These proceedings are brought to test the legality of the division into representative districts of the fifty-four representatives to the General Court apportioned to Suffolk County by St. 1916, c. 270, § 24. This division is required to be made by a board of nine commissioners elected by the voters of Suffolk County. St. 1913, c. 835, § 390, provides as follows:
“At the annual State election in the year nineteen hundred and fifteen, and in every tenth year thereafter, nine commissioners shall be elected for the county of Suffolk, for the performance of the duties
“The said commissioners shall, on the first Tuesday of August next after the Secretary of the Commonwealth shall have certified to them the number of representatives to which the county of Suffolk may be entitled, as determined by the General Court, assemble in the city of Boston, and, as soon as may be, shall so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts. Such districts shall be so formed that no ward of a city and no town shall be divided, and no district shall be so formed that it shall be entitled to elect more than three representatives. . .
One of the commissioners has deceased and the remaining eight are the respondents in each of the petitions and the defendants in the bill in equity in which the Secretary of the Commonwealth also is joined as a defendant.
A report has been filed by the commissioners. The division into representative districts therein set forth is assailed on the ground that it has not been made in accordance with the requirement of the Constitution. The pertinent provision of the Constitution is in art. 21 of the Amendments, and is as follows:
“A census of the legal voters of each city and town, on the first day of May, shall be taken and returned into the office of the Secretary of the Commonwealth, on or before the last day of June, in the year one thousand eight hundred and fifty-seven;, and a census of the inhabitants of each city and town, in the year one thousand eight hundred and sixty-five, and of every tenth year thereafter. In the census aforesaid, a special enumeration shall be made of the legal voters; and in each city, said enumeration shall specify the number of such legal voters aforesaid, residing in each ward of such city. The enumeration aforesaid shall determine the apportionment of representatives for the periods between the taking of the census.
The court has jurisdiction to determine whether the commissioners in making the division have violated the requirements of this article of amendment to the Constitution. Scarcely any right more nearly relates to the liberty of the citizen and the independence and the equality of the freeman in a republic than the method and conditions of his voting and the efficacy of his ballot, when cast, for representatives in the legislative department of government. It was said in the Opinion of the Justices, 10 Gray, 613, at page 615, “Nothing can more deeply concern the freedom, stability, the harmony and success of a representative republican government, nothing more directly affect the political and civil rights of all its members and subjects, than the manner in which the popular branch of its legislative department is constituted.” The right to vote is a fundamental personal and political right. The equal right of all qualified to elect officers is one of the securities of the Declaration of Rights, arts. 1-9. Unlawful interference with the right to vote, whether on the
The decisions of other States are numerous and harmonious to the same effect.
The circumstance that political considerations may be connected with rights affords no justification to courts for refusal to adjudicate causes rightly pending before them. Such a controversy, even though political in many of its aspects, is of judicial
There is nothing at variance with this conclusion in Opinion of the Justices, 10 Gray, 613. That discussion was directed wholly to the powers of the Legislature to correct alleged errors in a division of representatives. The jurisdiction of the courts was not involved in any of the questions submitted to the justices. The words of the justices must be read as applicable to the subject under consideration and not treated as of such general purport as to cover instances not then before their minds. Swan v. Justices of the Superior Court, 222 Mass. 542, 545. But it appears from the report of the election case of Lothrop, petitioner, Mass. Election Cases, (Loring & Russell’s ed.) 49, 54, in reference to which that opinion was given, that the jurisdiction of the Supreme Judicial Court to correct errors in such a case was assumed by the legislative committee. Moreover, although the jurisdiction of the court was not pertinent to answers to the inquiries of the House of Representatives, it there was said in substance only that “the doings and returns [of the county commissioners, of the mayor and aldermen of Boston or of special commissioners] made conformably to the article of amendment” were conclusive. Nothing was intimated as to “doings and returns” manifestly contrary to the terms of that article of amendment to the Constitution.
The cases come before us on a “report and reservation” made by a single justice.
Absolute equality of representation is not required by the article of amendment. There are other inflexible conditions of the apportionment which must be observed and which prevent exactness of equality. The representative districts must be within the several counties, they cannot be formed by the division of towns or wards of cities, they must be made up of contiguous territory, and no district can be given more than three representatives. But within these limitations there must be the nearest approximation to equality of representations which is reasonably practicable. The words of the amendment, that the representatives must be apportioned upon the basis of equality “as nearly
But the rule established by the Constitution is plain. The total number of two hundred and forty members of the House of Representatives must first be divided by the Legislature between the several counties “equally, as nearly as may be, according to their relative numbers of legal voters,” with the exception of the town of Cohasset, which, although in the county of Norfolk, is for this purpose to be treated as a part of the county of Plymouth. The commissioners are then to make the division of the several counties into representative districts. In doing this five general rules are laid down by the amendment: 1. They must proceed within their respective counties, with the single exception of Cohasset. 2. No town or ward óf a city can be divided. 3. The territory of each district must be contiguous. 4. No more than three representatives can be assigned to one district. 5. The representatives must be divided so that “as nearly as may be” the same number of voters shall in every instance be entitled to an equal representation in the House. These five mandates all stand on the same footing. One is no more imperative than another. The only guide for determining equality to which resort may be had under the Constitution is the “numbers of legal voters, as ascertained by the next preceding special enumeration,” provided for by the first paragraph of the twenty-first article of amendment. That article says that that enumeration “shall determine the apportionment of representatives for the periods between the taking of the census.” It would be hard to conceive words expressive of a more positive and unmistakable command. Its fundamental idea is that the special enumeration of legal voters alone shall be considered in making the apportionment and division. Opinion of the Justices, 142 Mass. 601, 604. Opinion of the Justices, 157 Mass. 595.
In the performance of the duty of providing equal representation within any. county, the commissioners naturally, if not necessarily, would divide the whole number of legal voters in the coimty by the number of representatives allotted to that county.
It is not every inequality between the several representative districts which will be fatal in a constitutional sense. It is inevitable that there must be in the several districts some variation from the unit of representation found by dividing the legal voters of the county by the number of representatives apportioned to' that county. These variations may be augmented where there are numerous towns and cities with different numbers of wards and of legal voters. The difficulties may be considerable. There is abundant room for the exercise of reason and judgment in the formation of the districts and in the disposition to be made of the excess, or deficiency of the number of voters as compared with the unit of representation or ratio between voters and representatives, which unavoidably must be found even with the most conscientious efforts. Many questions may arise which cannot be solved by computation and which may require the exercise of a high degree of sagacity. A wide discretion must of necessity be exercised by the commissioners. Doubtless some apparent inequalities, not amounting to a gross disparity, might be ex
Tried by this test there can be no uncertainty in the result to be reached in the case at bar. The inequality is obvious and indisputable. It is momentous, excessive and might have been avoided. No argument is needed. It is demonstrated by a statement of the facts. The unit of representation or ratio of legal voters to representatives in Suffolk County obtained by dividing its 175,890 legal voters by the 54 representatives is •3,257f, and may be regarded for convenience as 3,258. Where a less number are given one representative the inequality increases their voting power, and where a larger number are given one representative the inequality diminishes their voting power in the House of Representatives. The commissioners divided Boston (which is by far the largest part of Suffolk County) into representative districts by adopting as such districts the several wards, except that they combined wards 19 and 21 into one district. Therefore no such complexity arises as might exist in the combination of towns or of towns with one or more wards of a city. The most glaring inequality is between District 26, with 3,913 legal voters, to which two representatives are given, or one for 1,957 voters, and District 16, with 6,182 legal voters, to which one representative is given. A voter in District 26 thus would have more than three times the voting power of a voter in District 16
These references to the report of the commissioners show such numerous and flagrant deviations from equality of representation that it is impossible to reconcile the apportionment with the constitutional requirement. The inequality is gross and palpable and extends to a considerable number of districts. Even a cursory examination of the report would show that a far more equal apportionment might have been made by following the plain mandate of the Constitution.
The conclusion is irresistible that the constitutional requirement of equality has been ignored. It is not open to reasonable controversy. Tried by the standard of equality of representation fixed by the Constitution, the result reached by the commissioners appears arbitrary. It has been urged that the commissioners have been hampered by ward lines. But they are not responsible for the ward lines. These have been established by independent authority and the commissioners must accept them as they find them. Fitzgerald v. Mayor of Boston, 220 Mass. 503. They must make a determination of the nearest practicable approach to equality of representation on the existing ward lines. The report of the commissioners, being plainly not conformable to the Constitution, has no validity.
It has been argued ably in behalf of the commissioners that the grave results which will flow from declaring the report null and void should cause hesitation in sustaining the petitioners’ contentions. These considerations may be entitled to weight in determining whether a constitutional mandate has been violated. But when once it has become evident beyond a doubt that the Constitution has been infringed and that rights indisputably seemed by it have been trampled, then there is no other way but to maintain the Constitution when relief is promptly sought. No consequence of adherence to the Constitution can be so evil as a failure to abide by its terms under the circumstances here disclosed.
Mandamus affords the appropriate form of relief. It is the remedy to which resort usually is had to set aside the illegal performance of duty and to compel the performance of duty according to law, by public officers entrusted with discretionary,
Where the public interests are involved, the Attorney General may institute a petition for mandamus to vindicate the public right. Attorney General v. City Council of Lawrence, 111 Mass. 90. Attorney General v. Boston, 123 Mass. 460, 478. Wellington, petitioner, 16 Pick. 87, 105. No discussion is needed to show that the composition of the House of Representatives, according to the requirement of the Constitution, is a matter of public concern.
The commissioners are still in office. By the express terms of § 390 of St. 1913, c. 835, “Said commissioners shall hold office for one year from the first Wednesday of January next after their election.” These commissioners were elected in 1915. The report which they have already filed is a nullity. Therefore they have not performed their duty and are not functi officio. It is now ■ their plain duty to make a -division and apportionment according to the Constitution. They are amenable to the court to this end.
It has been urged that a special mandate be issued to the commissioners fixing a time within which a new and legal apportionment shall be filed. Doubtless the public exigency is great. The nomination and election of representatives to the Legislature from Suffolk County during the current year apparently can be accomplished only by the enactment of a special statute, for the time provided by the existing law for filing nomination papers expired before the present cases were entered in this court. St. 1913, c. 835, §§ 118, 120. A special statute to bring about this
Since the several individual petitioners for writs of mandamus appear equally entitled to relief, and since only one order need be made, the remedy may be granted in the petition of the Attorney General for mandamus. Let the entry be in that cause in substance, that the division and apportionment of the county of Suffolk into representative districts already made and filed by the commissioners is void as not in conformity to the Constitution, and that the commissioners must proceed “as soon as may be” to divide the county of Suffolk into representative districts so as to apportion the number of representatives assigned to that county “equally, as nearly as may be, according to the relative number of legal voters” in the several districts, and otherwise in conformity to the Constitution and to art. 21 of the Amendments to the Constitution, and to make due report thereof as required by said article. Any party may apply for further direction and relief. In each of the other petitions for mandamus the entry may be, demurrer overruled and petition dismissed without prejudice for the reason that adequate relief is granted in the petition brought by the Attorney General. In the petitions for certiorari the entry may be, petitions dismissed. The bill in equity may be dismissed.
So ordered.
Baird v. Supervisors of Kings County, 138 N. Y. 95. State v. Cunningham, 81 Wis. 440. State v. Cunningham, 83 Wis. 90. Supervisors of Houghton County v. Secretary of State, 92 Mich. 638. Giddings v. Secretary of State, 93 Mich. 1. Williams v. Secretary of State, 145 Mich. 447. Stevens v. Secretary of State, 181 Mich. 199. Parker v. State, 133 Ind. 178. Denney v. State, 144 Ind. 503. Brooks v. State, 162 Ind. 568. Ragland v. Anderson, 125 Ky. 141. State v. Wrightson, 27 Vroom, 126. Smith v. Baker, 45 Vroom, 591. People v. Supervisors of Adams County, 185 Ill. 288, 292. State v. Hitchcock, 241 Mo. 433. Prouty v. Stover, 11 Kans. 235, 252. State v. Weatherill, 125 Minn. 336. State v. Dudley, 1 Ohio St. 437, 441. Murphy v. Eney, 77 Md. 80, 84. Commonwealth v. Crow, 218 Penn. St. 234. Ballentine v. Willey, 3 Idaho, 496, 506. Harmison v. Ballot Commissioners, 45 West Va. 179. People v. Canaday, 73 N. C. 198. The case of Wise v. Bigger, 79 Va. 269, sometimes cited as doubting the proposition, is not contrary, for no question of conformity of apportionment to the Constitution there was involved.
Crosby, J.