81 Wis. 440 | Wis. | 1892
Lead Opinion
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
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,
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
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 .
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
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
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 constitu
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
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
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
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 mat
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
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
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 dis
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-
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
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.
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.
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 con
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
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;
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
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
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
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.
¥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,
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
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
In the organization of the government into three depart-
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 ex
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
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
The passage above quoted from,the opinion of Mr. Jus
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
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
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
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 contro
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-.
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.
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
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
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
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
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
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 appor
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
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
Concurrence Opinion
I concur in the views expressed by Mr. Justice PlNNEY.
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
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.
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
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
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
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,”
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
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 dis
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
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
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,
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
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.
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.