State ex rel. Attorney General v. Cunningam

81 Wis. 440 | Wis. | 1892

Lead Opinion

Obtoh, J.

This case comes into this court, within its original jurisdiction, by bill in chancery on the relation of the attorney general on behalf of the state, praying for an injunction against Thomas J. Gunnmgham, secretary of state, to restrain Mm as such officer from carrying into execution ch. 482, Laws of 1891, commonly called the “ Apportionment Act,” on the ground of its unconstitntion- ■ ality; and more particularly that be refrain from giving the notices of the election of members of tbe senate and assembly as apportioned and districted by said act.

The complaint informs the court, in substance, that the legislature of 1891, in attempting by said act to apportion and district anew the members of the senate and assembly, according to the enumeration of the population of the state by the United States census of 1890, did so in violation of the restrictions contained in secs. 3-5, art. IV, of the constitution of this state, in the following particulars, viz.: Fvrst, the senate and assembly districts were not made “according to the number of inhabitants, excluding Indians not taxed, and soldiers and officers of the United States army and navy; ” second, the assembly districts were not “ bounded by county lines; ” third, they were not made “to consist of contiguous territory;” fourth, they were not made “ in as compact form as practicable; ” fifth, the senate districts were not made “ of convenient and contiguous territory.”

The complaint more particularly shows that by the last census the state contained a population of 1,686,880, and by an equal apportionment of the inhabitants each senate district should have contained 51,117, and each assembly district 16,868, inhabitants, as near as may be. By said apportionment many senate districts contain the number of inhabitants, omitting fractions of a thousand, as follows: Second district, 38,000; fifth district, 68,000; seventh district, 65,000; eighth district, 43,000; eleventh district, 42,000; fourteenth district, 45,000; sixteenth district, '57,000; seventeenth district, 61,000; eighteenth district, 44,000; twentieth district, 42,000; twenty-second district, 87,000; twenty-fourth district, 58,000; twenty-seventh district, 68,000; thirty-second district, 38,000; thirty-third district, 68,000. Many assembly districts contain the number of inhabitants as follows: 38,000, 6,000, 25,000, 7,000, 24,000, 11,000, 22,000, 11,000, 23,000, 10,000,22,000,11,000, 21,000, 10,000, 20,000, 11,000, 20,000, 11,000. The highest difference between both the senate and assembly districts is over 30,000.

The case was heard on demurrer to the complaint (admitting the facts), based on the grounds' to the effect — first, that the court has no jurisdiction of the subject matter ; and, second, that the complaint fails to show any violation of the constitution. These two general questions, as well as others subordinate thereto, were very ably argued by eminent counsel on both sides; and their arguments and the authorities cited by them have rendered the court very great aid in the elucidation and decision of the case.

As a preliminary question, it has already been decided that this case could not be brought by a private relator, because no one has any private interest in the subject matter. The matters being exclusively pubUci juris, the case must be brought by the attorney general'on his own relation, representing the whole state and the people thereof. This is the form and title in which the case now stands in this court and in which it. must be sustained, if at all. That being the most difficult and important question, we shall enter at once upon the consideration of the original jurisdiction of this court to issue the injunction to restrain the secretary of state from executing the said act, which is the first ground of the demurrer.

In almost every case which has been brought in this court, within its original jurisdiction, on the relation of the attorney general in the name of the state, the jurisdiction of this court has been challenged and discussed by able counsel, and sustained by the court in many learned and elaborate opinions. The subject matter of these cases was claimed and held to b% publici juris, and involved the original jurisdiction of the court to issue the various writs of habeas corpus, mandamus, injunction, quo warranto and certiorari. It would seem, therefore, that the jurisdiction of the court and its limitations in nearly all matters of great public interest and concern had been already judicially determined. The highest authorities that can be consulted on the question of the court’s jurisdiction in this case are these various decisions of the court. The precise subject matter of this-case was not in any of these cases, but the analogies are sufficiently close to make them of the highest authority in this case, and some of them are clearly in point. We start upon this discussion with the benefit of these decisions, which renders the question far less difficult.

One of the first cases of this kind brought in this court was Attorney General v. Blossom, in quo warranto, 1 Wis. 317, in which the court said: “ Contingencies might arise wherein the prerogatives and franchises of the state in its sovereign character might require the interposition of the highest judicial tribunal to preserve them. Other departments might need its intervention. Indeed, various emergencies may have been conceived in which this branch of the government, and this arm of the judiciary alone, might be adequate to preserve the balance of powers, to arrest usurped powers, franchises, and prerogatives, to quell resistance to constitutional authority, to preserve the liberty of the individual citizen, and shield the sovereignty of the state itself from violation.” These broad grounds of the court’s original jurisdiction in matters publici juris would seem to embrace every possible matter of great public interest. We shall hereafter inquire whether the subject matter of this case comes within these terms of the court’s jurisdiction. We shall finally hold that this court has jurisdiction in this case, and we propose to remove all possible . doubt on the subject, even at the expense of being somewhat tedious. In the above case it is held also that this court has original jurisdiction in all of the above writs, including injunction.

In Attorney General v. Railroad Cos. 35 Wis. 512, the writ of injunction was ordered to issue as a prerogative writ, as in a case pulliei juris, to restrain the railroad companies from exacting tolls for the carriage of passengers or freight in excess of the legal rates. The jurisdiction of the court was sustained by an opinion of the learned and eminent Chief Justice Rtah, the ablest, most elaborate and clearest to be found in the Reports. This case was followed by Attorney General v. Eau Claire, 37 Wis. 400, for an injunction against the common council and city clerk, restraining them from executing an. unconstitutional law for the obstruction of a navigable river. The whole subject of the original jurisdiction of this court was again most fully considered by the court in an opinion by the same learned chief justice. The following extract from that opinion clearly expresses the jurisdiction of the court and its limitations in.all cases where the subject matter is pub-liei juris: “ To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivisions of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character, this court judging of the contingency in each case for itself.”

The earliest case involving matters youbliei juris, brought in this court on the relation alone of the attorney general, is State ex rel. Atty Gen. v. Merrill, 2 Pin. 279, to compel the respondent by mandamios, as the receiver of the canal land office under the territory, to deliver the books and papers and pay the money in his hands as such receiver to tbe new state as tbe successor of tbe territory. In this case tbe original jurisdiction of tbe court was questioned, and sought to be sustained by an act of tbe legislature. But Obief Justice WhitoN said in bis opinion: “ We are satisfied that without tbe act this court has jurisdiction of tbe case.” In State ex rel. Att'y Gen. v. Messmore, in quo warranto, 14 Wis. 115, this court held jurisdiction of tbe case on tbe following grounds stated by tbe late and able Obief Justice DixoN : “ It is instituted and conducted by tbe attorney general under bis official oath and responsibility. This case involves tbe functions of a high judicial office, and tbe due administration of justice in a large section of tbe state.”

In State ex rel. Att'y Gen. v. M., L. S. & W. R. Co., in quo warranto, 45 Wis. 579, to compel said company to keep its offices, books, papers, and records within this state, tbe jurisdiction of tbe court was again questioned. It is said in tbe opinion: “ Questions of very great public interest, involving tbe sovereignty and jurisdiction of tbe state over tbe corporation of its own creation, charged with gross abuse and misuser of its powers and franchises, are presented in this information.” In State ex rel. Att'y Gen. v. O'Neill, 24 Wis. 152, there was a mandamus to compel tbe defendant, as mayor of Milwaukee, to make proclamation that a certain law to establish a board of public works bad taken effect by a vote of tbe people.

In State ex rel. Gill v. Supervisors of Milwaukee Co. 21 Wis. 443, a mandamus was asked to compel tbe supervisors to admit to membership and receive tbe vote of one Welch as a supervisor. Tbe questions were whether tbe apportionment law of 1866 legislated said Welch out of office as supervisor, and whether tbe law was valid if it bad such an effect, and whether further legislation was not necessáry to cure tbe mischief. Tbe supervisor districts were tbe assembly districts, and tbe apportionment law so changed tbe assembly districts as to cause Welch to be a nonresident of tbe district in wbicb be was elected. No question was made of tbe jurisdiction of tbe court on tbe sole relation of tbe attorney general. Tbe apportionment law, as to its effect, was treated as any other act of tbe legislature. In connection with this case, tbe case of Slauson v. Racine, 13 Wis. 398, may be cited. In that case tbe act annexing territory to tbe city changed tbe boundaries of an assembly district according to tbe previous (vpportiorwnent law. Its constitutionality was questioned for that reason, and tbe question was whether any change in tbp apportionment could be made intervening tbe five years fixed by tbe constitution.

State ex rel. Att'y Gen. v. Conklin, 34 Wis. 21, was brought on tbe sole relation of tbe attorney general, in quo war-rcmto, to try the title of tbe respondent to tbe office of treasurer of tbe Saint Raphael’s Benevolent Society, a corporation created by a special act of tbe legislature. Attorney General v. West Wis. R. Co. 36 Wis. 466, involved tbe right to discontinue a part of their road on tbe route fixed by a law of Congress by tbe authority of an act of tbe legislature,— a matter of great public interest. State ex rel. Att'y Gen. v. W. L. & F. R. P. R. Co. 11 Wis. 34, was to test the validity of a law in view of tbe constitutional requirement of a uniform rule of taxation.

Besides tbe above cases and others brought by tbe attorney general by virtue of bis office, there have been many cases in this court on tbe relation of private persons in tbe name of tbe state, and between individuals, involving also matters joubUci juris, showing tbe wide range of such matters over wbicb this court has assumed jurisdiction, at least closely analogous to tbe matters of tbe present suit.

In Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567, this court assumed tbe jurisdiction of determining who should exercise tbe functions of tbe executive office. In State ex rel. Powers v. Larrabee, 1 Wis. 200, tbe constitutionality of an act of the legislature dividing the county of Washington was involved. In State ex rel. Peck v. Riordan, 24 Wis. 484, an act of the legislature was declared void because it violated the constitution requiring that there should be but one uniform system of town and county government. State ex rel. Grundt v. Abert, 32 Wis. 403, was a similar case. It will be observed that this constitutional provision is that the system of town and county government “ shall be as nearly uniform as practicable? This would seem to leave to the legislature at least a margin for the exercise of legislative discretion; and yet this court, in cases where there was a material departure from this constitutional requirement, has not hesitated to declare the acts void. In Dells v. Kennedy, 49 Wis. 555, the registry law was declared unconstitutional on the ground that qualified electors might thereby be debarred from casting their votes. This court recently assumed jurisdiction of a ma/ndamus case, to determine who was elected a member of the senate and had the right to the certificate of the office.

In State ex rel. Bell v. Harshaw, 76 Wis. 230, there was a mandamus to compel the state treasurer and secretary of state to apportion and pay over certain moneys in the treasury. In State ex rel. Anderson v. Timme, 70 Wis. 627, a certiorari was allowed to obtain the record of the school commissioners in the case of the annulment of a patent. In State ex rel. Abbot v. McFetridge, 64 Wis. 130, there was a mandamus to compel the treasurer to pay back license moneys wrongfully collected. In State ex rel. Anderson v. Timme, 60 Wis. 344, a mandamus was granted to compel the commissioners of the public lands to annul a patent. These last cases show also that the official action of these state officers may be judicially controlled in all matters ’, ministerial or administrative; and there can be no question but that the duties of the secretary of state in giving out tbe notices of an election under the last apportionment act are of this character.

The cases in this court in which various acts of the legislature have been declared void for being in conflict with the constitution are almost numberless; and there never has yet been found a single exception on account of the subject matter of the act. This jurisdiction is so inherent and universal in all the courts of last resort in this country that it may well be asserted that this court is vested by the constitution itself with the prerogative judicial power to protect it from violation by its final judicial decisions. This power is lodged nowhere else. To this department of the government alone is committed this high trust. It has never been abused, and never will be. It acts within well-defined limits and the strictest rules of judicial rectitude.

It is argued by the learned counsel of the defendant that if we assume jurisdiction in this case this court will invade the province of legislation and place the court above the legislature. It is above the legislature, so far as it has the judicial power to declare its acts unconstitutional and void. It is an independent and co-ordinate department of the government, and the only one having this judicial power. It has the power, which is vested in no other department, to declare and administer the laws. An unconstitutional act of the legislature is no law. It is absolutely void. How, then, can this court declare what the statutory law is, without first determining whether it conflicts with the constitution? Without this power, this court would have no judicial functions whatever, and would be a useless appendage of the government.

To repel the suspicion even that this court in the above cases has usurped a power that it does not constitutionally possess, it is proper to consult the decisions of the highest courts elsewhere on the question. That we may not lose sight of -the real question, before proceeding further we again quote the terse language of Chief Justice EyaN in Attorney General v. Eau Claire, 37 Wis. 400: “ The question on which the exercise of jurisdiction here must turn is whether the subject matter of the writ is one quod ad statum reipubUcce yoertímet, one affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people.” We may be permitted to make an extended extract from the opinion in Houston v. Moore, 5 Wheat. 1, because it fully expresses, once for all, the jurisdiction of this court: “ By a course of judicial decisions reaching from the earliest history of American government to the present day, without a dissenting voice, it has been adjudged that courts of justice have the right and are in duty bound to test every law by the constitution as the fundamental and paramount law of the land, governing all derivative power and the exercise thereof. The judicial department, with us, is the proper power under the constitution to declare the constitutionality of a law; and every act of the legislature contrary to the true intent and meaning of the constitution will be declared by the courts null and void and of no effect whatever. To contend that this is not so would be to assert that the legislative branch of the government is supreme in its authority.”

In Brown on Jurisdiction it is said: “The judicial department is formed for the purpose of interpreting the.laws and holding them within the limits fixed by the fundamental or constitutional rules.” Page 41, § 15. In In re Ruan St. 132 Pa. St. 257, it is said that “ the question of the constitutionality of a law is purely judicial and cannot be left to the legislature.” Commissioners appointed under an'act of the legislature for the purpose of creating a new county, which is held to be in violation of the constitution of the state, may be perpetually enjoined from proceeding. Bradley v. Commissioners, 2 Humph. 428. “Whether a given enactment is constitutional involves interpretation and construction — the exercise oí purely judicial functions. . . . Whether the legislature has transcended its power and passed an act in conflict with the constitution is essentially a question of law, and must necessarily be passed upon by the courts.” State ex rel. Pell v. Newark, 40 N. J. Law, 71. The constitutions of Massachusetts and New York provide that an apportionment shall not be changed until after the next federal enumeration. When the legislature had violated this provision and changed the apportionment the courts of those states assumed jurisdiction to declare their acts unconstitutional and void. Opinion of Judges, 6 Cush. 575, 578; Warren v. Charlestown, 2 Gray, 84; Kinney v. Syracuse, 30 Barb. 349; People ex rel. Att’y Gen. v. Holihan, 29 Mich. 116, and People ex rel. Att'y Gen. v. Bradley, 36 Mich. 447, were such cases. These cases involved the discretion and political power of the legislature as much as this case, and are in point.

In State ex rel. Gardner v. Newark, 40 N. J. Law, 297, the supreme court assumed jurisdiction to pass upon the constitutionality of an apportionment act of the legislature in respect to constitutional provisions similar to ours, and held it valid. In State ex rel. v. Campbell, 48 Ohio St. 435, the court entertained jurisdiction to pass upon the constitutionality of the apportionment of that state, and held it valid, but said, in effect, that the legislature “ might so far overstep the constitutional limits in making an apportionment that the court would decree it a nullity.” In State ex rel. Evans v. Dudley, 1 Ohio St. 437, the constitutionality of an apportionment act was considered by the court. In State ex rel. Singleton v. Van Duyn, 24 Neb. 586, the court took original jurisdiction to issue a mandamus to compel the county clerk to post notices of election under the apportionment of 1881, instead of that of 1887, on the ground that the latter act was unconstitutional. This case is in point, both as to the jurisdiction of the court as to the subject matter and as to the officer subject to the writ. The clerk there and the secretary of state here had the same duty to perform. In Prouty v. Stover, 11 Kan. 235, the action for a, mandamus was brought purposely to test the constitutionality of an apportionment act, and the case was disposed of on its merits, and the law held valid. In State ex rel. Att'y Gen. v. Francis, 26 Kan. 724, the constitutionality of an apportionment act was fully considered. In People ex rel. Bokkelen v. Canaday, 73 N. C. 198, the constitutionality of an apportionment act was not only considered, but the act was held unconstitutional because it was not “ according to the popular vote as near as may be.”

It was never questioned in these cases but that the question of the constitutionality of an apportionment act was purely a judicial one, and the passage of such an act was the exercise of a legislative, and not of a political, power. These last cases are in point, as well as that of Slauson v. Racine, 13 Wis. 398, that this court may pass upon the constitutionality of an apportionment law. In the following cases the legislature itself has deemed it to be a judicial question, to be decided by the courts, and has submitted the constitutionality of apportionments to the decision of the judges. See Opinions of the Justices in 3 Me. 477; 18 Me. 458; 33 Me. 587; 7 Mass. 523; 15 Mass. 537; 3 Pick. 517; 23 Pick. 547; 6 Cush. 575; 10 Gray, 613; Henshaw v. Foster, 9 Pick. 312; Capen v. Foster, 12 Pick. 485; Warren v. Charlestown, 2 Gray, 84; Stone v. Charlestown, 114 Mass. 214. The only three cases in which it is even intimated that the court has not jurisdiction in such a case are the Opinions of the Justices in 142 Mass. 601, and 10 Gray, 613; and Wise v. Bigger, 79 Va. 269. There was no argument of the question in these cases, and in the last the question was not in the case at all.

The learned counsel of the state have submitted very able and elaborate arguments, sustained by authorities, to the effect that the enactment of such a law is not the exercise of the political, but of the legislative, power of the legislature. But it seems to be too plain to admit of an argument, that the apportionment law is like all other laws which this court has declared unconstitutional. It is precisely of the same nature of an act to divide or organize a county or to establish a system of town and county government or to make an election or registry law or tax law. It is essentially a law of the legislature, involving the exercise of the same power as other laws. The injunction asked goes to the secretary of state, to restrain him from giving the notices of an election under and according to said apportionment act. It will not restrain him from giving the election notices required by the general statutes under any other apportionment. He is to be restrained from so far carrying out a void law, which is no law. It relates only to his ministerial duty of giving notices. He is not' the real party in interest, or the object of the action, and such notices are not the subject matter of the .action. He acts only in a subordinate and ministerial capacity under the law, which is the source of the public wrong and injury to be prevented by the injunction against him. He is the only agency by which this law can be executed or carried into practical effect, and the only agency through whom its execution can be prevented. An injunction against him is necessary and preliminary to the jurisdiction of the court over the real subject matter of the action, to prevent the public injury pending the action.

This preliminary jurisdiction is only ancillary to the jurisdiction of the court to declare the law unconstitutional. In giving out election notices there is the exercise of neither judgment nor discretion. Even the governor, with other state officers, having a similar ministerial duty to perform, will be enjoined from carrying out an unconstitutional law. Board of Liquidation v. McComb, 92 U. S. 531; Osborn v. Bank of U. S. 9 Wheat. 738; Davis v. Gray, 16 Wall. 203.

We have already referred to several cases in this court in which these prerogative writs have been served upon the officers of state as the nominal defendants, through whom alone the mischief could be reached; and it is no longer an open question in this court. We have already shown that the court has original jurisdiction in all cases publici juris, brought by the attorney general on his own relation, and “ wherein the prerogatives and franchises of the state in its sovereign character might require the interposition of the highest judicial tribunal to preserve them.” The question remains to be considered whether this is sucli a case.

The constitution provides that “the legislative power shall be vested in a senate and assembly.” Art. IY, sec. 1. These bodies can only exercise this power rightfully when they are created and established according to the constitution.. When thus organized, they may exercise this high prerogative of legislation. But if they have not been created according to the constitution, they are foreign, usurping bodies, that cannot rightfully exercise this great power; and to that extent the state government is revolutionized and emasculated of this high prerogative. The constitution further provides the manner in which these bodies may be formed: First. “The legislature shall apportion and district anew the members of the senate and assembly [after each enumeration] according to the number of inhabitants ” (with certain exceptions). Second. The assembly “ districts are to be bounded by county, precinct, town, or ward Unes, to consist of contiguous territory, and be in as compact form as practicable.” Third. The senate districts must be “ of convenient and contiguous territory,” and shall not divide assembly districts. Fourth. The members of the senate and assembly must be elected by single districts thus formed. This is tbe only method prescribed by the constitution for the creation of the legislature of the state. A legislative body formed in violation of these constitutional restrictions is a body unknown to the constitution, and cannot rightfully exercise this high prerogative of legislation. It is said that these restrictions have nearly all been violated by an attempted creation of future legislatures. It would seem that these legislative prerogatives of the state now require the interposition of this highest judicial tribunal to preserve them. The state and the people of the state would seem to be more interested in the integrity of this department of the government in this exigency, and in view of the threatened danger to our institutions, than in any matter of public concern that has ever arisen in the state. But of course, on grounds of public policy, the acts done and the laws passed by such a legislature would be defacto as binding and obligatory as those of any other legislature. This court once saved the state from the usurpation of the executive department of the state,— a matter of far less public interest and importance than this threatened usurpation of the legislative department of the state. This matter of such supreme importance to the people of the state may well appeal to the original prerogative jurisdiction of this court, as said in Attorney General v. Blossom, 1 Wis. 317, “to shield the sovereignty of the state itself from violation.”

But, again, this apportionment act violates and destroys one of the highest and most sacred rights and privileges of the people of this state, guaranteed to them by the Ordinance of 1787 and the constitution, and that is “ equal rep-> resentation in the legislature.” This also is a matter of the highest public interest and concern to give this court jurisdiction in this case. If the remedy for these great public wrongs cannot be found in this court it exists nowhere. It would be idle and useless to recommit such an apportion-m'efit to the voluntary action of the body that made it. But it is sufficient that these questions are judicial and not legislative. The legislature that passed the act is not assailed by this proceeding, nor is the constitutional province of that equal and co-ordinate department of the government invaded. The law itself is the only object of judicial inquiry, and its constitutionality is the only question to be decided.

The particulars in which the constitution has been violated by this act will be more fully considered by my brethren. It is proper to say that 'perfect exactness in the apportionment according to the number of inhabitants is neither required nor possible. But there should be as close an approximation to exactness as possible, and this is the utmost limit for the exercise of legislative discretion. 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 pa*rt 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. The above disparity in the number of inhabitants in the legislative districts is so great that it cannot be overlooked as mere careless discrepancies or slight errors in calculation. The differences are too material, great, and glaring, and deprive too many of the people of the state of all representation in the legislature, to be allowed to pass as mere errors of judgment. They bear upon their face the intrinsic evidence that no judgment or discretion was exercised, and that they were made intentionally and wilfully for some improper purpose or for some private end foreign to constitutional duty and obligation. It is not an “ apportionment ” in any sense of the word. It is a direct and palpable violation of the constitution. The breaking up of the lines and boundaries of counties by the new assembly districts must have been intentional. It was not necessary in a single instance, and there is no possible margin for the exercise of any legislative discretion. This is a most important restriction on the power of the legislature to make an apportionment. The people have a commendable pride in their own counties, and have more or less a common feeling and interests, and participate together in all their county affairs. They have a right to be represented by their own members of the legislature, and the members themselves can better represent them and promote and protect their interests. They know each other, and have closer relations with each other, gírese considerations, though common, must not be underrated or overlooked. When these restrictions were under discussion in the constitutional convention, they were supported and adopted upon the express ground that they would prevent the legislature from gerry-mcmdermg the state. These restrictions were regarded by the very able members of the convention as absolutely necessary to secure to the people that sacred right of a free people,— of equal representation in the legislature. The right of the people to make their own laws through their own representatives, so fundamental in and essential to a free government, the convention sought to guard by these restrictions. That most dangerous doctrine, that these and other restrictions upon the power of the legislature are merely declaratory, and not mandatory, should not be encouraged even to the extent of discussing the question. The convention, in making a constitution, had a higher duty to perform than to give the legislature advice. Judge Cooley, in his great work on Constitutional Limitations, says: “ The courts tread upon very dangerous ground when they venture to apply the rules which distinguish between directory and mandatory statutes to the provisions of the constitution.”

We have attempted to show that this court has jurisdiction of the subject matter of this action to declare the said apportionment act unconstitutional and void, and to enjoin the secretary of state from giving the notices of the election for members of the senate and assembly under the same. We hold, therefore, according to the complaint,— First, that the court has jurisdiction of the subject matter of this action; second, that it has the judicial power to declare said apportionment act unconstitutional, and to set it aside as absolutely void; third, that the duty of the secretary of state in giving out notices of election is purely ministerial, and may be controlled and restrained by injunction -,fowrth, that the apportionment act is like any other act of the legislature, and is passed by the legislature in the exercise of its legislative power; fifth, that the restrictions on the power of the legislature to make an apportionment, found in sections 8, 4, and 5 of article IY of the constitution, are mandatory and imperative, and are not subject to legislative discretion; sixth, that said apportionment act is in conflict with these restrictions, and in violation of the constitution, and is therefore void. ■

• The motion in the nature of a demurrer is overruled, and •the defendant has leave to answer within twenty days. The decision of the court is unanimous. The Chief Justice and Justice PotNbt will file separate opinions.

PiNnby, J.

In view of the gravity and importance oí -the case, and of the fact that it has been the subject of careful and anxious consideration on the part of the court,' I have thought it not unbecoming to state the reasons which [compel me to concur in the decision of the court overruling ■the defendant’s motion to dismiss the cause.

I. A careful consideration of previous decisions of this court, and the application of well-settled principles of law and of statutory and constitutional construction, will, I am convinced, dispel the doubts and difficulties which have been suggested in regard to the form of the proceeding, the jurisdiction of the court, and the substantial merits of the controversy, before us. ,. The suit is one instituted in this court in the name of the state by the attorney general, upon leave granted, in relation to a matter of public concern, involving the rights and liberties of the people of the state, concerning matters strictly ypvblici juris, and in which no one citizen has any special or peculiar right or interest to be protected or vindicated other than that which is common to citizens in general, and in relation to which no private person can have or maintain an action, and no suit or proceeding can be maintained save in the name of the state, prosecuted by the attorney general. This consideration, of itself, at the .outset, suffices to dispose of the first ground assigned in the respondent’s motion to dismiss, — • that the information states no fact showing the relator to have any interest in the subject matter thereof which entitles him to any standing in a court to petition for relief from> grievances real or supposed.

This suit is in substance and form the suit of the state of Wisconsin, as a political body, on the information or relation of the attorney general, the proper law officer of the state, made upon complaint to him by a private citizen. It is not essential to the jurisdiction of the court that beyond the attorney general there should be any private relator; and the connection of a private relator with the suit is that only of being liable for costs in case it turns out that it was wrongly instituted or is improperly prosecuted. When a suit immediately concerns the crown or government alone, the attorney general or solicitor general proceeds purely by way of information. When it does not immediately concern the rights of the crown or government, its officers depend on the relation of some person whose name is inserted in the information, and who is termed the relator. And as the suit, though in the name of the attorney general or solicitor general, is then carried on under the direction of the relator, he is considered as answerable to the court and to the parties for the propriety of the suit and the conduct of it; and he may be made responsible for costs if the suit should appear to have been improperly instituted or in any stage of it to be improperly conducted. Still, however, a relator in such cases is by no means indispensable; and the attorney general may, if he pleases, proceed in the suit without one. Sometimes it happens that the relator has an interest in the matter in dispute, in connection with the crown or government, of an injury to which he has a right to complain. In such a case his personal complaint is joined to and incorporated with the information given to the court by the officer of the crown or government, and then they form together an information and bill, and are so termed. Story, Eq. Pl. § 8, ut supra; Mitf. Eq. Pl. 117, 118; Attorney General v. Vivian, 1 Russ. 236, 237. If it appeared that the relator had no interest, the bill was dismissed, but the information was retained.

Where the object is the enforcement of a public right, the people are regarded as the real parties, and it need not appear that the relator has any interest in the result. This is familiar doctrine. Pike Co. Comm'rs v. State, 11 Ill. 202; People ex rel. Stephens v. Halsey, 37 N. Y. 348. The rule that the relator in the writ of mandamus, as it is sometimes stated, must show a special, individual right to the relief sought, applies only to cases where individual interests are alone involved, and not to cases where the interest is public and general, and on the information and at the instance of the attorney general, such as this has become by his adoption and official presentation of it, which must necessarily be based upon a public grievance. Attorney General ex rel. Muskegon B. Co. v. Evart B. Co. 34 Mich. 472; Attorney General v. Parker, 126 Mass. 221; Attorney General v. Butler, 123 Mass. 304; Attorney General v. Barker, 4 Mylne & C. 262. In the case of State ex rel. Drake v. Doyle, 40 Wis. 185, where it. was stated that the relator had compromised the controversy and had no further interest in the question and no further right to the writ of mandamus sought, that fact was held immaterial; and it was held that the question before the court was not upon the private right of the relator, and was independent of the accident that there was a relator in the case, and that the question on which the exercise of jurisdiction must turn was whether the subject matter of the writ was one “ quod ad statum reypublAow joertinet; one affecting the sovereignty of the state, its franchises or prerogatives;” that “ it is very certain that it concerns the state at large, that one of its principal officers executes his office in positive and deliberate disregard of a public statute defining its duties.” Pages 186, 187. And, notwithstanding the withdrawal of the relator, the court proceeded to the full and final exercise of its original jurisdiction. Attorney General v. Railroad Cos. 35 Wis. 425. It is evident, therefore, that the objection of a want of interest or title to relief in the private person on whose complaint the attorney general has based his information, is without foundation and cannot be allowed.

II. The information being for what is alleged to be a meditated or threatened public grievance, and it not being necessary that there should be a private relator, or, if there is one, that he should have any special personal interest in the subject matter of the suit or the relief sought except that which he has in common with other citizens of the state, we come to consider the second objection,— that the court has no jurisdiction of the subject matter of the suit; and that the recitals and averments in the information state no wrongs, real or supposed, cognizable in a court of equity. And under this head, as going to the jurisdiction of the court, various propositions are urged, the principal one of which is that the information does not. present any fit matter of judicial cognizance, or make or state a case in relation to which the court can lawfully render or make any judgment or decree.

At the argument, respondent’s counsel was not understood to, and did not, attack or question in the least the former decisions of this court on the subject of its original jurisdiction of the writ of injunction for prerogative purposes, given by the constitution, upon information in equity, as a means of using such writ; nor did he question the right of the court to declare an act of the legislature in violation of the constitution void if the question is presented in some proper judicial proceeding. But the contention was that the entire scope of the suit was to bring in question an exercise of a political power by the legislature in passing the recent act of apportionment of the state into senate and assembly districts (ch. 482, Laws of 1891); that the question presented is wholly a political one, and not a fit matter for the consideration and decision of a court of justice.

The subject matter of this suit is not a controversy with, the act of 1891; it is a controversy with a party,— the secretary of state; not with an officer vested with any political or dÁscretionary power whatever in relation to the apportionment of the state into senate and assembly districts, or with the execution of the act in question, or with the election of senators and assemblymen, but with an official whose duty in the respect in question is purely ministerial, and whose official acts of that character this court has on numerous and notable occasions directed and controlled by appropriate prerogative writs. In brief, the claim of the respondent is that the court has no power to restrain his official conduct in relation to duties of a mere ministerial character when acting, or claiming to act, under an act of the legislature alleged and found to be unconstitutional. The extraordinary character of the contention, in view of a long and uniform course of decisions in this court, and the serious and momentous consequences which would ensue from a doctrine of such alarming and dangerous tendency, has induced an unusually cautious and careful consideration of the question of the jurisdiction of the court in the pending suit.

There is neither occasion nor disposition to review or reconsider or modify in the least the former decisions of the court on the subject of its original jurisdiction, from the case of Attorney General v. Blossom, 1 Wis. 317, to the present time. In the case of Attorney General v. Railroad Cos. 35 Wis. 425, and subsequent cases in his time, that eminent jurist and great lawyer, Chief Justice RyaN, discussed the entire subject in his usual vigorous and luminous manner, and the court fully settled the scope and limits of its jurisdiction. To the many able and exhaustive opinions on that subject nothing can be profitably added or properly taken away. By the decisions referred to it has been settled that this court is a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. That it has original jurisdiction of the writ of injunction as a quasi prerogative writ, where that is a proper remedy, in matters publici juris, within the scope of its jurisdiction, upon the information of the attorney general. That “ 'where there is nonfeasance, mandamus' compels duty; where there is malfeasance, injunction restrains wrong; and so near are the objects of the two writs that there is sometimes a doubt as to which is the proper one. Injunction is frequently mandatory, and mcmdamus sometimes operates restraint.” That “ the prerogative writ proper can issue only at the suit of the state or the attorney general in the right of the state, and so it must le that the writ of mjunctíon in its tose is a clear prerogative writ. . . . It is the duty of the court to confine the exercise of its original jurisdiction to questionsptoblici jiorisG In the case of Attorney General v. Railroad Cos. the applications for injunctions, which were sustained, were to restrain the several companies from exacting tolls for the carriage of passengers or freight in excess of the maximum rates established by the statute, or, as was said in this case, to compel corporations created by the state to obey its laws. If the court can take jurisdiction and grant its injunction to compel a creature of its creation to obey the law, no reason is perceived why it may not, for like public purposes, compel an officer of the state, deriving all his powers from the constitution and laws, and with no authority to do any act except in conformity with them, from doing an unauthorized act in relation to a matter of public interest, concerning which his duties are purely ministerial.

In Attorney General v. Eau Claire, 37 WIs. 400-442, it was held that it is not enough to put in motion the original jurisdiction of this court that the question is pvhlici juris, but it should be a question affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. And in that case the court interfered by injunction to prevent the operation of a law which was unconstitutional, for the construction of certain works in the Chippewa river, for the reason that it was a violation of the sovereign rights of the state over that river as a navigable stream; that, “ without counting convenience or inconvenience, it was the duty of the court, in a proper case, to interpose the prerogative writ of the state to secure the prerogative right of the state from infringement.” In State ex rel. Drake v. Doyle, before referred to, this court issued a peremptory mandamus to the secretary of state to compel Mm to revoke a license to an insurance company alter tbe relator bad withdrawn from the case, with the declaration “ that the writ in this case will issue in the right of the state at any hazard to its officer. We apprehend, however, that there will be none. The state officer is bound to obey the state authority.” So, also, the writ has been issued to the secretary of state to compel him to audit a claim against the state (State ex rel. Sloan v. Warner, 55 Wis. 271), and to the secretary of state and state board of canvassers in relation to the canvass and declaration of result of votes cast at a general election. In Kerr v. Trego, 47 Pa. St. 295, it was held that the remedy by injunction “ extends to all acts that are contrary to law and prejudicial to the interests of the community, and for which there is no adequate remedy at law.”

It would be unprofitable to cite the numerous instances of the exercise of the original jurisdiction of the court in cases against different administrative officers of the state and county and other officers relating to the performance of their merely ministerial duties. The cases cited are of both classes,— of manclmmcs to compel action, and injunction to restrain it. The jurisdiction is clearly granted by the constitution as indispensable to a proper administration of the government and of public duties of an important character, and its existence admits now of no question whatever. It has not been contended, nor can it be maintained, that either of these writs can go to control or restrain any public officer in the exercise of a political or discretionary power. On the contrary the authorities are decisive, and too numerous for citation, that in the latter class of cases these writs cannot lawfully be issued; but it has been already shown, and it was not disputed at the argument, that the duties of the secretary of state in relation to the matters stated in the information are purely and solely of a ministerial nature.

The case presented by the information in substance is that at the session of the state legislature after the last enumeration of the inhabitants taken by the authority of the United States there was passed an act for apportioning and redistricting the state into senate and assembly districts, known as “ Chapter 482, Laws of 1891; ” that the respondent is secretary of state, and as such has recognized and treated this act as a valid and binding law, and filed it as such in the archives of the state department, and published it in the volume of laws required by law to be published; that at the next general election, November 8,1892, there is to be elected one member of assembly for each assembly district in the state, and one senator from each of the even-numbered sfenate districts; that, by the third section of this act, it is required that they be elected from such districts as are constituted by said act; that the respondent threatens and gives out that he will make and issue the election notice for such election, and specify therein the said senate and assembly districts, as mentioned in said sec. 3, and as the same are attempted to be created by said ch. 482, and will, as such secretary of state, publish a copy of such notice in a newspaper printed at the seat of government once in each week from the date of said notice until the election to which it refers is held, and will transmit a like notice to the county clerk of each county in which the election is to be held, and will, if a senator, specify the number of the district; that there is no law authorizing any such contemplated action on his part, the said ch. 482, Laws of 1891, being void by reason of its conflict with the constitution of the state; that, unless restrained from the performance of such illegal act in notifying such election, said election will be held for senators and members of the assembly in and for the districts created or attempted to be created by said act, in which event the inhabitants of the state will be greatly injured in their political powers, rights, and liberties guarantied to them by the constitution; that unless relief be afforded by this court there is no satisfactory or adequate protection for the rights and liberties of the people against such threatened invasion of them; and a perpetual injunction is asked, restraining the respondent as secretary of state, and his successors in office, from making, giving, publishing, or delivering notices of election of members of the senate and assembly, describing the said senate and assembly districts as they are attempted to be created by ch. 482, Laws of 1891, and for such other and further relief, etc. The case made, in brief, is that the respondent intends and threatens that, in the discharge of the duties devolved upon him by law (sec. 17, R. S., as amended .by sec. 1, ch. 327, Laws of 1883) in notifying the coming election for senators and members of assembly, he will describe in such notices districts in and for which senators and members of assembly are to be elected, which have no legal existence as such single and separate districts or constituencies, in violation and to the great prejudice of the rights and liberties of the people of the state as secured to them by the constitution.

¥e have here a controversy existing in relation to the performance by the respondent of an important official duty, of a purely ministerial nature, in which all the people are deeply interested, and affecting their constitutional rights and liberties. This controversy is not, in a legal point of view, in any respect different from a great number of other questions which have arisen in the past concerning the per-, formanee of the ministerial duties of the secretary of state and of other administrative officers, which have been adjudicated by the court without creating any suspicion that the court, in acting upon them, was exceeding its authority or acting otherwise than in the lawful exercise of its constitutional jurisdiction “to issue writs of habeas corpus, mandamus, injunction, quo wa/rrcmto, certiora/ri,” etc., and “ to bear and determine the same.”

We have then only to inquire: First, whether tbe matter in controversy involves such questions. Second, whether the controversy is with a party against whom the court may direct and enforce its coercive powers to enforce its judgment or decree.

The controversy in this case is with the secretary of state, and not with the chapter 482 which he intends to execute. The proceeding is against him, not against the act nor against the legislature. No one contends, so far as I am aware, that the court, by any process, direct or indirect, can exercise any appellate or supervisory power by way of review of the acts of the legislature, or that the court may in any way or manner sit in judgment upon any of its acts relating to matters of legislative discretion, or within its political power, or in respect to which its power is not restricted or limited by the constitution. The position asserted by the court is that in any controversy of a judicial nature, properly brought before the court, in which the validity of an act of the legislature is challenged on the ground that it is in conflict with the constitution, the court has the constitutional and rightful authority to decide whether the act is void or not for that reason, and that its decision on that question is final and conclusive in all courts and places, and against all persons, whether acting in an oficial capacity or otherwise. It is to be presumed that no intelligent lawyer is to be found at this day who will assert the contrary, nor was this position really questioned at the argument. The respondent relies upon chapter 482 as his authority for the course, which he gives out that he intends and threatens to pursue in the matter of notifying the approaching election. In this manner the validity of the act is, in a legal sense, brought in question collaterally or incidentally, though tbe res or subject matter of tbe information is tbe alleged meditated and threatened illegal and unauthorized course of action of tbe respondent. This, and this only, is tbe subject of the suit, and not chapter 482, although in a practical point of view the decision will result in holding the act either valid or void. Coming before the court as it does, in the manner and for the purpose stated, the question arises in the determination of a judicial controversy existing with the respondent as to his proposed conduct, and it is clear that the court must have the power to decide upon the validity of the act in order to decide the case before it.

Whether the matter in controversy affects the sovereignty of the state, its prerogatives and franchises, or the liberties of the people, will be best determined by a brief reference to the leading features of pur American system of popular representative government, designed to be conserved and protected by the provisions of the state constitution in question. A general statement of some of the principal features of this system will prove instructive and appropriate, particularly as it is contended that the controversy here presents only a question of the exercise of political power, and that therefore it is not a judAcial one.

The clearest and most concise analysis of the general features of our political system may be found in the celebrated argument of the eminent statesman and great constitutional lawyer, Mr. Webster, in the case of Luther v. Borden, 7 How. 1, in the supreme court of the United States, which arose out of what is known as the “ Dorr Rebellion.” He said, in substance, that the only source of political power is in the people; that they are sovereign, that is to say, the aggregate community, the accumulated will of the people, is sovereign, but that is not the sovereignty which acts in the daily exercise of sovereign power. The people cannot act daily, as the people. They must establish a government, invest it with so much of the sovereign power as the case requires; and this sovereign power being delegated and placed in the hands of the government, that government becomes what is familiarly called the state. The next principle is that, as the exercise of legislative power and the other powers of the government immediately by the people themselves is impracticable, they must be exercised by representatives of the people. The basis of this representation is suffrage. The right to choose representatives is every elector’s part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector. That is the beginning. That is the mode in which power emanates from its source and enters into the hands of conventions, legislatures, courts of law, and the chair of the executive. Suffrage is the delegation of the power of an individual to some agent. Then follow two other great principles of the American system. The first one is that the right of suffrage shall' be guarded, protected, and secured against force and against fraud; and the second is that its exercise shall be prescribed by previous law,— that every man entitled to vote may vote; that his vote may be sent forward and counted, so that he may exercise his fart of sovereignty in common with his fellow-citizens. There is another principle equally true, that the people often limit themselves, and set bounds to their own power, to secure the institutions which they have established against the su'dden impulses of mere majorities, and also that they may limit themselves by their constitutions in regard to the qualifications of the electors and the qualifications of the elected. Webster’s Works, vol. 6, pp. 221-227, cited by the court with approval in In re Duncan, 139 U. S. 461. See Vanhorne's Lessee v. Dorrance, 2 Dall. 308.

In the organization of the government into three depart-meats, each, measurably independent of the other, — the executive, judicial, and legislative, — ■ the political power of the state was vested in the executive and legislative departments, and the judicial power in the courts. The political organization called the “ state ” is created for the protection and enforcement of the rights and liberties of the people. Its sovereignty or power of rightful control is for the protection of personal and of political rights as well. Prominent among these rights and liberties is the right of citizens to participate in the election; to have their proper voice and influence and just representation in the representative branch of the government as members and as possessors of the sovereignty vested in the people outside of the constitution and not delegated by it. It is this sovereignty, these rights, these privileges and liberties, of the people, which this court, by virtue of its prerogative jurisdiction, has an undoubted right to protect and enforce, as against unconstitutional and illegal attack from all sources whatever. Chief Justice Ryan, in In re Ida Louisa Pierce, 44 Wis. 431-443, speaking of the original jurisdiction of the court and the purposes for which it exists, uses the following pertinent language on this subject: “ The words ‘ liberties of the people,’ in a judicial sense, mean the aggregate political rights and franchises of the people of the state at large. . . . The liberties of the people here and elsewhere are not only essentially subject to the ordinary jurisdiction of the courts, not only unimpaired by them, but are absolutely dependent upon them. The supremacy of original judicial processes enters into the liberties of the people, and is essential to them. Order is essential to all liberty, and judicial supremacy is essential to order.”

The state is a sovereign political organization, and its officers owe it, as a duty, to secure and protect these political rights and the liberties of the people; and its citizens have the right to appeal in appropriate instances to the executive, legislative, or judicial departments, as the case may require, for the protection of their liberties, and, beyond all question, to this court, for the exercise of its original jurisdiction to protect them, according to the methods prescribed by law, against the results of all action, whether legislative, executive, or administrative, in violation of the guaranties of the constitution, and which are of a prejudicial and injurious character. No private citizen, it is true, can maintain a proceeding in this or any other court of justice to obtain relief in such a case, because the wrong, whether committed or meditated, is a 'public one and not private in any proper sense; and it is only in the name of the state, or through its attorney general, that adequate relief can be obtained by invoking the jurisdiction vested in this court by the constitution, as a conservative and restraining power, to protect and preserve the government against threatened maladministration and the struggles of •partisan strife and factional fury which might otherwise overthrow it.

And here it is fit to observe that perversions of the constitutional rules of apportionment designed to secure a fair and just representation, manifestly tend to, and if unrestrained may in time, work the destruction and overthrow of the system of popular representative government itself. It is to no purpose to say that if the power of representation, by a wrongful and illegal apportionment, has been put in the hands of the minority, whereby they are able to perpetuate their ascendency and power, there is, as was contended in argument, an adequate and appropriate remedy for such wrongs at the ballot box. The case of Attorney General v. Eau Claire, 37 Wis. 400, adjudicated after elaborate argument and the fullest consideration, is directly in point. The rights vindicated and protected from the prejudicial effect of an unconstitutional act of the legislature, the operation of which it was sought to restrain in tbat case, were not rights of property or proprietary rights, in any proper sense, but were rights of sovereignty which, the state in its political capacity held and was bound ■ to guard and protect,— rights not other or different in point of law from the rights of the people to have full effect given to the political power of each elector, and a fair and constitutional apportionment of the representative bodies. Eor, as Mr. “Webster well says, “ the right to this representation is every elector’s part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector;” and the state and the people have a right to a fair apportionment of the aggregate of the political power, to the end that there may be a just expression of it according to constitutional requirements.

There can be no doubt, however, that there can be no direct judicial remedy, as against an unconstitutional apportionment, even by and through the extraordinary jurisdiction of the court, unless the controversy can be made in some form with and against some officer whose duties aré ministerial, and who is therefore amenable to the coercive power of the court to compel execution of its judgment or decree. If the respondent is not, as to the matter in hand, a mere ministerial offic'er owing mere ministerial duties, if he is vested with political or discretionary power subject to no limitation, the jurisdiction of the court cannot be maintained; for the court will not render a judgment or decree that it has no possible right to enforce. It was oh this account that the jurisdiction of the supreme court of the United States failed in the case of Mississippi v. Johnson, 4 Wall. 475, and in Georgia v. Stanton, 6 Wall. 60. In the former cáse the court decided that the president of the United States could not be enjoined from carrying into effect acts of Congress alleged to be unconstitutional, on the ground that the duty imposed by the acts in question on the president was not “ in this sense ministerial,” that 'it was “purely executive and political;” that the terms ministerial and executive “ are by no means equivalent in import.” “ The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are in 'proper cases subject to its cognizance,”— and that “ a ministerial duty, the performance of which may in proper cases 'be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It 'is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law,” such as the duty of the respondent is in this case. The case of Mississippi v. Johnson is an unanswerable authority on this point in support of the jurisdiction here. The court in that case refused to allow the bill to be filed because it was “ fully satisfied that the court had no jurisdiction to enjoin the president in the performance of his duties.” Another bill against Mr. Stanton, secretary of war, and other officers under him, was accordingly presented, and the court refused to permit it to be filed upon the same grounds, namely, that the bill involved a political question, and that in order to entitle the party to an injunction a case must be presented appropriate to the exercise of judicial power; that the rights in danger must be rights of person or property, “ not mere political rights, which do not belong to the jurisdiction of a court, either in law or equity;” and inasmuch as the court was called upon to restrain the defendants, who represented the executive authority of the government, from carrying into execution certain acts of Congress, and as such execution would annul and totally abolish the existing state government of Georgia, and establish another in its place, the court refused to permit the bill to be filed.

The passage above quoted from,the opinion of Mr. Justice NelsoN in Georgia v. Stanton, 6 Wall. 60, bas been pressed upon our attention as substantially decisive against the jurisdiction of the court over this information; but, however pertinent it may have been in that particular case, it cannot, we think, have any application here. We do not concede that the exercise of the jurisdiction of this court by writs of injunction and mandamus against ministerial officers, under the clause of the constitution giving it original jurisdiction “ to issue writs of habeas corpus, mandamus, injunction, quo wa/rra/nio, cerUora/ri, and other original and remedial writs, and to hear and determine the same,” is the exercise of political power. It may well be conceded that courts^ of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction in a case such as this; but it is to be borne in mind that the writ of injunction under our constitution is put to prerogative uses of a strictly judicial nature, as a remedy of a preventive character in case of threatened public wrong to the sovereignty of the state, and affecting its prerogatives and franchises and the liberties of the people; their rights being protected in this court by information in the name of the state, .on relation of the attorney general.

It is to be remembered that the supreme and circuit courts of the United States have no jurisdiction of prerogative writs, except as incident and auxiliary to the exercise of a jurisdiction already otherwise acquired. Marbury v. Madison, 1 Cranch, 137; U. S. v. Schurz, 102 U. S. 395; U. S. ex rel. Dunlap v. Black, 128 U. S. 44, 45; McClung v. Silliman, 6 Wheat. 598; Rosenbaum v. Bauer, 120 U. S. 453. Oases .of the use of prerogative writs against the humblest ministerial officers of the United States can reach the supreme court of the United States only by appeal, after having been instituted and heard in the supreme court of the District of Columbia; and in the cases that do thus reach that court the rule of judicial decision is stated in U. S. ex rel. Dunlap v. Black, 128 U. S. 48, to be that “the court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where these duties require an interpretation of the law, the court having no appellate power for that purpose; but where they refuse to act in a case at all, or where by special statute or otherwise a merely ministerial duty is imposed upon them, that is a service which they are bound to perform without further question, and mandamus may issue to compel them.”

Inasmuch as the use of the writ of injunction in the exercise of the original jurisdiction of this court is correlative with the writ of mandamus, the former issuing to restrain where the latter compels action, it is plain that this case, as against the respondent, is a proper one for an injunction to' restrain unauthorized action by him in a matter where his duties are clearly ministerial and affect the sovereignty, rights, and franchises of the state, and the liberties of the people. The jurisdiction of this court to control the official action of public officers in the performance of mere-ministerial duties has been liberally exercised in numerous cases for a period of over forty years, and without any apprehension that the court was exercising political power or interfering -with, political questions. No reason is perceived for declining the jurisdiction now. It would seem to be a fair test of the question of jurisdiction in this case by injunction, that if the respondent, believing the act to be void and refusing to act under it,- was about to proceed to notify the election of members of the senate and assembly under some former apportionment act, if mandamus might be resorted to in order to compel him to act under chapter 482 of the laws of 1891, on the assumption that it was valid, injunction, by parity of reasoning, might be granted to restrain action under that act, if found to be void. It is not reasonable to suppose that there would have been the least hesitation, in case the respondent had refused to act under chapter 482, to apply for a mandamus to have compelled such action, or that it would have been considered that the proposed course of the respondent so far involved a question of political power that the court would not have had jurisdiction to compel him to act under the law, if found valid. The truth is that the power of the respondent to notify elections is in no just sense whatever political; and in view of the purely ministerial nature of his duty, it is a misuse of terms to assert that his power or duty is in any sense political. The act he is required as a ministerial officer to assist in executing by giving the notice, is the result of legislative power, and therefore, it may be said, of political power; but this does not make the act required of the respondent, in giving or refusing to give the notices, which is a mere consequence of the exercise of political power, a political act, so as to prevent judicial examination of his conduct in acting or refusing to act for that reason, if the law is void for conflict with the constitution. Were the case otherwise, no act of the legislature could be questioned for conflict with the constitution, because it could be said in any such case, as appropriately as in this, that the enactment of the law itself was an exercise of political power, and the court could not, therefore, examine it to determine whether it is in conformity with the constitution. Such a contention confounds all distinction between the law itself and mere ministerial acts done or required to be done under it.

It was suggested rather than argued at the hearing that the power of apportioning and redistricting the state into senate and assembly districts is not essentially a legislative power, but rather of an administrative character, and that it is a power entirely within the discretion of the legislature, or at least the court could not disregard their action as erroneous or even as illegal when coming collaterally and incidentally before it, as it could do in the case of an act of the legislature in conflict with the constitution, and that therefore the court is without jurisdiction; and reference was made to the fact that during the existence of the territorial government the governor apportioned the territory from time to time into legislative districts, and that in some of the states the like power has been delegated to and exercised by administrative officers or local boards possessed of quasi legislative powers for some particular purposes. It is sufficient to say on this subject that, the constitution having vested this power in the legislature, they took it, as they did all other power vested in the legislature, as a legislative power, to be exercised as such. Certain it is the legislature cannot delegate it; and by an unbroken usage extending from the organization of the state, more than forty years ago, it has been used and exercised as a legislative power executed in the form of a law, approved by the governor, and published in the general laws. It is not now open to question but that, under the constitution, it is strictly a legislative power, and, when embodied in an act of the legislature, it may be declared void by the court by reason of being in conflict with the constitution. But if it is not strictly a legislative power, if, as counsel contends, it is a mere act of politioal¿power, upon what possible ground can it be maintained, in the face of the plain provisions of the constitution by which it is limited and restrained, that the delegate in the performance of his trust becomes superior to his creator and may transcend the terms of'his commission and disregard its conditions and limitations, and still his act be esteemed valid and conclusive? To so hold would be to declare that the conditions and restraints placed by the constitution upon the exercise of its power, vital to the maintenance and preservation of a popular representative form of government, are only of optional obligation, and that the very. guaranties of its perpetuity may be so wrested from their purpose and perverted as to become the speedy and certain instruments to subvert and destroy it. It is clear to my mind that the restraints and conditions annexed to the power abide with it, and when disregarded it is the right and duty of the court to declare the act void.

We have, then, all the essential elements of a judicial controversy proper for the determination of a court of justice. There is a controversy between the state, as a political organization suing by its attorney general, and the respondent, in relation to the discharge of a purely ministerial duty, concerning matters respecting the sovereignty, prerogatives, and franchises of the state, and the liberties of its people, which is matter cognizable in this court, on information of the attorney general, by virtue of its original jurisdiction; and there is a party respondent whose duty in the premises is in no sense political or discretionary, and who is amenable to the process of the court to enforce obedience to the decree or judgment which it may render, and as against whom the court has ample power for the purpose of determining the question whether the threatened or meditated course of the respondent is rightful or wrongful, and whether he may issue notices of election for senators and members of assembly, describing therein separate districts and constituencies which have, as claimed, no legal existence as such. The provisions of chapter 482, under and according to which respondent proposes to act, come before the court, and the question of the validity of the act arises incidentally and as collateral to the determination of the question in controversy. It is not a question of the validity of chapter 482, in the abstract, that is the subject of jurisdiction, for this would not form of itself a proper subject of jurisdiction, and the determination of the validity of the act is not otherwise involved save as it comes in question in order to decide the controversy before the court, which is solely and only the legality of the proposed action of the respondent.

For these reasons, stated more at length than necessary,. I think that in the case of a manifest violation of the limitations of the constitution upon the power of the legislature-to pass an act apportioning the state into senate and assembly districts, and distributing between local constituencies the aggregate political power of the electors, the sole remedy is not by an appeal to the magnanimity of those who have committed such a wrong to surrender their power gotten by it, or at the ballot-box, or by revolution, but that the court has, beyond all question, jurisdiction, in a case instituted as this one is, to proceed to its determination and grant the proper remedy.

III. The question whether ch. 482, Laws of 1891, is void for want of conformity to the provisions and limitations of sections 3, 4 and 5, art. IY, of the constitution, presents-questions of great interest and of paramount importance, affecting the integrity and stability of our system of popular representative government; and it is impossible to approach its discussion without a deep sense of the grave responsibility devolved upon the court in its decision. The act in question is one which affects or may affect no one particular class of people or locality, but all the people of the state in their collective and individual rights and interests ; and it cannot be declared void because it is supposed to violate the natural, social, or political rights of the people, unless it is made to clearly appear that it is violative of rights guarantied or protected by the constitution; nor because it may appear to violate fundamental principles of popular government, unless placed beyond legislative encroachment by that instrument; nor yet because the act may be said to be, in a general sense, opposed to the spirit, not expressed in words, but supposed to pervade the constitution. In order that the court may be justified in de-. daring an act of the legislature void, the repugnance between it and the express provisions of the constitution and those limitations necessarily or conclusively implied from it must be clear and irreconcilable; and in all matters of unlimited discretion, or involving only considerations of public policy, the determination of the legislature is final and conclusive on the courts. Nor will an act be held void by reason of any supposed improper motives or unconstitutional intentions of the legislative body which enacted it. The respect which the court entertains for the legislative department of the government, as well as grave reasons of public policy, alike forbid such an inquiry with a view of defeating the operation of any public legislative enactment. Fletcher v. Peck, 6 Cranch, 129. In Ex parte McCardle, 7 Wall. 513, the court said: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitution.” And in Doyle v. Continental Ins. Co. 94 U. S. 541: “ If the act done by the state is legal, is not in violation of the constitution, . . . it is quite out of the power of any court to inquire what was the intention of those who enacted the law.” And in Soon Hing v. Crowley, 113 U. S. 703-710, it was held: “ The rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts or inferable from their operation, considered with reference to the condition of the country or existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactment; ” and “ we' must not suppose the legislature to have acted improperly, unadvisedly, or from’ any other than public motives, under any circumstances, when acting within the limits of its authority.”-

An issue of fact cannot be framed and tried by a jury or otherwise with a view of determining by its result tbe validity of an act of tbe legislature, but tbe court is to be confined to matters of wbicb it may take judicial notice; for otherwise a jury might find on the issue one way to-day, and another way to-morrow, and this would beget a distressing condition of uncertainty. The enumeration made under the authority of the United States in 1890 of the inhabitants in the several minor political divisions of the state, grouped according to the separate districts described in the act, is made an exhibit to and a part of the information. It seems to be well established that courts will take judicial notice of a census, whether taken under the authority of the state or United States. State ex rel. Board v. County Court, 89 Mo. 237; Temple v. State, 49 Am. Rep. in note, 201; 24 Am. Law Reg. 568; Geraghty v. Ashland Co. 81 Wis. 36; State ex rel. Terry v. Keaough, 68 Wis. 142. The apportionment is to be “according to inhabitants,” and made at the next session after the state or United States enumeration, and the enumeration is evidently intended as the basis of apportionment. The court will take judicial knowledge of the location, general boundaries, and juxtaposition of the several counties, towns, and wards mentioned in the act in question, and of matters of common knowledge. Brown v. Piper, 91 U. S. 37; King v. Gallun, 109 U. S. 101.

It was contended on behalf of the state that the provisions of sec. 2 of the Ordinance of July 13, 1787, for the government of the Territory of the North-West, that “the inhabitants of said territory shall always be entitled to the benefits ... of a proportionate representation of the people in the legislature,” which is embraced in and continued in the organic act of the territory of Wisconsin by sec; 4, providing that “ an apportionment shall be made, as nearly egual as practicable, among the several comities, for the election of the council and representatives,” and by sec. 12, providing that “ the inhabitants of said territory shall be entitled to and enjoy, all and singular, the rights, privileges, and advantages granted and secured to the people of the territory of the United States northwest of the Ohio,” by the Ordinance of July 13, 1787, had the effect of a solemn compact, which remains yet unrepealed in its obligations, securing “ proportional representation ” and “ an apportionment as nearly equal as practicable ” by the single district system, under the state constitution requiring such districts to be grouped by counties, with other provisions added by the state constitution for greater security.

The Ordinance of 1787 and the organic act of April 20, 1836, were the fundamental law of the territory, and as a constitution for it, until the admission of the state into the Union, May 20,1848, under its present constitution, “ on an equal footing with the original states,” when the Ordinance of 1787 and the organic act as well, which were adapted only to the territorial condition of Wisconsin, became obsolete and ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. Pollard’s Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, 3 How. 589; Strader v. Graham, 10 How. 82; Withers v. Buckley, 20 How. 92; Escanaba Co. v. Chicago, 107 U. S. 678. Though obsolete, these acts may be properly regarded as inpari materia, and helpful and of historical value, in construing secs. 3, 4, and 5 of art. IY of the constitution, which came in to take the place of the provisions briefly quoted.

The rules of apportionment and the restrictions upon the power of the legislature are very simple and brief. (1) By sec. 3 the apportionment is required to be “ according to the number of inhabitants, excluding,” etc. (2) By sec. 4 the members of the assembly shall be chosen annually {a) by single districts; . . (h) such districts to be bounded by covmty, precinct, town, or ward lines; (e) to consist of contiguous territory; and (3) to be in as compact form as practicable. (3) The senators shall be chosen (a) by single districts (b) of convenient (c) contiguous territory; and (<3) no assembly district shall be divided in the formation of senate districts. Looking at the scope of these limitations, it is obvious that it was intended to secure in the future that which had been adopted and secured and enjoyed almost from the origin of popular representative government in this country to the time the constitution was adopted, “proportionate representation,” and apportionment “as nearhj epaal as practicable among the several coxmties for the election of members ” of the legislature, as it had existed in Wisconsin since 1836.

The provision of sec. 3 for an apportionment “ according to the number of inhabitants ” is the exact eq uivalent of the provisions of the Ordinance of 1787, of a “ proportionate representation of the people in the legislature,” and it is an incident not without its value that the first apportionment act passed under the constitution at the session of 1851 was vetoed by Governor Dewey on the ground of a very considerable disproportion in the number of inhabitants in senate and assembly districts as constituted by it; .that it was unconstitutional, as not being “ according to the number of inhabitants;” and the veto was sustained, with only twelve votes in the assembly against it (Assembly Journal, 1851, pp. 810-812); but the disproportion was far. less significant than in the act of 1891.

Up to the time of the constitutional convention representation had been by counties, and the single district system’ had not been much in use elsewhere. The meager report of the debates indicates clearly that, while the members of the convention were willing to adopt the single district system, which Judge DuNN (then chief justice of the supreme court) thought “would open a door for gerrymandering which ought to be kept closed,” and were willing to abandon the former method of electing all the members for an entire county on a general ticbet, yet the discussion proceeded on the idea that the county was an entire political division, to be divided into single districts composed entirely of territory within the county. The leading idea seems to have been that each county was regarded in the nature of “ a small republic,” or “ in the light of a family,” and' “ each organized county had a separate interest,” and Mr. Chase thought it was the province of the supervisors, rather than of the convention, to divide counties into districts; and Mr. Prentiss said: “ In order to preserve county lines the single district system must be adopted.” The discussion arose on amending to its present form sec. 4, and which, as originally introduced, provided for a choice of senators and members by single districts, without any direction or restraint as to the manner of their formation; and the argument is now urged that the effect and meaning of sections 4 and 5 are the same only, even after adding the provision in respect to assembly districts, requiring them to be “ bounded by' county, precinct, town, or ward lines, to consist of contiguous territory, and be in as compact foym as practicable,” as before, and that no additional restraint was thereby imposed on the legislature in the formation of such districts; and so, too, of the provision added in respect to senate districts, requiring them to be “ of convenient contiguous territory ; ”— in short, that all the provisions of the sections above referred to are directory merely, and that the entire subject was left to the legislature, without limitation, to form such districts in any manner it might see fit. Journal of Debates, 219-224, 382-386.

It does not appear that the language used was employed by way of exhortation to the legislature to eschew the pernicious methods of gerrymandering, then recognized as an evil to be greatly deplored. It better suits ;the important character of the rights sought to be guarded, and the character and purpose of the instrument, to regard these provisions as mandatory and not directory merely. Mr. Cooley, in his work on Constitutional Limitations, 93-98, discusses the question whether rules which distinguish directory and mandatory statutes apply to the provisions of a constitution, and he arrives at the conclusion that “ it will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory and not imperative.” People ex rel. Crowell v. Lawrence, 36 Barb. 177, 186; Cannon v. Mathes, 8 Heisk. 504, 517; Varney v. Justice, 86 Ky. 596; State v. Johnson, 26 Ark. 281.

In view of the provisions of the Ordinance of 1787, of the organic act of the territory, and of the history of the provision in question in respect to assembly districts, the intention of the framers of the constitution becomes plain and certain, if it were possible to say that from the language used in it there is any ambiguity or uncertainty so that constniction would have any proper office to perform. The provision is, “ Such districts to be bounded by county, precinct, town, or ward lines, to consist of contiguous territory, and be in as compact form as practicable; ” that is to say, that in creating such districts no county, precinct, town, or ward shall be divided, and there is no more warrant for dividing counties in forming assembly districts than for dividing a precinct, town, or ward. The scope of the language is not that the boundaries of any such districts may be in part by county, and .in part by precinct, town, or ward, lines, leaving districts to be formed of parts of different counties, or of one county and part of another, for in such case the use of the words “ precinct, town, or ward lines ” would have fully answered such purpose or intention, and the use of the word “ county ” would have been superfluous, because county lines are in all cases identical with town or ward lines, precincts as political divisions having ceased to exist. The word “ county ” answers a definite and necessary purpose in expressing in clear, concise language the object in view, namely, to adopt the single district system and retain, as before, tbe county as a subordinate. political division, to be divided into single districts where its inhabitants are entitled to more than one member, and prohibiting the division of counties in the formation of assembly districts. This brought the entire constitutional history on the subject into harmonious relation with the language used, and avoided the opening óf the door to gerrymandering, as it was feared would be the case if the single district system should be adopted, and gives to every part and word of the provision an appropriate and harmonious meaning. The rule is that effect is to be given to every clause or word of a statute, and no word is to be treated as unmeaning if a construction can be legitimately found which will preserve it and make it effectual. Sedgw. Stat. & Const. Law, 200; End. Interp. Stats. '§ 23. And “ this rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication.” Cooley, Const. Lim. 72. The rule is that a statute ought, upon the whole, to be so construed that, if possible, no clause, sentence, or word shall be superfluous, void, or insignificant. Harrington v. Smith, 28 Wis. 44-67; Comm. v. Alger, 7 Cush. 89; Opinion of Justices, 22 Pick. 571; People v. Burns, 5 Mich. 114; Platt v. U. P. R. Co. 99 U. S. 48, 58; Montclair v. Ramsdell, 107 U. S. 147, 152.

In the act under consideration there are twenty instances in which counties have been divided in the formation of assembly districts, in violation of the constitutional rule preserving the territorial integrity of counties in the apportionment of the state into assembly districts; and by no possible construction of the act can it be brought into har-mony with the provisions of tbe constitution. Both the provisions of the constitution and those of the act are too plain for construction, and the repugnance of the act to the constitution is clear and irreconcilable. The rule in respect to contemporaneous construction is inapplicable, for no amount of usage will suffice to dispense with or overcome a plain statutory provision, much less a plain provision of the constitution. Inasmuch as the several provisions of an act of apportionment are so largely dependent upon each other, and as such an act must be regarded as an entirety, and this one with the objectionable districts would form no just approximation or relation to an act of apportionment of the state, there is no alternative but to hold that, the act in question is void, and that the senate and assembly districts described in it have no legal existence. The respondent has therefore no lawful authority for giving a notice of election such as it- is alleged he proposes to issue, and the court cannot but so declare, be the consequences what they may.

Apprehensions have been entertained as to the effect which a decision adverse to the validity of the act will have upon past legislation, and upon the competency of the present legislature to pass a valid apportionment, as it is said that the apportionment act of 1887 is obnoxious to the same objections as this one. Upon the assumption that the act of 1887 is void for any reason, senators and members of assembly who have been elected and have qualified under it are such de facto, and their acts are valid as to the public and third persons, within repeated decisions of this court. In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521. And it is no doubt competent for the legislature, at a special session hereafter called, to pass a valid apportionment act, notwithstanding the requirement of the constitution that it be passed at the session next after the last enumeration. The plain intent of this’ provision is to enable a new apportionment to be made at the earliest practicable period after the enumeration, to the end that the change in the representation thereby required shall readily become effective and not be unreasonably delayed. The duty to pass such an act is a continuing one from the time it is constitutionally devolved upon the legislature until performed, though ■vyhen thus performed the power to pass any other such act is exhausted and will not again arise until after another enumeration. It has been held in Rumsey v. People, 19 N. Y. 41, that under the provisions of the constitution of New York, in substance the same as our own, an apportionment act, passed at a session subsequent to the next one after the enumeration, was valid; and the first apportionment act which became operative in this state was not passed at the next session after the census of 1850, which was held in 1851, and not until the session of 1852, the one passed at the session of 1851 having been vetoed; but no difficulty was experienced by the delay, .and it seems plain, both upon principle and precedent, that no objection exists to the passage of a valid act of apportionment at a special session which may be hereafter called. No difficulty, it is believed, need be apprehended as to the result of the decision the court has felt it to be its imperative duty to make; and our respect for the executive of the state, whose duty it is “to take care that the laws are faithfully executed,”' forbids any apprehension that he will fail in the least in meeting the present emergency, or to take such measures as in his wisdom seem best to give full effect to the constitution and the laws.

A provision of our constitution that “ the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable ” (sec. 23,. art. IV, Const.), has been very strictly enforced. State ex rel. Peck v. Riordan, 24 Wis. 484, and quite a large number of subsequent cases, show that very many acts have been declared void because they impaired the uniformity of such system, and the provision has been so construed as to leave little or no discretion to the legislature as to any or what deviation will be constitutional and valid.

The formation of some of the senate districts in this act, particularly the ninth and twenty-eighth, as well as some of the assembly districts, seems to be indicative of a studied and deliberate disregard of the constitutional requirements, rather than of a fair and earnest attempt to conform to or comply with them; and the very great disproportion in the number of inhabitants in certain assembly districts mentioned in the opinion of the chief justice must, it seems to me, be regarded as in violation of the mandate of the constitution to apportion members of the assembly according to inhabitants.

There is, no doubt, a wide distinction between the exercise of a fair, just, and necessary discretion within the rules of constitutional apportionment, and a gross departure and manifest abandonment and defiance of them; between discretion within certain limits and for certain ends, and an open, obvious, and palpable violation of them. It is plain that by disregarding them, namely, that which requires apportionment to be “ according to inhabitants ” and those which require assembly districts to “ be in as compact form as practicable ” and that senate districts be formed of “ convenient contiguous territory,” the right of representation of local constituencies may be grossly violated, and particularly in the formation of senate districts, inasmuch as no assembly district can be divided for that purpose; but whether this court can declare an act of apportionment void in such cases is a question not material to the decision of this case, and which will require further discussion and consideration, and need not be now determined.

• The apportionment of the state into senate and assembly districts according to inhabitants is a task, no doubt, of difficulty and delicacy; and while a liberal margin is necessarily allowable for the exercise of a wise and just discretion, so that the apportionment will be practically just and proportionate,— the end designed to be attained by the constitutional limitations on the power of the legislature,— yet the task is not so intrinsically difficult but that a fair and just result maybe readily reached in accord with these limitations, against which no well-grounded complaint can be made.

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Concurrence Opinion

WiNsnow, J.

I concur in the views expressed by Mr. Justice PlNNEY.

Lyon, C. J.

1. It is maintained on behalf of the state that the county is the primaiy territorial unit of representation in the assembly, and that while in some instances, in order to preserve equality of representation, an assembly district must necessarily include two or more counties, yet such district must be bounded exclusively by county lines. Stated in another form, the contention is that in any valid apportionment of the state into assembly districts the integrity of county lines must be preserved, and hence no such district can consist of one, or more than one, county and a fraction of another county, or of fractions of two or more counties. If this is a correct construction of constitutional provisions on the subject, ch. 482, Laws of 1891, cannot be upheld as a valid law, for it violates those provisions in the formation of fifteen or more assembly districts, and dismembers twenty counties. It requires no argument to demonstrate that if such districts are formed in violation of constitutional rules the whole act is void, for the apportionment is an entire process,— each part thereof being affected in a greater or less degree by, and dependent upon, every other, part,— and it is impossible to expunge therefrom those portions which dismember counties, and save the residue. The above contention requires the court to determine the constitutional rules for the formation of valid assembly districts.

Sec. 4, art. IY, of the constitution, provides that assembly districts shall be “ bounded by county, precinct, town, or ward lines.” The term “precinct,” as thus used, has ceased to have any significance. When the constitution was adopted, the optional township system of government, enacted in 1841, did not prevail in several counties of the territory of Wisconsin. Those counties were divided into precincts,— mainly for election purposes,— each of which corresponded in some respects to the town or ward of the other counties. But the precinct of the constitution disappeared when the uniform system of town and county government prescribed, by the constitution (art. IY, sec. 23) became fully operative. We have now no civil subdivisions, other than towns and wards, which are the equivalent of the precinct of territorial times. Chicago & N. W. R. Co. v. Oconto, 50 Wis. 189. The term may have been used in statutes since the adoption of the constitution, but it will be found, we think, that with a single exception it is so used as the equivalent of “ town ” or “ ward.” • The exception is found in the legislative apportionment act of 1876 (ch.'343), in which the east and west precincts of the town of Wrightstown in Brown county are named and placed indifferent assembly districts. If Wrightstown was then an incorporated village, although designated in the act as a town, the term was doubtless employed as the equivalent of “ ward.” If it was an ordinary town, we are aware of no law authorizing its division, or the division of any town, into precincts which may properly be placed in different assembly districts. Election districts created by municipal authority are hot the “ precincts ” of the constitution. Under existing laws, therefore, we shall feel at liberty to omit the term “ precinct ” when referring to the above provision of sec. 4, art. IY.

The provision of the constitution that assembly districts shall be bounded by county, town, or ward lines is not only the mandate of the people, acting in their sovereign capacity, to the legislature thus to constitute those districts, but it is a limitation upon the power of the legislature in that behalf, prohibiting that body from constituting such districts in any other manner. The question to be determined is, What is the true meaning and significance of such mandate?

That the provision requires assembly districts to be bounded by town or ward lines, because all county lines are either town or ward lines, and that it prohibits the division of towns and wards in the formation thereof, admits of no doubt. We are to determine what effect is to be given to the specification therein of county as well as town or ward lines. There are two civil or municipal divisions of the state, not named in sec. 4, art. IY, to wit, cities and villages. When the constitution was adopted there existed in the territory villages with town lines passing through and dividing them into two parts. In such cases the dismemberment of villages could not be prevented without dismembering towns. There were also'villages divided by county lines, and since that time cities have been organized also divided by county lines. Had the lines of these municipal divisions been specified in the constitution as lines by which assembly districts must be bounded, it would render necessary in several cases the disregarding of county lines and the' dismembering of counties in the formation of assembly districts. ' But the lines of such municipalities are not specified as assembly district boundaries, while the lines of counties, towns, and wards are so specified. The inference is irresistible that such lines are so specified to prevent the dismemberment of counties as well as towns and wards, while, the lines of cities and villages are not specified as such boundaries, because it would be necessary to disregard them and dismember such municipalities in order to prevent the dismemberment of counties and towns.

There is another very cogent reason why the provision under consideration should be held to protect counties, as well as towns and wards, from dismemberment. All county lines are town or ward lines also. If it was only intended thus to protect towns and wards, the word “ county ” in the provision performs no office whatever, but is meaningless and should be rejected as surplusage. The settled rules of statutory and constitutional construction forbid this, if any force and effect can be given the word. The ruléis that every clause and word of a statute — much more of a constitutional provision, which it must be conclusively presumed was framed with the utmost deliberation and care — must be assumed to have been intended to have some force and effect, and, if possible, must be so construed. Harrington v. Smith, 28 Wis. 43, and authorities cited by DixoN, 0. J., in the opinion. The force and effect the word “ county ” was intended to have is entirely clear. Inasmuch as the town and ward were thus protected from dismemberment, it was intended by the same provision to protect the county from dismemberment in like manner. It means this, or it has no significance whatever.

The lines of these municipal divisions, counties, towns, and wards, are named in the constitution as boundaries of assembly districts. The county is the larger and more important division, and accordingly is first named. Under familiar and elementary rules of construction it should first be regarded in making the apportionment, and the assembly districts should be bounded by county lines until the necessity alises for bounding them by town or ward lines which are not county lines also. This necessity only arises because the constitution provides for choosing members of assembly by single districts, and some counties have a sufficient number of inhabitants to entitle each of them to more than one member of assembly. Snob counties must necessarily be divided into the requisite number of assembly districts. The external boundaries of such districts, or some of them, will still be county lines, but the interior boundaries thereof will necessarily be town or ward, and not county,.lines. But for the necessity of dividing some counties into two or more assembly districts, there would have been no necessity of mentioning town and ward lines in sec. 4 of art. IY, for all the assembly district boundaries would in such case have been county lines. In such case, doubtless, county lines only would have been specified, as in the provision for the formation of judicial circuits. Const, art. YII, sec. 6.

The construction which we have thus given the constitutional provision under consideration, were its meaning at all doubtful, is supported by certain conditions and circumstances existing when the constitution was adopted. Before that time it had never happened in Wisconsin that a county, was dismembered in the formation of a legislative district. If a county was entitled to more than one representative in either branch of the legislature, both or all of them were elected on a general ticket. If the same district extended into two or more counties, both or all of such counties were invariably included therein entire. See Leg. Man. 1891, pp. 116-125. Neither had there been elsewhere (so far as we know or are advised by the argument) any dismemberment of a county in the formation of a legislative district. Furthermore, for nearly a quarter of a century after the adoption of the constitution (with a single possible exception), no attempt was made to dismember a county in an apportionment of members of the assembly, although during that time four such apportionments were made. Laws of 1852, ch. 497; 1856, ch. 109; 1861, ch. 216; 1866, ch. 101. The possible exception referred to is that in the first of these acts an assembly district was constituted of certain towns in Marquette county and the county of Waushara. The latter county was created by ch. 77, Laws of 1851. Its territory was taken entirely from Marquette county, and it remained attached to that county for judicial purposes until it was fully organized under,-ch. 34, Laws of 1852. If the apportionment of 1852 speaks from the time the enumeration of inhabitants was made upon which it was based (which was in 1850), or from any time before the enactment of ch. 77 aforesaid during the legislative session of 1851,— that being the session at which the apportionment should have been made, — there was no dismemberment of Marquette county in that apportionment. Otherwise there was such dismemberment. But, if that was a violation of the constitutional rule, it was doubtless inadvertently done, and the integrity of county lines was restored in the nest apportionment, and was not again violated until 1871.

It has been suggested, however, that the first legislative apportionment, which is contained in the constitution and is a part of it, dismembered the county of Iowa. The provision referred to is this: “ The precincts of Franklin, Dodgeville, Porter’s Grove, Arena, and Percussion in the county of Iowa, and the county of Eichland, shall constitute an assembly district.” [Art. XIV, sec. 12.] 'On its face this looks like the dismemberment of Iowa county. If it were such, it would prove nothing more than that the people who adopted the constitution, acting in their sovereign capacity, did an act which they prohibited future legislatures from doing. But, for reasons which will now be stated, Iowa county was not dismembered by the constitutional apportionment.

By- an act of the territorial legislature entitled “ An. act to establish the county of Eichland,” approved February 18, 1842, the territory now included in that county was “ constituted a separate county by the name of Eichland,” and by the same act was “attached temporarily to the county of Iowa for all county and judicial purposes.” This legislation merely designated, by boundary of the tract, certain contiguous townships and sections in Iowa county as Richland county. It was a mere geographical designation, carrying with it no municipal, judicial, or other function (if there be any other) of county government. The inhabitants of the prescribed territory remained inhabitants of Iowa county, with all the rights, privileges, and immunities pertaining thereto. The qualified electors therein were qualified electors of Iowa county, eligible to hold the public offices therein, and, if citizens, competent to sit as jurors in the eourts thereof. The act of 1842 had no more effect on the civil or political status of those people than as though the legislature had bestowed upon the designated territory any other mere geographical name, without using the term “ county ” at all. This condition of things remained unchanged until 1850, when the legislature provided for the organization of Richland county, and the same was thereafter organized pursuant to the statute in that behalf. Laws of 1850, ch. 92.

There are most satisfactory reasons why the unity of counties was thus universally respected and preserved. The county is the chief civil subdivision of the state. It, or its equivalent, has existed from the first in all the states and territories of the Union. It has always been the medium through which the state performs some of its most important functions, particularly that of raising revenue. Its governing body has always been clothed with important legislative powers of a local character, directly affecting the welfare of all the people within its borders. It is a sort of imperium in imvperio as regards local self-government in many particulars. These functions were regarded so important that the constitution expressly gives the legislature power to “ confer upon the boards of supervisors of the several counties of tbe state such powers of a local legislative and administrative character as they shall from time to time prescribe.” Sec. 22, art. IV. This is one of the most ample grants of power in the constitution, and its insertion therein proves the importance of the county and county government in the estimation of the people who adopted the constitution.

The people of a county have common interests and objects, peculiar to themselves, and intimate public relations with each other. The electors thereof vote for the same public officers; are subject to the jurisdiction of and attend the same courts; some of them sit upon the same juries and in the same board of supervisors; and all have a common interest in all county affairs. Hence, when the constitution was adopted, it was deemed of vital importance that dismemberment of counties in the formation of assembly districts should be avoided, to the end that each county having sufficient population should have its own representative in the legislature, chosen by its own electors and them only, and owing no divided, perhaps conflicting, allegiance to any other constituency. True, because of the sparse population in some portions of the state, it was and is necessary in some cases to include more than a single county in one assembly district. But the autonomy of the county could still be preserved, and the evils of county dismemberment in a great measure avoided, by making such districts consist of whole counties. This may easily be done in the apportionment of the state into assembly districts, without infringing any constitutional requirement.

The single legislative district system was incorporated into the constitution. This rendered necessary a division of those counties the population of each of which entitled it to more than one member of the '¡assembly. But under that system there is no difficulty in avoiding the dismemberment of counties, by confining exterior lines of such districts to county lines, where they extend to county lines. By so doing, the county will be saved from dismemberment and preserved as the primary territorial unit of the assembly districts.

To the above-mentioned conditions it may be added that the debates in the convention which framed the constitution, and the earnest protests of leading members of that body, and of many other citizens contemporary with them, against such dismemberment when proposed in later years (all which is matter of history,), furnish additional evidence that the convention which framed and the people who adopted the constitution intended thereby to preserve the integrity of counties in the formation of assembly districts.

Considering all the facts and circumstances above stated, and having due regard to the language of the constitution in that behalf, we are impelled to the conclusion that it was not intended thereby to permit the legislature to dismember any county in the formation of assembly districts;— that is to say, it prohibits the legislature from placing one county, or more than one, and a portion of another county, or portions of two or more counties, in the same assembly district; — and that such prohibition is found in the provision which requires that assembly districts shall be bounded by county, town, or -ward lines. If a county has a sufficient number of inhabitants to entitle it to two or more assemblymen, the requisite number of districts must be formed entirely within the limits of such county. But this is no more dismemberment than is the division of a county into towns.

The departure from the requirements of the constitution in the formation of assembly districts practically commenced with the apportionment of 1871, in which a fraction of Kewaunee county was placed in an assembly district with a fraction of Brown county, and the residue of Kewaunee county in a district with Boor county. The city of Watertown, being in Dodge and Jefferson counties, was made a district, and another district was created which included fractions of Waupaca and Outagamie counties. Ch. 156, Laws of 1871.

In the next apportionment (ch. 843, Laws of 1876) we find but two such cases. The city of Watertown entire and certain towns in Jefferson county were placed in one assembly district, and Pepin county, with a fraction of Buffalo county, constituted another district.

The apportionment of 1882 furnishes but one case of county dismemberment. Fractions of Calumet and Outa-gamie counties were placed in one assembly district. Ch. 242, Laws of 1882.

In the apportionment of 1887 we find an assembly district composed of fractions of Green and La Fayette counties; another of fractions of Winnebago and Outagamie counties; another of fractions of Manitowoc and Kewau-nee counties; and another of fractions of Shawano and Waupaca counties. Ch. 461, Laws of 1887. By this time the constitutional rule had been pretty effectually undermined, and so, when the apportionment of 1891 was made, but little attention seems to have been given to it. The number of infractions of the rule therein is quite largely increased over those in former apportionments.

As already stated, it is quite impossible to uphold the apportionment of 1891 in part, and declare it invalid as to the residue. It must be held, therefore, that the violations of the constitutional rule prohibiting the dismemberment of counties vitiate the whole act.

2. Ch. 482, Laws of 1891, violates another constitutional requirement. Sec. 3, art. IV, ordains that apportionments of legislative districts shall be made according to population, excluding therefrom certain classes of persons therein specified. Because the county is the primarjr territorial unit in the formation of assembly districts, and members of assembly must first be apportioned to counties, the above provision of sec. 3, as applied to tbe formation of assembly districts, must be construed to mean that there must be substantial equality of representation, in proportion to population, as between all the different counties and districts composed of two or more counties; that is to say, there must be no unnecessary inequality in the proportionate representation in the assembly of counties and of such districts, on the basis of population.

Each county, and each district consisting of two or more counties, having a population equal to the numerical unit of representation in the assembly (alleged to be 16,868), is entitled absolutely to one member of assembly, unless it should be found necessary to place a county not thus entitled to a member in a district with a county which otherwise would of itself be entitled to one member. It is believed, however, that no necessity exists for forming such a district in the apportionment based on the enumeration of 1890. For each multiple of such numerical unit reached by the population of any county, such county is also absolutely entitled to an additional member of assembly. The remainder of the 100 members, not thus absolutely apportioned to counties and districts, should be apportioned to an equal number of the several counties by some uniform equitable rule,— perhaps to the counties having the largest fractions of population in excess of such numerical unit of representation or multiple thereof. The legislature must, •however, determine such rule; but the writer will be pardoned for saying, for himself alone, that he is aware of no mathematical formula which will accomplish the required result, other than that above suggested, which prefers in the apportionment the largest fractions of population.

Oh. 482 violates the foregoing rule. For example, it gives La Crosse county, with 38,801 inhabitants, but one member of assembly; while it gives Manitowoc county, with 3Y,831 inhabitants, three members. It may be urged that any inequality of representation in the different assembly districts is in a measure removed or compensated for in the formation of senate districts, as, for example, La Crosse county, which is deprived of one assemblyman to which it is absolutely entitled, is made a senate district, although it lacks about 13,000 inhabitants„of the numerical unit of representation for a senate district. On any proper rule of apportionment this cannot be done, for the very conclusive reason that the constitution gives each county an absolute right to its proportionate representation in the assembly, without regard to its representation in the senate. Moreover, the assembly district is the territorial unit of the senate district, and the latter cannot be intelligently formed until the limits of the assembly, districts are established. It is unnecessary to enlarge upon this branch of the case. It is not difficult to apportion the members of assembly to the several counties, and to form the several districts which must contain two or more counties, in strict compliance with constitutional provisions.

3. After the number of members of assembly to which each county is entitled shall have been ascertained by the rules above stated, the next step in the process of apportionment will be to divide each county entitled to more than one member into the requisite number of assembly districts, each of which must consist of contiguous territory. In making such division the rules of compactness and numerical equality of population, so far as practicaba are also imposed upon the legislature by the constitution. These latter requirements are largely modified by other constitutional rules, especially the rule, which prohibits the dismemberment of towns and wards. The mode of compliance therewith must necessarily rest largely in the discretion of the legislature. Nothing short of palpable disregard of duty in these particulars, which it is scarcely possible to impute to any legislature, would justify the courts in holding a legislative apportionment invalid.

4. When the assembly districts shall have been properly apportioned and formed, and not until then, is there a proper basis for the formation of the senate districts. Each, of these must consist of entire assembly'districts, and must be formed of convenient contiguous territory. They must also be as nearly equal in population as other constitutional requirements will permit.

5. The complaint charges that the senate districts "are so numbered in ch. 482 that large numbers of electors who were last permitted to vote for senators in 1888 cannot do so again until 1894, while other large numbers of electors who voted for senators in 1890 may again do so in 1892. This is alleged as a reason why the act is invalid. The court finds in the’ constitution no authority conferred upon it to interfere with the numbering of the senate districts. In that respect the power of the legislature is absolute.

6. The decision herein does not impeach the validity of acts, otherwise valid, of a legislature elected under an invalid legislative apportionment statute. Neither is the jurisdiction of the court affected, or the exercise thereof embarrassed, by the fact that this decision may leave the state without a valid legislative apportionment law, and hence without any law for the election of another legislature. The governor may convene the present legislature, if he deems it his duty to do so, and when so convened there can be no doubt of its power to enact a valid legislative apportionment law.

7. The question of jurisdiction has been fully discussed by Justices OetoN and PiNNey, and nothing need here be said on the subject, unless it be to express the conviction of the writer that there can be no reasonable doubt of the jurisdiction of the court to direct and control the action of the secretary of state in the premises.

See note to this case in 15 L. R. A. 561. — Rep Cassoday, J.

The decision in this important case is fully in accord with my judgment. The reasons in support of it, given in the several opinions filed, taken together, are so full and complete as to call for nothing additional from me.

By the Court.— The motion in the nature of a demurrer is overruled, and the defendant has leave to answer within twenty days.

Case Details

Case Name: State ex rel. Attorney General v. Cunningam

Court Name: Wisconsin Supreme Court

Date Published: Mar 22, 1892

Citation: 81 Wis. 440

Court Abbreviation: Wis.