USA > Wisconsin > An illustrated history of Wisconsin from prehistoric to present periods : the story of the state interspersed with realistic and romantic events > Part 55
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"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 in- terest in the subject-matter. The matters being exclusively publici juris, the case must be brought by the attorney-general on his own relation, representing the whole state and the people thereof. This is the form and title in which the case now stands in this court and in which it must be sustained, if at all. That being the most difficult and important question, we shall enter at once upon the consideration of the original jurisdiction of this court to issue the injunc- tion to restrain the secretary of state from executing the said act, which is the first ground of the demurrer.
" In almost every case which has been brought in this court within its original jurisdiction, on the relation of the attorney-general in the name of the state, the jurisdiction of this court has been challenged and discussed by able counsel, and sustained by the court in many learned and elaborate opinions. The subject-matter in these cases was claimed and held to be publici juris, and
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involved the original jurisdiction of the court to issue the various writs of habeas corpus, mandamus, injunction, quo warranto and certiorari. It would seem, therefore, that the jurisdiction of the court and its limitations in nearly all mat- ters of great public interest and concern had been already judicially deter- mined. The highest authorities that can be consulted on the question of the court's jurisdiction in this case are these various decisions of the court. The precise subject-matter of this case was not in any of these cases, but the analo- gies are sufficiently close to make them of the highest authority in this case, and some of them are clearly in point. We start upon this discussion with the benefit of these decisions, which renders the question far less difficult."
Upon the question of jurisdiction, the able judge cited voluminous author- ities, among which were the following cases : State ex rel. Attorney-General v's. Messmore, in quo warranto, 14 Wisconsin, 115; State ex rel. Attorney- General vs. M., L. S. and W. R. Co., in quo warranto, 45 Wisconsin, 579; State ex rel. Attorney-General vs. O'Neill, 24 Wisconsin, 152; Attorney- General ex rel. Bashford vs. Barstow, 4 Wisconsin, 567.
Upon the question of the constitutionality of the apportionment act, the honorable judge cited, among others, the following decisions: Opinion of Judges, 6 Cush., 575-578 ; Warren vs. Charleston, 2 Gray, 84; Kinney vs. Syracuse, 30 Barb., 349; People ex rel. Attorney-General vs. Holihan, 29 Mich., 116; People ex rel. Attorney-General v's. Bradley, 36 Mich., 447, and State ex rel. Gardner vs. Newark, 40 N. J. Law, 297.
In commenting upon the violation of the constitution, the court says :
" But, again, this apportionment act violates and destroys one of the highest and most sacred rights and privileges of the people of this state, guar- anteed to them by the ordinance of 1787, and the constitution, and that is 'equal representation in the legislature.' This, also, is a matter of the highest public interest and concern, to give this court jurisdiction in this case. If the remedy for these great public wrongs cannot be found in this court, it exists nowhere. It would be idle and useless to recommit such an apportionment to the voluntary action of the body that made it. But it is sufficient that these questions are judicial and not legislative. The legislature that passed the act is not assailed by this proceeding, nor is the constitutional province of that equal and co-ordinate department of the government invaded. The law itself is the only object of judicial inquiry, and its constitutionality is the only question to be decided.
" The particulars in which the constitution has been violated by this act will be more fully considered by my brethren. It is proper to say that perfect exactness in the apportionment according to the number of inhabitants is neither required or possible. But there should be as close an approximation to exactness as possible, and this is the utmost limit for the exercise of legislative
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discretion. If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or dis- cretion whatever. The above disparity in the number of inhabitants in the legislative districts is so great that it cannot be overlooked as mere careless dis- crepancies or slight errors in calculation. The differences are too material, great and glaring, and deprive too many of the people of the state of all representa- tion in the legislature, to be allowed to pass as mere errors of judgment. They bear upon their face the intrinsic evidence that no judgment or discretion was exercised, and that they were made intentionally and willfully for some im- proper purpose or for some private end foreign to constitutional duty and obli- gation. It is not an 'apportionment' in any sense of the word. It is a di- rect and palpable violation of the constitution. The breaking up of the lines and boundaries of counties by the new assembly districts must have been in- tentional. It was not necessary in a single instance, and there is no possible margin for the exercise of any legislative discretion. This is a most important restriction on the power of the legislature to make an apportionment. The people have a commendable pride in their own counties, and have more or less a common feeling and interests, and participate together in all their county affairs. They have a right to be represented by their own members of the legislature, and the members themselves can better represent them and pro- mote and protect their interests. They know each other, and have closer re- lations with each other. These considerations, though common, must not be underrated or overlooked. When these restrictions were under discussion in the constitutional convention, they were supported and adopted upon the ex- press ground that they would prevent the legislature from gerrymandering the state. These restrictions were regarded by the very able members of the con- vention as absolutely necessary to secure to the people that sacred right of a free people-of equal representation in the legislature. The right of the peo- ple to make their own laws through their own representatives, so fundamental in and essential to a free government, the convention sought to guard by these restrictions. That most dangerous doctrine, that these and other restrictions upon the power of the legislature are merely declaratory, and not mandatory, should not be encouraged even to the extent of discussing the question. The convention, in making a constitution, had a higher duty to perform than to give the legislature advice. Judge Cooley, in his great work on Constitutional Limitations, says : 'The courts tread upon very dangerous ground when they venture to apply the rules which distinguish between directory and mandatory statutes to the provisions of the constitution.' "
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In concluding, the worthy judge said: "The motion in the nature of a demurrer is overruled and the defendant has leave to answer within twenty days. The decision of the court is unanimous. The Chief Justice and Jus- tice Pinney will file separate opinions."
Justice Pinney, in reviewing the case in its various features, said :
"This suit is in substance and form the suit of the State of Wisconsin, as a political body, on the information or relation of the attorney-general, the proper law officer of the state, made upon complaint to him by a private cit- izen. It is not essential to the jurisdiction of the court that beyond the at- torney-general there should be any private relator; and the connection of a private relator with the suit is that only of being liable for costs in case it turns out that it was wrongly instituted or is improperly prosecuted. When a suit immediately concerns the crown or government alone, the attorney-general or solicitor-general proceeds purely by way of information. When it does not immediately concern the rights of the crown or government, its officers depend on the relation of some person whose name is inserted in the information, and who is termed the relator. And as the suit, though in the name of the at- torney-general or solicitor-general, is then carried on under the direction of the relator, he is considered as answerable to the court and to the parties for the propriety of the suit and the conduct of it; and he may be responsible for costs if the suit should appear to have been improperly instituted or in any stage of it to be improperly conducted. Still, however, a relator in such cases is by no means indispensable, and the attorney-general, may, if he pleases, proceed in the suit without one. Sometimes it happens that the relator has an interest in the matter in dispute, in connection with the crown or government, of an injury to which he has a right to complain. In such a case his personal complaint is joined to and incorporated with the information given to the court by the officer of the crown or government, and then they form together an in- formation or bill, and are so termed. Story Eq. Pl., 8, ut supra ; Mitf. Eq. PI., 117, 118 ; Attorney-General vs. Vivian, I Russ., 236, 237. If it appeared that the relator had no interest, the bill was dismissed, but the information was retained.
"The controversy of this case is with the secretary of state, and not with the Chapter 482 which he intends to execute. The proceeding is against him, not against the act nor against the legislature. No one contends, so far as I am aware, that the court, by any process, direct or indirect, can exercise any appellate or supervisory power by way of review of the acts of the legislature, or that the court may in any way or manner sit in judgment upon any of its acts relating to matters of legislative discretion, or within its political power, or in respect to which its power is not restricted or limited by the constitution. The position asserted by the court is that in any controversy of a judicial
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nature, properly brought before the court, in which the validity of an act of the legislature is challenged on the ground that it is in conflict with the consti- tution, the court has the constitutional and rightful authority to decide whether the act is void or not for that reason, and that its decision on that question is final, and conclusive in all courts and places, and against all persons, whether acting in an official capacity or otherwise. It is to be presumed that no intel- ligent lawyer is to be found at this day who will assert the contrary, nor was this position really questioned at the argument. The respon- dent relies upon Chapter 482 as his authority for the course which he gives out that he intends and threatens to pursue in the matter of noti- fying the approaching election. In this manner the validity of the act is, in a legal- sense, brought into question collaterally or incidentally, though the res or subject-matter of the information is the alleged meditated and threat- ened illegal and unauthorized course of action of the respondent. This, and this only, is the subject of the suit, and not Chapter 482, although in a practical point of view the decision will result in holding the act either valid or void. Coming before the court as it does, in the manner and for the purpose stated, the question arises in the determination of a judicial controversy existing with the respondent as to his proposed conduct, and it is clear that the court must have the power to decide upon the validity of the act in order to decide the case before it.
"In the organization of the government into three departments, each measurably independent of the other-the executive, judicial and legislative- the political power of the state was vested in the executive and legislative de- partments and the judicial power in the courts. The political organization, called the ' state,' is created for the protection and enforcement of the rights and liberties of the people. Its sovereignty or power of rightful control is for the protection of personal and of political rights as well. Prominent among these rights and liberties is the right of citizens to participate in the elec- tion; to have their proper voice and influence and just representation in the representative branch of the government as members and as pos- sessors of the sovereignty vested in the people outside of the constitution and not delegated by it. It is this sovereignty, these rights, these privileges and liberties of the people, which this court, by virtue of its prerogative juris- diction has an undoubted right to protect and enforce, as against unconstitu- tional and illegal attack from all sources whatever. Chief-Justice Ryan, in re Ida Louisa Pierce, 44 Wis., 431-433, speaking of the original jurisdiction of the court and the purposes for which it exists, uses the following pertinent language on this subject : 'The words, "liberties of the people," in a judicial sense, mean the aggregate political rights and franchises of the people of the state-at-large. The liberties of the people here and elsewhere are not only essen-
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tially subject to the ordinary jurisdiction of the courts, not only unimpaired by them, but are absolutely dependent upon them. The supremacy of original judicial processes enters into the liberties of the people, and is essential to them. Order is essential to all liberty and judicial supremacy is essential to order.'
"The rule is general with reference to the enactment of all legislative bodies that the courts cannot inquire into the motives of the legislators in pass- ing them, except as they may be disclosed on the face of the acts or inferable from their operation, considered with reference to the condition of the country or existing legislation. The motives of the legislators, considered as the pur- poses they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactment ;" and "we must not suppose the legislature to have acted improperly, unadvisedly or from any other than public motives, under any circumstances, when acting within the limits of its authority.
"The rules of apportionment and the restrictions upon the power of the legislature are very simple and brief. (1) By Section 3 the apportionment is required to be 'according to the number of inhabitants, excluding,' etc. (2) By Section 4, the members of the assembly shall be chosen annually (a) by single districts (b) such districts to be bounded by county, pre- cinct, ward or town lines ; (c) to consist of contiguous territory ; and (d) to be in as compact form as practicable. (3) The senators shall be chosen (a) by single districts (b) of convenient (c) contiguous territory ; and (d) no assembly district shall be divided in the formation of senate districts. Look- ing 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 ' appor- tionment 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 1787, of a ' proportionate representation of the people in the legislature,' and it is an incident not without its value that the first apportionment act passed under the constitution at the session of 1851, was vetoed by Governor Dewey on the ground of a very considerable disproportion in the number of inhabi- tants in senate and assembly districts as constituted by it ; that it was unconsti- tutional as not being ' according to the number of inhabitants ;' and the veto was sustained, with only twelve votes in the assembly against it (Assembly Journal, 1851, pp. 810-812); but the disproportion was far less significant than in the act of 1891.
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" In the act under consideration there are twenty instances in which coun- ties have been divided in the formation of assembly districts, in violation of the constitutional rule preserving the territorial integrity of counties in the appor- tionment of the state into assembly districts; and by no possible construction of the act can it be brought into harmony with the provisions of the constitu- tion. Both the provisions of the constitution and those of the act are too plain for misconstruction, and the repugnance of the act to the constitution is clear and irreconcilable. The rule in respect to contemporaneous construction is inapplicable, for no amount of usage will suffice to dispense with or overcome a plain statutory provision, much less a plain provision of the constitution. Inasmuch as the several provisions of an act of apportionment are so largely dependent upon each other, and as such an act must be regarded as an en- tirety, and this one with the objectionable districts would form no just approxi- mation or relation to an act of apportionment of the state, there is no alternative but to hold that the act in question is void, and that the senate and assembly dis- tricts described in it have no legal existence. The respondent has therefore no lawful authority for giving a notice of election such as it is alleged he proposes to issue, and the court cannot but so declare, be the consequences what they may.
"There is, no doubt, a wide distinction between the exercise of a fair, just and necessary discretion within the rules of constitutional apportionment, and a gross departure and manifest abandonment and defiance of them; between discretion within certain limits, and for certain ends, and an open, obvious and palpable violation of them. It is plain that by disregarding them, namely that which require apportionment to be 'according to inhabitants' and those which requires assembly districts to 'be in as compact form as practicable' and that senate districts be formed of ' convenient contiguous territory' the right of representation of local constituencies may be grossly violated, and particularly in the form of senate districts, inasmuch as no assembly district can be divided for that purpose; but whether this court can declare an act of apportionment void in such cases is a question not material to the decision of this case, and which will require further discussion and consideration, and need not be now determined.
"The apportionment of the state into senate and assembly districts ac- cording to inhabitants is a task, no doubt, of difficulty and delicacy ; and while a liberal margin is necessarily allowable for the exercise of a wise and just discre- tion, so that the apportionment will be practicably just and proportionate-the end designed to be attained by the constitutional limitations on the power of the legislature-yet the task is not so intrinsically difficult but that a fair and just result may be readily reached in accord with these limitations, against which no well-grounded complaint can be made."
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Judge Winslow concurred in the view expressed by Mr. Justice Pinney. Chief-Justice Lyon filed an able opinion in which he substantiated the views of his associates.
THE SECOND GERRYMANDERING CASE.
After the rendition of the judgment of the supreme court in the prior case, the legislature, at its special session held in July, 1892, re-apportioned the state into senate and assembly districts, but not in accordance with the con- stitution.
An action was therefore commenced in the name of the state against Thomas J. Cunningham, secretary of state, in the supreme court, for the purpose of perpetually enjoining and restraining the defendant as said secretary and his successors in office from publishing a copy of the notices of election of members of the newly constituted senate and assembly districts, in a newspa- per published at Madison, describing the various legislative districts in such notice under the act of July 2, 1892, and also from filing the certificates of nomination and nomination papers, and from certifying to the several county clerks in the state the names and description of the persons nominated for such legislative offices, as specified in such certificates of nomination, and for other relief. George G. Green appeared as attorney for the plaintiff and George W. Bird, of counsel, together with John C. Spooner. William F. Vilas ap- peared as attorney for the defendant.
The supreme court, in its decision in this case, made the following findings :
(1.) The supreme court, under Sec. 3, Art. VII., of the constitution was empowered and had the right to issue its writ of injunction independent of the volition of the attorney-general; and his refusal to bring suit or consent thereto did not prevent the court from taking jurisdiction upon the relation of a private citizen in the name of the state.
(2.) The validity of the apportionment act is a judicial and not a polit- ical question.
(3.) Under the constitution of Sec. 3, Art. IV., an apportionment must be made " according to the number of inhabitants" as shown by the last pre- vious federal or state census.
(4.) The question being as to the validity of an apportionment act, the language of the constitution securing equality was plain and not ambiguous.
(5.) Under Sec. 3, Art. IV., of the constitution, the districts must be nearly equal in population as other constitutional requirements will permit.
(6.) The requirements of said section of the constitution that assembly districts shall " be in as compact form a practicable" being of lesser impor- tance, may, to some extent, yield in aid of securing a nearer approach to equal- ity of representation.
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(7.) " The unnecessary inequalities under the apportionment act of 1892- such, for example, as the formation of six assembly districts, each containing one or more counties, with an aggregate population less than four times the unit of representation, when such counties might have been grouped into four districts ; a difference of over 7,000 in population between assembly dis- tricts in a county, when they might have been formed with a difference not exceeding 1,000, and with a gain in compactness; and the formation of one senate district from two assembly districts with a population of 30,732, and of another senate district from four assembly districts with a population of 65,952-are held to render the act invalid."
Judge Winslow filed a dissenting opinion.
CLOSING EVENTS OF 1892.
The state Democratic convention, early in the fall of 1892, nominated the following state ticket: For governor, George W. Peck; lieutenant-governor, Charles Jonas; secretary of state, Thomas J. Cunningham ; state treasurer, John Hunner ; attorney-general, James L. O'Connor ; state superintendent, Oliver E. Wells; railroad commissioner, Thomas Thompson ; commissioner of insurance, Wilbur M. Root.
The state Republican convention placed in nomination the following gen- tlemen : For governor, John C. Spooner ; lieutenant-governor, John C. Koch; secretary of state, Robert W. Jackson; state treasurer, Atley Peterson ; attor- ney-general, James O'Neill; state superintendent, Willard H. Chandler ; railroad commissioner, John D. Bullock ; commissioner of insurance, James E. Heg.
The whole Democratic ticket was elected by large pluralities, Governor Peck's plurality being 7,707.
Wisconsin's representatives in the fifty-third congress were : H. A. Cooper, Charles Barwig, Joseph W. Babcock, John L. Mitchell, George H. Brickner, Owen A. Wells, George B. Shaw, Lyman E. Barnes, Thomas Lynch and Nils P. Haugen.
EVENTS OF 1893.
The forty-first session of the legislature convened January 11, 1893, and adjourned April 21, 1893, after a session of one hundred days.
The senate was organized with Lieutenant-Governor Charles Jonas in the chair as president, Samuel J. Shafer, chief clerk, and John B. Becker, sergeant- at-arms. The assembly was organized with Edward Keogh, speaker, George W. Porth, chief clerk, and Theodore Knapstein, sergeant-at-arms.
On January 12, Governor Peck delivered before the legislature his second message. In his opening address, among other things, he said :
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