the Constitution, and so limits the class of defectives covered by its provisions as to be clearly class legislation without substantial distinction within constitutional inhibition.”

The legislature again by PA 1923, No 285, attempted to provide for sterilization of feeble-minded persons who are unable to support any children they might have, and whose children probably would become public charges. The evident purpose of the legislature enacting this provision was to prevent the public from being required to support the children of mentally defective persons. A petition was filed in the "Wayne county probate'court to sterilize a 16-year-old boy who had been duly adjudged to be feeble-minded by the probate court of Wayne county and was confined in the State home at Lapeer. The proceedings resulted in an order by the court appointing a physician to treat the boy by X-ray or vasectomy in order to render him incapable of procreation. The guardian ad litem for the boy sought a reversal of this order and brought certiorari to this Court. Judge McDonald, speaking for the Court, in Smith v. Wayne Probate Judge, 231 Mich 409 (40 ALR 515), said (pp 420, 421) :

“The evident purpose of the legislature * * * was to protect the public from being required to support the children of mentally defective persons. In attempting to do so, an element inconsistent with the beneficial purpose of the statute was introduced. It is not germane to the object of the enactment as expressed in its title. It carves a class out of a class. In that it does not apply to those of the class who may be financially able to support their children, it is not made applicable alike to all members of the class. We think that it is subject to the constitutional objection discussed * * * in Haynes v. Lapeer Circuit Judge, supra, and * * * in Peninsular Stove Co. v. Burton, 220 Mich 284.”

The Court proceeded to hold this provision of the statute unconstitutional in that it violated the equal protection clause of the Fourteenth Amendment to the United States Constitution and the similar provisions of the Michigan Constitution in failing to treat all within the class in the same manner.

This rule has been followed by this Court numerous times, as evidenced by the following cases: Davidow v. Wadsworth Manfg. Co., 211 Mich 90, 96 (12 ALR 605); In re Brewster Street Housing Site, 291 Mich 313, 339; People v. Chapman, 301 Mich 584, 597; Burgess v. City of Detroit, 359 Mich 269.

Turning to decisions of the United States supreme court, in Truax v. Corrigan, 257 US 312 (42 S Ct 124, 66 L ed 254, 27 ALR 375), the court said (pp 332, 333) :

“Our whole system of law is predicated on the general, fundamental principle of equality of application of the law. ‘All men are equal before the law/ ‘This is a government of laws and not of men/ ‘No man is above the law/ are all maxims showing the spirit in which legislatures, executives, and courts are expected to make, execute, and apply laws. But the framers and adopters of this amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty.

“The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process. Mr. Justice Field, delivering the opinion of this Court in Barbier v. Connolly, 113 US 27, 32 (5 S Ct 357, 28 L ed 923), of the equality clause, said — ‘Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.’ In Hayes v. Missouri, 120 US 68 (7 S Ct 350, 30 L ed 578), the court speaking through the same justice Said the Fourteenth Amendment ‘does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which, it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ Thus the guaranty was intended to secure equality of protection not only for all but against all similarly situated. Indeed, protection is not protection unless it does so. Immunity granted to a class, however limited, having the effect to deprive another class, however limited, of a personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a larger class.

“Mr. Justice Matthews, in Yick Wo v. Hopkins, 118 US 356, 369 (6 S Ct 1064, 30 L ed 220), speaking for the court of both the due process and the equality clause of the Fourteenth Amendment, said:

“ ‘These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.’ ”

The court went on to say (pp 337, 338):

“Classification must be reasonable. As was said in Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 US 150, 155 (17 S Ct 255, 41 L ed 666), classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without such basis..’ As was said in Magoun v. Illinois Trust & Savings Bank, 170 US 283, 293 (18 S Ct 594, 42 L ed 1037): ‘The rule [i.e., of the equality clause] is not a substitute for municipal law; it only prescribes that that law have the attribute of equality of operation, and equality of operation does not mean indiscriminate operation on persons merely as such, but on persons according to their relations.’ The same 'principle is repeated and enforced in Southern R. Co. v. Greene, 216 US 400, 417 (30 S Ct 287, 54 L ed 536): ‘While reason.able classification is permitted, without doing violence to the equal protection of the laws, such classifi1 cation must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis.’ Classification is the most inveterate of our reasoning processes. ¡We can scarcely think or speak without consciously or unconsciously exercising it. It must therefore obtain in and determine legislation; but it must regard real resemblances and real differences between things, and persons, and class them in accordance with their pertinence to the purpose in hand. Classification like the one with which we are here dealing is said to be the development of the philosophic thought of the world and is opening the door to legalized experiment. When fundamental rights are thus attempted to be taken away, however, we may well subject such experiment to attentive judgment. The Constitution was intended, its very purpose was, to prevent experimentation with the fundamental rights of the individual. We said through Mr. Justice Brewer, in Muller v. Oregon, 208 US 412, 420 (28 S Ct 324, 52 L ed 551, 13 Ann Cas 957), that ‘it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking.’ ”

The court also stated (pp 329, 330):

“It is true that no one has a vested right in any particular rule of the common law, but it is also true that the legislative power of a State can only be ■exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles.”

In the case of Skinner v. Oklahoma, 316 US 535 (62 S Ct 1110, 86 L ed 1655), dealing with a sterilization statute from Oklahoma, the United States supreme court had this to say (p 541) :

“The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ Tick Wo v. Hopkins, 118 US 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Missouri, ex rel. Gaines, v. Canada, 305 US 337 (59 S Ct 232, 83 L ed 208).”

The court in this case, having reference to Smith v. Wayne Probate Judge, 231 Mich 409 (40 ALR 515), said (316 US 542):

“The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.”

In Hartford Steam Boiler Ins. Co. v. Harrison, 301 US 459 (57 S Ct 838, 81 L ed 1223), in which the court held a Georgia statute in violation of the equal protection clause of the Federal Constitution, Mr. Justice McEeynolds, speaking for the court, said (pp 461, 462):

“The applicable principle in respect of classification has often been announced. It will suffice to quote a paragraph from Louisville Gas & Electric Co. v. Coleman, 277 US 32, 37, 38 (48 S Ct 423, 72 L ed 770).

“ ‘It may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 US 321, 337 (6 S Ct 57, 29 L ed 414); Magoun v. Illinois Trust & Savings Bank, 170 US 283, 293 (18 S Ct 594, 42 L ed 1037), and that it applies to the exercise of all the powers of the State which can affect the individual or his property, including the power of taxation. County of Santa Clara v. Southern Pac. R. Co. (Cal), 18 F 385, 388-399; Railroad Tax Cases (Cal), 13 F 722, 733. It does not, however, forbid classification; and the power of the State to classify for purposes of taxation is of wide range and flexibility, provided always, that the classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 US 412, 415 (40 S Ct 560, 64 L ed 989); Air-Way Corp. v. Day, 266 US 71, 85 (45 S Ct 12, 69 L ed 169); Schlesinger v. Wisconsin, 270 US 230, 240 (46 S Ct 260, 70 L ed 557, 43 ALR 1224). That is to say, mere difference is not enough: the attempted classification “must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” Gulf, C. & S. F. R. Co. v. Ellis, 165 US 150, 155 (17 S Ct 255, 41 L ed 666). Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision. Compare Martin v. District of Columbia, 205 US 135, 139 (27 S Ct 440, 51 L ed 743); Bell’s Gap R. Co. v. Pennsylvania, 134 US 232, 237 (10 S Ct 533, 33 L ed 892).’

“Despite the broad range of the State’s discretion, it has a limit which must be maintained if the constitutional safeguard is not to be overthrown. Discrimihations are not to be supported by mere fanciful conjecture. Borden’s Farm Products Co. v. Baldwin, 293 US 194, 209 (55 S Ct 187, 79 L ed 281). They cannot stand as reasonable if they offend the plain standards of common sense.”

In. the case of Snowden v. Hughes, 321 US 1 (64 S Ct 397, 88 L ed 497), the court wrote (p 11):'

“Where discrimination is sufficiently shown, the, right to relief under the equal protection clause is’ not diminished by the fact that the discrimination relates to political rights. McPherson v. Blacker, 146 US 1, 23, 24 (13 S Ct 3, 36 L ed 869); Nixon v. Herndon, 273 US 536, 538 (47 S Ct 446, 71 L ed 759); Nixon v. Condon, 286 US 73 (52 S Ct 484, 76 L ed 984, 88 ALR 458); see Pope v. Williams, 193 US 621 (24 S Ct 573, 48 L ed 817).”

In Southern R. Co. v. Greene, 216 US 400 (30 S Ct 287, 54 L ed 536), Mr. Justice Day, speaking for the. court, said (pp 412, 413):

“The Federal Constitution, it is only elementary to say, is the supreme law of the land, and all its applicable provisions are binding upon all within the territory of the United States. Whenever its protection is invoked the courts of the United States, both State and Federal, are bound to see that rights guaranteed by the Federal Constitution are not violated by legislation of the State. One of the provisions of the Fourteenth Amendment thus binding upon every State of the Federal Union prevents any State from denying to any person or persons within its jurisdiction the equal protection of the laws. * * *

“The equal protection of the laws means subjection to equal laws, applying alike to all in the same situation. If the plaintiff is a person within the jurisdiction of the State of Alabama within the 'meaning of the Fourteenth Amendment, it is entitled to stand before the law upon equal terms, to enjoy the same rights as belong to, and to bear the same burdens as are imposed upon, other persons in a like situation. * * #

“ ‘The inhibition of the amendment that no State shall deprive any person within its jurisdiction of the equal protection of the laws was designed.-to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation.’ ”

Similarly, in the case of Smith v. Cahoon, 283 US 553 (51 S Ct 582, 75 L ed 1264), the court, in striking down a Florida statute which on its face made no distinction between a common carrier and a private carrier, said (pp 566, 567):

“But the constitutional guaranty of equal protection of the laws is interposed against discriminations that are entirely arbitrary. In determining what is within the range of discretion and what is arbitrary, regard must be had to the particular subject of the State’s action. * * * So far as the statute was designed to safeguard the public with respect to the use of the highways, we think that the discrimination it makes between the private carriers which are relieved of the necessity of obtaining certificates and giving security, and a carrier such as the appellant, was wholly arbitrary and constituted a violation of the appellant’s constitutional right. ‘Such a classification is not based on anything having relation to the purpose for which it is made.’ Air-Way Corp. v. Day, 266 US 71, 85 (45 S Ct 12, 69 L ed 169); Connolly v. Union Sewer Pipe Co., 184 US 540, 563, 564 (22 S Ct 431, 46 L ed 679); Southern R. Co. v. Greene, 216 US 400, 417 (30 S Ct 287, 54 L ed 536); Truax v. Corrigan, 257 US 312, 332, 333 (42 S Ct 124, 66 L ed 254, 27 ALR 375); Louisville Gas & Electric Co. v. Coleman, 277 US 32, 37 (48 S Ct 423, 72 L ed 770).”

In a United States supreme court case decided September 12, 1958, Cooper v. Aaron, 358 US 1 (78 S Ct 1399, 78 S Ct 1401, 3 L ed 2d 3, 3 L ed 2d 5, 3 L ed 2d 19), the supreme court, speaking with reference to the integration of public schools in Little Rock, Arkansas, said (pp 17-19):

“ ‘Whoever, by virtue of public position under a State government, * * * denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.’ Ex parte Virginia, 100 US 339, 347 (25 L ed 676). Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 US 313 (25 L ed 667); Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 US 230 (77 S Ct 806, 1 L ed 2d 792); Shelley v. Kraemer, 334 US 1 (68 S Ct 836, 92 L ed 1161, 3 ALR2d 441); or whatever the guise in which it is taken, see Derrington v. Plummer (CCA 5), 240 F2d 922; Department of Conservation and Development v. Tate (CCA 4), 231 F2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this court in the Brown Case [Brown v. Board of Education of Topeka, 347 US 483 (74 S Ct 686, 98 L ed 873, 38 ALR2d 1180), 349 US 294 (75 S Ct 753, 99 L ed 1083)], can neither be nullified openly and directly by State legislators or State executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’ Smith v. Texas, 311 US 128, 132 (61 S Ct 164, 85 L ed 84).

_ “What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the governor and legislature that they are not bound by our holding in the Brown Case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

“Article 6 of the Constitution makes the Constitution the ‘supreme law of the land.’ In 1803, Chief •Justice Marshall, speaking for a unanimous court, referring to the Constitution as ‘the fundamental and paramount law of the Nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch. (5 US) 137, 177 (2 L ed 60), that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ * * * It follows that the interpretation of the Fourteenth Amendment enunciated by this court in the Brown Case is the supreme law of the land, and article 6 of the Constitution makes it of binding effect on the States ‘anything in the Constitution or laws of any State to the contrary notwithstanding.’ * * *

“No State legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous court in saying that: ‘If the legislatures of the. several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.’ United States v. Peters, 5 Cranch (9 US), 115, 136 (3 L ed 53). A governor who asserts a power to nullify a Federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous court, ‘it is manifest that the fiat of a State governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of State power would be but impotent phrases.’ Sterling v. Constantin, 287 US 378, 397, 398 (53 S Ct 190, 77 L ed 375).”

Again in Hernandez v. Texas, 347 US 475 (74 S Ct 667, 98 L ed 866), the court, dealing with a systematic exclusion of persons of Mexican descent from service as jury commissioners, said (p 478):

“When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination dne to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro.”

Again in Phillips Chemical Co. v. Dumas Independent School District, 361 US 376 (80 S Ct 474, 4 L ed 2d 384), the court said (p 385):

“The State’s power to classify is, indeed, extremely broad, and its discretion is limited only by constitutional rights and by the doctrine that a classification may not be palpably arbitrary.”

The question then is: Does disposition of Proposition No 3 constitute equality of operation or applicability within the class affected? The defendants argue that it does, since every citizen within a particular senatorial district has an equal right to cast a vote for a senator with all other citizens within the same senatorial district. Is this the test? Clearly, it is not. The test is found in the determination of the class. The class is those voting within the State of Michigan for the office of State senator. Therefore, the test would be: Has each citizen voting for State senator in the State of Michigan the right to cast a vote for State senator equal with that of all other citizens? If they do not, and I think it is agreed they do not, then clearly all within the same classification have not been treated equally. This alone, however, under the law would not necessarily declare the amendment in violation of the due process clause. There is another factor which has to be considered, and that is: Is this discrimination palpably arbitrary and unreasonable? Is there any reasonable criterion set up to determine the area districts spelled out in the amendment? In examining this situation, we find that they certainly are not alike so far as population is concerned. When it comes to the question of area, admittedly there is no resemblance between districts. Certainly, it is not a similarity of interests, since there is a substantial distinction between districts which are located side by side insofar as population and area are concerned, even though they have common regional characteristics and interests.

I have searched in vain in the briefs for, and the oral arguments have failed to submit, any reasonable or rational classification or criterion upon which the existing constitutional amendment could be upheld. In oral arguments before the Court it was admitted by both sides that no such criterion existed. In fact, it was argued by the defendants that none was needed — that the people had a right to make any kind of classification they desired, rational or otherwise. It appears from the record, and is a matter of common knowledge, that gross population inequality exists among the senatorial districts. In short, there is no rational correlation in the present senatorial districts as set forth in the 1952 amendment between representation of area, political units, interests, population, or any combination of these. How then were the lines drawn for the present amendment ? The answer is very simple, and one that is known to every school boy and girl in the State of Michigan, and one of which certainly this Court can take judicial notice. It was done for the arbitrary and intentional purpose of maintaining the control of the State legislative government in the hands of a relatively few people. Prior to 1952, the legislature, which had the responsibility for reapportioning the Michigan senate according to population,¹² failed to carry out its constitutional obligation and duty from the year 1925 to 1952. The legislature, in so violating the constitutional mandate, created districts which gave it in 1952 the kind of control it wanted. Proposition No 3, the 1952 amendment, was designed and admittedly promoted for the very purpose of freezing the existing districts so this control could be perpetuated. This we find as a fact.

If we project into the future even such a short time as 1970, we will find that an even smaller minority of people will be governing Michigan. The unrepresentative senate would be able to veto' any legislation, progressive or otherwise, to the eventual downfall of Michigan itself.

The only designations that can be given the 1952 amendment are palpably arbitrary, discriminatory, and unreasonable, and as such it is class legislation which deprives plaintiff and other citizens of Michigan of their rights in violation of the Fourteenth Amendment to the United States Constitution.

Two questions were asked by the Court. Both involved questions of violation of our State Constitution. Both were procedural questions. We find the 1952 amendment void in that it denies plaintiff and other citizens of Michigan equal protection of the laws contrary to the Fourteenth Amendment to the United States Constitution, and we find no valid senate apportioning or districting act in existence in pursuance of the Michigan Constitution (1908), art 5, §§ 2 and 4, as unamended. We need not discuss any of the State questions.

Writ of mandamus should issue out of and under the seal of this Court, commanding the defendant secretary of State not to issue 1960 election notices for State senators, nor to otherwise perform those acts requisite to the holding of elections for State senators according to the districts prescribed by the Michigan Constitution (1908), art 5, §§ 2 and 4, as colorably amended by Proposition No 3 of the general election of November, 1952, and by PA 1953, No 77,¹³ adopted pursuant thereto, until such time as the Michigan legislature enacts valid legislation reapportioning the State senatorial districts in accordance with the Michigan Constitution (1908), §§ 2 and 4, as unamended, and the last Federal decennial census.

Jurisdiction of this cause should be retained by this Court pending an opportunity for the enactment of timely, valid reapportionment legislation by the present Michigan legislature. If the legislature fails to so act within 60 days from the date of the filing of this opinion, the defendant secretary of State should be directed to petition this Court for further instructions. Plaintiff and other parties may so petition if they desire.

A public question being involved, no costs are allowed.

1 “All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” Mich Const (1908), art 2, § 1.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall mate or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” US Const, am 14, § 1.

2 CLS 1956, § 168.648 (Stat Ann 1956 Rev § 6.1648).

3 CLS 1956, § 168.163, as amended by PA 1957, No 125 (Stat Ann 1959 Cum Supp § 6.1163).

4 CLS 1956, § 168.552, as amended by PA 1958, No 25 (Stat Ann 1959 Cum Supp § 6.1552).

5 CLS 1956, § 168.845 (Stat Ann 1959 Cum Supp § 6.1845).

6 CLS 1956, §§ 4.601, 4.602 (Stat Ann 1959 Cum Supp §§ 2.27[1], 2.27 [2]).

7 “The senate shall consist of 34 members. Senators shall be ■sleeted for 2 years and by single districts. Such districts shall be numbered from 1 to 34, inclusive, and shall consist of the territory within the boundary lines of the counties existing at the time of the adoption of this amendment, as follows: First through fifth, eighteenth, twenty-first, Wayne county; nineteenth, Lenawee and Monroe counties; tenth, Jackson and Hillsdale counties; ninth, Calhoun and Branch counties; sixth, Kalamazoo and St. Joseph counties; seventh, Cass and Berrien counties; eighth, Van Burén, Allegan and Barry counties; fourteenth, Ingham and Livingston counties; twelfth, Oakland county; eleventh, Macomb county; twentieth, Tuscola, Sanilac and Huron counties; thirteenth, Genesee county; fifteenth, Clinton, Shiawassee and Eaton counties; sixteenth and seventeenth, Kent county; twenty-third, Muskegon and Ottawa counties; twenty-fifth, Mecosta, Montcalm, Gratiot and Ionia counties; twenty-second, Saginaw county; twenty-fourth, Bay, Midland and Isabella counties; twenty-sixth, Newaygo, Oceana, Mason, Lake and Manistee counties; twenty-eighth, Osceola, Clare, Gladwin, Arenac, Iosco, Ogemaw, Roscommon, Crawford, Oscoda and Alcona counties; twenty-seventh, Missaukee, Wexford, Benzie, Grand Traverse, Kalkaska, Leelanau and Antrim counties; twenty-ninth, Charlevoix, Emmet, Cheboygan, Otsego, Montmorency, Alpena and Presque Isle counties; thirtieth, Chippewa, Mackinac, Luce, Schoolcraft, Alger, Menominee and Delta counties; thirty-first, Marquette, Dickinson, Iron and Gogebic counties; thirty-second, Baraga, Keweenaw, Houghton and Ontonagon counties; thirty-third, Washtenaw county; thirty-fourth, Lapeer and Saint Clair counties. Each of the 34 districts shall elect 1 senator. Counties entitled to 2 or more senators shall be divided into senatorial districts as herein provided equal to the number of senators to be elected; said districts shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory; and said districts shall be arranged during the year 1953, by the board of supervisors in such counties assembled at such time and place as prescribed by law.” Michigan Constitution (1908), art 5, § 2.

“The house of representatives shall consist of not more than 110 members. Representatives shall be chosen for 2 years and by single districts except as otherwise provided herein, which shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory. The ratio of representation for representative districts shall be the quotient obtained by dividing the total population of the State as determined by the latest or eaeh succeeding official Federal decennial census by 100. Eaeh county, or group of counties forming a representative district, shall be entitled to a separate representative when it has attained a population equal to 50 per cent of the ratio of representation, and in addition thereto, shall be entitled to 1 additional representative for each additional full ratio of representation. In every eounty entitled to more than 1 representative, the board of supervisors shall assemble at such time and place as shall be prescribed by law, divide the same into representative districts, whieh shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory, equal to the number of representatives to whieh such eounty is entitled by law, and shall cause to be filed in the offices of the secretary of State and clerk of sueh eounty a description of such representative districts, specifying the number of each district and the population thereof according to the latest or eaeh succeeding official Federal decennial eensus: Provided, That no township or city shall be divided in the formation of a representative district, except that when a city is composed of territory in more than 1 county, it may be divided at the eounty line or lines: Provided further, That in the case of eities hereafter organized or created or territory annexed to an existing city, the territory thereof shall remain in its present representative district until the next apportionment: And provided further, That when any township or city contains a population whieh entitles it to more than 1 representative, then such township or city shall elect by general ticket the number of representatives to whieh it is entitled; except that when sueh township or city shall be entitled to more than 5 representatives, then such township or city shall be divided into representative districts containing as near as may be an equal number of inhabitants and consisting of convenient and contiguous territory, but with not less than 2 nor more than 3 representatives in any 1 district: Provided, That the average number of inhabitants per representative in such districts shall be as nearly equal as possible.” Michigan Constitution (1908), art 5, § 3.

“Within the first 180 days after the convening of the first regular session, or after the convening of any special session called for that purpose, following January 1, 1953, and each tenth year thereafter, the legislature shall apportion anew the representatives among the counties and districts in accordance with section 3 of this article, using as the basis for sueh apportionment the last United States decennial eensus of this State: Provided, however, That should the legislature within the first 180 days after the convening of the first regular session, or after the convening of any special session called for that purpose, following January 1, 1953, and each tenth year thereafter, fail to apportion anew the representatives in accordance with the mandate of this article, the board of State canvassers, within 90 days after the expiration of said 180 days, shall apportion anew such districts in accordance with the provisions of this article and sueh apportionment shall be effective for the next succeeding fall elections.” Michigan Constitution (1908), art 5, § 4.

8 CL 1948, § 4.1 (Stat Ann 1952 Rev § 2.1).

9 “The senate shall consist of 32 members. Senators shall be elected for 2 years and by single districts. Such districts shall be numbered from 1 to 32, inclusive, each of which shall choose 1 senator. No county shall be divided in the formation of senatorial districts, unless such county shall be equitably entitled to 2 or more senators.” Michigan Constitution (1908), art 5, § 2.

“The house of representatives shall consist of not less than 64 nor more than 100 members. Representatives shall be chosen for 2 years and by single districts, which shall contain as nearly as may be an equal number of inhabitants and shall consist of convenient and contiguous territory; but no township or eity shall be divided in the formation of a representative district, except that when a eity is composed of territory in more than 1 county, it may be divided at the county line or lines: And provided, That in the ease of cities hereafter organized or created or territory annexed to an existing city, the territory thereof shall remain in its present representative district until the next apportionment. When any township or eity shall contain a population which entitles it to more than 1 representative, then such township or eity shall elect by general ticket the number of representatives to which it is entitled. Each county, 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. In every county entitled to more than 1 representative, the board of supervisors shall assemble at such time and place as shall be prescribed by law, divide the same into representative districts equal to the number of representatives to which such county is entitled by law, and shall eause to be filed in the offices of the secretary of State and clerk of such county a description of such representative districts, specifying the number of each district and population thereof according to the last preceding enumeration.” Michigan Constitution (1908), art 5, § 3.

“At the session in 1913, and each tenth year thereafter, the legislature shall by law rearrange the senatorial districts and apportion anew the representatives among the counties and districts according to the number of inhabitants, using as the basis for such apportionment the last preceding United States census of this State. Each apportionment so made, and the division of any eounty into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter.” Michigan Constitution (1908), art 5, § 4.

11 PA 1913, No 34.

12 “The senate shall consist of 32 members. Senators shall be elected for 2 years and by single districts. Such districts shall be numbered from 1 to 32, inclusive, eaeh of which shall ehoose 1 senator. No county shall be divided in the formation of senatorial districts, unless such county shall be equitably entitled to 2 or more senators.” Michigan Constitution (1908), art 5, § 2, prior to 1952 amendment.

“At the session in 1913, and eaeh tenth year thereafter, the legislature shall by law rearrange the senatorial districts and apportion anew the representatives among the counties and districts according to the number of inhabitants, using as the basis for sueh apportionment the last preceding United States census of this State. Each apportionment so made, and the division of any county into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter.” Michigan Constitution (1908), art 5, § 4, prior to 1952 amendment.

13 CLS 1956, §§ 4.601, 4.602 (Stat Ann 1959 Cum Snpp §§ 2.27[1], 2.27 [2]).