from issuing election notices or filing returns under the new necessary, or even proper, to do so, because of the fact that a county could not be divided. The twenty-seventh and twenty-ninth districts lie contiguous to each other, so that there was no excuse for putting 97,330 people in one and only 40,033 in the other. "The senatorial apportionments of 1891 and 1885, which are before us, so that we are compelled to examine them, were neither of them arranged in view of the Constitution or the rights of the electors of this State. While it is true that the motive of an act need not be inquired into to test its constitutionality. I believe that the time for plain speaking has arrived in relation to the outrageous practice of gerrymandering, which has become so common, and has so long been indulged in, without rebuke, that it threatens not only the peace of the people, but the permanency of our free institutions. The courts alone, in this respect, can save the rights of the people, and give to them a fair count and equality in representation. It has been demonstrated that the people themselves cannot right this wrong. They may change the political majority in the Legislature, as they have often done, but the new majority proceeds at once to make an apportionment in the interest of its party, as unequal and politically vicious as the one that it repeals. There is not an intelligent school boy but knows what is the motive of these legislative apportionments, and it is idle for the courts to excuse the action upon other grounds, or to keep silent as to the real reason, which is nothing more nor less than partisan advantage taken in defiance of the Constitution, and in utter disregard of the rights of the citizen. Take our own State for example. In the election of 1884, the Republican candidate for Secretary of State had a plurality of 4,383 out of a total vote of 401,003. The Republican majority in the Legisla ture of 1885 arranged the senatorial districts so that, upon the vote of 1884, 21 were Republican and 11 were Democratic. In eight districts a population of 316,578 are given the same representation in the Senate as are 532,222 people in eight other districts. The Upper Peninsula, with Emmet and Mackinac Counties added, is given three Senators, when it is only entitled to two; the population of the three districts thirtieth, thirty-first and thirty-secondcombined being 124,580, and the ratio 61,125. In 1890, the Democratic candidate for Secretary of State received a plurality of 2,706 over the Republican candidate in a total vote of 398,611, and the Democratic majority in the Legislature of 1891 apportioned the senatorial districts so that, on the basis of the vote of 1890, 21 were Democratic and 11 Republican. As shown by Mr. Justice Grant, three districts were so divided that in eight of them a population of 349,156 have the same representation as 695,717 in eight other districts, and, in order to aid this inequality, the county of Saginaw is divided into two districts, when it is only entitled to one under the Constitution. It will thus be seen that, upon a plurality of less than 5,000 in a total vote of about 400,000, each of these political parties has so gerrymandered these senatorial districts that each has 21 senatorial districts to 11 of the other. If permitted to continue in this kind of business, the next Legislature to apportion Senators, if its political complexion should be different from the last, following in the footsteps of its predecessors, will easily change the figures about again, and give its party the 21 senators and the other the 11. It is time to stop it. And the citizen has the right to appeal to the Court in defense of his most sacred rights under the Constitution. He cannot be obliged to wait for prosecuting attorneys or the Attorney-General. It is as well a pri law.13 It has been held that a private citizen, who is a resident of a locality unconstitutionally deprived of its due proportion of representation by the apportionment, can obtain such a mandamus.14 Where so much of the apportionment act as legally passed the vate as a public grievance; and the individual elector can invoke the aid of the Court in his own behalf, and call attention also to the existence of a great public wrong. "There is no higher privilege granted to the citizen of a free country than the right of equal suffrage, and thereby to an equal representation in the making and administration of the laws of the land. Under our State Constitution the right of the elector is fixed. To him equal representation is a right as well as a privilege, of which the Legislature cannot deprive him. These wrongs have been committed for partisan purposes. Their object and effect have been to deprive the majority of the people of their will in the administration of the government. The greatest danger to our free institutions lies today in this direction. By this system of gerrymandering, if permitted, a political party may control for years the government, against the wishes, protests, and votes of a majority of the people of the State, each Legislature, chosen by such means, perpetuating its political power by the like legislation from one apportionment to another. "We have been obliged, under the issue here made, to investigate but two apportionments, those of 1891 and 1885. Both are tarred with the same stick. We do not care to go further, since there is a remedy in the hands of the Executive and Legislature. The consequences of this decision are not for us. It is our duty to declare the law, to point out the invasion of the Constitution, and to forbid it." In North Carolina v. Van Bokelen, 73 N. C., 198; an act amending a city charter was held invalid because of an unfair apportionment of aldermen therein contained. The court said: "So much of said act as gives to each of the first and second wards, with 400 votes each a representative of three aldermen, and to the third ward with 2,800 votes, also a like representative of three aldermen, violates the fundamental principles of our Constitution and is therefore void." In Parker v. State, ex rel. Powell, 133 Indiana, 178; s. c. 32 N. E. Rep., 836; s. c., on motion for rehearing 133 Indiana, 212; 33 N. E. Rep., 119; the Indiana apportionments of 1879, 1885 and 1891 were held unconstitutional; but since the relator sought on account of the unconstitutionality of the last two to have the election held under the first, which was also void, his application was denied. The Act of 1891 provided for 50 senators. As the voters were 551,048, an equal apportionment gave one senator to each 11,020 voters. 40 counties were formed into 22 senatorial districts. 11 of those districts contained 23 counties and 148,496 voters. The other 11 contained 20 counties and 99,609 voters. Each of them had the same number of senators, one to each district. The apportionment was held unconstitutional. 18 State ex rel. Attorney-General v. Cunningham, 81 Wis., 440; Board of Supervisors of the County of Houghton, 92 Mich., 638; s. c. 52 N. W. Rep., 951; Giddings v. Blacker, Secretary of State, 93 Mich., 1; s. c. 52 N. W. Rep., 944; People ex rel. Carter v. Rice, 135 N. Y., 473. 14 Giddings v. Blacker, Secretary of State, 93 Mich., 1; Nebraska v. Singleton, 24 Nebraska, 586; see also People ex rel. Daley v. Rice, 129 N. Y., 449. legislature omitted any grant of representation to the inhabitants of a particular county, the court held that that county should retain the representation which it held under the preceding apportionment; and that so much of the act as had legally passed and provided for representation to the remainder of the State, should be enforced.15 As a general rule, the State constitutions provide for a periodical apportionment after each new enumeration of their respective inhabitants. It has been held that in the intervening time no new apportionment can be made, either directly or by such a change in the boundaries of a political subdivision of the State as to change the different assembly or senatorial districts; 16 or to deprive part of the State of representation; but in one case an act was sustained, which, after the new enumeration, but before the new apportionment, enlarged the boundaries of a city so as to include territory in one district which formerly belonged to another.18 Whether the courts should respect the acts passed by the votes of representatives from districts not entitled to them by a constitutional apportionment, is a doubtful question.19 § 67. The Census. The Constitution directs that "the actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”1 In The first reported census was that by the emperor Yee in China, 2043 B. C.;2 unless that of the Hebrews made by Moses in the wilderness and described in the book of Numbers was earlier. Rome, for the purpose of the division of the citizens into classes and centuries, an enumeration was taken every five years and followed by a sacrifice of purification or lustration, from which the 15 Nebraska v. Singleton, 24 Neb., 586. But see Ballentine v. Willey, 2 Idaho, 1208; s. c. 31 Pac. Rep., 944. 16 Kinney v. Syracuse, 30 Barbour (N. Y.), 349; Opinion of Judges, 33 Maine, 587. 17 Warren v. Mayor, 2 Gray (Mass.), 84. Murphy v. Ehey (Maryland), 2 Atl. Rep., 993; McPherson v. Bartlett, 65 Cal., 577; s. c. 4 Pac. Rep., 582. But see People v. Pendegast, 96 Cal., 289; s. c. 31 Pac. Rep., 103; People v. Markham, 96 Cal., 262; s. c. 31 Pac. Rep., 102. 18 Attorney-General v. Bradley, 36 Mich., 447. 19 Compare State v. Francis, 26 Kansas, 724; and 10 Gray, 613; with Baird v. Supervisors, 138 N. Y., 95, 111. § 67. 1 Article I, Section 2. 2 Appleton's Encyclopædia. period derived the name of a lustrum. The name of census was derived from the officer in charge, an estimator or censor. In continental Europe, for the purpose of administration and police, such enumerations were taken irregularly or at stated intervals. During the eighteenth century 3 none was taken in England, however; and the first English census seems to have been that of 1801.1 The committee on revenue under the Articles of Confederation recommended an amendment to provide for a triennial numbering of the inhabitants for the purpose of the apportionment of taxation. In the Federal Convention various propositions concerning the time of the census were submitted. That of fifteen years was first adopted. A term of twenty years was then suggested, but the proposition was rejected; and ten years chosen by the votes of eight States to two. 8 The direct and declared object of the census is to furnish a standard by which representatives and direct taxes may be apportioned among the several States which may be included in the Union; but its functions have been extended so that the government now collects at the same time statistics of all kinds. Under similar provisions in different State constitutions general statistics have also been usually collected. Governor David B. Hill of New York in 1885 vetoed a bill for a State census upon the ground that it provided for the collection of other statistics besides an enumeration of the inhabitants of the State.9 A Federal district judge dismissed as not supported by the acts of Congress, an indictment against an officer of a lumber company for his refusal to answer questions concerning its capital and business asked by officers taking the census of 1890. He said: "It may not be amiss to suggest that there may be a limit to the power of congress to compel a citizen to disclose information concerning his business undertakings, and the manner in which they are carried This limit must relate, not only to the kind of information he may properly refuse to disclose, because it may be equivalent to the appro on. priation of private property for public use without just compensation, but also to the extent of the information required, as well as to the time within which it shall be given. Certain kinds of information valuable to the public and useful to the legislative branches of the government as the basis for proper laws have heretofore been voluntarily given, and may properly be required from the citizen, when it is not of property value, or when the collection, compilation, and preparation thereof does not impose great expense and labor for which compensation is not provided. It is not infrequent, however, that answers to questions propounded in some schedules, if fully and properly prepared, involve the collection and compilation of facts that require the labor of a large force of clerks for days and weeks, entailing great expense and embarrassment to the ordinary business of the citizen. Is it within the power of congress to make such answers compulsory, and require the citizen to neglect his usual business, with loss, and to prepare this information at a great personal expense, without proper compensation? Or if a citizen, by his long experience in a special line of business, and by his superior organizing and adminstrative ability, has so systematized it that he can carry it on at a much less expense and with greater facility than others, is it right to compel him to disclose the information so acquired, and thereby open to his rivals in trade the methods by which he has been able to outstrip them in the sharp competition for business? Is not the system so established, and the knowledge so acquired, as much a property right to him as the land and shop in which he conducts his business? and can he be compelled to part with the former without due compensation more justly than with the latter? The zeal with which such information is sometimes solicited to maintain favorite theories of public officials, or to afford the basis for discussing economical questions, often leads to excesses, and imposes upon the citizen duties for which no just compensation is afforded, either in money, or in his proportion of the reward of the good results to follow to the public. As before stated, when such information is required as the basis for proper legislation or the just enforcement of the public laws, the power to compel its disclosure may exist, and, if unusual expense attends its preparation, proper remuneration to the citizen can be made; but the suggestion that information having a property value may be demanded, which the citizen may not be obliged to impart without due compensation, so earnestly impressed by the learned counsel in this case, still remains undisposed of, and a proper subject for consideration by congress in the future legislation that may be needed to enforce such demands by the census bureau. Of course, these suggestions are not in |