Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1892-03-30

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tionment law, and hence with
out any law for the election Of
another legislature. The governor
may convene the present legislature, II
he thinks proper. and when SO con-
vened, there can be no doubt of It's
power to enact valid legislative appor-
tionment law.
OIL. For the foregoing reasons the
motion to dismiss the information or
complaint is denied, and the secretary
is allowed twenty days to make answer
thereto, as he may be advised"
The whole court concurred. Opinion
by Lyon, orion, Pinney.
OPINION BY JUSTICE ORION.
The following IS an abstract from the
opinion of Justice Orion:
1.-THE cases in this court in which vari-
Gus acts OF the legislature have been
declared void for being in conflict with
the constitution, are almost numberless,
and there never has yet been found q
single exception on account of this sub
ject-matter of the act. This jurisdic-
ton is SO inherent and univer-
sal in all the courts of last
resort in this country that it may well
be asserted that this court is vested by
the constitution itself with the preHoga-
tive judicial power to protect it from
violation by its final judicial decisions.
This power is lodged nowhere else. To
this departments of the government alone
is committed this high trust. 1t has
never been abused and never will be.
1t acts within well-defned limits and
the strictest rules of judicial rectitude.
ut is argued by the learned counsel
of the defendant that if we assume
jurisdiction in this case that the court
will ha ~
and place the court above the Legis.
lature. 1t is above the Legislature, so
far as it has the judicial power to de-
clare it's acts unconstitutional and void.
1t is an independent and coordinate
department of the government, and the
only one having this judicial power. 1t
has the power which is vested in no
other department to declare and adj
minister the laws.
Gan unconstitutional act of the Leg
islature is no law. 1t is absolutely void.
How, then, can this court declare what
the statutory law is, without first deter
mining whether it conflicts with the
constitution? Without this power this
court would have no judicial functions
whatever, and would be useless APP
pendage of the government.
ITO repel the suspicion even, that
usurped a power that it does not con-
stitutionally possess, it is proper to con-
suit the decisions of the highest courts
elsewhere on the question. That we
may not lose sight Of the real question
before proceeding further, we again
quote the terse language Of Chief Justice
Ryan in Attorney-General VS.. Eau
Claire, supra: The question on which
the exercise of jurisdiction here must
turn is whether the subiect-matter Of
the writ is one qtod I'D statltm repub-
leo, a pertinent one affecting the soyer-
eighty of the state, its franchises or pre-
negatives or the liberties of the people.
We may be permitted to make an ex-
tended extract from the opinion in
Houston VS.. Moore, 5 Wheat. (U. S. |,
because it fully expresses, once for all,
the jurisdiction Of this court. By a
course of judicial decisions reaching
from the earliest history OF merican
government to the present day without
q dissenting voice, it has been adjudged
that courts Of justice have the right and
are in duty bound to test every law by
the constitution as the funda-
mental and paramount law of the
land, governing all derivative power
and the exercise thereof. The judicial
department with us is the proper power
under the constitution to declare the
constitutionality of law, and every act
of the Legislature, contrary to the true
intent and meaning of the constitution
will be declared by the courts null and
void, and of no effect whatever. To
contend that this is not so would be to
assert that the legislative branch of the
government IS supreme in Its authority.'
But again, this apportionment act
at h
est and most sacred rights and priv
leges Of the people of this state, guaran-
teed them by the ordinance of 1887 and
the constitution, and that is equal rep
resentation In the Legislature.' This
also is a matter of the highest public in
terest 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.
1t would be idle and useless to recon-
nit such an apportionment to the vol
untary 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
eminent invaded. The law itself is the
j
constitutlonality is the only question to
be decided.
"The particulars in which the constitu-
ton has been violated by this act will
be more fully considered by my breth-
rem. 1t is properto say that perfect ex-
actness IN the apportionment according
to the number of inhabitants is neither
required nor possible, But there should
be as close an approximation to exact
ness as possible, and this is the
utmost limit Tor the exercise
OF legislative discretion. If, IS in this
case, there is such wide and bold de-
parture from this constitutional rule
that it cannot possibly be justified by
the exercise of any judgment or dis
cretion, 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 APP
portlonment, then the conclusion is in
evitable that the Legislature did not use
any judgment or discretion whatever.
THE disparity IN the number OF IN
habitants IN the legislative districts is so
great that it cannot be overlooked as
mere careless discre pancies or slight
arrOrc n caI f.l1l . fior Tho a