Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-02-18

nance of which the court is asked 10 en-.
join, which puts him beyond the reach Of
injunction. 1t is said by this court in the
case OF State ex rel. VS. Doyle. The sec.
rotary of state is ministerial officer, au.
thoriz9d by law to perform different con-
agencies. If he makes mistakes OF facts
in the performance of his function. tina;
action may be void, or voidabie only, IN
different circumstances; but he cannot ju-
Ideally determine the facts on which he
acts or refuses to act. This can only be
dore by the court. whose duty it is in
proper cases to review his action to de-
termine the facts and his official duty up.
on them"
That this court will control, in the exer-
] else of its original jurisdiction, by man
| damus or otherwise, ministerial functions
of the state officers, has been many times
decided
We say, continued the speaker, this in
junction if granted will not restrain an
election, nor will it restrain the giving
and fling of notices of election of mem
bers of the senate ana assembly. 1t will
only restrain the giving of notices describ.
| ing the districts attempted to be created
by chapter 49,. II granted the notices
could be given under valid unrepealed
| To-, Ia \
enacted.
, 1t was maintained by Col. Spooner that
if the remedy be not afforded, there is
| no remedy, in the na- ure of things; and
the prerogative writ given to the court by
ercise of an original jurisdiction, protect
the liberties of the people, becomes, for
the purpose of preser wing the right of
equal representation, the integrity of
counties, and enforcing the safeguards of
the constitution, absolutely impotent For
| if this notice be given, as required by
chapter 482, the election of representa-
tives and senators will take place in the
districts thereby ate mpted to be create
and specified in the notices, and that will
be the end Of 1t; as the Legislature
thus elected will be prevented by
injunction from assembling, nor will
its acts be void; and there will become
consummated, notwithstanding timely
appeal to this court, crime against
representative government. So there is
no remedy, if the preventive remedy which
we ask, be not afforded oy the court.
If the act were invalid only in independ,
ent provisions, so that from the districts
coustitationalIy created, a lawful leglsia-
ture would be elected, the injunction per
| haps ought not to go, because there would
be a lawful Legislative tribunal created by
the constitution, to judge of the election
of TIE qualification and return of its mem
bers; but this proceeding is challenge to
the array, and if the contention which we
urge upon the court as to the constitutions
atty of chapter 482 be sustained, it is alb
solr teiy null and void.
Col Spooner then entered into an ex.
tended argument to demonstrate the juris.
diction of the court-that is, that it had
power to take cognizance Of the subject in
question. On that point Col. Spooner said
that with all respect for the learned coun-
sci who insists upon this contention, ii
seems to be too absurd to admit of argu-
ment. It cannot be denied that it is a
rule 50 universal as to be elementary, that
it is judicial function to determine finally
whether in a given case, the Legislature
has or has not, transcribed il power un,
der the constitution.
When counsel assert that this court has
no right to pass upon uestion as tc
whether, in the passage ofchapter 482, the
! legis lature has violated the constitution
he certainly takes upon himself the burden
of establishing an exception to the rule. l.
All apportionment act such
an exception? The constitutional
provisions we're then quoted
after which it was said that no sub ject
received more extended or careful conSid-
Grafton at the hands of the trainers Of the
constitution than did the sections relating
to opportionment and re-districting the
state into senate and assembly Districts.
No subject was more entitled to the grave
and anxious consideration of the trainers
of the constitution than this, for equality
in representation not only lies at the
foundation of representative government,
hut is itself, in large sense, representa-
tive government. Around the exercise OF
no Legislative power is there thrown
by the constitution so many
safe guards. Manifestly it was not
intended to be lett to the legislature-pos'
sibly to be swayed by partisan impulse,
possibly to become the prey of political
gamblers, to pursue its own sweet will
or caprice in apportioning and redistrict-
ing the members Of the senate and assem-
bly,.
These provisions, SO carefully framed,
are not directory; they are mandatory and
they must be so held. It is true that
courts have sometimes held statutory pro-
visions to be directory. This doctrine,
however, has its birth in necessi-
ty. 1t is a sort of judicial legis.
| lation, justified only by the