State ex rel. Lamb v. Cunningham

83 Wis. 90 | Wis. | 1892

Cassoday, J.

1. Counsel for the defendant challenges the jurisdiction of this court in this cause, and supports such contention with much learning and ability. The question of the original jurisdiction or power of this court under sec. 3, art. VII, of the constitution, “ to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same,” has frequently been considered by this court. Att'y Gen. v. Blossom, 1 Wis. 317; Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567; State ex rel. Att'y Gen. v. Messmore, 14 Wis. 115; Cooper v. Mineral Point, 34 Wis. 181; Att'y Gen. v. Railroad Cos. 35 Wis. 425; Att'y Gen. v. Eau Claire, 37 Wis. 400; State ex rel. Wood v. Baker, 38 Wis. 71; State ex rel. Cash v. Juneau Co. 38 Wis. 554; State ex rel. Drake v. Doyle, 40 Wis. 175; Petition of Semler, 41 Wis. 522; In re Pierce, 44 Wis. 411; State v. St. Croix Boom Corp. 60 Wis. 565; State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440; State ex rel. Raymer v. Cunningham, 82 Wis. 39. Most, if not all, of these cases were argued with great learning and ability, and then carefully considered by the persons constituting the court at the times they were respectively submitted; and hence must be regarded not only as highly persuasive, but. as absolutely binding upon us as authority.

Conscious of the importance of the case at bar, we have diligently sought the guidance of the recorded opinions of the court in the cases cited, so far as applicable, in coming to the conclusions reached, and none more so than the utterances of the late learned and able Chief Justice Ryan. Among the propositions so firmly established as to require no further exposition from this court are those to the effect that the constitutional clause quoted “ was designed to give this court original jurisdiction of all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people;” that such prerogative writs, including injunction as a quasi prerogative’ writ, can properly issue only at the suit of the state or the attorney general in the right of the state; that “ in matters strictly publici juris, in which no one citizen has any right or interest other than that which is common to citizens in general, a petition by a private person for leave to commence an action in this court in the name of the state cannot properly be considered until the attorney general has been requested to move in the matter, and has refused or unreasonably delayed to do so;” that in-all cases in which an exercise of such original jurisdiction is sought, whether by such private citizen or the attorney general, leave must 'first be obtained from this court upon a prima fade showing that the case is one calling for the exercise of such jurisdiction; that the official acts of the secretary of state in issuing or publishing notices of an election of members of the legislature under an apportionment act alleged to be invalid, are purely ministerial; and hence, in the exercise of such original jurisdiction, this court may control the same either by mandarrms or injunction as the exigencies of the case may require. We do not understand counsel for the defendant to question the correctness of the decision in State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440; and Renee it is, in effect, conceded that the court has jurisdiction of the subject matter of the case at bar.

The precise objection to the jurisdiction here presented is that its exercise has not been invoked by the attorney general, and hence that the court is powerless to consider the case at all without his consent and co-operation. In State ex rel. Wood v. Baker, 38 Wis. 80, 81, Ryan, C. J., said: “ The jurisdiction conferred on this court by the constitution is of informations in the nature of quo wa/rranto, as substituted in modern times for the use of the ancient writ itself, and as used when the constitution was framed. This was a prerogative proceeding, quasi criminal and quasi civil in its character, according to its use, but always classed with criminal informations. . . . The mode of proceeding under this jurisdiction might be regulated by statute, lout the jurisdiction itself could not be defeated or abridged. ... It was undoubtedly competent for the legislature to give a quasi civil proceeding in such cases, but not to abolish the quasi criminal jurisdiction vested in the court by the constitution. This appears to us to be a matter of substance, not of form.” He then referred to the statute expressly authorizing such quo wa/rranto “ by a private person ” in the name of the state when the attorney general refuses to act, and said': “ Before such statute, the courts of the state might perhaps, in proper cases, have authorized proceedings in the name of the attorney general, if that officer wrongfully refused to act and it was necessary to proceed in his name.” That action was commenced by a private relator on’ his own complaint; but the court having become, as stated in the opinion, “ embarrassed by the form of the proceedings,” the same were, on the suggestion of the court, amended by the attorney general signing the summons and information nunc pro tunc. Thus it is .apparent that the court regarded the want of the attorney general’s signature as a mere defect of form, and not of substance. The learned counsel for the defendant characterizes the last quotation as a mere obiter dictum, and it may have been subject to such criticism at the time it was said. However that may be, the proposition received an authoritative sanction from the same learned chief justice, speaking for the whole court, in State ex rel. Drake v. Doyle, 40 Wis. 185 et seq. That was an application, made by Drake as relator by his own complaint and by his own attorney in the name of the state, for a mandamus to compel the secretary of state to revoke and cancel a license to an insurance company, and the attorney general appeared as counsel for and defended the secretary. Chief Justice Etak, speaking for the whole court, there said: “ It was stated by the attorney general that the suit of the relator against the insurance company had been settled ; that the relator has no further i/nterest in the question, and therefore no further right to' the writ. The fact does not appear of record, but it is immaterial. So far as the private right of the relator is concerned, it is now well settled that this court would not assume original jurisdiction to enforce it.” Then, partly quoting from his former opinions, he said: “ But in a government like ours public rights of the state and private rights of citizens often meet, and may well be involved in a single litigation. So it may be in the exercise of the original jurisdiction of the court. The prerogative writs can issue only at the suit of the state or the attorney general in the right of the state. They may go on the relation of a private person, and may involve private right. And the question before us is not upon the private right of the relator, and is independent of the accident that there is a relator in the case. The question on which the exercise of jurisdiction here must turn is whether the subject matter of the writ is one ‘ quod ad staturn reipublicce pertinet; ’ one affecting the sovereignty of the state, its franchises or prerogatives. And on this question there appears to us to be no room for doubt. . . . Whether the respondent be right or wrong in his view, and that is for this court and not for him to determine, 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. Such a case, when presented, is one eminently calling for the exercise of our original jurisdiction; one, with or without a relator, eminently fit to be presented to the court for adjudication. The writ of mandamus, in such a case, eminently serves its function as a prerogative writ.”

In Merrill on Mandamus (just published) the conflicting decisions upon' the question whether a public right can be enforced by a private party as relator are considered; and it is there said that “ the rule refusing the privilege to private .parties of obtaining a mandamus to enforce public duties is one of discretion, and not of law; and the court will ignore it when the attorney general refuses to appear to complain of alleged omissions of duty by public officers'’ § 229. It is there further said that “ the great weight of American authority is to'the effect that, where the relief sought is a public matter or a matter of public right, the people at large are the real party, and any citizen is entitled to the writ of mandamus to enforce the performance of such public duty.” Id. § 230, citing numerous cases. That such is the settled rule in this state is manifest from the quotations made from the opinion of Ryan, C. J., in State ex rel. Drake v. Doyle, 40 Wis. 185.

The learned counsel for the defendant concedes “that the court of King’s Bench always, so far as known, entertained the application for a mandamus of any person to compel a public officer, public body, or corporate creature to perform a duty enjoined by .the law, notwithstanding the petitioner’s injury was not peculiar or different from that suffered by others; ” but he insists with much elaboration that such supervisory control is “ enforced upon different principles from those maintained by the court of equity in granting preventive relief for the protection of the rights of its suitors.” It is true, as argued, that the writ of injunction issues upon the determination of the controversy to enforce the decree entered therein, and hence is generally regarded as merely remedial in its nature; whereas a mandamus issues at the commencement of the action, and is to enforce a strictly legal right. This difference confronted the court in the cases against the railroads, and was elaborately considered in the opinion of the court by Chief Justice Ryan. Att'y Gen. v. Railroad Cos. 35 Wis. 512-523. Among other things, he there said: “This original jurisdiction is conferred and limited by the power ‘to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.’ [Sec. 3, art. VII, Const.] The court has many time exercised original jurisdiction in cases of habeas corpus, mandamus, quo warranto, and certiorari. This is the first time it has been called upon to assert original jurisdiction of injunction.” Then, after pointing out the distinction mentioned, and the inaccuracy in the language of certain former opinions of this court by failing to observe it, he said:

“ All the other writs of the group are common-law writs. The writ of injunction, when the constitution was adopted, was exclusively an equitable writ, used only by courts of chancery. As such it was given to this court, implying and carrying with it equitable jurisdiction to employ it. It is therefore plain that the original jurisdiction of this court is both legal and equitable, within certain limits; legal, for the use of the common-law writs; equitable, for the use of the chancery writ. The use of the former must be according to the course of common-law courts; the use of the latter according to the course of courts of equity; in each case subject to statutory modifications of the practice, which do not impair the jurisdiction granted. The common-law writs, as already observed, imply and define the jurisdiction appurtenant to them as jurisdictional writs. It is otherwise with the writ of injunction. Equity has no jurisdictional writs. By the course of courts of equity the jurisdiction must precede the writ. And although the writ is the end of the equitable jurisdiction implied, the scope of the jurisdiction must be sought mainly outside of the writ itself. It can issue only after bill or information filed. And the question still remains, "What is the original equitable jurisdiction conferred on the court of bills or informations dependent on the use of the writ?

“The grant of original jurisdiction is one entire thing, given in one general policy, for one general purpose, though it may have many objects and many modes of execution. So it is of the appellate power. So it is of the superintending control. There are three independent and distinct grants of jurisdiction, each compact and congruous in itself; each a uniform group of analogous remedies, though to be exercised in several ways, by several writs, in legal and equitable proceedings, on many objects, in great variety of detail. The constitution wisely, almost necessarily, stopped with the general grants of jurisdiction, carefully distinguished, and left details to practice and experience.”

Then, after indicating that the primary and controlling object of the framers of the constitution in giving this court “original jurisdiction over great public interests” was “for greater security,” and “ for the better and prompter and more authoritative protection of public interests,” he said:

“ And, plainly recognizing the intention of the constitution to vest in this court one jurisdiction, by several writs, to be put to several uses, for one consistent, congruous, harmonious purpose, we must look at the writ of injunction im, the light of that purpose, and seek its use in the kindred uses of the other writs associated with it. Noseitur a soeiis is an old and safe rule of construction, . . . peculiarly ap plica-cable to this consideration. . . . Here are several writs of defined and certain application classed with one of vague import. We are. to be guided in the application of the uncertain by its certain associates.- The joinder of the doubtful writ with the' defined writs operates to interpret and restrict its use, so as to be accepted in the sense of its associates ; so that it and they may harmonize in their use for the common purpose, for which it is manifest that they were all given. And thus, in this use and for this purpose, the constitution puts the writ of injunction to prerogative uses, and makes it a quasi prerogative writ.”

He then contrasted injunction and mandamus, and said: “ The latter commands, the former forbids: 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 doubt which is the proper one;-injunction is frequently mandatory, and mandamus sometimes operates restraint. . . . And it is very safe to assume that the constitution gives injunction to restrain excess in the same class of cases as it gives mandamus to supply defect; the use of the one writ or the other in each case' turning solely on the accident of over-action or shortcoming of the defendant. And it may be that where defect and excess meet in a single case, the court might meet both, in its discretion, by one of the writs, without being driven to send out both, tied together with red tape, for a single purpose. . . The prerogative writs proper can issue only at the suit of the state or the attorney general in the right of the state; and so it must he with the writ of injunction, in its use as a quasi prerogative writ. All may go on the relation of a private person, and may involve private right.”

The “one entire thing” — the “one general policy”— the “ one general purpose ” to be accomplished through the “one jurisdiction” by the five several writs grouped together in one clause of the constitution, as mentioned by the learned chief justice, manifestly has reference to “judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberty of its people; ” for it is only of such, as therein indicated, that this court takes original jurisdiction at all. The irresistible logic of the opinion is to the effect that the power to thus issue the five writs thus grouped together, for the one purpose named, was by the clause of the constitution quoted vested in this court absolutely and unconditionally, and is in no way dependent upon the volition of the attorney general or any other official. This is confirmed by what he said in State ex rel. Wood v. Baker, 38 Wis. 71, quoted above, to the effect that^ while the legislature might regulate the mode of procedure in such cases, they could not defeat nor abridge the jurisdiction itself; that the appearance in the case by the attorney general, or his consent, was a mere matter of form a,nd not of substance, and hence could be supplied upon the hearing nuno pro timo. Indeed, it would be a solecism to hold, as this court frequently has held in several of the cases cited, to the effect that the attorney general has no right or power to commence such an action, much less to prosecute it, without first obtaining leave from this court, and then hold that this court has no power to take jurisdiction in any such case without first obtaining the permission of the attorney general. This court cannot play fast and loose with the subject of jurisdiction. It either has it absolutely whenever a proper cause is presented, or else it has not got it at all. If it has jurisdiction in such a cause, it is because it has been conferred on the court by the people in their sovereign capacity, in the clause of the organic law quoted. If such jurisdiction is thereby vested in the court,— as must be conceded by all,— then it would seem to be idle to deny the jurisdiction in such action merely because the attorney general has refused. to co-operate or consent.

In line with the opinions of Chief Justice Ryan, mentioned, Mr. Justice Pinney, in the recent apportionment case, among other things, said: “ It would be unprofitable to cite the numerous instances of the exercise of the original jurisdiction of the court in the 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,— óf mam damus to compel action, and of injunction to restrain it. . . . 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 493. “ 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.” 81 Wis. 504.

In Colorado, under a constitutional provision similar to ours, and in a mandamus case, where the court approvingly cites several cases from this court, it is said: “ Cases of which this court should take original cognizance, directly involving, as in general they must, questions of public right, should be brought in the name of the people. The state or the public being the main party in interest, although individual advantage may be gained, the person instituting the proceeding should appear as relator. It is also eminently fitting that sueb causes be inaugurated before this court by the attorney general, or with his consent, or, at least, that the refusal of that officer to act be shown. But we do not declare such consent or refusal absolutely necessary. If the main object of the proceedings is to vindicate a public right, to protect the interest of the state in its sovereign character, to prevent the illegal use of a public franchise as against the people generally, or a considerable portion thereof, or if it be to subserve the public interest in any of the other matters heretofore men. tioned, a citizen interested could probably institute the proceeding in the name of the people without consulting the attorney general.” Wheeler v. Northern C. I. Co. 9 Colo. 248. Substantially the same view of the question is taken by the supreme court of South Dakota, where the same constitutional provision is in force. Everitt v. Board of County Comm’rs, 47 N. W. Rep. (So. Dak.), 298, and cases there cited A. similar clause in the Michigan constitution (sec. 3, art. Vomits the word “ injunction; ” and yet in the recent case under the apportionment of that state a private citizen was the relator, and the attorney general appeared for the secretary of state, and it was held that the action was properly brought, even without ‘asking the consent of the attorney general; and it was held that the conduct of the secretary in giving notices of election could be rightfully restrained by mandamus. Giddings v. Blacker, 52 N. W. Rep. (Mich.), 944.

We have not examined, but it seemed to be conceded on the argument that none of the earlier constitutions contained a provision like the clause in question. It is true, counsel cite English cases to the effect that an action for a nuisance or other matter affecting the people generally the same as the complainant, could not be maintained except by and in the name of the attorney general. Baines v. Baker, 1 Amb. 158; Strickland v. Weldon, L. R. 28 Ch. Div. 426. But the attorney general in England occupies a very different position than an attorney general in a government like ours. He is appointed by patent authorizing him to hold office during the pleasure of the crown; and he is required, with the aid of others, to manage all legal affairs and suits in which the crown is interested. “ He is a necessary party to all proceedings affecting the crown, and has extensive powers of control in matters relating to charities, lunatics’ estates, criminal prosecutions, etc.” 3 Ency. Brit. 63. In all such matters he acts as the representative and agent of the crown; and, as its servant, he has for centuries enjoyed high prerogative rights. But the office is not as ancient as that of Lord High Chancellor, whose supremacy as a separate judicial officer and as keeper of the great seal and the king’s conscience became established 200 years before we read of any attorney general. He enjoys high prerogative rights as well as judicial functions. As chancellor, he has for centuries prescribed his own pleadings, his own practice, and his own writs,— including injunction, habeas corpus, prohibition, and ne exeat; and during the same time he has been a great state officer, taking official rank as the highest civil subject outside of the royal family and the archbishop of Canterbury, a cabinet minister, who habitually secured the sign manual of the king,— a member of the privy council, and the presiding officer in the House of Lords.

Perhaps there is no better illustration of the English theory of a judiciary dependent, not only upon the will of Parliament, but also upon the will of the crown, as expressed through his Lord High Chancellor and attorney general, than what occurred in respect to the case of Colt v. Bishop of Coventry, Hob. 140, case 193, tried during the reign of James I. The action involved a mere civil right between private parties in a court of law, but in arguing the case one of the counsel had occasion to deny the power of the king to grant ecclesiastical preferments to be held with a bishopric. The bishop of Winchester, happening to be present, complained to the king, who thereupon consulted his attorney general, Francis Bacon, and “ he mentioned a power which, according to the many precedents, the king possessed, of prohibiting the hearing of any cause in which his prerogative was concerned, rege inconsulto,— i. e.y until he should intimate his pleasure on the matter to the judges; ” and it was thereupon resolved that a prohibition should issue, and it did accordingly. But the court proceeded with the trial and entered judgment. Thereupon the king summoned the judges to appear before him and his Lord Chancellor and attorney general at Whitehall. Upon their appearance, the king in rage condemned their conduct; whereupon the judges, including Lord Chief Justice CoKE, fell upon their knees and prayed for pardon. The king, turning, not to his attorney general, but to his Lord Chancellor, or the superior officer, said: “ I require you, my Lord Chancellor [Ellesmeee], to declare whether I, that am king, or the judges, best understand my prerogative, the law, and the oath of a judge.” Thereupon the Lord Chancellor said to the king: “ With all humility, your majesty will best be advised in this matter by ywr majesty’s counsel, learned in the law, now standing before you.” Bacon responded to the effect that it was for the king, and not for the court, to declare his prerogatives. 1 Campb. Ch. Just. pp. 290-293. Of course, in later years no such interference would be allowed, even in England.

It might be interesting to inquire whether the higher rank of the Lord Chancellor in matters prerogative did not give him the discretionary right to modify and change the forms of petitions, pleadings, and writs in his own court, which had been prescribed by himself or'his predecessors, without the consent, or even against the protest, of the attorney general; but it is unnecessary. Wisely, governmental powers in this country are divided between three separate, independent, and co-ordinate departments, each with powers circumscribed and limited by fixed constitutional provisions, ordained and established by the people themselves in their sovereign capacity; and hence no such despotic interference is permissible.

It was suggested on the argument by the learned counsel for the defendant that this court possessed the combined powers of the court of King’s Bench and the court of equity presided over by the Lord High Chancellor. But this court has repeatedly disclaimed for itself and for all subordinate tribunals in the state any and all prerogative powers exercised by the Chancellor as keeper of the great seal and as the representative of the king, except in so far as the same may be incidentally connected with powers and jurisdiction which are strictly judicial and conferred upon the judiciary by the constitution itself. Ruth v. Oberbrunner, 40 Wis. 238; Heiss v. Murphey, 40 Wis. 276; Dodge v. Williams, 46 Wis. 70; Webster v. Morris, 66 Wis. 391; Estate of Hoffen, 70 Wis. 522; Will of Fuller, 75 Wis. 431. The same may be said of every other officer of the state, including the attorney general.

The constitution provides that “ the powers, duties, -and compensation of the treasurer and attorney general shall be prescribed by law.” Sec. 3, art. VI. The statute provides that it shall be his duty to appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and all such civil cases as may be sent or remanded by that court to any circuit court; “ and whenever reguested by' the governor or either branch of the legislature, to appear for the state, and prosecute or defend in any court or before any officer any cause or matter, civil or criminal, in which the state or the people thereof may be in any wise interested.” He is also required “ to perform all other duties imposed upon him by law.” Sec. 163, R. S. There are also several specific duties and powers imposed upon him by the statute, not material here. It will be observed that his duties in this court are thus prescribed directly, while in other courts and before other officers he is required to act “ whenever requested by the governor or either branch of the legislature.” It was suggested that the clause of the statute quoted gave to the governor a sort of prerogative control over the conduct of the attorney general; but manifestly such control could not be exercised in opposition to the duties imposed upon the attorney general by the legislature. Besides, the purpose of the clause of the statute quoted was to impose otherwise indefinable duties upon the attorney general, and not to enlarge the powers of the governor. Whatever prerogative powers the governor may have, they can only be such as are incident to his office and vested in him by the constitution. All prerogative powers not authorized by constitutional provision are held in reserve by the people themselves.

We must hold that the refusal of the attorney general to bring or consent to the bringing of this suit did not prevent this court from rightfully taking jurisdiction of the same upon the relation of a private citizen in the name of the state. This ruling relieves any attorney general from the charge of preventing a suit for an alleged invasion of the sovereignty of the state or the franchises and liberties of its people. The present attorney general certainly has the right to exercise the judgment and discretion vested in him by law in the prosecution of suits in this court as well as other courts.

2. It is contended that this is a mere “ political action, . . . to effect a political object,” and therefore cannot be maintained. We may not understand what is here meant by a “political action.” We readily perceive that the determination of an action may have a political effect, and in that sense may effect a political object; but that would not necessarily make the question determined a political, instead of a judicial, question. The determination by the court of the validity of an act of the legislature in organizing a county, town, or municipality, or establishing a new form of town and county government, would undoubtedly have a political effect; but no lawyer, at this date, would contend that the question determined was therefore political and not judicial. In Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, the late Senator Carpenter contended with much learning and ability that the question involved was purely political, but the court held that it was strictly a judicial question; and the learned counsel for this defendant, with his usual candor, concedes that the court was right; and yet no one will question but what the decision had a political effect. The same was true of the recent case of Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135. President John Adams, in the last days of his, administration, appointed Marbury to an office, and caused his commission to be made out, signed, sealed, and authenticated by the then secretary of state, but the same was not delivered when the administration expired, and the new secretary, on taking possession of the office, refused to make such delivery. Marbury thereupon applied to the supreme court of the United States for a mcmdamus to compel such delivery; and it was contended, as it is here, that the question of such delivery was a political matter for the sole determination of the president and his secretary, and in no sense judicial; and although the court held that it had no original jurisdiction in the case, yet Marshall, C. J., in their behalf, declared, in effect, that the question presented was purely judicial, and that the ministerial duty of delivering such commission might be enforced in the inferior court; and the same principle has since been repeatedly sanctioned by the same court. Marbury v. Madison, 1 Cranch, 137.

Counsel for the defendant cites that portion of the opinion of the great chief justice in which he disclaims any right in the court to interfere with any of the discretionary powers Tested in the executive and his subordinates; and then asks us ,to consider the language employed, with the word “ legislature ” put in the place of “ executive.” We cheerfully do so. In fact, we have already, in the recent apportionment case, disclaimed any and all right to interfere with any of the discretionary powers of the legislature or of any state officer. Mr. Justice OetoN, in that case, speaking for the whole court, said: “ 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 484. That was done because in that case, as in this, a learned and able member of the bar contended that the question presented was political and not judicial; but, after very careful consideration, we unanimously determined, that the question presented was strictly judicial, and in no sense political.

However unpleasant it may be to be again so soon confronted with the same questions, yet the duty cannot be avoided. In the language of Marshall, C. J., “those who fill the judicial department have no discretion in selecting the subjects to be brought before them.” Worcester v. Georgia, 6 Pet. 541. So, whatever course other officials may pursue, this-court is under a constitutional mandate to proceed in the spirit of the oath which each member has taken, and perform its duty, which was perhaps never more aptly'and tersely expressed than by Marshall, C. J,, when he said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned it is the .duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; alwaj^s'for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” Osborn v. Bank of U. S. 9 Wheat. 866.

In the case at bar the will of the law is the will of the people of the state, as expressed in the organic law of the state. In the last judicial utterance of Chief Justice TaNey he said: “Any legislation by Congress beyond the limits of the power delegated would be trespassing upon the rights of the states or the people, and would not be the supreme law of the land, but null and void; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judioicd question, to be decided by the courts.” Gordon v. U. S. 117 U. S. 705. As already indicated, the state government is divided by the constitution into three separate, independent, and oo-orcbinate departments,— legislative, executive, and judicial. The legislature necessarily precedes each of the others in the making of the laws. The executive department is co-ordinate with it in carrying the laws so made into execution. The judicial department is co-ordinate with both, in that it is required to construe and determine the validity of such laws and such official action. By each of the three departments keeping strictly within the scope of the powers conferred upon it by the constitution, harmony will prevail and the government will be respected. Certainly this court will now, as heretofore, scrupulously refrain from exercising any doubtful power; much less transcending the limit of its powers.

3. In granting the motion to strike out the demurrer to the complaint as frivolous, and for judgment, leave was given to the defendant to present for the consideration of the court an answer upon the merits to the complaint. Such answer has been received and carefully considered. It admits all the material allegations of fact alleged in the complaint. It consists largely of a repetition of statements and suggestions made by counsel upon the argument of the demurrer and motions, and duly considered in disposing of them. Among other things, it alleges, in effect, that the legislature had the discretionary power to apportion and redistrict the state anew as they did; that in doing so the legislature had given weight and effect to many various considerations, such as that the census of 1890 was inaccurate and did not by several thousand give to the counties of Chippewa, Florence, Forest, Opuida, Langlade, Price, and Taylor the population to which they were respectively entitled; that those several counties were rapidly increasing in population, while such counties as Adams, Waushara, G-reenLake, and Marquette were making but little, if any, increase in population; thát the fourth senate district of Milwaukee, with only 30,132 inhabitants, was between the Milwaukee river and the lake shore, extending northerly; that it was more or less distinguished from the residue of the city by the nature of its population and the character of its business interests; that the assessed valuation of the property therein exceeds the average of the other senate districts in that city by nearly $10,000,000; that the inequalities of population in the several senate and assembly districts, in the act in question, were not much different than the proposed bill not adopted, nor the several apportionment bills from 1852 to 1881, inclusive.

None of the considerations so alleged are among the requirements prescribed in the constitution. In the recent Case, Mr. Justice PiNNEY, in part quoting from authorities, among other things, said: “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. . . . The rule is general, with reference to the enactment 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, j will always he presumed to he 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 509. In other words, in so far as the legislature keeps within the limits of its powers, the motives of its members cannot be inquired into, and its discretion is not a subject for review in the courts; but whenever, and to the extent that, the legislature transcends its powers, it is conclusively presumed that it intended to so transcend the same, and hence parol evidence of good motives or other considerations cannot be allowed to obviate the effect of such unlawful intent.

In the same connection he further said: “An issue of fact cannot be framed and tried by a jury or otherwise with a view of determining by its results the validity of an act of the legislature, but the court is to be confined to the matters of which 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.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. . . . The apportionment is to be ‘according to the number of 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 the juxtaposition of the several counties, towns, and wards mentioned in the act in question, and of matters of common knowledge.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 510. These propositions are there supported by the citation of numerous authorities. See, also, Prieger v. Exchange Mut. Ins. Co. 6 Wis. 89; Swain v. Comstock, 18 Wis. 463; Woodward v. C. & N. W. R. Co. 21 Wis. 309; Saukville v. State, 69 Wis. 178.

Thus it is very obvious, under the rulings of this court in the previous case, that it is not permissible for the defendant here to allege and prove that in making the last apportionment the legislature acted upon the theory that the counties of Chippewa, Florence, Forest, Oneida, Lang-lade, Price, and Taylor contained 12,717 more inhabitants than appears from the census of 1890, for to do so would open the door on the other side to prove that the other counties of the state, or some of them, contained less inhabitants than appears from the census. Besides, if proved, it would only show that the legislature purposely disregarded the standard of population thus conclusively fixed by the constitution, and based their action upon other computations, estimates, or considerations. The same may, in substance, be said in relation to that part of the proposed answer to the effect that the legislature was induced to make the fourth senate district as they did by reason of the excessive wealth therein, and the nature and character of its population and business interests. But, as we shall in another part of this opinion undertake to show, such considerations cannot justify a disregard of the standards of population fixed in the constitution, in making a senate district out of only 30,132 inhabitants, which is 20,385 less than the unit, and considerably less than one half of either the 9th, the 11th, or the 31st senate district. For the reasons thus'substantially stated in the former case, we have rejected the proposed answer.

4. This does not exclude from consideration the several former apportionment acts from 1852 to 1881 inclusive, in so far as they may have any legitimate bearing. In fact, they were freely used on the argument of the demurrer and motions by counsel for the defendant, without any objection. In the former case it was strenuously contended that the constitutional provision requiring assembly districts to be bounded by county, town, or ward lines did not prevent the legislature from crossing county lines in the formation of such districts; and it has been said that such views have been entertained by some men especially learned in grammar and philology. To meet such contention, and on the theory that such constitutional requirement might be regarded as ambiguous and doubtful, Mr. Justice PiNNey traced the history of the provision (81 Wis. 512-515); and the present chief justice, for the same purpose, considered the former apportionment acts (81 Wis. 523). If such provision of the constitution was thus ambiguous and doubtful, then such history and former apportionments were entitled to their proper weight in the construction given. If, on the contrary, such provision was not ambiguous nor doubtful, then such history and former appor-tionments were irrelevant, and without any legal significance in a court of law. This must be so, because it is a well-established rule, recognized by all courts, and applicable to constitutions as well as statutes, that where the language of the instrument is plain and unambiguous, whether it be expressed in general or limited terms, the framers thereof should be held to have intended what they have plainly expressed; and consequently no room is left for construction. Cooley, Const. Lim. (6th ed.), 69. It is there said by the learned author that “ the meaning of the constitution is fixed when it is adopted, and it i's not different at any subsequent time when the court has. occasion to pass upon it. The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.” Said Marshall, C. J.: “ It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words of an instrument expressly provide shall be exempted from its operation.” Sturges v. Crowninshield, 4 Wheat. 204; Hanson v. Eichstaedt, 69 Wis. 546, and cases there cited. The rule is very tersely stated in Pike Co. v. Rowland, 94 Pa. St. 249, where it is said: “Neither the debates nor supposed views of the people, nor the dictum of this court, nor all combined, can set aside the plain meaning of a constitutional provision; but if the sense of a clause be doubtful, the contemporaneous understanding is material.”

“ If the words convey a definite meaning, which involves no absurdity nor any contradiction of other parts of the instrument, then that meaning apparent on the face of the instrument must be accepted; and neither the courts nor the legislature have the right to add to it or take from it.” Lake Co. v. Rollins, 130 U. S. 670; State ex rel. Weiss v. District Board, 76 Wis. 208, 209. Since a constitution is for the very purpose of preventing any enactment contrary to its provisions, it is very certain that the meaning of language therein which is plain and unambiguous can never be perverted, much less destroyed, by long-continued infringement. Assuming, therefore, for the purposes of this case, that the inequality of representation under the last apportionment act is no greater than under former apportionment acts, still tbe fact is irrelevant and immaterial to tbe consideration of this case, unless on examination it is found that tbe language of tbe constitution securing sucb equality is ambiguous and doubtful, and long-continued legislative construction bas been given to it.

5. This brings us to the consideration of the validity of the act of July 2, 1892. If this opinion, which has thus far been devoted to preliminary considerations, is unusually long, it is because the defense in this case has been almost wholly devoted to such considerations. The subject of inequality in representation was ably argued and carefully considered in the former case. Mr. Justice Orton, giving the leading opinion in that case, and speaking for the whole court, among other things said: “ But, again, this apportionment acts violates and destroys one of the highest and most sacred rights and privileges of the people of this state, guarantied to them by the Ordinance of 1787 and the constitution,' and that is i equal representation in the legislature? This also is a matter of the highest public interest and -concern to give this court jurisdiction in this case. . . . 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. dose cm 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 part 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 483, 484.

In the same case, and after referring to the clause of the Ordinance óf 1787, giving to the inhabitants the benefits of proportionate representation in the legislature, and the organic act of the territory of Wisconsin providing for an apportionment that should be “ as nearly equal as practicable,” Mr. Justice Piuhet said: “Though obsolete, these acts may be properly regarded as m pari materia, and helpful and of historical value in construing .sees. 3, 4, and 5 of art. IT of the constitution, which came in to take the place of the provisions briefly quoted.” Then, after refer,ring to the language of these constitutional provisions, he further said: “ 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 nearly equal as practicable among the several counties 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 equivalent of the provisions of the Ordinance of 1781, of a ‘ proportionate representation of the people in the legislature.’ ” And then, after referring to the veto b}^ Gov. Dewey of the first apportionment bill passed, as not being according to the number of inhabitants, and therefore unconstitutional, and other matters, he further said : “ The very great disproportion in the number of inhabitants in certain assembly districts mentioned m 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 510-512, 518.

The opinion of the chief justice is devoted to a different question, but in speaking of dividing counties entitled to two or more assemblymen into assembly districts he said: “ In making such division, the rules of compactness and numerical equality of population, so far as practicable, 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.” State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 530. And again: “They [the senate districts] must also be as nearly equal in population as other constitutional requirements will permits 81 Wis. 531.

Thus Mr. Justice Orton, in giving the leading opinion of the court in the former case, declared the act unconstitutional and void, because the legislature had not apportioned and districted anew the members of the senate and assembly according to the number of inhabitants; and that opinion was supplemented by the other opinions therein filed. That decision is here reaffirmed as the law of the state. The requirement that assembly districts must be as nearly equal in population as the other constitutional provisions will permit is just as applicable to two or more assembly districts in a single county as to an assembly district composed of two or more counties. While the act,here in question in the main conforms to those requirements of the constitution which prevent equality of representation, yet it almost wholly disregards the only constitutional requirement particularly designed to secure me equality as near as practicable. Hence we find one assembly district with only 8,626 inhabitants, while another contains 25,111; and one senate district with only 30,732 inhabitants, while another contains 65,952; and there are numerous other irregularities, though less glaring, yet no less repugnant to the constitution, running through the whole act. No attempt has been made to justify these palpable and unnecessary inequalities of representation upon. any constitutional basis, save only that of legislative discretion.

Beyond question, the enactment of an apportionment law is an exercise of legislative power, and hence the power to make the same is vested in the senate and assembly. Whatever may have been inferred from what has been said, we believe no lawyer has contended at the bar that such supposed legislative discretion is absolute and unlimited. Had the framers of the constitution intended to give to the legislature absolute and unlimited power in the making of such apportionmepts, they would simply have required them from time to time to “ apportion and district anew the members of the senate and assembly,” and stopped right there, or have said nothing on the subject. This court has repeatedly sanctioned the proposition that our state constitution is not so much a grant as a limitation of powers;' and hence that the state legislature has authority to exercise any and all legislative powers not delegated to the federal government, nor expressly or by necessary implication prohibited by the national or state constitution. State ex rel. Graef v. Forest Co. 74 Wis. 615, and cases there cited. Had the constitution, therefore, remained silent as to the number of senators and assemblymen, the census, the apportionment, and the formation of senate and assembly districts, it is quite obvious that the legislature would have possessed the discretionary powers suggested. It was because the framers of the constitution were unwilling to vest such discretionary and unlimited powers in the legislature that they prescribed specific methods, restrictions, and limitations upon the exercise of such powers. Thus the constitution expressly provides that “ the number of the members of the assembly shall never be less than fifty-four nor more than one hundred.” Sec. 2, art. IV. Here is a discretion in the legislature, in making an apportionment or otherwise, to fix the number of assemblymen at fifty-four or one hundred, or any number between those figures; but should they attempt to fix the number at only fifty-three or less, or one hundred and one or more, it is very manifest that the enactment would be a simple nullity, for want of power to make it. So by the same section it is provided that “ the senate shall consist of a number not more than one third nor less than one fourth of the number of the members of the assembly.” Here is a discretion left in the legislature, but it is limited to the two fractions named, or some intermediate number, but any attempt to constitute a senate of a greater or less number than thus authorized would obviously be repugnant to the constitution and void.

Leaving out matters not relevant here, and see. 4 of the same article, as amended, provides that “the members of the assembly shall 'be chosen biennially, by single districts . . . by the qualified electors of the several districts; such districts to be bounded by county, . . . town, or ward lines, to consist of contiguous territory, and be in as compact form as practicable.” It is obvious from this, that the number of districts must be the same as the number of members; that the qualified electors of each district have power to elect one member and no more; that neither a town nor a ward can be divided in the formation of an assembly district; so that each town, and the whole of it, must be in some one assembly district, and each ward, and the whole of it, mast be in some one assembly district. It was determined in the former case, and is now conceded, that no county line is to be broken in the formation of any assembly district. This section also requires that each assembly district must consist of contiguous territory; that is to say, it cannot be made up of two or more pieces of detached territory. All admit that these several conditions are absolutely binding upon the legislature, and that that body has no power, much less discretion, to dispense with any one of them. It is conceded that the act in question conforms to these several requirements, but it will be observed that no one of these requirements is calculated to secure or aid in securing the equality of representation; on the contrary, their observance must necessarily to a limited extent prevent such equality of representation, so that, unless there are other provisions in the constitution calculated to secure such equality within certain limits, then there is no restriction whatever.

It will be observed that the section quoted speaks of “ ward lines,” but contains no other reference to cities. From this it is manifest that the framers of the constitution, even at that early day, contemplated that the necessity was likely to arise for dividing up cities by ward lines in the formation of assembly districts, and thus allow smaller factors to enter into the formation of such districts, and to that extent facilitate the equality of representation. Thus, tbe primary factors of each assembly district are either towns or wards or both; and this is equally true whether the assembly district is wholly within a county, or consists of two or more counties, since each county is subdivided into towns, or,towns and wards.

The section quoted also provides that each assembly district must “ be in as compact form as practicable.” As this clause, to a certain extent, limits legislative discretion, and at the same time and to a certain- extent authorizes such discretion, it will be considered in connection with the discretionary powers of the legislature. The constitution provides that the legislature shall, “ at their first session after” the prescribed census, either by the state or the United States, “ apportion and district anew the members ,,. of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy.” Sec. 8, art. IV. Thus it appears that the legislature must not only apportion the members of the senate and assembly “ according to the number of inhabitants,” but must also district anew the members of the senate and assembly “ according to the number of inhabitants.” The requirement that such .apportionment shall be made at the first session of the legislature after the taking of such census very clearly indicates that the census so taken is to be the basis of such apportionment ; otherwise the apportionment might as' well be made the year prior to the taking of such census as the first session of the legislature thereafter. On'this point Mr. Justice PiNNey, in the former case, in effect said, as will appear from a quotation herein, that the apportionment must be based upon such prior census or enumeration. State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 510.

It is here conceded that the total population of the state according to the census of 1890 was 1,686,880; and that if it were possible to secure exact and equal representation upon the basis of that census, the unit, of representation of each assembly district would be 16,868. But, as already indicated, it is impossible to secure exact and equal representation, by reason of the constitutional hindrances mentioned; and it is because of such hindrances, and only because of such hindrances, that the legislature, under the constitution, are at liberty to depart from the equality of representation. Hence they are required by that instrument to apportion and district anew the members of the assembly “ according to the number of inhabitants,” and in doing so the districts are to “ be in as compact form as practicable” The thing therebj'sought to be secured, and in fact secured, is equality of representation, in so far as it is practically attainable without violating any of the other], provisions of the constitution named. And this rule is not only applicable in the formation of a district out of two or more counties, but also to the formation of two or more assembly districts in one county. In apportioning a county into two or more assembly districts there is necessarily a new unit of representation. The act in question provides for six assembly districts, each made up of one or more counties in the northern portion of the state, containing in the aggregate only 67,849 inhabitants, which is less than four times the unit, and when there is no constitutional impediment to their being grouped together into four districts. In the formation of two or more assembly districts in any one county the legislature have the discretionary power to group towns as they may see fit, and to group wards as they may see fit, or to group towns and wards as they may see fit,provided that in doing so they do not violate any of the provisions of the constitution mentioned.

Perhaps this may be made to appear more clearly by an illustration. Dane county contains thirty-five- towns and two cities, with an aggregate population, according to the last census, of 59,578. Of these thirty-five towns, twenty-nine contain less than 1,500 inhabitants each, and eight of these contain less than a thousand, and only one exceeds 2,000, and that contains only 2,379. The city of Stoughton contains two wards, with each less than 1,500 inhabitants. Madison has six wards, and the largest contains only 2,913 inhabitants. The act in question assigned to this county four members: It is simply impossible to apportion and district Dane county anew “ according to the number of inhabitants” contained in it, and have a difference in the districts to exceed a minor fraction of adjoining towns, or adjoining towns and wardsbut with the city of Madison all in one district, as it is in the act, there is no constitutional reason for any difference in the remaining districts to exceed 500 or at most 1,000; and yet, as apportioned under the act, there is a difference of 7,233, and this, too, is done at the expense of compactness. Similar views may be regarded as entertained in respect to a large number of counties. In consequence of the very large wards in Milwaukee,— eleven of which contain to exceed 10,000 inhabitants each, and one of which contains 22,469,— it is more difficult to approximate equality of representation, but it should be done as far as practicable under the restrictions mentioned.

Compactness, being of lesser importance, may to some extent yield in aid of securing a nearer approach to equality of representation; but in some instances, in the act in question, it is made to yield in aid of securing inequality of representation. Thus in Rock county there are three assembly districts, and there is a difference in two of them of 6,285, when it is quite obvious that minor fractions of adjoining towns do not exceed from five hundred to a thousand ; and yet the smallest district is entirely surrounded by one of the other districts, thus destroying compactness in the outside district. Counsel is Undoubtedly right in saying, in effect, that whether the formation of such hollow district destroys its compactness, within the meaning of the constitution, is simply a question of fact. According to Mr. Webster, Marshall, C. J., once said from the bench that “ a legislature may alter the law, but no power can reverse a fact.” 2 Webst. Works, 334.

The constitution also requires that “ the legislature shall apportion and district anew the members of the senate . . . according to the number of inhabitants.'” Sec. 3, art. IY. The only constitutional impediment to the securing of equality of representation in such senate districts is the requirement that “ senators shall be chosen by single districts of convenient contiguous territory, . . . and ho assembly district shall be divided in the formation of a senate district.” Sec. 5, art. IV. The proposed answer alleges that “ in the formation of senate districts the legislature is given the discretionary power to compose them of assembly districts containing two. three, or four assembly districts of such numbers and situation as to the said legislature shall seem convenient and proper with reference to the situation of the inhabitants of such districts, and best for a proper representation of the interests of different parts of the state.” This claim goes to the extent of authorizing the legislature, in its discretion, to form a senate district from two of the smaller or four of the larger assembly districts. Here the smallest contains only 8,626 inhabitants,, and twice that number would only be 11,252, or only 213 more than one third of the senate unit; whereas the largest contains 25,111 inhabitants, and four times that number would be nearly twice the senate unit. It is true the act in question does not in any instance show such wide' disparity in the population of senate districts; but to here sanction the discretionary power thus claimed is to open the door for its exercise to the maximum by any future legislature. But the present act does go in that direction to the extent of forming one senate district from two assembly districts with an aggregate population of only 30,'732, and forming another senate district from -four assembly districts with an aggregate population of 65,952. This is a plain disregard of the constitutional mandate, which requires such apportionment to be made “according to the number of inhabitants.”

The vice which seems to run through the act in question is in assuming .that the only limit to the discretionary power of the legislature in making such apportionment is the major and minor fractions of such units of representation. Thus, the smallest assembly district above mentioned is only 192 above one half of the assembly unit, and the largest assembly district named above lacks only 191 of one and a half of the assembly unit; thus asserting the broad discretionary power in the formation of assembly districts of giving to the inhabitants of the one substantially three times the representative power possessed by those of the other, and in the formation of senate districts of giving to the inhabitants of the one a considerable more than double the representative power possessed by the inhabitants of the other. The constitution gives no warrant to any such fictitious standards, and' will bear no such latitudinarian construction. Major and minor fractions of population in towns, wards, counties, and assembly districts are, of course, to be considered in' making such apportion-ments, .but they are only to be considered along the lines calculated to secure approximate equality in representation. The theory of major and minor fractions of the units of representation cannot excuse or justify a failure to apportion and district anew “ according to the number of inhabitants ” in so far as practicable, consistently with the other provisions of the constitution mentioned.

It has been said that the court should suggest a plan for such apportionment. But the court now, as heretofore, disclaims any and all legislative functions. Besides, the people in their organic act 'have themselves devised a plan which is binding upon this court as well as other officials. That plan, however, can never be legitimately worked out by unknown quantities, in some occult science, along the lines of fictitious standards and extraneous considerations; but may very easily, by obeying the imperative constitutional mandate, observing its fixed standards, and resorting to the simple rules of addition, subtraction, and division. Such constitutional mandate and standards cannot be broken down or rendered inoperative on the theory of discretionary power. In speaking of a constitutional provision requiring senators to “be apportioned according to the number of inhabitants,” and after mentioning the impossibility of dividing towns, Shepley, J., in Opinions of the Justices, 18 Me. 472, 473, said: “And here also it may be said there must exist a discretion to be exercised by the legislature making an apportionment. That power which a legislative body is compelled to exercise by such a moral necessity cannot properly be considered as discretionary. If, however, it be so designated, it is a discretion like that last named, limited in the same manner, and not subject to be abused. There can be no warrant for the exercise of this kind of discretion, if it may be so called, "beyond what is required by the case to be provided for. If the legislature has any other discretion, it is necessarily an unlimited one in practice, however it may be attempted to limit it in theory.” Then, after speaking of such unlimited discretion, he further said: “ It is believed that such is the legitimate and practical tendency of admitting any other discretion than that which arises out of an absolute moral necessity.”

“When.the constitution defines how a right may be exercised, it prohibits the exercise of that right in some other way.” Morris v. Powell, 125 Ind. 281. The rule is tersely stated by Marshall, C. J., thus: “ It is a rule of construction, acknowledged by all, that the exceptions from a power marh its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted, that which the words of the grant could not comprehend.” Gibbons v. Ogden, 9 Wheat. 191. And again the same chief justice said: “ If it be a general rule of interpretation, to which all assent, that the exception of a particular thing from genera] words proves that in the opinion of the lawgivers the thing excepted would be within the general clause had the exception not been made, we know of no reason why this general rule should not be as applicable to .the constitution as to other instruments.” Brown v. Maryland, 12 Wheat. 438. “ In expounding the constitution,” said Taney, C. J., “ every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added.” Holmes v. Jennison, 14 Pet. 571; State v. Pullman's P. C. Co. 64 Wis. 105.

It follows that the constitution requires the legislature to apportion the state into senate and assembly districts^ “ according to the number of inhabitants,” as nearly as it¡¡ | can be done consistently with the other provisions of the] constitution mentioned. Such constitutional requirements are plain and unambiguous, and hence are not to be regarded as abrogated by any number of legislative violations of them. If, as claimed, there has never been any such equal apportionment in the state, then there certainly has never been any legislative construction of the words quoted; for, in order to give any effect to such construction, the words construed must be ambiguous, and capable of two or more meanings, one of which the legislature has adopted. Where, however, the words are unambiguous, and the legislature has never undertaken to construe them, but simply disregarded them, their action, though often repeated, cannot be allowed to have the effect of pro tanto repealing the constitution.

Judgment has already been entered in accordance with the prayer of the complaint.

Winslow, J.

I cannot agree with my colleagues upon either of the questions which are presented in this action.

First. As to the jurisdiction of the court to entertain the action. The action is an action in equity for an injunction, attempted to be brought by the mere relation of a private citizen to redress a purely public wrong (if in fact there be any wrong) without the presence of the attorney general. The relator suffers no private or individual wrong different from that in which the public shares, and he assumes to maintain an action on behalf of the people, who have never placed in his hands any commission for that purpose.

That a private citizen ever possessed any such power to take upon himself, unbidden, the task of redressing the wrongs of the public by an action for injunction, at least until ’the rendering of this decision, I most strenuously deny. Not that a public wrong cannot be prevented by an injunction in equity. Such power has long been vigorously maintained by the courts of England and America; but it has always been maintained with equal vigor that the remedy must be invoked by the state, through the attorney general, its chosen law. officer, and that a private citizen could not, of his own motion, constitute himself the self-elected champion of the people, and stride into the legal arena declaring, “ I am the state,” and challenge public officials to justify their acts. The authorities on the subject of the action in equity by injunction to prevent wrongs of -a purely public nature were fully and exhaustively reviewed by Chief Justice Ryan in Attorney General v. Railroad Cos. 35 Wis. 425, and I could not hope to add anything to that exceedingly luminous discussion of the authorities, even had I the time at my disposal to attempt the task. It is true that the exact point here under discussion was not in issue in that case, because the action was there brought by the attorney general; but the review of the authorities there made shows that the question is not open to discussion. It is there treated as a settled question. The learned chief justice says, on page 526: “We cannot state the rule better than by taking it from the excellent work of Mr. Brice, so recently given to the profession. ‘Under many circumstances, the court of chancery has, on public grounds, jurisdiction to prevent corporations acting in various ways, or contrary to the intent for which they have been created. The public, however, must be represented in all applications relating to such matters, and this is done by the intervention of the attorney general. No single person, whether a member of the corporation in question or not, is able on his own account, and of his own motion, to call upon the court to interfere for his special protection.’ ” Again, on page 527, he quotes with approval the language of Kindee-slet, V. C., as follows: “Whenever the interests of. the public are damnified by a company established for any particular purpose by act of Parliament, acting illegally and in contravention of the powers conferred upon it, I conceive it is the function of the attorney general to protect the interests of the public by information.” Also on page 543 he quotes with approval the following language of the supreme court of Pennsylvania in the case of Buck Mountain Coal Co. v. Lehigh C. & N. Co. 50 Pa. St. 91: “ It is plain, therefore, that a private individual may not, in the absence of a special right or special authority, vindicate the public for breach of duties owing to her alone. ... It' may not be out of place to add that we have no doubt but the remedy by a bill for an injunction, sued out on the part of the commonwealth by the attorney general, would lie against a company to compel them to observe their charter obligations.” The chief justice further says, on page 529: “ The jurisdiction is now clearly defined as having two branches; one on behalf of the state for public wrong, and the other on behalf of private persons for private wrong, arising from an excess or abuse of corporate franchises. Relief against public wrong is confined to informations by the attorney general.”

The language of Chief Justice Gibson of Pennsylvania in the case of Comm. v. Burrell, 7 Pa. St. 34, is especially happy upon this point. He says: “The commonwealth has her own chosen officer for the protection of her own rights (and the rights of the whole community are what constitute public rights or the rights of the commonwealth), and, as she has not explicitly allowed his office to be assumed by any one who may please to try his hand at the business of prosecution as self-constituted locum tenons, we dare not assume the power to allow it.” It seems entirely clear to me that, according to the universal practice of the English and American courts of chancery, an action like the present, to prevent a purely public wrong, must be brought by information in equity, filed by the attorney general on behalf of the public. The public suffers the wrong; the public must bring the action to redress it.

But it is claimed that because by our constitution the writ of injunction has been classed with the purely prerogative common-law writs, like mandamus, quo warranto, etc., and has thus acquired the nature of a prerogative writ, some change has necessarily taken place in the manner of its use. Hot so, however; no such change is indicated in the constitution nor in our statutes, and the very decision which settled - the status of the writ as a quasi prerogative writ — i. e., Attorney General v. Railroad Cos. 35 Wis. 425 — contains the following apt and sensible remarks on this very question: “ It is therefore plain that the original jurisdiction of this court is both legal and equitable, within certain limits,— legal for the use of the common-law writs; equitable for the use of the chancery writ. The use of the former must be according to the 'course of the common-law courts; the use of the latter, according to the course'of courts of equity; in each case subject to statutory modifications of the practice, which do not impair the jurisdiction granting them.”

Neither the suggestion in State ex rel. Wood v. Baker, 38 Wis. 71, nor the opinion in State ex rel. Drake v. Doyle, 40 Wis. 175, help the relator’s position in this action in the least. These were applications for the true prerogative writs of quo warranto and mandamus, respectively, which are purely common-law writs. As indicated by Chief Justice Evan, their use must be according to the course of the common-law courts. It seems to be a fact that these common-law writs were often issued by the common-law courts on relation of a private citizen to enforce a public right; but the injunction was a remedy applied only by the court of chancery according to its own rules, and one of those rules was that in matters of purely public right it must be sued out by the attorney general.. I think I can say confidently that no case or authority can be found to the contrary of this doctrine. I am gratified also to know that my views upon this question seem to have been shared as recently as March last by my colleagues on this bench. In the former case of State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, Mr. Justice ObtoN said, upon page 471: “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 matter being exclusively pubUoi 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.” And Mr. Justice PiNNey, on page 487, was even more emphatic: “ 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 pióblici 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.” And Mr. Justice Cassoday said that the decision was in full accord with his judgment. It is to be remembered, also, that in the case in which these opinions were written application was first made by a private relator for leave to bring the action, so that the remarks above quoted must have been made advisedly. My views are the same now as then upon the proposition, but the views of my associates seem to have changed.

However, if this were the only point upon which I differed with the decision of the majority of the court, I should write no opinion, but content myself with a simple dissent. But my views as to the merits of the action are totally at variance with those of my colleagues, and to that question I address myself. In the former case of State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, it was held that the apportionment act of 1891 was invalid because it violated a positive command of the constitution, namely, the command that county lines should not be broken in the formation of assembly districts. As to the correctness of that decision I .have no doubt. But that question is not before us now. The controlling question in this case is whether the law is unconstitutional because of the disparity of population between the districts formed by it. In the case just cited it was said by Mr. Justice Pitney, in the course of his opinion, with reference-to this very question: “ 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.” In these views I concurred.

The question thus suggested is now presented. Every law passed by the legislative branch of the government and approved by the executive is presumed to be constitutional. Every intendment is in its favor. It is not to be lightly set aside. It should be sustained, unless it is clearly in violation of the constitution; and it is frequently said that its unconstitutionality must appear. beyond all reasonable doubt. These are fundamental principles. I approach the consideration of this question, therefore, feeling that the law should be sustained if -possible, and this feeling is the stronger because a decision adverse' to the law declares unconstitutional every previous apportionment, and brands every legislature which ever assembled at the seat of government since 1852 as merely a de facto legislature; for it is a fact that all previous apportionments contain greater relative differences in population than the one before us. One would naturally desire to be very sure of his ground before announcing such a conclusion.

Let us examine the constitutional provisions-which are claimed to be violated by this law. The first requirement is that the apportionment shall be'made according to population. . This requirement was, of course, intended to secure-substantial equality of representation. If it stood alone,-. without other requirements, the argument would be strong-that practically absolute equality in the population of districts was intended. But there are other requirements, equally binding, which, to a greater or less degree, must'’, necessarily seriously interfere with the idea of absolute equality in districts; in fact, render it impossible. In case of assembly districts, these other requirements are (1) that no county, town, or ward line shall be broken; (2) that the districts shall consist of contiguous territory; and (3) that they shall be in as compact form as praeticable. In case of senate districts, (1) that no assembly district be divided; (2) that the territory of the district be convenient and contiguous.

No argument is required to show that these additional constitutional commands render impossible anything approaching absolute numerical equality in districts. If county lines cannot be broken, great disparity in population in districts is unavoidable. Take an example. Suppose the unit of assembly representation to be 16,000. Given two counties containing respectively 39,000 and 25,000 inhabitants. The first county has two entire units and a minor fraction, so it will be entitled to but two assemblymen ; the second county has one unit and a major fraction, which entitles it to two assemblymen. Thus, if these two counties be divided exactly evenly, 19,500 inhabitants will elect an assemblyman in one county while 12,500 will elect an assemblyman in the other county, but it could not be said that any rights of any citizen had been violated. So it is evident, also, that the requirement of compactness is liable to interfere seriously with numerical equality.

And in the case of senate districts it is equally evident that the constitution cannot mean absolute equality. The senate district must be composed of entire assembly districts. There are now thirty-three senate districts and one hundred assembly districts. If the assembly districts be equal, or nearly so, and three are assigned to each-senate district, there will be one senate district composed of four assembly districts; and the numerical difference between this last-named district and the others would be substantially the assembly unit. Thus the very terms of the constitution demonstrate the impossibility of equality in either senate or assembly districts.

It is evident that the term “according to population” means as near as reasonably practicable, in view of the other requirements. It is evident also that there must be a latitude of action in regard to population if the requirement as to compactness is to have any effect. This is certain, because if the districts are to be divided so as to give the nearest possible approach to equality, compactness must necessarily be disregarded. Who, then, is to judge of what degree of equality of numbers is reasonably practicable? And who is to judge of the compactness which is practicable? Manifestly the legislature, upon whom the duty of apportionment is imposed. Here, then, is evidently a latitude of action. Here, within limits which no one can precisely define or lay down, is a discretion to be exercised, not by this court, but by the legislature. The very fact, also, that the duty of apportionment is imposed on the legislature, a body which in the highest degree is charged with the exercise of judgment and discretion in its acts, is a strong implication that discretion is intended to be exercised. If it were simply a question of addition and division, a board of arithmeticians would answer the purpose far better. There is, therefore, in my judgment, a discretion here which, with the terms of the constitution alone before us, is evidently quite large; a discretion which any court should hesitate long before interfering with.

I say it is evident on the face of the constitution itself that a large discretion necessarily exists in the legislature with reference to the matter of population, but we have light on the subject other than that furnished by the words of the constitution. It is a cardinal principle of the law with reference to the construction of statutes the meaning of which is in any way doubtful, that contemporaneous, long-continued, and open construction of the statute in a certain manner by the officers or bodies charged with the duty of executing it is of great weight in judging of the proper construction, and such practical construction is often controlling. This principle has.been fully recognized by this court in Scanlan v. Childs, 33 Wis. 663, and Harrington v. Smith, 28 Wis. 43. That the same principle is applicable to the construction of a constitution, which is simply the highest law of the state, is unquestionable. Commissioners v. Miller, 7 Kan. 479. -In judging, therefore, of the latitude or discretion which the legislature is given by the constitution with regard to the population of districts, we are entitled to examine into and consider the construction which was contemporaneously placed upon these constitutional provisions. In this investigation we are peculiarly fortunate, because the same body which framed the constitution and laid down the rules of apportionment incorporated into the constitution also an. apportionment of the state, which remained in force until 1852. Now, I know it will be said that the constitution makers were not bound by the constitutional requirements in making their apportionment, and that they might, if they chose, violate the rules which they laid down for the control of the legislature; and I freely grant the soundness of the proposition. But to my mind it is not within the bounds of reason nor probability to suppose that an earnest body of men, assembled for the purpose of laying the foundation of the new commonwealth, should lay down a code of fundamental rules intended to guard the rights of the citizen in his voting power for all time, and in the next breath should deliberately violate those rules, and declare that for a number of years that part of the constitution should be nullified. Nor do I find anything in the debates of the convention which indicates that the members ever thought they were making an apportionment in violation of constitutional rules. I entertain no doubt that this first apportionment made by the framers of the constitution was intended to be made under the rules which the constitution laid down. Any other view seems to me a severe imputation upon the character of the fathers of the state. I rbgard it as a practical exposition of the constitution by the makers of that instrument themselves, and as such entitled to the greatest weight in judging of the extent of that undefined latitude or discretion which was intended to be allowed as to population of districts. As such, let us briefly examine it.

The population of the territory was a little more than 210,000. The number of assemblymen provided for was sixty-six, and of senators nineteen. The assembly unit of population was nearly 3,200, the senate unit 11,000. The largest assembly district was Green county, which had a population of 6,187, or more than twice the unit; and the Smallest district was Calumet county, with a population of 1,060, or about one third of the unit; and between these two extremes the whole gamut of population was run through in the other districts. So the largest senate district was Waukesha county, with a population of 15,866, an excess of nearly one half the unit, and the smallest district was formed of Crawford, Chippewa, St. Croix, and La Pointe counties, with a population of 3,450, or about one third the unit; and between these extremes ranged the other districts. Again, counties were not given their proportionate number of members. Thus, Eacine county, with a population of 19,539, and entitled clearly to six members, received but five, while Eock county, with a population of 14,729, also' received five. Again, where counties were awarded more than one assemblyman, the division of the county was not always made in accordance with the county unit of population. An example of this occurs in Milwaukee county, where the country towns are divided into three assembly districts, with populations, respectively, of 2,156, 2,948, and 3,620. By an obvious rearrangement, whereby compactness is not sacrificed, the districts might have been made 2,784, 2,807, and 3,133. Other instances could undoubtedly be found, but I forbear. I have cited enough to show that the constitution makers evidently considered that there was a wide latitude or discretion allowable as to population.

It was natural that when the constitutional convention had thus set the example and given a practical construction to the instrument, the legislature should follow the path so marked out, and so we find the fact to be. The first legislative apportionment was made in 1852; the next in 1856; and they have been made every five years since that time. In 1852 the units of representation were nearly the same, and the assembly districts varied in population from 963 to 8,566, the senate districts from 4,104 to 19,138, while many counties received less than the number of assemblymen, which the population entitled them to. In 1856 the assembly districts ran from 2,423 to 9,272, the unit being 5,521; and the senate districts ran from 7,558 to 34,540, the unit being 18,403. In 1861 the .assembly districts ran from 3,119 to 15,682, the unit being 7,758; and the senate districts ran from 13,170 to 34,154, the unit being 23,511. In 1866 the assembly districts ran from 5,199 to 14,841, the unit being 8,683; and the senate districts ran from 12,667 to 42,029, the unit being 26,313. In 1871 the assembly districts ran from 5,855 to 23,611, the unit being 10,546; and the senate-districts ran from 14,570 to 46,941, the unit being 31,959. It is unnecessary to follow, the remaining apportionments. They are substantially like those above cited; they all show the exercise of a wide latitude as to relative population of districts; they all follow the lead of the constitutional apportionment. The present apportionment divides the state far more nearly according to population than any one of the previous apportionments since the state was born.

Now, I do not wish to be misunderstood. I am not claimr ing that because previous legislatures have violated the constitution the legislature of 1892 may do so with impunity. I fully understand that no prescriptive right to break a constitutional command can be acquired. I am simply claiming that it is apparent that the constitution confers a discretion on the legislature as to the population of districts, a discretion whose limits are undefined, and that in considering the limits of such discretion, contemporaneous, long-continued, and unchallenged construction by the legislature is of great weight. Here we have a practical construction placed upon the constitutional requirement by the constitution makers themselves. "We have also forty years of practical construction by the legislature following the constitutional construction, unchallenged until now; and I believe it should prevail. If it does prevail, then the law before us is unquestionably valid.

Considerable stress was laid upon the fact that under the act in question, where counties contained more than one assembly district, the county was not divided as nearly equally in point of population as possible. A considerable number of instances of this kind were commented upon. It was claimed that in such case a new unit should be obtained, and the districts made to conform as nearly as practicable to that new unit in population. What I have said as to the legislative discretion applies to a considerable extent upon this question. The limitations of contiguity and compactness interfere with equality of population, and the forty years practical construction is equally emphatic in its tendency to prove that no inflexible rule of this kind is laid down by the constitution. It is very evident also that it would be very undesirable in some cases to divide a county as absolutely even as possible. Take the ease of Raeine county, for instance. The city contains a population of 21,014 'by the last census, and the country towns a population of 15,254. The city, by.this law, was made one assembly district, and the country another. Now, here was a disparity of nearly 6,000 between these two districts; but is it not manifest that the county will probably be better represented and the voters better satisfied by this arrangement than by detaching wards from the city and adding them to the country district? Any man with any experience knows that the attaching of city wards to a country district is apt to produce discord and dissatisfaction. The city has its peculiar interests, and the country has its interests, and they generally conflict. A map was 'presented, showing how the county could be divided into two districts with almost exact equality of population. By this map the first and second wards of the city were detached from the city and added to the country towns. The fantastic shape of the proposed district would rival that of the original district from which it is said the word “ gerrymander ” is derived. No one Avould say that any good end could'be subserved by such a carving of the city.

Now, I do not contend that these remarks apply to all the districts of which complaint is made. They do apply to some extent to the Janesville district, and to the Eau Claire district; but there are undoubtedly disparities in the divisions of counties for which no particular reason appears on the face of the map. With regard to such instances, it is clear to me that the legislative discretion is a wide one as to numbers; that they may consider things such as the community of interest, facility of communication, and the general topography, the rapidity 'with which population is increasing, and many other things which this court cannot know, and with which it has nothing to do. This court cannot take evidence as to these outside considerations, but I have no doubt of the power of the legislature, in the exercise of its discretion, to consider them. Such considerations tvere urged in the constitutional convention in making the first apportionment, and it is clear that they were acted upon, and that variations in populations of districts were thus produced. In any event, the differences within county lines are not sufficient, it seems to me, to authorize any court, in view of our constitutional and legislative history, to set aside the law and leave the state with no. apportionment.

A few general observations, and I leave the subject. I fear we are entering upon a period of judicial apportion-ments. This is the second law which has been attacked within a few months in this court. • After the decision on the first law, the legislature was reconvened and the present law enacted. Now this law is attacked, the court holds it void, and points out in its opinion wherein the constitution is violated. Presumably another session of the legislature will be held, and another attempt will be made to pass an apportionment law in accordance with the opinion of the court. This also may be attacked by some enterprising citizen, who steps into court with his private counsel and relates to the court the burning wrongs of some of his fellow-citizens in a far distant county, who are all unconscious of the outrages inflicted on their rights as citizens. Again the court will pass upon the questions raised, and inform the legislature wherein the law must be corrected. By the time this process has been repeated several times more, it'will be a serious question whether the law finally resulting is the offspring of the legislature or of the court. Has not the legislature acted simply as the recorder of the decrees of the court? Has not its discretion vanished and been supplanted by the discretion of the court? Has not the court in fact made the law, and thus invaded the province of its co-ordinate branch of the gov-eminent? Truly I think these queries must be answered in the affirmative, and, if so, the grave nature of this decision is apparent. The court has assumed to itself legislative power. It- has practically substituted its discretion for the legislative discretion. No essay on our form of government is necessary to show that an encroachment by one branch of the government on the proper powers of one of its co-ordinate branches is a greater evil than the evil of gerrymandering. I am not by any means defending gerrymandering. I recognize it as an evil, although I am inclined to think that its bad effects are generally overestimated. I think there are very few, if any, instances where political power has been retained by the minority for any length of time by means of the gerrymander. But, however this may be, the question presented now is not whether the gerrymander is an evil, but what are the limits of the discretion which the legislature may constitutionally exercise in forming legislative districts ?

See note to this case in 17 L. B. A. 145; also People ex rel. Carter v. Rice, 16 L. E. A. 836, and note.— Rep.

This opinion has been written at intervals, amid the press of exacting and onerous judicial duties. The writer is aware that it is not a complete discussion of the questions involved in this important case, nor was it intended to be such a discussion. It was simply intended as a statement of the grounds upon which the writer feels compelled to dissent. Holding the views which are here indicated, it has seemed to me my imperative duty to place on record this earnest though unavailing protest.

Case Details

Case Name: State ex rel. Lamb v. Cunningham

Court Name: Wisconsin Supreme Court

Date Published: Sep 27, 1892

Citation: 83 Wis. 90

Court Abbreviation: Wis.