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 THE WISCONSIN GEEEYMANDEES 
 OF 1891 AND 1892 
 
 A CHAPTER IN STATE CONSTITUTIONAL HISTORY 
 
 BY 
 
 FRANCIS NEWTON THORPE 
 
 Reprinxbd from the July 1903 Number oe 
 THE IOWA JOURNAL OF HISTORY AND POLITICS 
 Published at Iowa City Iowa by 
 The State Historical Society of Iowa 
 

/ 
 
 THE WISCONSIN GERRYMANDERS OF 
 
 1891, 1892 
 
 A. CHAPTER IN STATE CONSTITUTIONAL HISTORY 
 
 r^ f 
 
THE WISCONSIN GERRYMANDERS OF 1891, 1892 
 A CHAPTER IN STATE CONSTITUTIONAL HISTORY 
 
 On the eleventh of November, 1891, the Board of Super- 
 visors of Adams county in the State of Wisconsin instructed 
 the District Attorney of that county to institute proceedings 
 in the courts of the State to the end that judgment might be 
 rendered, declaring null and void the act of the legislature 
 of 1891 which apportioned the State into senatorial and 
 assembly districts, on the ground that this apportionment 
 invaded the rights of the people by depriving them of equal 
 representation in the legislative branch of the government, 
 that it aimed to substitute the will of the minority for that 
 of the majority, and that its provisions were unconstitutional 
 and, therefore, directly subversive of representative govern- 
 ment. The population of the State having been ascertained 
 by the federal enumeration of 1890, as required by the 
 State Constitution,^ it became the duty of the legislature to 
 apportion and to redistrict the members of the Senate and 
 Assembly according to the number of inhabitants, excluding 
 soldiers and officers of the United States army and navy, 
 and Indians not taxed. 
 
 It was claimed that this apportionment should divide the 
 inhabitants of the State in groups, or districts, as nearly 
 equal as practicable; that the assembly districts should be 
 bounded by county, precinct, town, or ward lines, and that 
 
 "Art. 4, Sec. 3. 
 
both assembly and senatorial districts should consist of 
 compact territory — the object of the constitutional pro- 
 vision for apportionment being to secure a practical re- 
 arrangement and re-adjustment of the assembly and senator- 
 ial districts with reference to changes in the number of 
 inhabitants from time to time, and as far as possible to 
 maintain equality of political power and rights between the 
 inhabitants of these various political subdivisions. 
 
 In forming these districts, local interests unified by the 
 acquaintance and associations of their inhabitants were to be 
 conserved as far as practicable. By the census of 1890 it 
 appeared that the total population of the State was one mil- 
 lion six hundred and eighty-six thousand (1,686,000). 
 The State Constitution limited the number of assembly dis- 
 tricts to one hundred, and the number of senatorial districts 
 to thirty-three. This limitation of the membership of the 
 two houses, therefore, fixed the units of representation at 
 sixteen thousand eight hundred and sixty-eight inhabitants 
 in an assembly district, and at fifty-one thousand one hun- 
 dred and seventeen in a senatorial. 
 
 The act of Assembly of 1891 violated these constitutional 
 provisions and duties, as was shown in its apportionment of 
 representation. Not only was the unit of representation ex- 
 ceeded in many districts and diminished in others, but the 
 assembly district in many cases was made to consist of 
 counties not forming a compact territory, and to include 
 towns outside of these counties. One district was one hun- 
 dred and three miles in length. In one instance between 
 two assembly districts there was a difference in population 
 of thirty thousand three hundred and twenty-five inhabit- 
 
ants. Other variations were flagrant. In one case there 
 was an excess, over the unit of representation, of fourteen 
 thousand seven hundred and ninety -nine persons; of sixteen 
 thousand nine hundred and seventy -five persons in another; 
 and of twenty-one thousand nine hundred and thirty-three 
 in a third; while in others the population fell below the 
 unit to the number of five thousand seven hundred and 
 forty-nine in one, to twelve thousand six hundred and 
 seventy -six in a second, and to thirteen thousand three 
 hundred and fifty in a third. 
 
 The apportionment also changed the senatorial districts 
 throughout the State so as to prevent large numbers of 
 electors, who had participated in the election of State sen- 
 ators in 1888, from participating in the election of senators 
 in 1894; while it permitted other electors, who had partici- 
 pated in the election of State senators in 1890, to participate 
 again in such an election in 1892. The effect of this re- 
 arrangement of the senatorial districts was to disfranchise 
 one-fifth of the total population of the Commonwealth. 
 
 In order to prevent an election under the act of 1891, the 
 supervisors of Adams county sought to enjoin the Secretary 
 of State from issuing writs for the next general election on 
 the eighth of November, 1892, when members of Assembly, 
 and State senators from the even numbered senatorial dis- 
 tricts, would be elected in accordance with the terms of the 
 act. Unless restrained by an injunction, issued by the 
 Supreme Court of the State, the Secretary would issue the 
 writs; in which event it was declared that the electors of 
 Adams county and its inhabitants and the inhabitants of the 
 State would be greatly injured in their political powers, 
 
rights, and liberties as granted tliem by the Constitution. 
 In order that the case might be heard and determined withi- 
 out delay, the Adams county supervisors presented their 
 petition for the injunction in the Supreme Court of the 
 State and averred the invalidity of the act of apportionment 
 of 1891. The District Attorney of Adams county, therefore, 
 became the petitioner, for the supervisors, to the court, 
 praying leave to bring action there in the name of the State, 
 on the declaration of the Attorney -General of the State or 
 in the name of the county of Adams, or of its District At- 
 torney, or otherwise as the court might direct, to restrain 
 the Secretary of State perpetually from making, publishing, 
 and delivering the notices of election of members of the 
 Senate and Assembly as directed by the objectionable law. 
 The Attorney -General, upon this relation of Adams 
 county and of its District Attorney, with the consent of the 
 Supreme Court, came before its justices at the capitol, in 
 the city of Madison, in the name of the State and showed 
 that, under the practice of the court and the laws of the 
 State, persons and corporations having grievances and 
 claiming the exercise of the prerogative powers of the court 
 to secure their rights, could be heard in the court only 
 through the office of the Attorney -General of the State or 
 through other parties by the consent of the court. The 
 Attorney -General was unwilling that any parties claiming 
 an injury to their rights, remediable by a judgment of the 
 court, should be denied the use of his official name, as the 
 law officer of the State, simply because that officer might not 
 fully be convinced of the just claim of the party to be re- 
 lieved; therefore, without assenting or dissenting as to the 
 
7 
 
 truth of the allegations of the complaint he brought the 
 question of the constitutionality of the act before the court. 
 Thus the State of Wisconsin became the plaintiff and the 
 Secretary of State became the defendant in the case, and 
 the first procedure was to determine whether or not the 
 Secretary might be properly restrained from delivering 
 notices of election of members of the Senate and Assembly 
 under the act. 
 
 The original jurisdiction of the court was thus invoked to 
 restrain the Secretary and his successor in ofiice from giving 
 notices of election of members of the legislature, on the 
 ground that the act of 1891 was unconstitutional. The 
 Board of Supervisors of Adams county adopted their reso- 
 lution on the eleventh day of November, 1891. On the 
 seventh of the following January the District Attorney of 
 that county caused notice to be given to the Attorney-Gen- 
 eral of the State that, in obedience to the resolutions of the 
 supervisors, he desired to institute an action in the Supreme 
 Court in the name of the Attorney -Greneral. 
 
 Eight days later the petition of the District Attoj-ney of 
 Adams county was filed, setting forth specifically the wrongs 
 of which the complaint was made. On the day following, 
 the security for costs was furnished by Adams county; on 
 the twenty-first, the Attorney -General notified the attorney 
 for the petitioner that application has been made to the 
 Supreme Court to begin an action for the purposes prayed 
 for in its petition; and on the second of February the court 
 granted leave to bring suit. 
 
 The Secretary of State was required by law^ to make out 
 
 ^Wisconsin Laws, 1883, Sec. 1, chap. 327. 
 
8 
 
 a notice in writing, between the first day of July and the 
 first of September in each year in which members of Assem- 
 bly and State senators were to be elected for a full term, 
 stating what senators were to be chosen at the next elec- 
 tion, specifying the districts in which they were to be 
 elected, publishing a copy of the notice in a newspaper 
 printed in the capital once a week until the day of election, 
 and also transmitting a copy to the clerk of each county in 
 which an election was to be held. 
 
 To the complaint filed by the plaintiff answer was made 
 by the respondent — the Secretary of State — that the com- 
 plaint did not show that the District Attorney of Adams 
 county had any interest in the subject matter which would 
 entitle him to a standing in court to petition for a relief 
 from a real or supposed grievance; nor had the court any 
 jurisdiction in the case; nor did the complaint state wrongs 
 recognizable in a court of equity; and finally, that the com- 
 plaint failed to show that the act of 1891, either in letter or 
 in spirit, was any violation of the Constitution of Wis- 
 consin. 
 
 The question on which the action of the court turned was 
 whether the subject matter of the complaint was one affect- 
 ing the sovereignty of the State, its franchises, or its prerog- 
 atives.^ The question at issue, therefore, involved the juris- 
 diction of the court and the unconstitutionality of the law. 
 The jurisdiction of the court depended upon its powers 
 under the Constitution of the State, which vested original 
 jurisdiction in the court to issue writs of habeas corpus, 
 
 •State Ex rel. Drake m. Doyle, Sec. State, 40 Wis. 186; Atty. 
 Gen. vs. Eau Clair, 37 Wis. 442. 
 
9 
 
 mandarmiSi injunction^ quo warranto, certiorari, and other 
 remedial and original writs. The constitutional provision 
 that the court should have power to issue these writs and to 
 hear and determine them conferred the fullest jurisdiction.^ 
 All judicial power in matters of law and equity are lodged 
 in the courts.^ The Constitution did not deiine any of the 
 terms describing the above mentioned writs. The full mean- 
 ing of its language had to be ascertained by an examination 
 of the decisions of the court itself and of other courts. 
 
 There was slight doubt of the power of the court to issue 
 a writ of quo warranto. It had been issued in an action 
 where an information had been filed charging the defend- 
 ants and others with exercising the powers of banking with- 
 out authority of law.^ So, too, the writ had been issued to 
 determine what person had been elected Governor of the 
 State. ^ 
 
 In cases in which State officers had been clothed with 
 power under the Constitution to perform certain adminis- 
 trative acts, the original jurisdiction of the coui"t had been 
 exercised in issuing a writ of certiorari. So a State Super- 
 intendent of Instruction had been commanded to send up 
 for review his proceedings in determining upon an appeal a 
 question relating to the division of a school district;^ and 
 the writ had been issued to affirm his action in reversing, on 
 
 'Wis. Con., Art. Y, Sec. 3. 
 
 = Art. n, Sec. 2. 
 
 'Atty-Gen. vs. Blossom, 1 Wis. 317. 
 
 ■'Bashford, relator, vs. Barstow, respondent, 4 Wis. 567; also cases 
 quoted in Simmons' New Wisconsin Digest, i, p. 716, Col. 2. part 2. 
 
 ^ State Ex rel. Morland vs. Whitford, 54 Wis. 150; 6 Political 
 Science Quarterly, 493. 
 
10 
 
 appeal, the determination of the district school board that a 
 certain child was not a resident in a school district in the 
 sense that he was entitled to the privilege of attending the 
 public school in that district gratis} 
 
 The ministerial action of State officers had been controlled 
 through the exercise of the original jurisdiction of the court 
 by means of a writ of mandamus^ as when a Secretary of 
 State had been compelled to revoke the license of a foreign 
 insurance company,^ and when a writ was invoked on behalf 
 of the State as a purely prerogative right in matters puhlici 
 juris it was held that the court had no discretion and that 
 the writ goes ex dehito justitice.^ By this writ a Secretary 
 of State had been compelled to audit a claim, and it was 
 held that the court had a right to direct him as to the ques- 
 tion of interest allowed.* 
 
 Through this writ the court could require the Board of 
 State Canvassers to determine, in accordance with law, 
 which one of the candidates for the office of representative 
 in Congress was entitled to a certificate of election.^ So by 
 writ of mandamus the Secretary of State, State Treasurer, 
 and Attorney-General, ex officio land commissioners, had 
 been compelled to issue patents for State lands to certain 
 petitioners.^ 
 
 1 State Ex rel. School Dis. vs. Thayer, Supt., 74 Wis. 150. 
 
 'State Ex. rel. Drake vs. Doyle, Sec. State, 40 Wis, 175. 
 
 ' State Ex rel. Continental Ins. Co. vs. Doyle, Sec. State, 40 
 Wis. 220, 236. 
 
 ■* State Ex rel. Sloan et al. vs. Warner, Sec. of State, 55 Wis. 271. 
 
 = State Ex. rel. McDill ws. Board of State Canvassers, 36 Wis. 498. 
 
 ^State Ex rel. Com. Pub. Lands, 60 Wis. 344; 70 Wis. 627; 73 
 Wis. 211. 
 
11 
 
 From these decisions it was claimed that a State officer 
 was not clothed with discretion in the performance of official 
 duty; that his action would be reviewed by the court, which 
 would compel him to perform his duty according to law; 
 and that in all cases the court would interpret the law and 
 the Constitution and compel action accordingly. 
 
 In all matters puhlici juris affecting the sovereignty of 
 the State, its franchises, or prerogatives, or the liberties of 
 the people, the wiit of injunction issues as a matter of strict 
 right and duty, and the court had no more discretion to 
 withhold it to restrain violation of public right than to 
 withhold mandamus to enforce public duty.^ The phrase 
 "liberties of the people" in judicial sense signifies the aggre- 
 gate political rights and franchises of the people of a State • 
 at large.^ 
 
 It was claimed that the cases involving the apportionment 
 of the State under the act of 1891 affected the liberties of 
 the people; that the provisions of the law, if carried out by 
 the Secretary of State, would violate the Constitution and 
 deprive a large portion of the inhabitants, that is, electors of 
 the State, of an equal and just proportion of political power 
 and right in the choice of representatives in the legislature; 
 in which case the legislative body would restrain the liberty 
 of every citizen of the State. With equal right it might 
 change the laws relating to inheritance and the jurisdiction 
 of property. It might raise or lower the rates of taxation; 
 or largely increase the number of officials in the State and 
 
 ^Atty-Gen. vs. Railways, 35 Wis. 425 and 595; State Ex. rel. 
 Atty-Gen. vs. Eau Clair, 37 Wis. 400. 
 ' In re Pierce, 44 Wis. 441. 
 
12 
 
 the expense of maintaining them; or determine the fees of 
 all officials who enforced the mandates of the court. 
 
 From this review of these cases it was maintained that 
 there conld be no controversy over the original jurisdiction 
 of the court to control the action of the Secretary of State 
 in the discharge of his duties, which, as in giving notice of 
 election, were purely ministerial and involved no element of 
 discretion.-^ There was no doubt that, were the act of 1891 
 a constitutional provision, and were the Secretary of State 
 inclined for any reason to disregard it, and were he to 
 refuse to call the coming election under the law, the court 
 would send its mandate to him to compel him to obey the 
 law. If it appeared that the law which he proposed to obey 
 was clearly in violation of the Constitution, the court was 
 under a solemn duty to act with equal promptness in re- 
 straining him from doing a great public wrong. 
 
 Chief-Justice Ryan had distinguished between the action 
 on a writ of injunction and that of mandamus. Mandamus 
 commands; injunction forbids. Mandamus compels duty; 
 injunction restrains wrong; and there is sometimes a doubt 
 which is the proper writ to issue. It was safe to assume 
 that the Constitution gives injunction to restrain excess in 
 the same class of cases in which it gives mandamus to sup- 
 ply defect.^ 
 
 Nor were there wanting cases from the supreme courts of 
 other Commonwealths which illustrated the doctrine. The 
 Auditor of the State of Ohio had been enjoined for the pur- 
 
 ' Martin, relator, vs Doyle, Sec. State, 38 Wis. 92; State Ex rel. vs 
 School Dis., 65 Wis. 631. 
 
 ^Railway Cases, 35 Wis. 520. 
 
13 
 
 pose of protecting a United States bank in that State in tlie 
 exercise of its franchises, which were threatened in 1824 
 by an act of the State legislature in violation of the Consti- 
 tution of the United States.^ 
 
 So the Governor and other State officers acting as a 
 Board of Liquidation had been restrained from carrying out 
 the provisions of a State law in liquidating an indebtedness 
 claimed to be due from the State, on the ground that such 
 action would impair securities already issued and thus vio- 
 late the obligation of the contract.^ 
 
 In general the United States courts clearly established 
 the doctrine that in the exercise of equitable jurisdiction 
 the officers of a State could be enjoined from proceeding to 
 act under a State law which violates the Constitution of the 
 United States and invades the rights of citizens of other 
 States. 
 
 This feature of government, the power of courts to de- 
 clare a law or a statute unconstitutional, is peculiar to the 
 American political system and may be called a discovery in 
 civil government. A fundamental difference between the 
 governmental system of Great Britain and that of the 
 United States is illustrated in the place and function of the 
 judiciary in the American system, to which the British sys- 
 tem has no corresponding part. The law in the United 
 States is fundamentally set forth in a written Constitution 
 "established and ordained by the people of the United 
 States." 
 
 'Osborn vs U. S. Bank, 9 Wheaton 739; affirmed in Davis vs Gray, 
 16 Wallace, 803. 
 
 * Board of Liquidation ws. Maocmb, 92 U. S. 531; Mecham Pub. 
 Off. Sect. 997. 
 
14 
 
 The Constitution of the United States and the laws and 
 treaties made under it are the supreme law of the land. 
 Because of this supremacy of the Constitution the several 
 federal States as civil corporations maintain their existence 
 by express grants. The executive, legislative, and judicial 
 powers of the United States and of the several States are 
 subordinated to this Constitution and are controlled by it. 
 Neither the President of the United States, nor Congress, 
 nor the Governor of a State, nor its legislature, nor its 
 courts can legally exercise power inconsistent with the pro- 
 visions of the federal Constitution. Every State legisla- 
 ture, therefore, becomes a subordinate law-making body, 
 its laws being of the nature "of by-laws, valid whilst within 
 the authority conferred upon it by the Constitution, but in- 
 valid or unconstitutional if they go beyond the limits of 
 such authority."^ All the power of the English state is 
 concentrated in the imperial Parliament, and all departments 
 of government are legally subject to absolute parliamentary 
 control. The British judiciary does not rank with the 
 British Parliament as a coordinate branch of government, 
 and it might be modijBed, or even abolished, by act of Par- 
 liament without violation of the British principles of con- 
 stitutional government. 
 
 In America, on the contrary, the federal judiciary is co- 
 ordinate with the President and with Congress, and the 
 State judiciary with the Governor and the legislature. 
 The coordination of the powers of the judiciary and the ex- 
 ecutive and legislature is usually set forth in a State Con- 
 stitution, just as the coordination in analogous federal mat- 
 
 ^ Dicey, The Law of the Constitution, Lecture IV. 
 
15 
 
 ters is set forth in the Constitution of the United States. 
 By means of the written Constitutions of the State, and of 
 the United States the duties and powers of a judge, whether 
 federal or State, are clear. The State is, therefore, bound to 
 consider as void every act of the legislature inconsistent 
 with the State Constitution or with the Constitution of the 
 United States. 
 
 A State judge has before him two Constitutions, that of 
 the State and that of the United States. By them the pro- 
 cess of government, both in the Commonwealth and in the 
 United States, is made practically certain and clear, and one 
 of the chief objects of government is secured. This organ- 
 ization of government in the State does not merely produce 
 a system of checks and balances in which the co'rdinate 
 departments of the Commonwealth or of the United States 
 are, as it were, pitted against each other for the purpose of 
 conserving the interest of the State, though often conceived 
 as the intended expression of such checks and balances. 
 The existence and coordination of the three departments of 
 government are rather to be conceived as functional, and as 
 the three-fold aspect of the civil unit. The unit is repre- 
 sentative and consists of powers delegated by the sovereign 
 power in the State. The entire civil provision is, therefore, 
 a device whereby to conserve the interests of the civil organ- 
 ism; to identify them; and to free from uncertainty all civil 
 procedure in which they are involved. 
 
 In a representative government like our own, any confu- 
 sion in the terms by which its powers are delegated must 
 cause civil discord and prevent the people from enjoying all 
 the harmonious results which daily give a definition not 
 
16 
 
 only of popular rights and liberties, but also of the normal 
 progress of the State in its industrial affairs. 
 
 The judicial system in American government is illustrative 
 of one of the most remarkable evolutions in the modern 
 state; and the applications of its functions in determining 
 the harmonious development of civil institutions in America 
 constitute, perhaps, the primary evidence of the claim of rep- 
 resentative government to a future of wide extension in the 
 world. 
 
 The question whether the apportionment of representa- 
 tion in Wisconsin in 1891 was constitutional raised far more 
 than a point of technical procedure in a court of law. An 
 act of apportionment affects all the j)olitical interests of a 
 State and its citizens, and is of such fundamental importance 
 as to conserve and correlate or to imperil them. The in- 
 terpretation of the validity of that act must necessarily test 
 the nature of American representative government. In the 
 course of that interpretation not only appears the power of 
 the legislature to make such an apportionment as inter- 
 preted by the co'rdinate branch of the government, the 
 supreme court, but there also appear the principles of gov- 
 ernment upon which such an apportionment must be made; 
 the application of these princiijles by the legislature in a 
 legislative act; the interpretation of that act by a coordinate 
 branch of that government; the duties of ministerial officers 
 in the State in the execution of the terms of that act; or, 
 fundamentally, and in brief, the relations which exist be- 
 tween the three representative agencies in the State, the ex- 
 ecutive, the legislative, and the judiciary. 
 
 An act apportioning representation thus becomes a test of 
 
17 
 
 the quality of representative government in a free common- 
 wealth; and in its comprehensiveness, in its political effect, 
 in the relations in which it places one elector to another, 
 and groups of electors to other groups, in its effect in equal- 
 izing the representation of the citizens of the State, it is a 
 process which exemplifies the character of the administra- 
 tion of public affairs. Tested by the principles of repre- 
 sentative government, an act apportioning representation is 
 the evidence of a sound or of an unsound condition of the 
 State. The judicial dejDartment, therefore, becomes the one 
 tribunal through which the unlawful assumption of power 
 by the legislative body can be prevented and by which the 
 action of all legislative bodies can be restrained according to 
 the provisions of a written Constitution. 
 
 The relation between courts of justice and the legislative 
 authority is clearly laid down in the Federalist. "There is 
 no position," says Hamilton, "which depends on clearer 
 principles than that every act of a delegated authority, con- 
 trary to the tendency of the commission under which it is 
 exercised, is void. No legislative act, therefore, contrary 
 to the Constitution, can be valid. To deny this would be 
 to affirm that the deputy is greater than his principal, that 
 the servant is above his master, that the representatives of 
 the people are superior to the people themselves, that men 
 acting by virtue of powers delegated may do not only what 
 their powers do not authorize but what they forbid. If it 
 be said that the legislative body are themselves the consti- 
 tutional judges of their own powers and that the construc- 
 tion they put upon them is conclusive upon the other de- 
 partments, it may be answered that this cannot be the 
 
1,8 
 
 natural presumption where it is not to be collected from any 
 of the provisions in the Constitution. It is not otherwise 
 to be supposed that the Constitution could intend to enable 
 the representatives of the people to substitute their will for 
 that of their constituents. It is far moi'e rational to sup- 
 pose that the courts were designed to be the intermediate 
 body between the people and the legislature, designed, 
 among other things, to keep the latter within the limits 
 assigned to their authority. The interpretation of the laws 
 is the proper and peculiar province of the courts. The Con- 
 stitution is in fact and must be regarded by the judges as 
 the fundamental law. It, therefore, belongs to them to ascer- 
 tain its meaning, as well as the meaning of any particular 
 act proceeding from a legislative body. If there should 
 happen to be an irreconcilable variance between the two, 
 that which has the superior obligation and validity ought, 
 of course, to be preferred; or, in other words, the Constitu- 
 tion should be preferred to the statute; the intention of the 
 people to the intention of their agents. Nor does this con- 
 elusion by any means suppose the superiority of the judicial 
 to the legislative power. It only supposes that the power 
 of the people is superior to both ; and that where the will of 
 the legislature, declared in its statutes, stands in opposition 
 to that of the people, declared in the Constitution, the 
 judges ought to be governed by the latter rather than the 
 former. They ought to regulate their decisions by the 
 fundamental laws rather than by those which are not funda- 
 mental. "^ 
 
 ' The Federalist, lxxviii. 
 
19 
 
 In tLe Massachusetts Convention of 1820, Webster, in 
 discussing the independence of the judiciary, further illus- 
 trated the fundamental ideas thus set forth by Hamilton in 
 the Federalist. "It can not be denied," said Webster, 
 "that one great object of written constitutions is to keep 
 the departments of government as distinct as possible and 
 for this purpose to impose restraints designed to have that 
 effect, and it is equally true that there is no department in 
 which it is more necessary to impose restraints than the 
 legislative. The tendency of things is almost always to 
 augment the power of that department in its relation to the 
 judiciary. It is the theory and plan of the Constitution to 
 restrain the legislature, as well as other departments, and to 
 subject their acts to judicial decision whenever it appears 
 that such acts infringe constitutional limits. The Constitu- 
 tion is the supreme law. Any act of the legislature, there- 
 fore, inconsistent with the supreme law, must yield to it; 
 and any judge seeing this inconsistency, and yet giving effect 
 to the law, would violate both his duty and his oath."^ 
 
 In illustration of the same principle, Chief-Justice Mar- 
 shall declared that the object of a written Constitution is 
 not only to define and limit the powers of the legislature, 
 but also to prevent those limits from being mistaken or 
 forgotten.^ 
 
 No principle in American law is better established than 
 that of the independence of the judiciary and its right and 
 duty to decide the constitutionality of a law. The applica- 
 tion of this principle in the case affecting the constitution- 
 
 ' Webster's Works, in, 29, 30, 31. 
 *Marburyt)s. Madison, 1 Cranchl3'7. 
 
20 
 
 ality of the Wisconsin apportionment act of 1891 illustrated 
 the right and power of the supreme court of a State to enjoin 
 the Secretary of State from making and publishing notices 
 for an election under such an act. The question of jurisdic- 
 tion was, therefore, settled. But was the act itself unconsti- 
 tutional? 
 
 In order to determine whether or not the act was uncon- 
 stitutional, it became necessary to examine the provision of 
 the State Constitution concerning apportionment, and in 
 such an examination the debates in the convention which 
 framed that Constitution are primary evidence. The article 
 in the Wisconsin Constitution^ on the apportionment of rep- 
 resentation differed somewhat from the propositions on the 
 subject originally introduced in the convention. It was first 
 proposed that the members of Assembly should be chosen 
 by single districts, annually, on the day of the general elec- 
 tion, by the qualified electors of the districts, and that Sen- 
 ators should be chosen for two years at the same time and 
 in the same manner as members of Assembly. Senators 
 were to be chosen in each senatorial district and, at the first 
 session of the legislature, were to be divided by lot into 
 two equal classes ; the seats of the first class to be vacated at 
 the expiration of the first year, and of the second class at 
 the expiration of the second year, so that one-half of the 
 Senate should be chosen annually.^ 
 
 This provision created what is known as the double dis- 
 trict system — two senators in each district — and illustrates 
 
 'Wisconsin Const., Art. iv, See's. 3, 4, 5. 
 
 '^Journal of the Wisconsin State Constitutional Convention, Mad- 
 ison, W.T. Tenney, Smith and Holt, Printers, 1848, p. 117. 
 
21 
 
 the persistency of the ideas held by the framers of Constitu- 
 tions in the northern States, that local representation should 
 always be preserved. No restrictions were placed upon the 
 legislature in making either assembly or senatorial districts. 
 In the discussion of this apportionment, an amendment re- 
 quiring that districts containing the requisite population 
 should be as compact as possible was adopted without dis- 
 sent.^ Whether the members of Assembly should be elected 
 from single districts within a county, or on a general county 
 ticket, was finally determined by providing for single dis- 
 tricts. 
 
 In order to prevent gerrymandering, it was decided that 
 the convention itself should make the first apportionment 
 and not leave it either to the legislature or to the county 
 boards. The senatorial districts were to be of convenient 
 and compact territory,^ and no assembly district was to be 
 divided in the formation of a senatoi'ial district. 
 
 In 1881 the Constitution of Wisconsin was amended and 
 the sessions of the legislature were changed from annual to 
 biennial. The amendment provided that members of As- 
 sembly should be chosen biennially by single districts; that 
 these districts should be bounded by county, town, ward, or 
 precinct lines, should consist of continguous territory, and 
 be in as compact form as practicable. Senators were to be 
 elected by single districts of convenient, contiguous tei-ri- 
 tory, and, as before, no assembly district was to be divided 
 in the formation of a senatorial district. 
 
 ' Id. p. 255. 
 
 " "Contiguous territory" is the wording of the clause. 
 
22 
 
 Therefore, in order to prove the unconstitutionality of the 
 act of 1891 it was necessary to show that its apportionment 
 did not comply with the provisions of the Constitution. 
 The excess over the unit of representation in certain jdis- 
 tricts, and the deficiency in other districts, were exhibited 
 to prove the plain deviation. It was shown also that in the 
 formation of the districts the constitutional provision for 
 compact territory had been violated.^ 
 
 The intention of the framers of a State Constitution is 
 best known from the debates in the convention which framed 
 it. The debates in the Wisconsin convention of 1848 show 
 that the system of apportionment, finally incorporated in 
 the Constitution, was to preserve county lines, which would 
 follow the adoption of the single district system. The 
 fundamental idea in representation in America, that each 
 county is a corporate community constituting a representa- 
 tive unit having communal interests, has been illustrated 
 repeatedly in the formation of all the State Constitutions, 
 and was at the basis of the theory of representation in Wis- 
 consin. The county should be viewed in the light of a 
 family. It was necessary that individual rights should be 
 defined and that no difficulty be left for the head of the 
 family to settle^ — an idea patriarchal in antiquity, and early 
 illustrated in the civil organization of New England as well 
 
 * The excess or the deficiency in population in the districts, with 
 maps showing the union of counties or towns under the Act of 1891, 
 with much historical and explanatory matter, are given in an exhaust- 
 ive pamphlet on The Gerrymander of Wisconsin, A Review of the 
 Legislative Apportionment Act of 1891, by A. J. Turner, of Portage, 
 Wisconsin. 
 
 ^Debates, Wisconsin Convention, 1848. ■ 
 
23 
 
 as of the middle and southern Colonies. Each organized 
 county was conceived as having separate interests; as being 
 a small republic that could not be properly represented ex- 
 cept by its resident citizens.^ It may be considered as set- 
 tled in American government that the county, organized as 
 a corporation, is the fundamental unit of representation, and 
 that a county can be represented only by its own citizens 
 who reside within its boundaries and who are identified with 
 its commercial interests. 
 
 Although Webster, in the Massachusetts convention of 
 1820, denied the legal and political claims which were put 
 forward by Judge Levi Lincoln and others in defence of 
 corporate representation, it must be admitted that the courses 
 of the evolution of representative government in this coun- 
 try has brought out clearly and indisputably the legal and 
 political claims of the county to this fundamental place as 
 a political corporation. There was a particular application 
 of this idea in the making of the Wisconsin Constitution of 
 1848, expressed in the language of a member of the con- 
 vention, ' ' that population should not be the basis of repre- 
 sentation," "that territory should be the basis in particular, 
 but population in the main,"^ implying that one county, 
 though small, should be entitled to representation as well 
 as another though large, but that the unit of representation 
 should be a number of people within an organized territory, 
 that is, within a county. Therefore, as the county lines 
 always partially coincided with the town and ward lines, the 
 meaning of the word county in the Constitution would be 
 
 ' Id. p. 385. 
 'Debates, p. 390. 
 
24 
 
 wholly lost if, in the apportionment of representation, 
 these lines were disregarded. This interpretation conforms 
 to that principle of constitutional law laid down by Justice 
 Cooley, that effect is to be given if possible to the whole 
 instrument, and to every section and clause, and in favor of 
 a construction which will render every word operative. ^ 
 
 What power authorizes an apportionment of representa- 
 tion to be made? Does it reside in the legislature, or is the 
 legislature to be an agent in exercising that power? A 
 power affecting so fundamentally the interests of the people 
 of the State must be defined in a written Constitution, in 
 order to avoid the civil confusion which its abuse would 
 produce. An apportionment of representation by the legis- 
 lature, therefore, involves the powers of the legislature, and 
 the relative authority of a legislative act and of the Consti- 
 tution itself. Such an apportionment must have for its 
 original authority the will of the sovereign power in the 
 State, which, in the American political system, resides in 
 the people and not in any branch or department of govern- 
 ment.^ The Constitution, therefore, limits the power of the 
 legislature. It does not merely direct what the legislature 
 shall do, but forbids the legislature to do certain things.^ 
 In construing a Constitution, the same rules in the interpre- 
 tation of language are applicable as in construing the acts 
 of a legislature. * 
 
 'Cooley, Constitutional Ziimitations, 5th ed., pp. 70-71. 
 - Bashf ord ws. Barstow, 4 Wis. 567. 
 
 "State Ex rel. Bray ton vs. Merriman, 6 Wis. 14; Varney vs. 
 Justice, 86 Ky., 569. 
 
 * 1 S. & B. Am. Stat. p. 35. 
 
25 
 
 The Constitution and a law passed by a legislature are 
 not of the same rank; when they conflict, the law must give 
 way to the Constitution. It is the function of the courts to 
 determine whether such conflict exists.^ 
 
 The rapid strengthening of the national government has 
 attracted to it the attention of statesmen and of writers on 
 government and jurisprudence, but little attention has been 
 given to the development of government in the Common- 
 wealths; yet without a knowledge of this development it is 
 impossible to understand the origin, nature, and evolution 
 of Ameiican democracy. Of the principal aids in our under- 
 standing of the government of the Commonwealths there 
 exists the work of the constitutional conventions, much of 
 which exists in print; the acts, public and private, of State 
 legislatures, nearly all of which are printed; the ordinances 
 of cities, and the reports of judicial decisions in the superior 
 courts of record in all the States. In the determination of 
 constitutional questions the proceedings in constitutional 
 conventions are primary evidence, and it may be laid down 
 as fundamental in American government that in the inter- 
 pretation of a State Constitution the meaning of words as 
 construed by the people at the time of its adoption and the 
 remarks made by the members of the convention which 
 framed the fundamental law are strong primary evidence.^ 
 
 The principle has been touched on by Justice Cooley, that 
 every Constitution has a history of its own which is likely 
 
 'Cooley, Constitutional Limitations, 5th ed., p. 55. 
 
 = Railway Co. vs. Taylor Co., 52 Wisconsin 37, 63, 64. Cooley, 
 Constitutional Limitations, p. 81. Bay City vs. State Treasurer, 23 
 Mich. 506. 
 
26 
 
 to be more or less peculiar, and unless interpreted in the 
 light of its history is liable to be construed to express pur- 
 poses which were never in the minds of the people when 
 agreeing to it. In the interpretation of a Constitution, 
 therefore, a court of law keeps in mind this history and the 
 times and circumstances under which the Constitution was 
 formed, in order to "enforce the law which the people have 
 made and not some other law which the words of the Con- 
 stitution may possibly be made to express."^ 
 
 It follows that when a Constitution prescribes the manner 
 of making an apportionment of representation, it is, in 
 effect, a prohibition of any manner save that prescribed.^ 
 An act of a legislature evading or invalidating the purpose 
 of the Constitution, whether expressed or impHed, is, there- 
 fore, void.^ A provision of the Constitution which declares 
 the manner in which an apportionment should be made must 
 be construed according to the ordinary meaning of words as 
 understood at the time when the Constitution was made, 
 and if by clear expression, or by implication, the legislature 
 be excluded from pursuing any course, such limitation is as 
 valid as if the legislature were prohibited from that course 
 by a special provision of the Constitution. The effect is the 
 same as if the legislative act were repugnant to such a 
 special provision.* A constitutional provision is not merely 
 directory, to be obeyed at the discretion of any of the de- 
 partments of the government;^ such a provision is mandatory. 
 
 'People vs Harding, 53 Mich. 485. 
 
 ° State jEx rel. Murphy vs. Barnes, 24 Florida 29. 
 
 "People vs. Albertson, 55 N. Y. 50. 
 
 ■•Page vs. Allen, Penn. State 338; S. C, 98 Am. Dec. 272. 
 
 = Hunt vs. The State, Texas and S. W. iii. 233. 
 
27 
 
 The legislature in making an apportionment must not 
 deviate from the mandate of the Constitution; nor can it be 
 conceived to have any discretion in the exercise of its pow- 
 ers in making an apportionment. It must proceed accord- 
 ing to the plain interpretation of the language of the Con- 
 stitution itself. It might be said that when a legislature 
 lays off a State into congressional districts it exercises a 
 political, discretionary power, for which it is responsible to 
 the people. It may be asked what is the distinction be- 
 tween the political and the legislative power? The Consti 
 tution might have vested the power to make an apportion- 
 ment of representation in the Governor, in the courts of 
 law, or in a commission specially organized for the purpose. 
 
 In 1870 the people of Louisiana empowered the Governor 
 and Secretary of State to "ascertain and fix the apportion- 
 ment of the State for members of the first house of repre- 
 sentatives." In Ohio, by the Constitution of 1850, the power 
 for making such apportionment was vested in a board of 
 State officers. In either case the power to district a State 
 would be restricted by the Constitution itself. Legislative 
 power extends only to the making of laws, and in its exer- 
 cise it is limited and restricted by the paramount authority 
 of the Federal Constitution and of State Constitutions. Po- 
 litical rights do not differ, as subjects of legislation, from 
 any other rights of a free people. An apportionment of rep- 
 resentation affects the interests of political parties, but such 
 interests are in no instance cognizable under a State Consti- 
 tution. In the administration of the affairs of a Common- 
 wealth, its counties and towns are political subdivisions and 
 are factors to be considered by the legislature in its acts. 
 
28 
 
 The legislature which violates a restriction of the Constitu- 
 tion relating to these counties and towns, or one relating to 
 their powers of local self-government, by depriving them of 
 the right of self-government and the equality of representa- 
 tion, transcends its powers. 
 
 It is not enough that an apportionment of representation 
 merely redistricts the State. The power of the legislature 
 is not absolute in such an apportionment and the courts 
 must determine its constitutionality. An apportionment 
 act must be strictly construed; because the State Constitu- 
 tion expressly indicates the direction in which the legisla- 
 ture shall go in making such an apportionment. There are 
 powers of the legislature under the Constitution which are 
 not so restricted; but an examination of all the State Con- 
 stitutions, from the earliest to the latest, discloses the grad- 
 ual and closer definition of the process by which an appor- 
 tionment of representation shall be made. Directly after 
 the Revolution this definition of process began and it has 
 continued until the present time with ever increasing preci- 
 sion, and consequently with limitation of the power of the 
 legislature to apportion representation. 
 
 The whole weight of representative government falls upon 
 the equality of representation. Any variation from a basis 
 of equality will disturb the civil poise. This process of de- 
 fining the duties and powers of a State legislature in appor- 
 tioning representation is from uncertainty at the close of the 
 eighteenth century to certainty at the close of the nine- 
 teenth, and the language of the Commonwealth Constitu- 
 tions themselves demonstrates that it was the intention of 
 the framers that the power of apportionment should be 
 
29 
 
 strictly construed. A certain definition of the powers of 
 each branch of the government; a certain definition of the 
 rights which the people have delegated to their represent- 
 atives; a certain definition of what rights they have retained 
 unto themselves; — these can be made by a written Constitu- 
 tion. The limitation on the power of State legislatures, 
 which has developed so rapidly in the later State Constitu- 
 tions in the numerous inhibitions on special legislation, are 
 of a similar nature although not of a similar rank with the 
 limitation upon the legislature in making an apportionment 
 of representation. 
 
 Early in our national history, Mr. Justice Paterson, of the 
 Supreme Court of the United States, defined the relation of 
 legislatures to the Constitution : they are the creatures of the 
 Constitution; they owe their existence to the Constitution; 
 they derive their powers from the Constitution. It is their 
 commission, and, therefore, all their acts must be comform- 
 able to it or else they will be void. The Constitution is the 
 work, the will, of the people themselves in their original 
 sovereign, unlimited capacity; law is the work, the will, of 
 the legislature in their derivative, subordinate capacity. 
 The one is the work of the creator, the other of the creature. ^ 
 
 If an act of the legislature districtino; a State is declared 
 unconstitutional, it does not follow that the court would 
 thereby make an apportionment act and substitute its judg- 
 ment for that of the legislature. Such an assumption con- 
 fuses two departments of government. The court in declar- 
 ing a law unconstitutional does not thereby make a new law. 
 It is the function of a court of justice to declare the law. 
 
 ^ Van Horn vs. Dorrance, 2 Dallas 308. 
 
30 
 
 It ia the function of a court to determine whether the con- 
 stitutional provision for an apportionment of representation 
 has been obeyed by a legislative act brought before it for 
 adjudication by due process of law. 
 
 It was contended by the learned counsel who represented 
 the State against the Secretary of State in the case involv- 
 ing the Wisconsin apportionment of 1891, that the act 
 violated the provisions of the Constitution, and that the 
 court had jurisdiction to determine not only the constitu- 
 tionality of the act, but also to issue an injunction pro- 
 hibiting the Secretary from issuing notices of election under 
 the act. 
 
 The decision of the court was long and able. It affirmed 
 its own jurisdiction in the case, which meant that the ques- 
 tion involved was one puhlici juris, presenting a case in 
 which the interposition of the court was required to preserve 
 the State's prerogative of legislation, because the Senate 
 and Assembly elected under an unconstitutional apportion- 
 ment act would not be bodies which could lawfully exercise 
 the prerogatives of legislation. The court had original 
 jurisdiction because the apportionment act, if unconstitu- 
 tional, would deprive the people of equal representation in 
 the legislature, a right guaranteed them by the Constitution. 
 
 Nor was the jurisdiction of the court an invasion of the 
 constitutional provisions of the legislative department, but 
 an inquiry into the constitutionality of the law. The case 
 concerned matters stvictlj publici ju?'is in which no one citi- 
 zen had any special interest other than those common to all 
 citizens. The case was, therefore, properly brought by the 
 Attorney -General in the name of the State on a complaint 
 
31 
 
 made to Hrn by a private citizen;^ nor was it necessary that 
 the private citizen should be joined with the Attorney -Gen- 
 eral in the complaint, nor that it be shown that either he or 
 that citizen had any special interest in the case. 
 
 An act of the legislature apportioning the State into sen- 
 ate and assembly districts is passed in the exercise of its 
 legislative and not of its political power, and, therefore, the 
 constitutionality of such an act is the subject of judicial in- 
 quiry. The Secretary of State is a ministerial officer, and 
 his duty in respect to the notices of the election of members 
 of the Senate and of the Assembly under an apportionment 
 act are ministerial, not political; if such an act is unconsti- 
 tutional, he may be restrained by injunction from proceed- 
 ing under it. 
 
 The provisions of the Constitution requiring the legisla^ 
 ture to apportion the State are mandatory and not subject 
 to legislative discretion. And when the Constitution de- 
 clares that assembly and senatorial districts shall be 
 bounded by county, precinct, town, or ward lines, and shall 
 consist of contiguous territory in as compact form as prac- 
 ticable, the integrity of county lines must be preserved and 
 the formation of a district partly out of one, or of more 
 than one county, or of a fraction of another county, or of 
 fractions of several counties, can not be made, and such a 
 law violating the Constitution will be void. 
 
 Such a law further violated the Constitution in its appor- 
 tionment of population, for the Constitution required the 
 apportionment of the State to be according to the number 
 of inhabitants. As the number of senators and of members 
 
 *A. J. Turner, Esq., of Portage, Wisconsin. 
 
32 
 
 of Assembly are determined by the Constitution, the unit of 
 representation could, therefore, be known upon the basis of 
 the federal census. An apportionment by which the most 
 populous senate district contained sixty-eight thousand and 
 the least populous thirty-seven thousand, and by which the 
 most populous assembly district contained thirty-eight thou- 
 sand and the least populous six thousand, was not an appor- 
 tionment according to the meaning of the Constitution. The 
 several provisions of the act apportioning the State were 
 largely dependent on each other; therefore, if some of the 
 districts were apportioned unconstitutionally the entire act 
 would be void. ^ 
 
 The court in this celebrated case not only entered into an 
 examination of its own jurisdiction, but also with equal 
 learning set forth several principles of representative govern- 
 ment in America. The question before the court affected 
 the integrity and stability of the political system. An ap- 
 portionment act affects no one class of people, no one local- 
 ity, but all the people of a State in their collective and in- 
 dividual rights and interests. Such an act can not be de- 
 clared void because it was supposed to violate the natural, 
 social, or political rights of the people, unless it was made 
 clear that the act was violative of rights guaranteed or pro- 
 tected by the Constitution. It would not be sufficient to 
 show that the act violated principles of government unless 
 these principles were placed beyond legislative encroach- 
 ment by the Constitution itself. Nor was it sufficient that 
 
 ' State JEx rel. Atty-Gen. vs. Cunningham, Sec. of State, Circuit 
 Court of Wisconsin, March 22, 1892. Northwestern Reporter, 
 Vol. 51, 725. 
 
33 
 
 the act in a general sense was opposed to the spirit of the 
 Constitution. The unconstitutionality of such an act con- 
 sisted in its repugnance to the expressed provision -of the 
 Constitution and to those limitations necessarily or conclu- 
 sively implied from it; for in all matters of unlimited dis- 
 cretion, or in matters involving only considerations of pub- 
 lic policy, the determination of the legislature must be final 
 and conclusive. The courts could not change it. 
 
 Nor could the act be held void because of any supposed 
 improper motives or unconstitutional intentions of the legis- 
 lative body which had passed it. Reasons of public policy 
 forbade a judicial inquiry made with a view of defeating the 
 operation of any public legislative enactment. The motives 
 of the legislature are not the subject of judicial inquiry. 
 Such an inquiry can only be made into the powers of the 
 legislature under the Constitution. The ancient doctrine 
 that the king can do no wrong applies to the motives of the 
 legislative body, for it is never supposed that the legislature 
 has acted improperly, unadvisedly, or from other than pure, 
 public motives under any circumstances, when acting within 
 the constitutional limits of its authority. 
 
 The rights to be guarded by an apportionment act are of 
 such a character that provisions regarding them in the Con- 
 stitution are to be construed as mandatory and not as direct- 
 ory merely. The language of a Constitution, therefore, was 
 a proper subject for interpretation, under the general princi- 
 ple that effect is to be given to every clause or word of a 
 statute, and that no word was to be treated as unmeaning if 
 a construction could be legitimately found which would pre- 
 serve it and make it effectual — a rule applicable with special 
 
34 
 
 force to written Constitutions, in which, the people are pre- 
 sumed to have expressed themselves in careful and measured 
 terms corresponding in importance to the powers delegated, 
 leaving as little as possible to implication.^ 
 
 The entire constitutional history of Wisconsin showed 
 that it was the intention of the makers of the Constitution 
 of 1848 to avoid opening the door to gerrymandering. In 
 consideration of all the facts and circumstances, and having 
 due regard to the language of the Constitution, the court 
 was compelled to the conclusion that the Constitution was 
 not intended to permit the legislature to dismember any 
 county in the formation of districts, but that the legislature 
 was prohibited from placing one county, or more than one, 
 and a portion of a county, or portions of two or more coun- 
 ties, in the same assembly district, and that such prohibi- 
 tions were found in the constitutional provision which re- 
 quired that assembly districts should be bounded by county, 
 town, or ward lines. 
 
 The principle of apportionment according to population 
 was violated in the act of 1891. "The county is the pri- 
 mary territorial unit in the formation of assembly districts, 
 and members of Assembly must first be apportioned to 
 counties." There must, therefore, be substantial equality 
 of representation in proportion to population as between all 
 the different counties, and between districts composed of 
 two or more counties.^ As the assembly districts were the 
 unit of civil measure, the senatorial districts could not be 
 formed until the assembly districts had been properly ap- 
 
 'Cooley, Constitutional lAmitations, p. 72. 
 «N. W. Reporter, Vol. 51, p. 744. 
 
35 
 
 portioned. The act of 1891 was, therefore, unconstitutional 
 and void. 
 
 Because of this adjudication the Governor of the State, 
 on the first day of June, 1892, issued a proclamation con- 
 vening the legislature in special session on the twenty-eighth 
 day of the month, to apportion the State into senatorial and 
 assembly districts. 
 
 The legislature assembled and apportioned representation 
 in the State, but its act was as much in violation of the Con- 
 stitution as the act which the court shortly before had de- 
 clared unconstitutional and void, and this second apportion- 
 ment act became the subject of judicial examination in the 
 Supreme Court on the ground that, like the preceding act, it 
 was unconstitutional. The apportionment of 1892 varied but 
 little in its method from that of 1891. Although it appor- 
 tioned the State according to the divisions of county, town, 
 and ward lines, like the preceding act, it grouped the popula- 
 tion unequally, so that the variation from the unit of repre- 
 sentation was a deficiency of more than twenty thousand of 
 the population in the fourth senatorial district and an excess, 
 in the seventeenth district, of nearly fifteen thousand. Sim- 
 ilar variations from the representative unit were made in the 
 assembly districts. 
 
 Meantime a similar case of the violation of representation 
 had arisen in Michigan,^ and the Supreme Court of that 
 State declared that the time had arrived for plain speech 
 against the outrageous practice of gerrymandering which 
 had become so common in the country. It had been too 
 long suffered without rebuke and it threatened not only the 
 
 ' Giddiugs vs. Blackner, 52 N. W. Rep. 544. 
 
36 
 
 peace of tlie people but the permanency of free institutions. 
 The rights of the people could be saved by Congress alone, 
 who could give them a fair count and equality of represen- 
 tation. Every intelligent school boy knew the motives of 
 these legislative apportionments. "It is idle for the courts 
 to excuse the act on other grounds, or to keep silent on the 
 real reason, which is nothing more or less than partisan ad- 
 vantage taken in defiance of the Constitution and in utter 
 disregard of the rights of the citizen." 
 
 The principle of apportionment was well illustrated by 
 Webster, in 1832, in his report to the Senate on the appor- 
 tionment of representation in the United Statesv" , A Consti- 
 tution must be understood not as requiring an absolute rela- 
 tive equality, because that would be demanding an impossi- 
 bility, but as requiring Congress to make an apportionment 
 of representation among the several States according to their 
 respective numbers as near as may be. That which cannot 
 be done perfectly must be done as near perfection as possi- 
 ble. If exactness from the nature of things cannot be ob- 
 tained, then the greatest possible approach to exactness 
 should be made.^ Congress is not absolved from all rule 
 merely because the rule of perfect justice cannot be applied. 
 In such cases the approximation becomes the rule, it takes 
 the place of that very rule which would be preferable, but 
 which is found to be inapplicable, and because it is an obli- 
 gation of binding force; the nearest approximation to exact 
 truth or exact right, when either cannot be reached, prevails 
 in every case, not as a matter of discretion but as an intel- 
 ligible and definite rule, dictated by justice and conforming 
 
 'Webster's Works, iii. p. 375. 
 
37 
 
 to the common sense of mankind; a rule of binding force in 
 each, case to which it is applicable, and no more to be de- 
 parted from than any other rule or obligation.^ So it may- 
 be laid down as settled in State government that represen- 
 tation shall be apportioned to population as near as may be.^ 
 It may also be laid down as a fundamental principle of 
 American government that in apportioning representation 
 the discretion of the legislature is limited by the mandates 
 of the Constitution which are to be carried out as nearly as 
 possible. The purpose of the written Constitution is to 
 eliminate from legislation the element of mere arbitrary dis- 
 cretion. Otherwise the legislature will trample upon the 
 Constitution, and the statute will take the place of the fun- 
 damental law of the Commonwealth. Equality of repre- 
 sentation is a principle in American government; therefore 
 it was never contemplated in a Constitution that one elector 
 should possess more influence than another in the person of 
 a representative or a senator. Each elector in the Common- 
 wealth is possessed under the Constitution of equal power 
 and influence, and such equality lies at the basis of free gov- 
 ernment. The right to equal sufl'rage is a high right exer- 
 cised by a citizen in a free country, and equal representation 
 is the expression of that right in the making and in the ad- 
 ministration of the laws of the land. A written Constitu- 
 tion fixes the right of the elector beyond dispute. It re- 
 duces his rights and privileges to a certainty, of which a 
 court of justice can take cognizance. The legislature can- 
 not deprive him of his right to such equal representation.^ 
 
 ' Story, Commentaries, ii, 682, note, and Kent Commentaries, i, 231. 
 "People -ys. Cannaday, 73, N. C. 198. 
 = Vol. 52, N. W. Reporter, 946. 
 
38 
 
 It was argued, in defense of the second gerrymander in 
 Wisconsin, that an equal apportionment of property was a 
 sufficient equivalent for a variation in population in two dis- 
 tricts — a doctrine which was a revival and a perversion of the 
 doctrine of property as a basis of government advocated by 
 Webster seventy years before. In this second decision, 
 handed down by the Supreme Court of Wisconsin, on the 
 seventh of October, 1892, the opinions in the previous case 
 were re- affirmed, with the additional opinion that when a 
 district with less population than another was given the 
 same representation because of the greater value of the prop- 
 erty in it and on account of the nature and character of its 
 population and of its business interests, a constitutional ap- 
 portionment of representation had not been made. Not 
 only should such a district be bounded by county, town, 
 precinct, or ward lines, and consist as far as practicable of 
 contiguous territory in compact form, but the legislature in 
 its apportionment should also make the districts as nearly as 
 may be according to the number of inhabitants; an unequal 
 districting was beyond the discretionary power of the legis- 
 lature. ^ 
 
 The evil running through these unconstitutional acts was 
 their assumption that the only limit to the discretionary 
 power of the legislature, in making such apportionment, was 
 the major and minor fractions of the unit of representation; 
 in asserting a broad discretionary power in the formation of 
 assembly districts by giving to the inhabitants of one as- 
 sembly district three times the representative power pos- 
 
 ' State Ex rel. Lamb vs. Cunningham, Sec. of State, N. W. Re- 
 porter, Vol. 53, p. 35. 
 
39 
 
 sessed by another; and in the formation of senatorial districts 
 by giving to the inhabitants of one of them more than twice 
 the representative power possessed by the inhabitants of an- 
 other. For such obnoxious standards the Constitution gave 
 no warrant and would not bear such a construction. 
 
 The first Wisconsin case was the first in this country in 
 which an entire apportionment act was passed upon by a 
 court. The attorneys representing the interests of the Com- 
 monwealth were in great doubt whether the court would 
 take jurisdiction of the case, but the court placed no ob- 
 stacle in the way and the matter of jurisdiction proved to be 
 a simple one. The case is also important as sustaining the 
 right of a private citizen to bring an action puUici juris 
 without the consent of the Attorney-General. 
 
 The great significance of the judicial decisions in these 
 cases implies that the power which a legislative body is 
 compelled to exercise by the Constitution cannot be consid- 
 ered as discretionary. The constitutional rights of the citi- 
 zen to equal representation and a just apportionment of 
 representation in the Commonwealth are mandatory upon 
 
 its legislature. 
 
 Francis Newton Thorpe 
 Mt. Holly, New Jersey 
 
 Note: The Wisconsin gerrymander of 1891 is the subject of a valu- 
 able pamphlet by A. J. Turner, of Portage, Wisconsin. Mr. Turner 
 inaugurated the test case in the Supreme Court of the State. In 
 1893 Mr. Turner generously placed in my hands a copy of his pam- 
 phlet together with copies of the briefs filed by both sides in the Wis- 
 consin gerrymander cases. Of counsel, in this case, among others, 
 were Hon. William F. Vilas, in support of the constitutionality of the 
 act of 1891, and Hon. John C. Spooner, against its constitutionality. 
 
 F. N. T. 
 
I 
 
 l< 
 
LBJa'13