some of them thought was a constitutional bill. The big difference was in the moiety clause. The Constitution says "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," and your committee construed that to mean as soon as a combination of two counties had a moiety they were entitled to a representative, and on that basis we proceeded. I have had several talks with the Attorney General since this bill has been given to the House, and he says that as nearly as possible it is a constitutional bill. He says the court is very likely to construe the moiety clause as the committee has construed it.

I believe that the bill is constitutional. I am no lawyer, of course, but I can read the English language, and that is the way that I construed it. The Wayne County delegation told the committee to take all they could constitutionally. They proceeded to do so, cutting down the ratio to a moiety.

I believe the bill is constitutional."

Mr. Wardell, having reserved the right to explain his vote, made the following statement:

"The third day of last January I stepped up to the desk and took an oath that I would obey the Constitution of the State of Michigan and of the United States. Every act of mine from that time to this has been constitutional. Nothing could have changed it. If I had voted in any other way than as I did vote, after taking that obligation, I would be compelled to class myself as a nullificationist 100 per cent and I want no man to question my origin."

Mr. Culver moved that the bill be laid on the table.

Mr. MacDonald demanded the yeas and nays.

The demand was seconded.

The motion to lay on the table then did not prevail, a majority of all the members present not voting therefor, by yeas and nays, as follows:

Mr. Curtis, having reserved the right to explain his vote, made the following statement:

"I took my oath of office, the same as every other member here, to support the Constitution of Michigan, and in supporting that Constitution I believe conscientiously that I am in duty bound to vote against anything unconstitutional. We have been told that this bill is constitutional and is not constitutional, by individuals. This is their own opinion. If it is not constitutional, why hasn't the Attorney General's opinion been given us over his signature. I was informed just before the roll was called that the Attorney General said it was not constitutional, and if it is not, I claim that I am standing by my oath of office in voting against the bill.

I don't believe it is necessary to reconsider the bill and vote on it again. If ever a bill can be presented here that will be according to the Constitution of Michigan, if it gives Detroit thirty-two members, I will vote for it."

Mr. Nevins, having reserved the right to explain his vote, made the following statement:

"I voted 'Yes' to give Wayne County a perfectly fair deal; but I voted 'No' because I am not willing to prolong this controversy."

Mr. Corliss moved that the bill be re-referred to the Committee on Apportionment.

Mr. Ming demanded the yeas and nays.

The demand was seconded.

The motion to re-refer then did not prevail, a majority of all the members present not voting therefor, by yeas and nays, as follows:

Mr. Woodruff moved that further consideration of the bill be postponed for one day.

Mr. Ming demanded the yeas and nays.

After debate, and pending the motion to postpone consideration of the bill for one day,

Mr. O'Brien moved that the House take a recess until 7:30 o'clock this evening. The motion prevailed.

A bill to fix the number of members of the House of Representatives, and to apportion representatives among the several counties of the State.

The Speaker stated that the pending question was the motion made by Mr. Woodruff that further consideration of the bill be postponed for one day, Mr. Woodruff withdrew the motion.

Mr. Read moved that the House take a recess until 8 o'clock.
The motion prevailed.

A bill to fix the number of members of the House of Representatives, and to apportion representatives among the several counties of the State.

The question being on the passage of the bill,

Mr. Read, as chairman of the Committee on Apportionment, sent to the Clerk's desk a written opinion he had received from the Attorney General as to the constitutionality of the pending bill.

The Clerk read the opinion, which is as follows:

Honorable Edward G. Read,

Chairman of Committee on Apportionment,

House of Representatives,

Lansing, Michigan.

Dear Sir:

December 11th, 1923.

As chairman of your Committee, you have today asked for my opinion as to the constitutionality of House Bill No. 3 of the Special Session of 1923. Sections 3 and 4, Article 5, of the Constitution, read as follows:

"Sec. 3. The house of representatives shall consist of not less than sixtyfour nor more than one hundred members. Representatives shall be chosen for two 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 city shall be divided in the formation of a representative district. When any township or city shall contain a population which entitles it to more than one representative, then such

township or city 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 one 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 cause 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." "Sec. 4. At the session in nineteen hundred thirteen, 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 county into representative districts by its board of supervisors, made thereunder, shall not be altered until the tenth year thereafter."

It will be observed that Section 3 says:

"Representatives shall be chosen for two 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."

Also that:

"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."

The apportionment must be based upon the number of inhabitants in the state according to the Federal census of 1920, which is 3,668,412. Dividing this number by one hundred, the number of representatives provided for by the bill, we find the ratio of representation to be 36,684. In other words, there should be 36,684 inhabitants, as nearly as may be, in each district, except where that rule is invaded by the peremptory mandate of Section 3 of Article 5 of the Constitution, which provides that:

"Each county, with such territory as may be attached thereto, shall be entitled to a separate representation when it has attained a population equal to a moiety of the ratio of representation."

A moiety is "one of two equal parts," a half. In this instance, a moiety of the ratio is 18,342. An examination of the bill before me shows that this provision has been strictly adhered to. Every county that has a moiety of the ratio has been given a "separate representation."

Livingston County, with a population of 17,522, which is 820 less than a moiety of the ratio, is given a separate representative.

In view of the language of the Supreme Court in the case of

Stevens v. Secretary of State, 181 Mich., 199,

wherein the constitutionality of Act No. 336, Public Acts of 1913, apportioning representation, was attacked, the Court said:

"We think it clear that the county is the unit of representation; that, if not alone entitled to a representative, it must be joined to an entire county or counties to send one representative; and conversely that, if the county alone is entitled to a representative, it cannot be combined with other counties to form a district. Such combination of a county having a moiety of the representative ratio with other counties containing less than a moiety is contrary to the theory of the county as a unit of representation, and is unjust to both counties combined.

"The only exception is where a county having less than a moiety is entirely surrounded by counties, each of which has more than a moiety, in

which case the law of legislative necessity makes it necesssary, if the people of the lesser county are to be represented at all, to combine it with a county having a moiety."

It will be seen, by an examination of said Act No. 336 of the Public Acts of 1913, that Lake County, with a population of approximately 4,000, was entirely surrounded by counties having a moiety of the ratio.

Giving Livingston County a separate representative would be contrary to the rule laid down by our Supreme Court in the Stevens case.

We come now to a discussion of the proposition of the equality of representation. As pointed out by our Supreme Court in

Giddings v. Secretary of State, 93 Mich., 1,

"It was never contemplated that one elector should possess two or three times more influence, in the person of a representative or a 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."

And, furthermore:

"Under our state constitution the right of the elector is fixed. To him equal representation is a right, as well as a privilege, of which the legislature cannot deprive him."

The apportionment ******* requires the exercise, on the part of the legislature, of an honest and fair discretion in apportioning the districts so as to preserve, as nearly as may be, the equality of representation."

To determine whether such honest and fair discretion is contemplated by this bill, it is only necessary to make a comparison of some of the districts sought to be created. In arranging districts among the smaller counties, it appears in some instances that when a group has been arranged that exceeds the moiety, no more counties have been attached, in an effort to approximate the ratio. This results in extremely unequal representation in these counties, as compared to that in some of the more populous counties of the state.

For instance, in the district comprised of Kalkaska, Crawford, Oscoda and Ogemaw Counties, 19,195 are given a representative, while in Wayne County one member is required to represent 56,078 inhabitants. There are other districts that are only slightly in excess of the Kalkaska district in population.

The task imposed by the Constitution upon the Legislature of the State in apportioning the representatives is a most difficult one. It is hampered by the moiety provision of the Constitution, and by the requirement that parts of counties may not be joined to parts of other counties, or to another county. In view of the statements contained in this opinion, and the authorities cited, I am apprehensive that the Supreme Court, should the law be attacked, would follow its former decisions and hold the act not in compliance with the Constitutional requirements.

Respectfully yours,

ANDREW B. DOUGHERTY,
Attorney General.

The Speaker made the following statement: "I feel that I owe it to the House to explain a statement I made this afternoon in answer to the question raised by the gentleman from Wayne, Mr. Culver, asking what would be the position of the bill if it were reconsidered and lost. Would the House be barred from further consideration of this subject matter? I gave it as my opinion then that this situation was different than in an ordinary session, and that the Constitution expressly provided that this Legislature in this year should apportion representatives anew and rearrange the senatorial districts, and I thought that in an extreme case such as this that it would be up to the House to consider the matter and follow the Constitution, rather than the rules of the House.

As you know, I gave the opinion off-hand, and I have studied the matter since and find, while that may be true, that we have not yet reached that point. I