83 Wis. 90 | Wis. | 1892
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
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
“ 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 ac*126 cording 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,*127 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.”
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
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.
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
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
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.
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.
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
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 here
None of the considerations so alleged are among the re
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 condi
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
“ 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 appor
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 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
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
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;
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,
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
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
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
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 as
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,
“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
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
Judgment has already been entered in accordance with the prayer of the complaint.
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
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
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
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
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
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 con
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
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
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 ap
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
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 consid
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-
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.