State ex rel. Attorney General v. Cunningham | Cases | Westlaw

In view of the gravity and importance of the case, and of the fact that it has been the subject of careful and anxious consideration on the part of the court, I have thought it not unbecoming to state the reasons which compel me to concur in the decision of the court overruling the defendant's motion to dismiss the cause.

1. A careful consideration of previous decisions of this court, and the application *731 of well–settled principles of law and of statutory and constitutional construction, will, I am convinced, dispel the doubts and difficulties which have been suggested in regard to the form of the proceeding, the jurisdiction of the court, and the substantial merits of the controversy before us. The suit is one instituted in this court in the name of the state by the attorney general, upon leave granted, in relation to a matter of public concern, involving the rights and liberties of the people of the state, concerning matters strictly publici juris, and in which no one citizen has any special or peculiar right or interest to be protected or vindicated other than that which is common to citizens in general, and in relation to which no private person can have or maintain an action, and no suit or proceeding can be maintained, save in the name of the state, prosecuted by the attorney general. This consideration, of itself, at the outset, suffices to dispose of the first ground assigned in the respondent's motion to dismiss,––that the information states no facts showing the relator to have any interest in the subject–matter thereof which entitles him to any standing in a court, to petition for relief from grievances, real or supposed.

This suit is in substance and form the suit of the state of Wisconsin, as a political body, on the information or relation of the attorney general, the proper law officer of the state, made upon complaint to him by a private citizen. It is not essential to the jurisdiction of the court that beyond the attorney general there should be any private relator; and the connection of a private relator with the suit is that only of being liable for costs in case it turns out that it was wrongly instituted, or is improperly prosecuted. When a suit immediately concerns the crown or government alone, the attorney general or solicitor general proceeds purely by way of information. When it does not immediately 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 attorney 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 made 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, or an injury of 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 information and bill, and are so termed. Story, Eq. Pl. § 8, ubi supra; Mitf. Eq. Pl. 117, 118; Attorney General v. Vivian, 1 Russ. 236, 237. If it appeared that the relator had no interest, the bill was dismissed, but the information was retained.

Where the object is the enforcement of a public right, the people are regarded as the real parties, and it need not appear that the relator has any interest in the result. This is familiar doctrine. County Commissioners v. People, 11 Ill. 202; People v. Halsey, 37 N. Y. 348. The rule that the relator in the writ of mandamus, as it is sometimes stated, must show a special, individual right to the relief sought, applies only to cases where individual interests are alone involved, and not to cases where the interest is public and general, and on the information and at the instance of the attorney general, such as this has become by his adoption and official presentation of it, which must necessarily be based upon a public grievance. Attorney General v. Booming Co., 34 Mich. 472; Attorney General v. Parker, 126 Mass. 221; Attorney General v. Butler, 123 Mass. 304; Attorney General v. Barker, 4 Mylne & C. 262. In the case of State v. Doyle, 40 Wis. 185, where it was stated that the relator had compromised the controversy, and had no further interest in the question, and no further right to the writ of mandamus sought that fact was held immaterial; and it was held that the question before the court was not upon the private right of the relator, and was independent of the accident that there was a relator in the case, and that the question on which the exercise of jurisdiction must turn was whether the subject–matter of the writ was one “quod ad statum rei publicæ pertinet; one affecting the sovereignty of the state, its franchises or prerogatives; * * * that it is very certain that it concerns the state at large; that one of its principal officers executes his office in positive and deliberate disregard of a public statute defining its duties.” Pages 186, 187. And, notwithstanding the withdrawal of the relator, the court proceeded to the full and final exercise of its original jurisdiction. Attorney General v. Railroad Co., 35 Wis. 425. It is evident, therefore, that the objection of a want of interest or title to relief in the private person on whose complaint the attorney general has based his information is without foundation, and cannot be allowed.

2. The information being for what is alleged to be a meditated or threatened public grievance, and it not being necessary that there should be a private relator, or, if there is one, that he should have any special, personal interest in the subject–matter of the suit or the relief sought, except that which he has in common with other citizens of the state, we come to consider the second objection,––that the court has no jurisdiction of the subject–matter of the suit; and that the recitals and averments in the information state no wrongs, real or supposed, cognizable in a court of equity. And under this head, as going to the jurisdiction of the court, various propositions are urged, the principal one of which is that the information *732 does not present any fit matter of judicial cognizance, or make or state a case in relation to which the court can lawfully render or make any judgment or decree. At the argument, respondent's counsel was not understood to, and did not, attack or question in the least the former decisions of this court on the subject of its original jurisdiction of the writ of injunction for prerogative purposes, given by the constitution, upon information in equity, as a means of using such writ; nor did he question the right of the court to declare an act of the legislature in violation of the constitution void if the question is presented in some proper judicial proceeding. But the contention was that the entire scope of the suit was to bring in question an exercise of a political power by the legislature in passing the recent act of apportionment of the state into senate and assembly districts, (chapter 482, Laws 1891;) that the question presented is wholly a political one, and not a fit matter for the consideration and decision of a court of justice. The subject–matter of this suit is not a controversy with the act of 1891; it is a controversy with a party,––the secretary of state; not with an officer vested with any political or discretionary power whatever in relation to the apportionment of the state into senate and assembly districts, or with the execution of the act in question, or with the election of senators and assemblymen, but with an official whose duty in the respect in question is purely ministerial, and whose official acts of that character this court has on numerous and notable occasions directed and controlled by appropriate prerogative writs. In brief, the claim of the respondent is that the court has no power to restrain his official conduct in relation to duties of a mere ministerial character when acting, or claiming to act, under an act of the legislature, alleged and found to be unconstitutional. The extraordinary character of the contention, in view of a long and uniform course of decisions in this court, and the serious and momentous consequences which would ensue from a doctrine of such alarming and dangerous tendency, has induced an unusually cautious and careful consideration of the question of the jurisdiction of the court in the pending suit.

There is neither occasion nor disposition to review or reconsider or modify in the least the former decisions of the court on the subject of its original jurisdiction, from the case of Attorney General v. Blossom, 1 Wis. 318, to the present time. In the case of Attorney General v. Railroad Co., 35 Wis. 427, and subsequent cases in his time, that eminent jurist and great lawyer, Chief Justice RYAN, discussed the entire subject in his usually vigorous and luminous manner, and the court fully settled the scope and limits of its jurisdiction. To the many able and exhaustive opinions on that subject nothing can be profitably added or properly taken away. By the decisions referred to it has been settled that this court is a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. That it has original jurisdiction of the writ of injunction as a quasi prerogative writ, where that is a proper remedy, in matters publici juris, within the scope of its jurisdiction, upon the information of the attorney general. “That where there is non–feasance, mandamus compels duty, where there is malfeasance, injunction restrains wrong; and so near are the objects of the two writs that there is sometimes a doubt as to which is the proper one. Injunction is frequently mandatory, and mandamus sometimes operates restraint.” That “the prerogative writ proper can issue only at the suit of the state or the attorney general in the right of the state, and so it must be that the writ of injunction in its use is a clear prerogative writ. * * * It is the duty of the court to confine the exercise of its original jurisdiction to questions publici juris.” In the case of Attorney General v. Railroad Co. the applications for injunctions, which were sustained, were to restrain the several companies from exacting tolls for the carriage of passengers or freight, in excess of the maximum rates established by the statute, or, as was said in this case, to compel corporations created by the state to obey its laws. If the court can take jurisdiction and grant its injunction to compel a creature of its creation to obey the law, no reason is perceived why it may not, for like public purposes, compel an officer of the state, deriving all his powers from the constitution and laws, and with no authority to do any act except in conformity with them, from doing an unauthorized act in relation to a matter of public interest, concerning which his duties are purely ministerial.

In Attorney General v. City of Eau Claire, 37 Wis. 400–442, it was held that it is not enough to put in motion the original jurisdiction of this court that the question is publici juris, but it should be a question affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. And in that case the court interfered by injunction to prevent the operation of a law which was unconstitutional, for the construction of certain works in the Chippewariver, for the reason that it was a violation of the sovereign rights of the state over that river as a navigable stream; that, “without counting convenience or inconvenience, it was the duty of the court, in a proper case, to interpose the prerogative writ of the state to secure the prerogative right of the state from infringement.” In State v. Doyle, before referred to, this court issued a peremptory mandamus to the secretary of state to compel him to revoke a license to an insurance company after the relator had withdrawn from the case, with the declaration “that the writ in this case will issue in the right of the state at any hazard to its officer. We apprehend, however, that there will be none. The state officer is bound to obey the state authority.” So, also, the writ has been issued to the secretary of state to compel him to audit a claim against the state, (State v. Warner, 55 Wis. 271, 9 N. W. Rep. 795, and *733 13 N. W. Rep. 255,) and to the secretary of state and state board of canvassers in relation to the canvass and declaration of result of votes cast at a general election. In Kerr v. Trego, 47 Pa. St. 295, it was held that the remedy by injunction “extends to all acts that are contrary to law and prejudicial to the interests of the community, and for which there is no adequate remedy at law.” It would be unprofitable to cite the numerous instances of the exercise of the original jurisdiction of the court in cases against different administrative officers of the state and county and other officers relating to the performance of their merely ministerial duties. The cases cited are of both classes,––of mandamus to compel action, and injunction to restrain it. The jurisdiction is clearly granted by the constitution as indispensable to a proper administration of the government and of public duties of an important character, and its existence admits now of no question whatever. It has not been contended, nor can it be maintained, that either of these writs can go to control or restrain any public officer in the exercise of a political or discretionary power. On the contrary the authorities are decisive, and too numerous for citation, that, in the latter class of cases, these writs cannot lawfully be issued; but it has been already shown, and it was not disputed at the argument, that the duties of the secretary of state in relation to the matters stated in the information are purely and solely of a ministerial nature.

The case presented by the information, in substance, is that, at the session of the state legislature after the last enumeration of the inhabitants taken by the authority of the United States, there was passed an act for apportioning and redistricting the state into senate and assembly districts, known as “Chapter 482, Laws of 1891;” that the respondent is secretary of state, and as such has recognized and treated this act as a valid and binding law, and filed it as such in the archives of the state department, and published it in the volume of laws required by law to be published; that at the next general election, November 8, 1892, there is to be elected one member of assembly for each assembly district in the state, and one senator from each of the even–numbered senate districts; that, by the third section of this act, it is required that they be elected from such districts as are constituted by said act; that the respondent threatens and gives out that he will make and issue the election notice for such election, and specify therein the said senate and assembly districts, as mentioned in said section 3, and as the same are attempted to be created by said chapter 482, and will, as such secretary of state, publish a copy of such notice in a newspaper printed at the seat of government once in each week from the date of said notice until the election to which it refers is held, and will transmit a like notice to the county clerk of each county in which the election is to be held, and will, if a senator, specify the number of the district; that there is no law authorizing any such contemplated action on his part, the said chapter 482, Laws of 1891, being void by reason of its conflict with the constitution of the state; that, unless restrained from the performance of such illegal act in notifying such election, said election will be held for senators and members of the assembly in and for the districts created or attempted to be created by said act, in which event the inhabitants of the state will be greatly injured in their political powers, rights, and liberties guarantied to them by the constitution; that, unless relief be afforded by this court, there is no satisfactory or adequate protection for the rights and liberties of the people against such threatened invasion of them; and a perpetual injunction is asked, restraining the respondent as secretary of state, and his successors in office, from making, giving, publishing or delivering notices of election of members of the senate and assembly, describing the said senate and assembly districts as they are attempted to be created by chapter 482 of the Laws of 1891, and for such other and further relief, etc. The case made, in brief, is that the respondent intends and threatens that, in the discharge of the duties devolved upon him by law, (section 17, Rev. St., as amended by chapter 327, § 1, Laws 1883,) in notifying the coming election for senators and members of assembly, he will describe in such notices districts in and for which senators and members of assembly are to be elected, which have no legal existence as such single and separate districts or constituencies, in violation and to the great prejudice of the rights and liberties of the people of the state, as secured to them by the constitution.

We have here a controversy existing in relation to performance by the respondent of an important official duty, of a purely ministerial nature, in which all the people are deeply interested, and affecting their constitutional rights and liberties. This controversy is not, in a legal point of view, in any respect different from a great number of other questions which have arisen in the past concerning the performance of the ministerial duties of the secretary of state and of other administrative officers which have been adjudicated by the court without creating any suspicion that the court, in acting upon them, was exceeding its authority, or acting otherwise than in the lawful exercise of its constitutional jurisdiction “to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari,” etc., and “to hear and determine the same.” We have then only to inquire: First, whether the matter in controversy involves such questions. Second, whether the controversy is with a party against whom the court may direct and enforce its coercive powers to enforce its judgment or decree.

The controversy in this case is with the secretary of state, and not with the chapter 482, which he intends to execute. The proceeding is against him, not against the act nor against the legislature. No one contends, so far as I am aware, that the court, by any process, direct or indirect, can exercise any appellate or supervisory power by way of review of the acts of *734 the legislature, or that the court may in any way or manner sit in judgment upon any of its acts relating to matters of legislative discretion, or within its political power, or in respect to which its power is not restricted or limited by the constitution. The position asserted by the court is that in any controversy of a judicial nature, properly brought before the court, in which the validity of an act of the legislature is challenged on the ground that it is in conflict with the constitution, the court has the constitutional and rightful authority to decide whether the act is void or not for that reason, and that its decision on that question is final and conclusive in all courts and places, and against all persons, whether acting in an official capacity or otherwise. It is to be presumed that no intelligent lawyer is to be found at this day who will assert the contrary, nor was this position really questioned at the argument. The respondent relies upon chapter 482 as his authority for the course which he gives out that he intends and threatens to pursue in the matter of notifying the approaching election. In this manner the validity of the act is, in a legal sense, brought in question collaterally or incidentally, though the res or subject–matter of the information is the alleged meditated and threatened 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.

Whether the matter in controversy affects the sovereignty of the state, its prerogatives and franchises, or the liberties of the people, will be best determined by a brief reference to the leading features of our American system of popular representative government, designed to be conserved and protected by the provisions of the state constitution in question. A general statement of some of the principal features of this system will prove instructive and appropriate, particularly as it is contended that the controversy here presents only a question of the exercise of political power, and that therefore it is not a judicial one. The clearest and most concise analysis of the general features of our political system may be found in the celebrated argument of the eminent statesman and great constitutional lawyer, Mr. Webster, in the case of Luther v. Borden, 7 How. 1, in the supreme court of the United States, which arose out of what is known as the “Dorr Rebellion.” He said, in substance, that the only source of political power is in the people; that they are sovereign, that is to say, the aggregate community, the accumulated will of the people, is sovereign, but that is not the sovereignty which acts in the daily exercise of sovereign power. The people cannot act daily, as the people. They must establish a government, invest it with so much of the sovereign power as the case requires; and, this sovereign power being delegated and placed in the hands of the government, that government becomes what is familiarly called the “state.” The next principle is that, as the exercise of legislative power and the other powers of the government immediately by the people themselves is impracticable, they must be exercised by representatives of the people. The basis of this representation is suffrage. The right to choose representatives is every elector's part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector. That is the beginning. That is the mode in which power emanates from its source, and enters into the hands of conventions, legislatures, courts of law, and the chair of the executive. Suffrage is the delegation of the power of an individual to some agent. Then follow two other great principles of the American system. The first one is that the right of suffrage shall be guarded, protected, and secured against force and against fraud; and the second is that its exercise shall be prescribed by previous law,––that every man entitled to vote may vote; that his vote may be sent forward and counted, so that he may exercise his part of sovereignty in common with his fellow–citizens. There is another principle equally true, that the people often limit themselves, and set bounds to their own power, to secure the institutions which they have established against the sudden impulses of mere majorities, and also that they may limit themselves by their constitutions in regard to the qualifications of the electors and the qualifications of the elected. Webster's Works, vol. 6, pp. 221–227, cited by the court with approval in Re Duncan, 139 U. S. 461, 11 Sup. Ct. Rep. 573. See Vanhorne v. Dorrance, 2 Dall. 308. 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 departments, 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 election; to have their proper voice and influence and just representation in the representative branch of the government as members and as possessors 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 jurisdiction, has an undoubted right to protect and enforce, as against unconstitutional and illegal attack from all sources whatever. Chief Justice RYAN, in Re Ida Louisa *735 Pierce, 44 Wis. 431–443, 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 essentially 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 state is a sovereign political organization, and its officers owe it, as a duty, to secure and protect these political rights and the liberties of the people; and its citizens have the right to appeal in appropriate instances to the executive, legislative, or judicial departments, as the case may require, for the protection of their liberties, and, beyond all question, to this court, for the exercise of its original jurisdiction to protect them, according to the methods prescribed by law, against the results of all action, whether legislative, executive, or administrative, in violation of the guaranties of the constitution, and which are of a prejudicial and injurious character. No private citizen, it is true, can maintain a proceeding in this or any other court of justice to obtain relief in such a case, because the wrong, whether committed or meditated, is a public one, and not private, in any proper sense; and it is only in the name of the state, or through its attorney general, that adequate relief can be obtained by invoking the jurisdiction vested in this court by the constitution, as a conservative and restraining power, to protect and preserve the government against threatened maladministration and the struggles of partisan strife and factional fury which might otherwise overthrow it. And here it is fit to observe that perversions of the constitutional rules of apportionment, designed to secure a fair and just representation, manifestly tend to, and if unrestrained may, in time, work the destruction and overthrow of the system of popular representative government itself. It is to no purpose to say that if the power of representation, by a wrongful and illegal apportionment, has been put in the hands of the minority, whereby they are able to perpetuate their ascendency and power, there is, as was contended in argument, an adequate and appropriate remedy for such wrongs at the ballot box. The case of Attorney General v. City of Eau Claire, 37 Wis. 400, adjudicated after elaborate argument and the fullest consideration, is directly in point. The rights vindicated and protected from the prejudicial effect of an unconstitutional act of the legislature, the operation of which it was sought to restrain in that case, were not rights of property or proprietary rights, in any proper sense, but were rights of sovereignty which the state in its political capacity held and was bound to guard and protect,––rights not other or different in point of law from the rights of the people to have full effect given to the political power of each elector, and a fair and constitutional apportionment of the representative bodies. For, as Mr. Webster well says, “the right to this representation is every elector's part in the exercise of sovereign power. To have a voice in it, if he has the proper qualifications, is the portion of political power belonging to every elector;” and the state and the people have a right to a fair apportionment of the aggregate of the political power, to the end that there may be a just expression of it, according to constitutional requirements.

There can be no doubt, however, that there can be no direct judicial remedy, as against an unconstitutional apportionment, even by and through the extraordinary jurisdiction of the court, unless the controversy can be made in some form with and against some officer whose duties are ministerial, and who is therefore amenable to the coercive power of the court to compel execution of its judgment or decree. If the respondent is not, as to the matter in hand, a mere ministerial officer, owing mere ministerial duties, if he is vested with political or discretionary power subject to no limitation, the jurisdiction of the court cannot be maintained; for the court will not render a judgment or decree that it has no possible right to enforce. It was on this account that the jurisdiction of the supreme court of the United States failed in the case of Mississippi v. Johnson, 4 Wall. 475, and in Georgia v. Stanton, 6 Wall. 60. In the former case the court decided that the president of the United States could not be enjoined from carrying into effect acts of congress alleged to be unconstitutional, on the ground that the duty imposed by the acts in question on the president was not “in this sense ministerial. It was purely executive and political. That the terms ‘ministerial’ and ‘executive’ are by no means equivalent in import. The congress is the legislative department of the government. The president is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are in proper cases subject to its cognizance,”––and that “a ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions proved or admitted to exist and imposed by law,” such as the duty of the respondent is in this case. The case of Mississippi v. Johnson is an unanswerable authority on this point in support of the jurisdiction here. The court in that case refused to allow the bill to be filed because it was “fully satisfied that the court had no jurisdiction to enjoin the president in the performance of his duties.” Another bill against Mr. Stanton, secretary of war, and other officers under him, was accordingly presented, and the court refused to permit it to be filed upon the same grounds, namely, that the bill involved a *736 political question, and that in order to entitle the party to an injunction a case must be presented appropriate to the exercise of judicial power; that the rights in danger must be rights of person or property, “not mere political rights, which do not belong to the jurisdiction of a court, either in law or equity;” and inasmuch as the court was called upon to restrain the defendants, who represented the executive authority of the government, from carrying into execution certain acts of congress, and as such execution would annul and totally abolish the existing state government of Georgia, and establish another in its place, the court refused to permit the bill to be filed. The passage above quoted from the opinion of Mr. Justice NELSON in Georgia v. Stanton, supra, has been pressed upon our attention as substantially decisive against the jurisdiction of the court over this information; but, however pertinent it may have been in that particular case, it cannot, we think, have any application here. We do not concede that the exercise of the jurisdiction of this court by writs of injunction and mandamus against ministerial officers, under the clause of the constitution giving it original jurisdiction “to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same,” is the exercise of political power. It may well be conceded that courts of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction in a case such as this; but it is to be borne in mind that the writ of injunction under our constitution is put to prerogative uses, of a strictly judicial nature, as a remedy of a preventive character in case of threatened public wrong to the sovereignty of the state, and affecting its prerogatives and franchises and the liberties of the people; their rights being protected in this court by information in the name of the state, on relation of the attorney general. It is to be remembered that the supreme and circuit courts of the United States have no jurisdiction of prerogative writs, except as incident and auxiliary to the exercise of a jurisdiction already otherwise acquired. Marbury v. Madison, 1 Cranch, 137; U. S. v. Schurz, 102 U. S. 395; U. S. v. Black, 128 U. S. 44, 45, 9 Sup. Ct. Rep. 12; McCluny v. Silliman, 6 Wheat. 598; Rosenbaum v. Bauer, 120 U. S. 453, 7 Sup. Ct. Rep. 633. Cases of the use of prerogative writs against the humblest ministerial officers of the United States can reach the supreme court of the United States only by appeal, after having been instituted and heard in the supreme court of the District of Columbia; and in the cases that do thus reach that court the rule of judicial decision is stated in U. S. v. Black, 128 U. S. 48, 9 Sup. Ct. Rep. 12, to be that “the court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where these duties require an interpretation of the law, the court having no appellate power for that purpose; but where they refuse to act in a case at all, or where by special statute or otherwise a merely ministerial duty is imposed upon them,––that is, a service which they are bound to perform without further question,––mandamus may issue to compel them.”

Inasmuch as the use of the writ of injunction in the exercise of the original jurisdiction of this court is correlative with the writ of mandamus, the former issuing to restrain where the latter compels action, it is plain that this case, as against the respondent, is a proper one for an injunction to restrain unauthorized action by him in a matter where his duties are clearly ministerial, and affect the sovereignty, rights, and franchises of the state, and the liberties of the people The jurisdiction of this court to control the official action of public officers in the performance of mere ministerial duties has been liberally exercised in numerous cases for a period of over 40 years, and without any apprehension that the court was exercising political power, or interfering with political questions. No reason is perceived for declining the jurisdiction now. It would seem to be a fair test of the question of jurisdiction in this case, by injunction, that if the respondent, believing the act to be void, and refusing to act under it, was about to proceed to notify the election of members of the senate and assembly under some former apportionment act, if mandamus might be resorted to in order to compel him to act under chapter 482 of the Laws of 1891, on the assumption that it was valid, injunction, by parity of reasoning, might be granted to restrain action under that act, if found to be void. It is not reasonable to suppose that there would have been the least hesitation, in case the respondent had refused to act under chapter 482, to apply for a mandamus to have compelled such action, or that it would have been considered that the proposed course of the respondent so far involved a question of political power that the court would not have had jurisdiction to compel him to act under the law, if found valid. The truth is that the power of the respondent to notify elections is in no just sense whatever political; and, in view of the purely ministerial nature of his duty, it is a misuse of terms to assert that his power or duty is in any sense political. The act he is required as a ministerial officer to assist in executing, by giving the notice, is the result of legislative power, and therefore, it may be said, of political power; but this does not make the act required of the respondent, in giving or refusing to give the notices, which is a mere consequence of the exercise of political power, a political act, so as to prevent judicial examination of his conduct in acting or refusing to act for that reason, if the law is void for conflict with the constitution. Were the case otherwise, no act of the legislature could be questioned for conflict with the constitution, because it could be said in any such case, as appropriately as in this, that the enactment of the law itself was an exercise of political power, and the court could not, therefore, examine it to determine *737 whether it is in conformity with the constitution. Such a contention confounds all distinction between the law itself and mere ministerial acts done or required to be done under it.

It was suggested rather than argued at the hearing that the power of apportioning and redistricting the state into senate and assembly districts is not essentially a legislative power, but rather of an administrative character, and that it is a power entirely within the discretion of the legislature, or at least the court could not disregard their action as erroneous or even as illegal when coming collaterally and incidentally before it, as it could do in the case of an act of the legislature in conflict with the constitution, and that therefore the court is without jurisdiction; and reference was made to the fact that during the existence of the territorial government the governor apportioned the territory from time to time into legislative districts, and that in some of the states the like power has been delegated to and exercised by administrative officers or local boards possessed of quasi legislative powers for some particular purposes. It is sufficient to say on this subject that, the constitution having vested this power in the legislature, they took it, as they did all other power vested in the legislature, as a legislative power, to be exercised as such. Certain it is the legislature cannot delegate it; and by an unbroken usage extending from the organization of the state, more than 40 years ago, it has been used and exercised as a legislative power executed in the form of a law, approved by the governor, and published in the General Laws. It is not now open to question but that, under the constitution, it is strictly a legislative power, and, when embodied in an act of the legislature, it may be declared void by the court by reason of being in conflict with the constitution. But if it is not strictly a legislative power, if, as counsel contend, it is a mere act of political power, upon what possible ground can it be maintained, in the face of the plain provisions of the constitution, by which it is limited and restrained, that the delegate in the performance of his trust becomes superior to his creator, and may transcend the terms of his commission, and disregard its conditions and limitations, and still his act be esteemed valid and conclusive? To so hold would be to declare that the conditions and restraints placed by the constitution upon the exercise of its power, vital to the maintenance and preservation of a popular representative form of government, are only of optional obligation, and that the very guaranties of its perpetuity may be so wrested from their purpose and perverted as to become the speedy and certain instruments to subvert and destroy it. It is clear to my mind that the restraints and conditions annexed to the power abide with it, and when disregarded it is the right and duty of the court to declare the act void.

We have, then, all the essential elements of a judicial controversy proper for the determination of a court of justice. There is a controversy between the state, as a political organization suing by its attorney general, and the respondent, in relation to the discharge of a purely ministerial duty, concerning matters respecting the sovereignty, prerogatives, and franchises of the state, and the liberties of its people, which is matter cognizable in this court, on information of the attorney general, by virtue of its original jurisdiction; and there is a party respondent whose duty in the premises is in no sense political or discretionary, and who is amenable to the process of the court to enforce obedience to the decree or judgment which it may render, and as against whom the court has ample power for the purpose of determining the question whether the threatened or meditated course of the respondent is rightful or wrongful, and whether he may issue notices of election for senators and members of assembly, describing therein separate districts and constituencies, which have, as claimed, no legal existence as such. The provisions of chapter 482, under and according to which respondent proposes to act, come before the court; and the question of the validity of the act arises incidentally, and as collateral to the determination of the question in controversy. It is not a question of the validity of chapter 482, in the abstract, that is the subject of jurisdiction, for this would not form of itself a proper subject of jurisdiction, and the determination of the validity of the act is not otherwise involved, save as it comes in question in order to decide the controversy before the court, which is solely and only the legality of the proposed action of the respondent. For these reasons, stated more at length than necessary, I think that in the case of a manifest violation of the limitations of the constitution upon the power of the legislature to pass an act apportioning the state into senate and assembly districts, and distributing between local constituencies the aggregate political power of the electors, the sole remedy is not by an appeal to the magnanimity of those who have committed such a wrong to surrender their power gotten by it, or at the ballot–box, or by revolution, but that the court has, beyond all question, jurisdiction, in a case instituted as this one is, to proceed to its determination, and grant the proper remedy.

3. The question whether chapter 482, Laws 1891, is void for want of conformity to the provisions and limitations of sections 3, 4, and 5, art. 4, of the constitution, presents questions of great interest and of paramount importance, affecting the integrity and stability of our system of popular representative government; and it is impossible to approach its discussion without a deep sense of the grave responsibility devolved upon the court in its decision. The act in question is one which affects or may affect no one particular class of people or locality, but all the people of the state, in their collective and individual rights and interests; and it cannot be declared void because it is supposed to violate the natural, social, or political rights of the people, unless it is made to clearly appear that it is violative of rights guarantied or protected by the constitution; nor because it may appear to violate *738 fundamental principles of popular government, unless placed beyond legislative encroachment by that instrument; nor yet because the act may be said to be, in a general sense, opposed to the spirit, not expressed in words, but supposed to pervade the constitution. In order that the court may be justified in declaring an act of the legislature void, the repugnance between it and the express provisions of the constitution and those limitations necessarily or conclusively implied from it must be clear and irreconcilable; and in all matters of unlimited discretion, or involving only considerations of public policy, the determination of the legislature is final and conclusive on the courts. Nor will an act be held void by reason of any supposed improper motives or unconstitutional intentions of the legislative body which enacted it. The respect which the court entertains for the legislative department of the government, as well as grave reasons of public policy, alike forbid such an inquiry, with a view of defeating the operation of any public legislative enactment. Fletcher v. Peck, 6 Cranch, 129. In Ex parte McCardle, 7 Wall. 514, the court said: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitution.” And in Doyle v. Insurance Co., 94 U. S. 541: “If the act done by the state is legal, is not in violation of the constitution, * * * it is quite out of the power of any court to inquire what was the intention of those who enacted the law.” And in Soon Hing v. Crowley, 113 U. S. 703–710, 5 Sup. Ct. Rep. 730, it was held: “The rule is general, with reference to the enactment of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts or inferable from their operation, considered with reference to the condition of the country or existing legislation. The motives of the legislators, considered as the purposes they had in view, 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.” An issue of fact cannot be framed and tried by a jury or otherwise with a view of determining by its result the validity of an act of the legislature, but the court is to be confined to matters of which it may take judicial notice; for otherwise a jury might find on the issue one way to–day, and another way to–morrow, and this would beget a distressing condition of uncertainty.

The enumeration made under the authority of the United States in 1890 of the inhabitants in the several minor political divisions of the state, grouped according to the separate districts described in the act, is made an exhibit to and a part of the information. It seems to be well established that courts will take judicial notice of a census, whether taken under the authority of the state or United States. State v. County Court, 89 Mo. 237, 1 S. W. Rep. 307; Temple v. State, 49 Amer. Rep. in note, 201; 24 Amer. Law Reg. 568; Geraghty v. Ashland Co., (Wis.) 50 N. W. Rep. 892; State v. Keaough, 68 Wis. 142, 31 N. W. Rep. 723. The apportionment is to be “according to inhabitants,” and made at the next session after the state or United States enumeration, and the enumeration is evidently intended as the basis of apportionment. The court will take judicial knowledge of the location, general boundaries, and juxtaposition of the several counties, towns, and wards mentioned in the act in question, and of matters of common knowledge. Brown v. Piper, 91 U. S. 37; King v. Gallun, 109 U. S. 101, 3 Sup. Ct. Rep. 85.

It was contended on behalf of the state that the provisions of section 2 of the ordinance of July 13, 1787, for the government of the Territory of the North–West, that “the inhabitants of said territory shall always be entitled to the benefits * * * of a proportionate representation of the people in the legislature,” which is embraced in and continued in the organic act of the territory of Wisconsin by section 4, providing that “an apportionment shall be made, as nearly equal as practicable, among the several counties, for the election of the council and representatives,” and by section 12, providing that “the inhabitants of said territory shall be entitled to and enjoy, all and singular, the rights, privileges, and advantages granted and secured to the people of the territory of the United States north–west of the Ohio,” by the ordinance of July 13, 1787, had the effect of a solemn compact, which remains yet unrepealed in its obligations, securing “proportional representation,” and “an apportionment as nearly equal as practicable” by the single district system, under the state constitution, requiring such districts to be grouped by counties, with other provisions added by the state constitution for greater security. The ordinance of 1787 and the organic act of April 20, 1836, were the fundamental law of the territory, and as a constitution for it, until the admission of the state into the Union, May 20, 1848, under its present constitution, “on an equal footing with the original states,” when the ordinance of 1787 and the organic act as well, which were adapted only to the territorial condition of Wisconsin, became obsolete, and ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. Pollard's Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, Id. 589; Strader v. Graham, 10 How. 82; Withers v. Buckley, 20 How. 92; Transportation Co. v. City of Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185. Though obsolete, these acts may be properly regarded as in pari materia, and helpful and of historical value, in construing sections 3, 4, and 5 of article 4 of the constitution, which came in to take the place of the provisions briefly quoted.

The rules of apportionment and the restrictions upon the power of the legislature are very simple and brief. (1) By section 3 the apportionment is required to be “according to the number of inhabitants, excluding,” *739 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, precinct, town, or ward 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. 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 section 3 for an apportionment “according to the number of inhabitants” is the exact equivalent of the provision in 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 Gov. Dewey on the ground of a very considerable disproportion in the number of inhabitants in senate and assembly districts as constituted by it; that it was unconstitutional, as not being “according to the number of inhabitants;” and the veto was sustained, with only 12 votes in the assembly against it, (Assembly Journal 1851, 810–812;) but the disproportion was far less significant than in the act of 1891.

Up to the time of the constitutional convention, representation had been by counties, and the single district system had not been much in use elsewhere. The meager report of the debates indicates clearly that, while the members of the convention were willing to adopt the single district system, which Judge DUNN (then chief justice of the supreme court) thought “would open a door for gerrymandering which ought to be kept closed,” and were willing to abandon the former method of electing all the members for an entire county on a general ticket, yet the discussion proceeded on the idea that the county was an entire political division, to be divided into single districts composed entirely of territory within the county. The leading idea seems to have been that each county was regarded in the nature of “a small republic,” or “in the light of a family,” and “each organized county had a separate interest,” and Mr. Chase thought it was the province of the supervisors, rather than of the convention, to divide counties into districts; and Mr. Prentiss said: “In order to preserve county lines the single district system must be adopted.” The discussion arose on amending to its present form section 4, and which, as originally introduced, provided for a choice of senators and members by single districts, without any direction or restraint as to the manner of their formation; and the argument is now urged that the effect and meaning of sections 4 and 5 are the same, only, even after adding the provision in respect to assembly districts, requiring them to be “bounded by county, precinct, town, or ward lines, to consist of contiguous territory, and be in as compact form as practicable” as before, and that no additional restraint was thereby imposed on the legislature in the formation of such districts; and so, too, of the provision added in respect to senate districts, requiring them to be “of convenient contiguous territory.” In short, that all the provisions of the sections above referred to are directory merely, and that the entire subject was left to the legislature, without limitation, to form such districts in any manner it might see fit. Journal of Debates, 219–224, 382–386.

It does not appear that the language used was employed by way of exhortation to the legislature to eschew the pernicious methods of gerrymandering then recognized as an evil to be greatly deplored. It better suits the important character of the rights sought to be guarded, and the character and purpose of the instrument, to regard these provisions as mandatory, and not directory merely. Mr. Cooley, in his work on Constitutional Limitations, 93–98, discusses the question whether rules which distinguish directory and mandatory statutes apply to the provisions of a constitution, and he arrives at the conclusion that “it will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory, and not imperative.” People v. Lawrence, 36 Barb. 177, 186; Cannon v. Mathes, 8 Heisk. 504, 517; Varney v. Justice, 86 Ky. 596, 6 S. W. Rep. 457; State v. Johnson, 26 Ark. 281.

In view of the provision of the ordinance of 1787 of the organic act of the territory, and of the history of the provision in question in respect to assembly districts, the intention of the framers of the constitution becomes plain and certain, if it were possible to say that from the language used in it there is any ambiguity or uncertainty, so that construction would have any proper office to perform. The provision is, “Such districts to be bounded by county, precinct, town, or ward lines, to consist of contiguous territory, and be in as compact form as practicable;” that is to say, that in creating such districts no county, precinct, town, or ward shall be divided, and there is no more warrant for dividing counties in forming assembly districts than for dividing a precinct, town, or ward. The scope of the language is not that the boundaries of any such districts may be in part by county, and in part by precinct, town, or ward, lines, leaving districts to be formed of parts of different counties, or of one county and part of another, for in such case the use of the words “precinct, town, or ward lines” would have fully answered such purpose or intention, and the use of the word “county” would have been superfluous, because county lines are in all cases identical with town or ward lines, precincts as political divisions having *740 ceased to exist. The word “county” answers a definite and necessary purpose in expressing in clear, concise language the object in view, namely, to adopt the single–district system, and retain, as before, the county as a subordinate political division, to be divided into single districts where its inhabitants are entitled to more than one member, and prohibiting the division of counties in the formation of assembly districts. This brought the entire constitutional history on the subject into harmonious relation with the language used, and avoided the opening of the door, as it was feared would be the case, to gerrymandering if the single–district system should be adopted, and gives to every part and word of the provision an appropriate and harmonious meaning. The rule is that effect is to be given to every clause or word of a statute, and no word is to be treated as unmeaning if a construction can be legitimately found which will preserve it and make it effectual, (Sedg. St. & Const. Law, 200; End. Interp. St. § 23,) and “this rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication,” (Cooley, Const. Lim. 72.) The rule is that a statute ought, upon the whole, to be so construed that, if possible, no clause, sentence, or word shall be superfluous, void, or insignificant. Harrington v. Smith, 28 Wis. 44–67; Com. v. Alger, 7 Cush. 89; Opinion of Justices, 22 Pick. 571; People v. Burns, 5 Mich. 114; Platt v. Railroad Co., 99 U. S. 48, 58; Montclair v. Ramsdell, 107 U. S. 147, 152, 2 Sup. Ct. Rep. 391.

In the act under consideration there are 20 instances in which counties have been divided in the formation of assembly districts, in violation of the constitutional rule preserving the territorial integrity of counties in the apportionment of the state into assembly districts, and by no possible construction of the act can it be brought into harmony with the provisions of the constitution. Both the provisions of the constitution and those of the act are too plain for construction, 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 entirety, and this one with the objectionable districts would form no just approximation 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 districts 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.

Apprehensions have been entertained as to the effect which a decision adverse to the validity of the act will have upon past legislation, and upon the competency of the present legislature to pass a valid apportionment, as it is said that the apportionment act of 1887 is obnoxious to the same objections as this one. Upon the assumption that the act of 1887 is void for any reason, senators and members of assembly who have been elected and have qualified under it are such de facto, and their acts are valid as to the public and third persons, within repeated decisions of this court, (In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 538;) and it is no doubt competent for the legislature, at a special session hereafter called, to pass a valid apportionment act, notwithstanding the requirement of the constitution that it be passed at the session next after the last enumeration. The plain intent of this provision is to enable a new apportionment to be made at the earliest practicable period after the enumeration, to the end that the change in the representation thereby required shall readily become effective, and not be unreasonably delayed. The duty to pass such an act is a continuing one from the time it is constitutionally devolved upon the legislature until performed, though when thus performed the power to pass any other such act is exhausted, and will not again arise until after another enumeration. It has been held in Rumsey v. People, 19 N. Y. 41, that under the provisions of the constitution of New York, in substance the same as our own, an apportionment act, passed at a session subsequent to the next one after the enumeration, was valid; and the first apportionment act which became operative in this state was not passed at the next session after the census of 1850, which was held in 1851, and not until the session of 1852, the one passed at the session of 1851 having been vetoed; but no difficulty was experienced by the delay, and it seems plain, both upon principle and precedent, that no objection exists to the passage of a valid act of apportionment at a special session which may be hereafter called. No difficulty, it is believed, need be apprehended as to the result of the decision the court has felt it to be its imperative duty to make; and our respect for the executive of the state, whose duty it is “to take care that the laws are faithfully executed,” forbids any apprehension that he will fail in the least in meeting the present emergency, or to take such measures as in his wisdom seem best to give full effect to the constitution and the laws.

A provision of our constitution that “the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable,” (section 23, art. 4, Const.,) has been very strictly enforced. Peck v. Riordan, 24 Wis. 484, and quite a large number of subsequent cases, show that very many acts have been declared void because they impaired the uniformity of such system, and the provision has been so construed as to leave little or no discretion to *741 the legislature as to any or what deviation will be constitutional and valid.

The formation of some of the senate districts in this act, particularly the ninth and twenty–eighth, as well as some of the assembly districts, seems to be indicative of a studied and deliberate disregard of the constitutional requirements, rather than of a fair and earnest attempt to conform to or comply with them; and the very great disproportion in the number of inhabitants in certain assembly districts mentioned in the opinion of the chief justice must, it seems to me, be regarded as in violation of the mandate of the constitution to apportion members of the assembly “according to inhabitants.” There is, no doubt, a wide distinction between the exercise of a fair, just, and necessary discretion, within the rules of constitutional apportionment, and a gross departure and manifest abandonment and defiance of them; between discretion within certain limits and for certain ends, and an open, obvious, and palpable violation of them. It is plain that by disregarding them, namely, that which requires apportionment to be “according to inhabitants” and those which require assembly districts to “be in as compact form as practicable,” and that senate districts be formed of “convenient contiguous territory,” the right of representation of local constituencies may be grossly violated, and particularly in the formation of senate districts, inasmuch as no assembly district can be divided for that purpose; but whether this court can declare an act of apportionment void in such cases is a question not material to the decision of this case, and which will require further discussion and consideration, and need not be now determined. The apportionment of the state into senate and assembly districts, according to inhabitants, is a task, no doubt, of difficulty and delicacy; and while a liberal margin is necessarily allowable for the exercise of a wise and just discretion, so that the apportionment will be practically 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.

I concur in the views expressed by Mr. Justice PINNEY.

I. It is maintained on behalf of the state that the county is the primary territorial unit of representation in the assembly, and that while in some instances, in order to preserve equality of representation, an assembly district must necessarily include two or more counties, yet such district must be bounded exclusively by county lines. Stated in another form, the contention is that, in any valid apportionment of the state into assembly districts, the integrity of county lines must be preserved, and hence no such district can consist of one, or more than one, county and a fraction of another county, or of fractions of two or more counties. If this is a correct construction of constitutional provisions on the subject, chapter 482, Laws 1891, cannot be upheld as a valid law, for it violates those provisions in the formation of 15 or more assembly districts, and dismembers 20 counties. It requires no argument to demonstrate that, if such districts are formed in violation of constitutional rules, the whole act is void, for the apportionment is an entire process,––each part thereof being affected in a greater or less degree by, and dependent upon, every other part,––and it is impossible to expurge therefrom those portions which dismember counties and save the residue. The above contention requires the court to determine the constitutional rules for the formation of valid assembly districts.

Section 4, art. 4, of the constitution, provides that assembly districts shall be “bounded by county, precinct, town, or ward lines.” The term “precinct,” as thus used, has ceased to have any significance. When the constitution was adopted, the optional township system of government, enacted in 1841, did not prevail in several counties of the territory of Wisconsin. Those counties were divided into precincts,––mainly for election purposes,––each of which corresponded in some respects to the town or ward of the other counties. But the precinct of the constitution disappeared when the uniform system of town and county government prescribed by the constitution (article 4, § 23) became fully operative. We have now no civil subdivision, other than towns and wards, which are the equivalent of the precinct of territorial times. Railway Co. v. Town of Oconto, 50 Wis. 189, 6 N. W. Rep. 607. The term may have been used in statutes since the adoption of the constitution, but it will be found, we think, that, with a single exception, it is so used as the equivalent of “town” or “ward.” The exception is found in the legislative apportionment act of 1876, (chapter 343,) in which the east and west precincts of the town of Wrightstown, in Brown county, are named, and placed in different assembly districts. If Wrightstown was then an incorporated village, although designated in the act as a town, the term was doubtless employed as the equivalent of “ward.” If it was an ordinary town, we are aware of no law authorizing its division, or the division of any town, into precincts which may properly be placed in different assembly districts. Election districts created by municipal authority are not the “precincts” of the constitution. Under existing laws, therefore, we shall feel at liberty to omit the term “precinct” when referring to the above provision of section 4, art. 4.

The provision of the constitution that assembly districts shall be bounded by county, town, or ward lines is not only the mandate of the people, acting in their sovereign capacity, to the legislature thus to constitute those districts, but it is a limitation upon the power of the legislature in that behalf, prohibiting that body from constituting such districts in any other manner. The question to be determined is, what is the true meaning and significance of such mandate? That *742 the provision requires assembly districts to be bounded by town or ward lines, because all county lines are either town or ward lines, and that it prohibits the division of towns and wards in the formation thereof, admits of no doubt. We are to determine what effect is to be given to the specification therein of county, as well as town or ward, lines. There are two civil or municipal divisions of the state, not named in section 4, art. 4, to–wit, cities and villages. When the constitution was adopted, there existed in the territory villages with town lines passing through and dividing them into two parts. In such cases the dismemberment of villages could not be prevented without dismembering towns. There were also villages divided by county lines, and since that time cities have been organized also divided by county lines. Had the lines of these municipal divisions been specified in the constitution as lines by which assembly districts must be bounded, it would render necessary, in several cases, the disregarding of county lines, and the dismembering of counties, in the formation of assembly districts. But the lines of such municipalities are not specified as assembly district boundaries, while the lines of counties, towns, and wards are so specified. The inference is irresistible that such lines are so specified to prevent the dismemberment of counties, as well as towns and wards, while the lines of cities and villages are not specified as such boundaries, because it would be necessary to disregard them, and dismember such municipalities, in order to prevent the dismemberment of counties and towns.

There is another very cogent reason why the provision under consideration should be held to protect counties, as well as towns and wards, from dismemberment. All county lines are town or ward lines also. If it was only intended thus to protect towns and wards, the word “county” in the provision performs no office whatever, but is meaningless, and should be rejected as surplusage. The settled rules of statutory and constitutional construction forbid this, if any force and effect can be given the word. The rule is that every clause and word of a statute––much more of a constitutional provision, which it must be conclusively presumed was framed with the utmost deliberation and care––must be assumed to have been intended to have some force and effect, and, if possible, must be so construed. Harrington v. Smith, 28 Wis. 43, and authorities cited by DIXON, C. J., in the opinion. The force and effect the word “county” was intended to have is entirely clear. Inasmuch as the town and ward were thus protected from dismemberment, it was intended by the same provision to protect the county from dismemberment in like manner. It means this, or it has no significance whatever. The lines of these municipal divisions, counties, towns, and wards, are named in the constitution as boundaries of assembly districts. The county is the larger and more important division, and accordingly is first named. Under familiar and elementary rules of construction, it should first be regarded in making the apportionment, and the assembly districts should be bounded by county lines until the necessity arises for bounding them by town or ward lines which are not county lines also. This necessity only arises because the constitution provides for choosing members of assembly by single districts, and some counties have a sufficient number of inhabitants to entitle each of them to more than one member of assembly. Such counties must necessarily be divided into the requisite number of assembly districts. The external boundaries of such districts, or some of them, will still be county lines, but the interior boundaries thereof will necessarily be town or ward, and not county, lines. But for the necessity of dividing some counties into two or more assembly districts, there would have been no necessity of mentioning town and ward lines in section 4 of article 4, for all the assembly district boundaries would, in such case, have been county lines. In such case, doubtless, county lines only would have been specified, as in the provision for the formation of judicial circuits. Const. art. 7, § 6.

The construction which we have thus given the constitutional provision under consideration, were its meaning at all doubtful, is supported by certain conditions and circumstances existing when the constitution was adopted. Before that time it had never happened in Wisconsin that a county was dismembered in the formation of a legislative district. If a county was entitled to more than one representative in either branch of the legislature, both or all of them were elected on a general ticket. If the same district extended into two or more counties, both or all of such counties were invariably included therein entire. See Leg. Man. 1891, pp. 116–125. Neither had there been elsewhere (so far as we know or are advised by the argument) any dismemberment of a county in the formation of a legislative district. Furthermore, for nearly a quarter of a century after the adoption of the constitution, (with a single possible exception,) no attempt was made to dismember a county in an apportionment of members of the assemby, although during that time four such apportionments were made. Laws 1852, c. 497; 1856, c. 109; 1861, c. 216; 1866, c. 101. The possible exception referred to is that in the first of these acts an assembly district was constituted of certain towns in Marquette county and the county of Waushara. The latter county was created by chapter 77, Laws 1851. Its territory was taken entirely from Marquette county, and it remained attached to that county for judicial purposes until it was fully organized, under chapter 34, Laws of 1852. If the apportionment of 1852 speaks from the time the enumeration of inhabitants was made upon which it was based, (which was in 1850,) or from any time before the enactment of chapter 77 aforesaid, during the legislative session of 1851,––that being the session at which the apportionment should have been made,––there was no dismemberment of Marquette county *743 in that apportionment. Otherwise there was such dismemberment. But, if that was a violation of the constitutional rule, it was doubtless inadvertently done, and the integrity of county lines was restored in the next apportionment, and was not again violated until 1871.

It has been suggested, however, that the first legislative apportionment, which is contained in the constitution and is a part of it, dismembered the county of Iowa. The provision referred to is this: “The precincts of Franklin, Dodgeville, Porters, Grove, Arena, and Percussion, in the county of Iowa and the county of Richland, shall constitute an assembly district.” On its face this looks like the dismemberment of Iowa county. If it were such, it would prove nothing more than that the people who adopted the constitution, acting in their sovereign capacity, did an act which they prohibited future legislatures from doing. But, for reasons which will now be stated, Iowa county was not dismembered by the constitutional apportionment. By an act of the territorial legislature entitled “An act to establish the county of Richland,” approved February 18, 1842, the territory now included in that county was “constituted a separate county by the name of Richland,” and by the same act was “attached temporarily to the county of Iowa for all county and judicial purposes.” This legislation merely designated, by boundary of the tract, certain contiguous townships and sections in Iowa county as Richland county. It was a mere geographical designation, carrying with it no municipal, judicial, or other function (if there be any other) of county government. The inhabitants of the prescribed territory remained inhabitants of Iowa county, with all the rights, privileges, and immunities pertaining thereto. The qualified electors therein were qualified electors of Iowa county, eligible to hold the public offices therein, and, if citizens, competent to sit as jurors in the courts thereof. The act of 1842 had no more effect on the civil or political status of those people than as though the legislature had bestowed upon the designated territory any other mere geographical name, without using the term “county” at all. This condition of things remained unchanged until 1850, when the legislature provided for the organization of Richland county, and the same was thereafter organized pursuant to the statute in that behalf. Laws 1850, c. 92.

There are most satisfactory reasons why the unity of counties was thus universally respected and preserved. The county is the chief subdivision of the state. It, or its equivalent, has existed from the first in all the states and territories of the Union. It has always been the medium through which the state performs some of its most importantfunctions, particularly that of raising revenue. Its governing body has aways been clothed with important legislative powers, of a local character, directly affecting the welfare of all the people within its borders. It is a sort of imperium in imperio, as regards local self–government in many particulars. These functions were regarded so important that the constitution expressly gives the legislature power to “confer upon the boards of supervisors of the several counties of the state, such powers of a local legislative and administrative character, as they shall from time to time prescribe.” Section 22, art. 4. This is one of the most ample grants of power in the constitution, and its insertion therein proves the importance of the county and county government, in the estimation of the people who adopted the constitution. The people of a county have common interests and objects, peculiar to themselves, and intimate public relations with each other. The electors thereof vote for the same public officers; are subject to the jurisdiction of and attend the same courts; some of them sit upon the same juries and in the same board of supervisors; and all have a common interest in all county affairs. Hence, when the constitution was adopted, it was deemed of vital importance that dismemberment of counties in the formation of assembly districts should be avoided, to the end that each county, having sufficient population, should have its own representative in the legislature, chosen by its own electors, and them only, and owing no divided, perhaps conflicting, allegiance to any other constituency. True, because of the sparse population in some portions of the state, it was and is necessary in some cases to include more than a single county in one assembly district. But the autonomy of the county could still be preserved, and the evils of county dismemberment in a great measure avoided, by making such districts consist of whole counties. This may easily be done in the apportionment of the state into assembly districts, without infringing any constitutional requirement. The single legislative district system was incorporated into the constitution. This rendered necessary a division of those counties, the population of each of which entitled it to more than one member of the assembly. But under that system there is no difficulty in avoiding the dismemberment of counties, by confining exterior lines of such districts to county lines, where they extend to county lines. By so doing, the county will be saved from dismemberment, and preserved as the primary territorial unit of the assembly districts. To the above–mentioned conditions it may be added that the debates in the convention which framed the constitution, and the earnest protests of leading members of that body, and of many other citizens contemporary with them, against such dismemberment, when proposed in later years, (all which is matter of history,) furnish additional evidence that the convention which framed and the people who adopted the constitution intended thereby to preserve the integrity of counties in the formation of assembly districts. Considering all the facts and circumstances above stated, and having due regard to the language of the constitution in that behalf, we are impelled to the conclusion that it was not intended thereby to permit the legislature to dismember any county in the formation of assembly districts. That is to say, it prohibits the legislature *744 from placing one county, or more than one, and a portion of another county, or portions of two or more counties, in the same assembly district, and that such prohibition is found in the provision which requires that assembly districts shall be bounded by county, town, or ward lines. If a county has a sufficient number of inhabitants to entitle it to two or more assemblymen, the requisite number of districts must be formed entirely within the limits of such county. But this is no more dismemberment than is the division of a county into towns. The departure from the requirements of the constitution in the formation of assembly districts practically commenced with the apportionment of 1871, in which a fraction of Kewaunee county was placed in an assembly district with a fraction of Brown county, and the residue of Kewaunee county in a district with Door county. The city of Watertown, being in Dodge and Jefferson counties, was made a district, and another district was created which included fractions of Waupaca and Outagamie counties. Chapter 156, Laws 1871. In the next apportionment (chapter 343, Laws 1876) we find but two such cases. The city of Watertown entire and certain towns in Jefferson county were placed in one assembly district, and Pepin county, with a fraction of Buffalo county, constituted another district. The apportionment of 1882 furnishes but one case of county dismemberment. Fractions of Calumet and Outagamie counties were placed in one assembly district. Chapter 242, Laws 1882. In the apportionment of 1887 we find an assembly district composed of fractions of Green and La Fayette counties; another of fractions of Winnebago and Outagamie counties; another of fractions of Manitowoc and Kewaunee counties; and another of fractions of Shawano and Waupaca counties. Chapter 461, Laws 1887. By this time the constitutional rule had been pretty effectually undermined, and so, when the apportionment of 1891 was made, but little attention seems to have been given to it. The number of infractions of the rule therein is quite largely increased over those in former apportionments. As already stated, it is quite impossible to uphold the apportionment of 1891 in part, and declare it invalid as to the residue. It must be held, therefore, that the violation of the constitutional rule prohibiting the dismemberment of counties vitiates the whole act.

II. Chapter 482, Laws 1891, violates another constitutional requirement. Section 3, art. 4, ordains that apportionments of legislative districts shall be made “according to population,” excluding therefrom certain classes of persons therein specified. Because the county is the primary territorial unit in the formation of assembly districts, and members of assembly must first be apportioned to counties, the above provision of section 3, as applied to the formation of assembly districts, must be construed to mean that there must be substantial equality of representation, in proportion to population, as between all the different counties, and districts composed of two or more counties; that is to say, there must be no unnecessary inequality in the proportionate representation in the assembly of counties and of such districts on the basis of population. Each county, and each district consisting of two or more counties, having a population equal to the numerical unit of representation in the assembly, (alleged to be 16,868,) is entitled absolutely to one member of assembly, unless it should be found necessary to place a county not thus entitled to a member in a district with a county which would otherwise of itself be entitled to one member. It is believed, however, that no necessity exists for forming such a district in the apportionment based on the enumeration of 1890. For each multiple of such numerical unit reached by the population of any county, such county is also absolutely entitled to an additional member of assembly. The remainder of the 100 members, not thus absolutely apportioned to counties and districts, should be apportioned to an equal number of the several counties by some uniform, equitable rule, perhaps to the counties having the largest fractions of population in excess of such numerical unit of representation or multiple thereof. The legislature must, however, determine such rule; but the writer will be pardoned for saying, for himself alone, that he is aware of no mathematical formula which will accomplish the required result, other than that above suggested, which prefers in the apportionment the largest fractions of population. Chapter 482 violates the foregoing rule. For example, it gives La Crosse county, with 38,801 inhabitants, but one member of assembly; while it gives Manitowoc county, with 37,831 inhabitants, three members. It may be urged that any inequality of representation in the different assembly districts is in a measure removed or compensated for in the formation of senate districts, as, for example, La Crosse county, which is deprived of one assemblyman to which it is absolutely entitled, is made a senate district, although it lacks about 13,000 inhabitants of the numerical unit of representation for a senate district. On any proper rule of apportionment, this cannot be done, for the very conclusive reason that the constitution gives each county an absolute right to its proportionate representation in the assembly, without regard to its representation in the senate. Moreover, the assembly district is the territorial unit of the senate district, and the latter cannot be intelligently formed until the limits of the assembly districts are established. It is unnecessary to enlarge upon this branch of the case. It is not difficult to apportion the members of assembly to the several counties, and to form the several districts which must contain two or more counties, in strict compliance with constitutional provisions.

III. After the number of members of assembly to which each county is entitled shall have been ascertained by the rules above stated, the next step in the process of apportionment will be to divide each county entitled to more than one member *745 into the requisite number of assembly districts, each of which must consist of contiguous territory. In making such division, the rules of compactness and numerical equality of population, so far as 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. The mode of compliance therewith must necessarily rest largely in the discretion of the legislature. Nothing short of palpable disregard of duty in these particulars, which it is scarcely possible to impute to any legislature, would justify the courts in holding a legislative apportionment invalid.

IV. When the assembly districts shall have been properly apportioned and formed, and not until then, is there a proper basis for the formation of the senate districts. Each of these must consist of entire assembly districts, and must be formed of convenient contiguous territory. They must also be as nearly equal in population as other constitutional requirements will permit.

V. The complaint charges that the senate districts are so numbered in chapter 482 that large numbers of electors who were last permitted to vote for senators in 1888 cannot do so again until 1894, while other large numbers of electors who voted for senators in 1890 may again do so in 1892. This is alleged as a reason why the act is invalid. The court finds in the constitution no authority conferred upon it to interfere with the numbering of the senate districts. In that respect the power of the legislature is absolute.

VI. The decision herein does not impeach the validity of acts, otherwise valid, of a legislature elected under an invalid legislative apportionment statute. Neither is the jurisdiction of the court affected, or the exercise thereof embarrassed, by the fact that this decision may leave the state without a valid legislative apportionment law, and hence without any law for the election of another legislature. The governor may convene the present legislature, if he deems it his duty to do so, and when so convened, there can be no doubt of its power to enact a valid legislative apportionment law.

VII. The question of jurisdiction has been fully discussed by Justices ORTON and PINNEY, and nothing need here be said on the subject, unless it be to express the conviction of the writer that there can be no reasonable doubt of the jurisdiction of the court to direct and control the action of the secretary of state in the premises.

The decision in this important case is fully in accord with my judgment. The reasons in support of it, given in the several opinions filed, taken together, are so full and complete, as to call for nothing additional from me.