Wattles v. Upjohn | Cases | Westlaw

The primary purpose of this proceeding, as emphasized in the arguments and briefs of counsel, is to test the validity of **336 the voting system for electing members of the governing body of the city of Kalamazoo under a recently adopted charter. The motives which are somewhat discussed we regard as wholly immaterial. The controversy was brought before the circuit court of Kalamazoo county by an information in the nature of quo warranto, filed by the prosecuting attorney on the relation of one Johnson, an alderman of the city under its preceding charter, *516 against the mayor and commissioners elected pursuant to the provisions of the present charter to test their right to such offices. It is also contended that the proceeding resultantly involves the validity of the entire present charter of the city. Counsel for plaintiff concede defendants were ‘regularly elected as commissioners in so far as their election could be regular under this charter.’

From 1838 to 1883 Kalamazoo was incorporated as a village. In the latter years it was incorporated as a city. From then until 1918 it continued as a city incorporated under special acts of the Legislature. In February, 1918, the electors adopted a new charter under the so-called home rule provisions of the Constitution and supplemental legislation. Details of proceedings to that end need not be reviewed, as it is conceded all prescribed steps leading up to the adoption of the present charter were regularly taken, and that in so far as a charter could be legally adopted with the claimed invalid provisions in it, every requirement has been fully complied with.

At the provided April election which followed adoption of the present charter by electors of the city, defendants were elected city commissioners, superseding the board of aldermen and mayor, who up to that time constituted the governing body of the city under its old charter. Relator Johnson was then a member of the board of aldermen, and deposed before the term for which he was elected expired by the newly elected city commissioners when they qualified and assumed their duties under the new charter.

While several other more or less technical questions were raised in the pleadings, counsel for appellants state the two questions to be decided are:

Plaintiff's contention before the circuit court and here is that the system of electing commissioners provided in the charter is unconstitutional because——

The provisions of the Constitution which it is claimed this voting system contravenes are section 1 of article 3, which under the heading ‘Elective Franchise’ provides, so far as applicable here:

And the provision in section 25, article 8, under the heading ‘Cities and Villages' which provides that——

The charter adopts the general laws of the state relative to the registration of voters, nominations and elections, ‘except as herein otherwise provided.’

Section 35 recognizes as qualified electors all inhabitants of the city ‘having the qualifications of electors under the Constitution and general laws of the state,’ and section 41, on the ‘Conduct of Elections,’ introduces the system of voting in controversy as follows:

Whether any ordinance following the ‘schedule’ was *518 ever enacted does not appear, but section 181 returns to the subject, and provides that, ‘The first election of officers under this schedule shall be held on the first Monday in April, 1918,’ specifies officers to be elected, etc., and section 182 prescribes rules for the first and succeeding elections under ‘this schedule,’ directs how ballots shall be printed with names of candidates ‘rotated’ and directions to voters at top in part as follows:

It may perhaps be assumed, in the absence of further mention, that the schedule foreshadowed in previous sections materializes in section 183, which under the heading ‘Rules for Counting Ballots,’ enlarges upon the subject in a series of directory and explanatory paragraphs from (a) to (t) inclusive, which may be said to furnish the groundwork for this litigation. The commissioners who prepared this charter for submission to the electors state in their explanatory foreword ‘to the voters of Kalamazoo’ **337 that it had been the aim and policy of the commission ‘to write this charter so that the fundamental laws of the city will be brief, simple and understandable to all. In carrying out this policy all detail and immaterial matter has been excluded.’

Whether that portion of the fundamental law of the city found in section 183 is simple and understandable to all, and whether if applied as it should be understood the result is constitutional, are debated issues of importance, and to approximate an understanding of the controversy it seems advisable, inasmuch as ‘all detail and immaterial matter has been excluded,’ to quote the section in full, as follows:

It is said, and conceded, that these provisions outline correctly in its ‘essential principles,’ and adopt for the city what is called the ‘Hare System’ of proportional and preferential voting. At the election in question, as we understand the situation, there were 23 candidates nominated for the 7 offices of city commissioner to be filled under the new charter. Of the over 9,000 registered voters within the city only 4,461 took the trouble to visit the polls and vote; 157 ballots were declared invalid, leaving 4,304 to be counted and manipulated as prescribed in the charter. The quota found necessary to elect under that method was determined to be 539. Two of the 23 candidates had more than their full quota on first choice ballots. Then distribution of surpluses and recounts as to the rest began. From that point, for the sake of brevity and accuracy, the narrative of what further was done by the election board in ‘counting ballots' pursuant to the provisions of section 183 will be found continued in Exhibit A, herewith quoted, which is said to delineate plainly and concisely the count, tabulation, and result of the vote at that election. [See accompanying insert.]

Exhibit A

*524 Whether this system proved to be ‘simple and understandable to all’ the electors who voted in the city of Kalamazoo on that occasion is not disclosed, but over 30 years ago it was named in Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332, as one of four different classes of schemes advocated by those proposing to effect what they claimed would be a reform in existing modes of election to secure for the minority a proportionate representation, as follows:

It does appear, however, that since 1859, when Thomas Hare first published a book in England explaining his system, three cities in the United States have adopted it, as ‘Leaflet No. 5’ of the ‘American P. R. League,’ made a part of appellant's brief, informs us. Of the progress made by the Hare system of voting in this republic it advises:

This leaflet illustrates at length, and elaborately explains the system as claimed, states it is a method which results in ‘no division of voters,’ but instead ‘condensation by voluntary unanimous quotas,’ and asserts, partly in italics, that the Hare system ‘makes it possible to adopt the ‘city manager plan’ of government without sacrificing democracy.' If in this republic adoption of the city manager plan without resort to the Hare system actually sacrifices democracy, *525 numerous cities throughout the United States have already made the sacrifice. In that connection it may be noted that the immediate question for determination is limited to the validity of the Hare system of voting, which is but one of numerous proposed methods for practical application of that theory for reform in representative government known as ‘proportional representation.’ That conception, underlying a variety of proposed systems to materialize it, is based on representation in governmental affairs in proportion to numerical strength of parties or constituencies under some method of grouping the electors according to parties, interests, ideas, or, perhaps, other elements of affiliation, so that such grouped minorities may have representation in legislative and other official deliberative bodies as well as **339 majorities. Though fundamental to the Hare system of voting, and in that aspect indirectly material here, it does not follow, and is not conceded by many advocates of the principle of proportional representation, that the Hare system solves the problem of its practical application. The theory of proportional representation as an instrumentality for political reforms is not of recent origin. In 1780, almost contemporaneous with the birth of this republic, the Duke of Richmond introduced a bill in the English Parliament, which contained a clause providing for minority representation, and, as noted in the Maynard Case, in 1884, Mr. Gilpin published a pamphlet in Philadelphia, advocating its adoption according to a plan he had originated. Since then the attention of men of inquiring minds in the field of political science has been attracted to the subject from time to time by earnest advocates who have espoused it and devised systems claimed practical for its application, while others of apparently equal sincerity and ability have deprecated the conception as unsound in theory, impractical, and visionary. Certain *526 of its supporters have been energetic and prolific publicists. A list of books and references to periodicals relating to proportional representation published by the Library of Congress shows abundant reading matter in more than one language for those seeking information upon the subject, which has been much augmented by periodicals, pamphlets, leaflets, and other publications, in a recent renaissance of propaganda according to latest approved methods by its advocates here and abroad. It has apparently been more favorably received, or at least made greater progress, in countries free from constitutional limitations and with a newer or different form of government than that of the United States. Commenting on that fact, The Survey, ‘A Journal of Social Exploration,’ under the interrogatory heading, ‘Are We Really Too Stupid?’ says:

The Proportional Representation Review, a periodical published by the American P. R. League, tells, in the April, 1918, issue of its adoption by Russia, saying in part:

*527 Adoption of proportional representation by those and other war-disturbed countries but recently liberated, for self-determination and adoption of a government by and for their people, perhaps throws little light thus far upon the subject, in theory or practice, beyond showing that it does not in practice always operate for the healing of nations as basically and promptly as many of its propagandists have prophesied, and that those countries least experienced in systems of government with the sovereign power vested in the people adopt that political policy with greater avidity than older nations of long experience which have made that form of government fairly successful and stable. In that connection there is ground for saying that the slow progress of this attractive theory for political reform here, and elsewhere in older and more stabilized representative governments, can be attributed in part, at least, to misgivings, even by many recognizing the merits of the theory, as to a feasible method for its practical application which will correctly, and true to the theory, work out the beneficent results indicated.

In an able article advocating proportional representation, contributed to The Nineteenth Century by Earl Grey in 1884, at a time when a proposition to embody it in a reform bill of the English Parliament was agitated, he expressed an ‘honest desire to arrive at the nearest possible approach to the realization of the radical formula ‘to every vote an equal value,’' and argued that objections to the doctrine ‘depended entirely upon the alleged complexity of its methods,’ but contended they could be overcome through a system of voting devised by the ‘joint labors of Mr. Seebohm and Mr. Parker Smith.’ Upon that phase of the inquiry the searcher after truth in the abundance of controversial literature upon the subject will find many advocates of proportional representation confusingly *528 inharmonious. Many of their books, pamphlets, and magazine articles are largely devoted to some scheme or system, bearing the name of the author or its inventor, at marked variance with and pointing out the inadequacy of other systems by other inventors or authors equally earnest in urging theirs as the only logically correct and true system.

Recognizing this situation, the Proportional Representation Review advises its readers that the American P. R. League, under whose auspices Leaflet No. 5 was issued, ‘is not committed exclusively to any system of proportional representation,’ though it regards the Hare system best for most purposes, and will be glad to furnish detailed provisions for carrying out any other system which it regards favorably. A bulletin on proportional representation prepared by R. Curtis under auspices of the political science department **340 of Wisconsin University in classifying the various plans promulgated for voting to materialize that theory groups them into seven general classes under separate headings, instead of four as in the Maynard Case, as follows: ‘Limited Vote,’ ‘Cumulative Vote,’ ‘Proxy System,’ ‘Single Untransferable Vote System,’ ‘The Quota,’ ‘List System,’ and ‘Preferential Systems.’ Under the last named, with a subheading, ‘single transferable vote,’ appears, ‘Hare System (Andrae, Courtney, Lubbock, Spence, etc.).’ The description of that subclass concludes with the information that, ‘The d'Hordt quota is not applicable to ‘single transferable vote’ systems,' and consideration of the ‘preferential systems' then passes to that subclass called ‘Graduated Systems (preponderance of choice).’

To this but scant suggestion of the field open for study of comparative systems it may be added that the inquirer will often find arguments upon the merits of the various systems of voting devised to effectuate it and arguments upon the merits of proportional representation *529 itself in the abstract quite confusingly, but perhaps unavoidably, intermingled. Analytic comparison of these various systems is beyond the question, but as one further differentiation we note the caution by a writer in that line not to confuse the ‘Hare System’ with the ‘Ware System.’ The latter was devised and promulgated by Prof. Ware of Harvard University, who, from his major premises, reasons forcibly that if proportional representation had then obtained in the United States slavery would have been abolished without a civil war, against the contention of John Bright that had proportional representation been the accepted policy and settled practice in the states it would have been impossible to abolish slavery. Bright also broadly contended apparently even against its adoption in England that it involved ‘departure from the old lines of the Constitution,’ and was an ‘unconstitutional innovation.’ The question for determination here is narrowed to whether the Hare system is such in this land of recognized constitutional limitations.

But little relevant authority is to be found on the constitutionality of that system of exercising the franchise in this country. The determination is concededly contingent on the constitutional provisions of the several states where the question arises. The people of Oregon disposed of the constitutional question in 1908 by an amendment to their Constitution authorizing proportional representation in the discretion of the Legislature. In McCrary on Elections (4th Ed.) § 212, the author notes that Illinois has provided in its Constitution for minority representation in its state Legislature to be accomplished by a system of ‘cumulative voting,’ while in New York and Ohio attempts were made to provide by statute for minority representation, and the constitutionality of the method *530 provided was seriously questioned in the former, and altogether denied in the latter. Following further discussion of the subject the section ends with the reflection:

In a general footnote under this section on the subject of minority representation there is enumerated the various schemes for voting to accomplish this purpose, amongst which appears, ‘Preferential voting, a plan devised by Mr. Thomas Hare, and advocated by him in a book upon the subject published in 1859,’ the theory of which is omitted, as in the Maynard Case, ‘because too complicated and intricate to be useful in popular elections.’ The author attributes the scant progress made in securing minority representation in state Legislatures ‘partly to inherent deficiencies and objections, which are found in every one of the schemes outlined, and partly to the irregularities and impropriety of the proceedings taken to incorporate the systems into the state election laws where their introduction would be repugnant to the existing Constitution.

The provision of section 1, art. 3, of our present Constitution that ‘In all elections (a qualified voter) shall be an elector and entitled to vote,’ retains the language of section 1, art. 7, of the preceding Constitution of 1850. When under section 21, art. 8, of our present Constitution, authority was conferred upon the electors of cities and villages to frame, adopt and amend their charters ‘subject to the Constitution and general laws of this state,’ it is significant that precaution was taken in that connection to withhold from them the power ‘to abridge the right of elective franchise.’

In State v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833, under a constitutional provision prescribing the qualifications of an elector, providing elections should be by ballot, and that each elector ‘shall be entitled to vote at all elections,’ it was said the fair implication of the language, made certain in the light of state policy and existing circumstances when the Constitution was adopted, entitled each elector of a district to vote for a candidate for each office to be filled.

In Maynard v. Board, supra, touching upon the provisions of our first Constitution of 1835, the policy, practice, and legislation as to elections in this state thereafter, it was said of the provision yet retained in our Constitution:

The Constitution of Minnesota provides elections shall be by ballot, and that qualified electors ‘shall be entitled to vote at such elections * * * for all officers that now are or hereafter may be elective by the people,’ which is in substance the meaning of the language of our Constitution as construed in the Maynard Case. In Brown v. Smallwood, 130 Minn. 492, 153 N. W. 953, L. R. A. 1916B, 931, Ann. Cas. 1917C, 474, it was held that a preferential system of voting contained in the city charter of Duluth wherein first, second, and additional choice votes are authorized, to be counted in a provided contingently consecutive manner, was unconstitutional. The court there cites and quotes liberally from the Maynard Case, saying of the quoted constitutional provision:

Counsel for appellant urge that the objectionable features pointed out by this court in the Maynard Case, found in the ‘cumulative’ system then under consideration, are eliminated in the Hare system, of which the comments there made were not essential to a determination of the case, and that Brown v. Smallwood, supra, is not in point, since, under the Hare system, it is impossible for a voter's second choice to be used to defeat his first choice, as may occur under ‘the so-called ‘Preferential System’ which has no similarity to the Hare system except so far as the voter expresses his preference.'

While we cannot accept to the full extent urged appellee's contention that under the Hare System one elector's vote is necessarily of greater weight or counts for more candidates than that of another, the system does contain an element of the chance that it may so result. The framers of the Kalamazoo charter appear to have copied its rules for counting ballots as scheduled in section 183 practically verbatim from those set out in the January, 1917 (Third Series), number of the Proportional Representation Review. An examination of rule (h) discloses a method of transfer *536 of surplus votes involving an element of chance by which the result can readily vary according to the shuffle, or chance position of ballots. This is recognized by the advocates of the Hare System, who call it the ‘Chance Method’ as distinguished from another proposed form for rule (h), called the ‘Exact Method.’ This subject is discussed in a July, 1917, supplement sheet of the Review, stated as ‘not intended for the general reader.’ The leaflet contains illustrative or hypothetical elections and developed mathematical problems by which it is claimed to be demonstrated that the element of chance is comparatively slight. An actuary, mathematically skilled in the application of the doctrine of chances to financial and other affairs, might work with confidence upon the possibilities of this system, but to the nonexpert there is force in the dictum of the Maynard Case that it appears ‘too intricate and tedious to be adopted for popular elections by the people.’ To the average elector the destiny of his vote is a mystery, however easy it may be for him to follow instructions in marking his ballot. In abridging the right of elective franchise as pointed out, we conclude the election method prescribed in section 183 of the charter is in contravention of our state Constitution and invalid.

In support of the claim that invalidity of the voting system appearing in the charter renders the entire charter void, the following reasons are urged:

With the invalid election features stricken out the *538 charter yet contains ample machinery for nomination and election of all elective city officers. As applied to the situation presented here, we think the law well settled that rejection of those provisions held invalid does not affect the rest of the charter. Attorney General v. Loomis, 141 Mich. 547, 105 N. W. 4; Battle Creek v. Barnes, 143 Mich. 400, 106 N. W. 1119; 36 Cyc. 976.

The trial court held the charter provisions relating to the Hare System of election unconstitutional, rendering the election of defendants invalid, and in a supplemental opinion concluded:

As only questions of public interest are entertained and passed upon in this opinion, the conclusions of the trial court as to them are affirmed, without costs to either party.