Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-03-25

mandamus was brought purposely to test
: the constitutionality of an apportionment
act, and the case was disposed of on it's
, merits, and the Law held valid. In State
ex rel. Attorney General V. Francis, rs
Kansas, 724, the constitutlonality of an
superintendent act was not only considered,
, but the act was held unconstitutional, be-
cause 1t was not according to the popular
vote as near as may be. y 1t vas never
questioned in these cases but that the aues-
} ton OF the constitutionality of an appor-
tionment act was purely judicial one, and
the passage of such an act was the exer.
else of legislative and not of political
power, These last cases are In point as
! we'll as that of Slauson V. Racine, supra,
that this court may pass upon the consti-
nationality of an apportionment law. In
the following cases the legislature itself
has deemed 1t to be judicial question, to
be decided by the courts; and have sub
mitted the constitutionality of apportion-
ments to the decision of the Judges. See
opinions of the Justices IN Maine, ATT;
Is Maine, AS; 80 Maine, 5S7; and Macs,
523; Is Mass, 537; 3 Pick, 557; 9 Pick,
3l2; II Pick, 435; % Pick, SAT; 6 Cush.,
$40; 2 Gray, 81; 10 Gray, 3l3; ia
cases in which it is even inGmlted that
the court has not jurisdiction in such
case, are the opinions of the justices in
l42 Mass COL. 10 Gray 613, and Wise
V. Bigger, 70 Vir 1863. There was no
argument of the question In these cases.
and IN the last, the question was not IN
the case at all. The learned counsel of
the state have submitted very able and
elaborate arguments, sustained by author
tiles, to the effect that the enactment OF
such law Is not the exercise of the
political but of the legislative power of
the legislature. But 1t seems to be too
plain to admit of an argument
that the apportionment law is like ali
other laws which this court has declared un-
constitutional. 1t is precisely of the same
nature of an act to divide or organize
county, or to establish system of town and
county government, or to make an cleo
. ton, or registry law, or tax law. 1t is
essentially a law of the legislature inv0iv-
ing the exerc,se of the same power as other
laws. The injunction asked goes to the
secretary Of state to restrain him from
giving the notices of an election under
and according TO said appOrtionment act.
II will not restrain him from giving the
election notice required by the general
statutes under any other apportionment.
He is to be restrained from so far carrying
: out void law, which is no law. 1t
relates only to his ministerial duty
of giving notice. He Is not
the real party in interest, or
the object Of the action and slch notices
aIe not the subject matter of the action, he
acts only in a subordinate and minister
ial capacity under the law which is the
source of the public wrong and injury to
be prevented by the injunction against
him. He is the only agency by which
this law can be executed or carried into
practical effect, and the only agency
through whom its execution can be pre-
vented. An Injunction against him is
necessary and preliminary to the Jurisdic
ton of the court over the real subject mat.
ter of the action to prevent this public in
jury pending the action. This prelimi-
nary jurisdiction is only auxiliary to the
jurisdiction of the court to declare the law
unconstitutional. In giving out election
notices there is the exercise of neither
judgment nor discretion. Even the COVER
nor with other state otli-
GERS having similar minis
Joined from carrying out an uncOnstiu-
: tional law. Board of Liquidation VS..
l McComb, 80 U. S. 53l Osborne VS.. Presi-
l dent etc, of bank, 9 Wheat, u S. 1888;
l Davis, governor, VS.. Gray, receiver, 81 u.
a 5, BOB We have already referred TO sew
eral cases in this court in which these
> prerogatiye writs have been served upon
the officers of state, as the nominal defend
ants, through whom alone the migChIef
could be reached; and it is no longer an
open question in this court We have al
ready shown that the court has original
= jurisdiction in all cases publici juris,
l brought by the attorney general on his
own relation, and "wberain the prerOga-
tives and franchises of the state in its
i sovereign character might require the in
depreciation of the highest judicial tribun-
= al to preserve them"
The question remains to be considered
whether this is such a case The c0nsti-
. tuition provides, that "the Legislative pow
Gr shall be vested in a senate and assem-
= lily" Art 4, Sec. !. These bodies can
only exercise this power rightfuly, when
o they are created and established according
! to the constitution. When thus organized
. they may exercise this high prerogative of
E legislation, but if they have not been Gre
ated according to the constitution they
. are foreign u8urping bodies that cannot
q rightfully exercise this great power and
: to that extent, the state government as
: revolutionized and emascuIated of this
:, high prerOgative. The constitution further
J provides the manner in which these bodies
/ may be formed. o. The leglsIa-
ture shall apportlon and district
anew the members of the senate and
assembly latter each enumeration, accord
; ing to the number of inhabitants" with
E certain exceptionsl I'd. "The assembly
= districts are to be bounded by county,
precinct, town and ward lines, 10 consist
y Of contiguous territory and ne in as com
; pact form as practicable" Sd. The
senate districts must be of convenient and
contiguous territory, and shall not divide
! assembly districts. 4th. The members Of
the senate and assembly must be elected
by single districts thus formed. This is
] the only method prescribed by the consti-
tuition for the creation of the legislature of
the state. A Legislative body formed in
q violation Of these constitutional restriC-
tions - body unknown to the constitu-
ton, and cannot rightfully exercise
this high prerogatIve of legislation. 1t is
/ SAID that these restrictions have nearly all
been violated by ar attempted creation of
, future legislatures. 1t would seem that
these Legislative prerogatives of the state
: now require the interposition of this
highest tribunal to preserve them. The
state and the people Of the state would
seem to be more interested In the integrity
. of this department of the government In
! this exigency and III view OF the threat
ened danger to our institutions, than in
any matter of public copcern that has eve4.
arisen in the state. But of course on
grounds of public policy, the acts done and