State v. Wrightson

28 A. 56, 56 N.J.L. 126, 27 Vroom 126, 1893 N.J. Sup. Ct. LEXIS 18

Opinion

The opinion of the court was delivered by

Depue, J.

The act of April 16th, 1846 (R. S., p. 409), entitled “An act to regulate elections,” by its first section enacted that on the Tuesday next after the first Monday in November in each year an election shall be held in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. The first act dividing counties into assembly districts was passed March 26th, 1852. Pamph. L., p. 281. This act was a supplement to the act to regulate elections. The second section of that act enacted that on' the day mentioned in the act of 1846 in each succeeding year an election should be held in each of the said assembly districts for one member of the general assembly, who “ shall be a resident in said district.” In 1861, at the session of the legislature held next after the federal census of 1860, an act was passed which was also a supplement to the act regulating elections, forming the several counties into as many assembly districts as said counties were respectively entitled to members of assembly. Pamph. L., p. 529. In 1871 a similar act was passed, with the title of “An act to reapportion the several assembly districts of the State of New Jersey.” Pamph. L., p. 45. By the General Election law of 1876 the first section of the General Election act of 1846 was amended by requiring an election to be held in the several election districts in each county to elect for such county such a number of persons to be members of the general assembly as such county shall be entitled to elect. Rev., p. 337. Supplements to the Apportionment act of 1871 were passed March 4th, 1878 [Pamph. L., pp. 40, 542); March 6th, 1878 [Id., p. 49); March 12th, 1878 [Id., p. 81); March 29th, 1878 [Id., p. 570); April 3d, 1878 [Id., p. 266); April 4th, 1878 [Id., p. 285); April 4th, 1878 [Id., p. 287); March 27th, 1889 [Id., p. 115). Of these acts all, with the exception of the act of April 3d, 1878, were alterations in several of the counties of the assembly districts established by the act of 1871; and the act of April 3d, 1878, appears to be a general act reconstructing the assembly districts in the state. In 1881 a general act was passed apportioning members of the assembly to the several counties in conformity with the federal census of 1880, and creating new assembly districts in each of the counties. Pamph. L.,p. 146. In 1891 another general act was passed making a new apportionment of members of assembly among the several counties in conformity with the census of 1890, creating new assembly districts in each of the counties. Pamph. L., p. 339. By several acts, passed respectively March 7th, 1892 (Id., p. 652); March 23d, 1892 (Id., p. 180); March 24th, 1892 (Id., p. 251), which were supplements of the general act of 1891, alterations were made in the assembly districts of the counties of Mercer, Cumberland and Burlington. None of this legislation after the act of 1852 contained an express provision for the election of one member of the assembly in each assembly district. But the second section of the act of 1852 has not been repealed, and that section expressly provided for the election of one member in each of the districts. The contention in behalf of the relators that although assembly districts are established, there is no law in existence which purports to confer the right to elect members of the assembly otherwise than by the counties respectively, is without substance.

The question, therefore, arises directly in this proceeding whether the act of 1891 prescribes a constitutional method of electing members of the general assembly. The consideration arising in limine concerns the right and power of the judiciary to take cognizance of the subject. The contention of counsel, in resisting the allowance of this writ, is that the question is a political question and not subject to judicial review. The constitution delegates to the legislative department of the government the function of providing for the election of members of the assembly in the manner and subject to the restrictions prescribed by the constitution. A statute in the performance of that function is the exercise of a legislative and not of a political power, and the constitutionality of the act by which that legislative power is exercised is a subject of judicial inquiry. State v. Cunningham, 51 N. W. Rep. 725; Parker v. State, 32 N. E. Rep. 836. The prosecutors who apply for this writ are citizens and legal voters in the county of Essex. The gravamen of their complaint is that, by the operation of the act of 1891, they are restricted in the exercise of the elective franchise in as full a manner as by the constitution they are entitled to enjoy it. The interest the relators have in the subject-matter of this controversy is sufficient to give them a standing in court to prosecute this writ. If the writ be allowed, its mandate will be directed not to members of the legislature, but to subordinate officers whose duties in connection with elections are purely ministerial. Recent decisions have furnished weighty precedents affirming the jurisdiction of the courts on the prosecution of citizens and voters over the constitutionality of acts of the legislature, making apportionments for the election of its members. State v. Cunningham, supra ; Giddings v. Blacker, 52 N. W. Rep. 944; Parker v. State, supra. In United States v. Ballin, 144 U. S. 1, the court entertained jurisdiction to pass upon the validity of a rule of the house of representatives for determining the presence of a quorum to transact business. In McPherson v. Blacker, 146 U. S. 1, the same court entertained jurisdiction to consider whether a statute of the State of Michigan, providing for the choice of presidential electors, was in contravention of the constitution. On the argument, counsel directly made the point that the controversy was not judicial because whatever decision that court or any other court might make as to the validity of the state law was subject to review by other political officers and agencies. To this argument Chief Justice Fuller, in delivering the opinion of the court, responded in this language: “ It is argued that the subject-matter of the controversy is not of judicial cognizance, because it is said that all questions connected with the election of a presidential elector are political in their nature, that the court has no power finally to dispose of them, and that its decision would be subject to review by political officers and agencies, as the state board of canvassers, the legislature in joint convention, and the governor, or, finally, the congress. * * * The question of the validity of this act as presented to us by the record is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the state as revised by our own.” In State v. Cunningham, Giddings v. Blacker and McPherson v. Blacker, the writs prayed for were to go to the secretary of state, commanding him to perform the ministerial duty of giving notice that, at the next general election, electors would be chosen in a certain manner.

By statute, the city and township clerks are to give public notice of the time and place and purpose of holding an election (Rev., p. 338, § 9), and, by the Ballot Reform act of 1890, it is made the duty of the clerk of the county to receive nominations and provide official ballots for the election of members of the assembly. Pamph. L., p. 361. The prayer of the petitioners is for a mandamus directed to these officers, in the alternative either to give notice, receive nominations, prepare ballots for the election of the number of members of assembly apportioned to the county of Essex by the whole body of the legal voters of the county, or to receive nominations, prepare ballots and give notice of an election of such members, in accordance with the assembly districts created by the act of 1881.

The map marked Exhibit R 12 shows the territorial location and extent of the assembly districts created by the act of 1891. The following table, compiled from the testimony, exhibits the population of these districts respectively and also the number of votes polled in each district at the election of 1892 and the majority of the member elected in each district:

MAJORITY. MAJORITY.

DISTRICT. POPULATION. VOTE—1892. DEM. REP.

First............. 18,616 3,381 521

Second........... 14,897 3,634 310

Third............. 11,349 3,209 587

Fourth........... 17,746 4,662 596

Fifth.............. 27,431 6,750 1,334

Sixth.............. 15,245 3,298 648

Seventh.......... 29,748 6,691 239

Eighth........... 25,600 5,137 ' 119

Ninth............. 24,872 6,386 2,130

Tenth............. 28,172 6,454 751

Eleventh......... 42,412 9,980 1,623

3,771 5,087

In this construction of districts, the eleventh district, with a population of forty-two thousand four hundred and twelve, and nine thousand nine hundred and eighty qualified voters, is allowed one member of assembly, and the third district, with a population of eleven thousand three hundred and forty-nine, and three thousand two hundred and nine voters, obtains an equal representation in the popular branch of the legislature. A qualified voter of the county of Essex, who <s casts his ballot in the third district, has, by this act, an effect h given to it equal to the ballots of three qualified voters of the * P county cast in the eleventh district. The inequality in the; f apportionment of the population and qualified voters of the|-j county among the districts by this act is conspicuous.

By the census of 1880, Essex county was entitled to ten members of assembly. The Apportionment act of 1881 created ten districts, having a population ranging from eighteen thousand six hundred and eighty-three to twenty-one thousand two hundred and fifty-three. The contention of the relators is that the apportionment among the several assembly districts by the act of 1881 was fair and reasonable, and that the apportionment by the act of 1891 is unjust and unreasonable, depriving the citizens of the county of the right of equal suffrage secured by the constitution. Hence, the alternative prayer of the petitioners is that a writ issue for an election of ten members of the assembly in the districts formed by the act of 1881 and of one member by the county at large.

We find insuperable obstacles in the way of judicial action of the scope last mentioned. If the legislature, having made an apportionment of members among the counties in conformity with the constitution, has the additional power to create districts within the county for the election of members, its power in that respect is unfettered by constitutional limitation, and consequently beyond the control of the judicial department of the government. The legislature may create new counties. The creation of a new county adds an additional member to the state senate. The power of creating new counties may be resorted to for political or other purposes inconsistent with public welfare, and may be oppressive to taxpayers on whom the burden of supporting a county government may fall, and yet no one would entertain the thought that the remedy for such an unwise or oppressive act vested in the judiciary. The eases in which the courts have intervened to set aside acts of the legislature creating election districts, have uniformly gone upon constitutional limitations which had been violated. I know of no precedent or principle that would authorize the court to overturn a law passed by the legislature within constitutional limitations, on the ground that it is unwise, impolitic, unjust or oppressive, or even that it was procured by corrupt means. The remedy for legislation that is simply pernicious in its character is with the people. I concur in the views submitted by defendants’ counsel in their brief that- “ the relators must show that the law they attack is a violation of constitutional limitations; the moment they step beyond that line of attack they are on political ground beyond the jurisdiction of the court.”

The issue, therefore, presented by the record in this case is whether, under the government established by the constitution, the members of the general assembly apportioned among the several counties may be elected otherwise than by the qualified voters of the county at large.

The constitutional provisions under consideration are contained in article 4, sections 1, 2 and 3, under the title of “Legislature,” and1 article 2, under the title.of “Bight of Suffrage.”

Paragraph 1 of section 1, article 4, provides that “the legislative power shall be vested in a senate and general assembly.” Section 2 provides that “ the senate shall be composed of one senator from each county in the state, elected by the legal voters of the counties respectively, for three years.” Section 3 provides that “ the general assembly shall be composed of members annually elected by the legal voters of the counties respectively, who.shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. The present apportionment shall continue until the next census of the United States shall have been taken, and an apportionment of members of the general assembly shall be made by the legislature at its first session after the next and every subsequent enumeration or census, and when made shall remain unaltered until another enumeration shall have been taken; provided, that each county shall at all times be entitled to one member, and the whole number of members shall never exceed sixty.” Paragraph 2 of article 4 provides that “no person shall be a member of the senate who shall not have attained the age of thirty years, and have been a citizen and inhabitant of the state for four years, and of the county for which he shall be chosen one year, next before his election; and no person shall be a member of the general assembly who shall not have attained the age of twenty-one years, and have been a citizen and inhabitant of the state for two years, and of the county for which he shall be chosen, one year next before his election.” Article 2, in providing for the right of suffrage, provides that “ every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people.”

Iii construing these constitutional provisions, the form of government antecedent to the adoption of the constitution, the manner in which the legislative department was organized and the mode of electing its members, are important adjuncts in ascertaining the intent of the framers- of the constitution.

By the instructions to Lord Cornbury and his commission, the instruments which in 1702 established a colonial government, a general assembly for the enacting of laws was constituted, consisting of twenty-four representatives to be chosen in manner following: Two by the inhabitants and householders in each of the towns of Berth Amboy, Burlington and Salem, ten by the freeholders of East Jersey, and ten by the freeholders of West Jersey. The qualification for the representatives of these divisions was an estate of freehold in “ the division for which he should be chosen,” and the general assembly was composed of persons “ elected by the major part of the freeholders of the respective counties and places.” Learn. & Spi. 619, 647. By an act passed April 4th, 1709, entitled “An act regulating the qualification of representatives to serve as general assembly in this province of New Jersey,” two representatives were assigned to the towns of Perth Amboy and Burlington respectively, and two to each of the counties into which the colony was divided. This act provided that these representatives should be chosen “by the majority of voices or votes of the freeholders of each county,” and that the “representatives for the counties aforesaid” should be freeholders in that division “for which he or they should be chosen.” Allin. L., p.Q. As new counties were created from time to time each county was given two representatives, to be chosen by the county for representatives of the county.

By the first constitution of this state, adopted July 3d, 1776, the legislative department was divided into two bodies— a legislative council and a general assembly—the members of which were chosen annually, one member of the legislative council and three members of assembly being chosen by each county. The language of that constitution is that “ the counties shall severally choose one person to be a member of the legislative council,” and “ each county shall also choose three members of assembly.” The qualification prescribed for the members of both the legislative bodies were, the member of the legislative council should be and have been, for one whole year next before the election, “ an inhabitant and freeholder in the county in which he is chosen,” and that no person should be entitled to a seat in the assembly unless he be and have been, for one whole year next before the election, an inhabitant of the county he is to represent.” The right of suffrage was provided for in these words: “All inhabitants of this colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote, for twelve months immediately preceding the election, shall be entitled to vote for representatives in council and assembly, and also for all other public officers that shall be elected by the people of the comity at large.”

The constitution of 1776 authorized the legislature to add to or diminish the number or proportion of the members of assembly for any county or counties, as it might judge equitable and proper, on the principles of more equal representation. From time to time acts were passed increasing or diminishing the number of members of assembly in several of the counties. But no effort was made to equalize representation on the basis of population until 1838, when an act was passed, entitled “An act to provide for the equal and just representation of the several counties in this state in the general assembly,” which enacted “ that after the next and each subsequent census of this state that shall be taken in pursuance of any law or laws of the congress of the United States, each comity of this state shall be entitled to elect and send to the general assembly one member for every six thousand inhabitants which such county shall contain at the time of taking such census, as near as may be; provided always, that no county shall have a less number of representatives than such county is now by law entitled to elect and send to the general assembly.” Pamph. L., p. 57. This act was in force when the constitution of 1844 was adopted, and the apportionment of members among the counties therein contained was by the constitution continued until the federal census next thereafter should be taken.

In all the legislation on this subject during colonial times, and in the constitution of 1776 and the legislation thereafter, antecedent to the convention which framed the present constitution, members of the popular branch of the legislature were regarded as representatives of the counties, chosen by the legal voters of the counties and qualified for the office by qualifications, having relation to the counties for which they were elected.

In the convention of 1844 the inequality of representation in the legislature was made the ground of serious complaint. As the result of the deliberations of that body, the equal representation of the several counties in the senate was retained, and equality of representation in the general assembly was provided for by the apportionment of members among the counties according to population. A comparison of the language of the old constitution and the constitution framed by the convention indicates that the purpose of the members of the convention was a modification in some particulars and not a radical change in the composition and selection of members of the legislative department. The old constitution provided that “each county shall choose” the members of assembly and that each qualified voter resident within the county should be entitled to vote for representatives in the assembly. The new constitution provides that the members of the general assembly shall be elected “ by the legal voters of the counties respectively.” The old constitution provided that no person should be entitled to a seat in the assembly unless he be and have been for one whole year next before the election an inhabitant of “ the county he is to represent.” The new constitution provides that no person shall be a member of the general assembly who shall not have * * * been a citizen and inhabitant * * * of the county for which he shall be chosen one year next before his election. In providing for the ratio of representation among the counties, the method of apportionment adopted in the new constitution was, in principle, in conformity with the act of 1838, which regulated the subject under the old constitution. Between the old constitution, with the provisions of the act of 1838 engrafted upon it, and the new constitution there is a similarity of language and expression that indicates that the framers of the latter intended no change in the representative character of members of the general assembly or in the mode of their election. In recasting the section in the old constitution providing for the right of suffrage, the words “for representatives in council and assembly ” were omitted. The new constitution having, in the section relating specifically to the election of these officers, expressly provided that senators and members of assembly should be elected “by the legal voters of the county,” the omitted words were superfluous. And for the words “ for all other public officers that shall be elected by the people of the county at large,” the new constitution substituted the expression “shall be entitled to vote for all officers that now are or hereafter may be elective by the people ”— an expression which includes officers elected in townships, wards and minor election districts as well as those officers who, by force of constitutional prescriptions, were made elective by the people, such as governor, senators, members of assembly, county clerks, surrogates, sheriffs, coroners and justices of the peace, accordingly as these constitutional officers were, by the constitution, made elective by the people of the state or by the legal voters of the counties or by the' people of the several townships.

The problem the members of the constitutional convention were dealing with was the equalization of representation in the popular branch of the legislature. The old constitution permitted the legislature in its discretion to add to or diminish the number or proportion of members of the assembly for the several counties. This discretionary power in the legislature was discarded in the new constitution, and the apportionment of members among the counties in proportion to population was substituted. In a popula! government representation in proportion to population extending over the area of a state is practically equivalent to representation on the basis of the number of qualified voters. A computation on either basis would in the main reach nearly the same result. And it is^ inconceivable that the distinguished body of men who com- 1 posed the constitutional convention should have contemplated an apportionment of members within the several counties by means of assembly districts, not in proportion to population or under any other restriction, which should give to one quali-i fied voter a voice in the election of members of the assembly equal to that of three or any indefinite number of voters who exercise their elective franchise at another voting place within ‘ the same county. For, as has been said, if the power to create these districts is possessed by the legislature, it is a power beyond constitutional restraints.

The provisions of. the federal constitution regulating the choice of presidential electors and the election of members of congress are not apt precedents for the construction of the provisions of our constitution for the election of senators and members of assembly. Paragraph 2 of section 1 of article 2 of the federal constitution provides that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors [to vote for president and vice-president] equal to the whole number of senators and representatives in congress.” The appointment of electors is left with the several states, to be exercised in such manner as the legislature may direct. Under this constitutional provision the legislatures of the several states have exclusive power to direct the manner in which presidential electors shall be appointed, whether by the legislature directly, or by popular vote in districts, or by general ticket. McPherson v. Blacker, 146 U. S. 1. In delivering the opinion of the court in the case last cited, Chief Justice Fuller said: “ The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.”

The provisions in the federal constitution for the election of members of congress are also expressed in general terms. Section 2 of article 1 provides that " the house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” And by section 4, "the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time by a law make or alter such regulation, except as to the places of choosing senators.” In the absence of the interposition of congress, the manner of electing representatives in congress is committed to the state legislature, with no other restriction than with respect to the qualifications of the electors. At the second session of the twenty-seventh congress an act was passed for the election of representatives in congress by districts. The debate upon the act was long and earnest. Two representatives of this state, Senator Miller, and Mr. Halsted in the house of representatives, participated in that debate. This discussion occurred in June, 1842. The constitutional convention assembled in May, 1844. The article of our constitution relating to the election of senators and members of the general assembly was reported by ex-Governor "VToom, than whom no one was more familiar with public affairs, state and national. If the convention which framed our constitution intended to adopt a mode of electing members of assembly in conformity with the election of members of congress under the federal constitution, it is reasonable to assume that, with the discussions in congress at the session of 1842 fresh in the minds of its members, the provisions of our constitution on that subject would have been cast in language of similar import with the federal constitution; and it is a significant circumstance that the language of the federal constitution which conferred discretionary po.wer on congress, was avoided • the discretionary power possessed by the legislature under the old constitution was taken away, and a fixed rule was adopted that the members of the general assembly should be apportioned among the counties in proportion to population, and be elected by the legal voters of the counties respectively.

Grouping together the phrases in which the intent of the constitution is expressed, I think its true construction is beyond controversy. Members of the general assembly are apportioned among the counties, the qualification for member-ship consists of citizenship of the county for which they shall be chosen, and they are to be elected by the legal voters of the county. The right of suffrage is granted to residents of the county, and each qualified voter is secured by constitutional prescription the right to vote for all officers elective by the people. Members of the general assembly are, by the constitutional regulation, elective by the legal voters of the counties, and every qualified voter who has for the specified period of time been a resident of the county in which he claims his right to vote is secured the right to a voice in the election of all officers which, by the constitution or otherwise, are elective by the class of legal voters to which he belongs. The constituency by which members of the general assembly shall be elected is designated by the constitution, and the qualifications requisite for the right of suffrage are therein prescribed, and also the elective franchise which shall be enjoyed by each qualified voter. These constitutional provisions were self-executing and also self-sustaining. North Ward National Bank v. Newark, 10 Vroom 380, 387, 388 ; S. C., 11 Id. 558. Nothing was left for legislative action except the apportionment of members among the counties in a fixed ratio and such regulations as were necessary for holding elections—the canvassing of the votes and the certification of the result. When the legislature has once made an apportionment of members to any county, the constituency by which the members so apportioned shall be elected, and the elective franchise of each of the legal voters by whom such members are elective, become subject to constitutional prescriptions which are beyond legislative control. The' first Apportionment act under the constitution apportioned the members among the counties without making any provision for the manner in which they should be elected. Pamph. L. 1851, p. 289. This act was not imperfect. Without legislative aid, the mode of electing the members apportioned by the act among the counties was completely provided for by the constitution, which, ex proprio vigore, determines how members apportioned among the counties should be elected.

Other constitutional provisions which provide for the election of other officers, shed a light on the subject under consideration. Paragraph 7, section 2, article 7, provides that coroners shall be elected by the people of their respective counties. Paragraph 1, section 7, article 6, provides that there may be elected two, and not more than five, justices of the peace in each of the townships of the several counties, and in each of the wards in cities that vote in wards, the number of justices of the peace a township or ward may have being determined by its population. Paragraph 8, section 2, article 7, provides that justices of the peace shall be elected by ballot at the annual town meetings of the townships and of the wards, and when elected they shall be commissioned for the county. In these provisions, as in that providing for-the election of members of assembly, the constitution prescribes the constituency by which coroners and justices of the peace shall be elected; and it could not be contended with any plausibility that an act of the legislature for the election of coroners in election districts, or for the election of the number of justices of the peace a township or ward is entitled to have in a corresponding number of election precincts, would comply with the constitutional mandate. It will be observed also that throughout the constitution the constituency by which every constitutional officer shall be chosen is defined with precision.

After a careful examination and the most attentive consideration of the important questions presented in this case, with the aid of the learned argument and elaborate briefs of counsel, in my judgment the election of members of assembly in assembly districts is a plain departure from the method of electing these representatives prescribed by the constitution. Instead of the eleven members apportioned to the county being elected by the legal voters of the county, one member is elected in each assembly district by the legal voters of that district arbitrarily created by the legislature. In the construction of statutes, it is a cardinal rule which applies as well to constitutional provisions, that when the law is in the affirmative, that a thing shall be done by certain persons or in a certain manner, this affirmative matter contains a negative that it shall not be done by other persons or in another manner, upon the maxim, “Expressio unius est exclusio altemus." 1 Plowd. 206, 207; 9 Bac. Abr. 235; Bedgw. Stat. Const. 30. Where the constitution prescribes the manner in which an officer shall be appointed or elected, the constitutional prescription is exclusive, and it is not competent for the legislature to provide any other mode of obtaining or holding the office. Cooley Const. Lim. 78, note 3; People v. Albertson, 55 N. Y. 50, 56; People v. Bull, 46 Id. 57, 63; 19 Am. & Eng. Enoycl. L. 416, tit. “Public’Officers.” The election of one member in one assembly district and one member in another district, and so on through the eleven districts into which the county is divided, is not the election of the members of the general assembly apportioned among the counties by the legal voters of the county. The constituency devised by the system of assembly districts is another and a different constituency frcjm that prescribed by the constitution j and the qualified voters of the county are restricted in the exercise of the right of suffrage as fully as is guaranteed to them by the constitution. It seems to me that it cannot be affirmed on any defensible ground that a member of assembly chosen by the voters of an election district within the county is, in the words of the constitution, “ elected by the legal voters of the county.” An act of the legislature providing that each qualified voter of the county should vote for only one of the members apportioned to the county, would be plainly unconstitutional. The assembly district system differs only in form. It segregates the qualified voters of the county into classes and allows each qualified voter of the class to vote for only one of the members apportioned to the county.

It is contended, in the first place, that the constitutionality of legislation for the election of members of the general assembly in assembly districts is res adjudicata. To sustain this contention, Gardner v. Newark, 11 Vroom, 297, was cited. The proceeding in that case was an application for a mandamus to compel the mayor and common council of the city of Newark to divide the city into wards corresponding in number and boundaries with the assembly districts created by the act of April 5th, 1878. Tbe application was denied on the ground that acts creating legislative districts were public acts, and did not go into operation until the 4th of July succeeding the time they were passed. The case was argued at June Term, 1878, and prior to the date when the act of April 5th, 1878, became effective. It appears by the brief of the counsel of the relator in that case that the power of the legislature to divide counties into assembly districts was not put in dispute. His contention was that this power could be exercised only at the time the apportionment of members among the counties was made—that is, at the session next after the federal census—and that the districts then formed must remain unaltered until the time arrived for the next apportionment. It was to the aspect in which the question was presented by counsel that the remarks of Mr. Justice Reed with respect to the unfettered power of the legislature to direct the method in which members apportioned among the counties should be elected, were directed. The case was decided on other grounds. In June Term, 1890, the constitutionality of the assembly districting acts was mooted before the Court of Errors and Appeals in Mortland v. Christian, 23 Vroom 521. In that case the proceeding was in quo warranto, to test the defendant’s title to the office of chosen freeholder, under an election pursuant to an act of the legislature which provided for the election of chosen freeholders in assembly districts. In this case, as well as in Gardner v. Newark, the constitutionality of acts creating assembly districts arose collaterally. The title of the defendant to the office under such an election was sustained. But Mr. Justice' Garrison, in delivering the opinion of the court, used this language: “ Referring to the suggestion made on the argument, that the assembly districts which, by this act, are referred to as the precincts for the election of freeholders, were not legal legislative creations, inasmuch as the constitution contains no intimation but that members of assembly shall be chosen by the counties at large, it is sufficient to say that we are not now concerned with the legality of such subdivisions of counties. The act under review refers to these districts for the purpose of defining a territorial limit. Such precincts or assembly districts do exist, whether legally or not, and to each of these de facto districts a freeholder is assigned. Beyond this we need not at this time go.” And the headnote prefixed to the case, prepared by the learned judge who delivered the opinion of the court, is as follows: “ Quaere— whether assembly districts may have any legal existence as political subdivisions of the county.” Gardner v. Newark, although decided twelve years before, was not referred to by the court. With this judicial action of the highest court in the state, we are not at liberty to treat this question as res adjudicata.

The contention in the next place is, that the purpose and intent of these constitutional provisions have, by contemporaneous construction, long usage and practical interpretation, become established, and at this day the subject is not open for discussion.

Eor the first eight years after the new constitution was adopted—from the fall of 1844 to the fall of 1851 inclusive— the members of assembly were elected by the counties at large. This may be said to be the contemporaneous exposition of the constitution. The act of March, 1852, first created assembly districts. This act remained in force until after the census of 1860, when, by the act of 1861, a new apportionment among the counties was made, and to some .extent a corresponding change in assembly districts. The districts created by the acts of 1852 and 1861, which continued to exist until 1871, conformed to county and the then existing township and ward lines. No criticism has been made upon the fairhess and equality in population with which these districts •were constructed. If the practical interpretation for the years from 1852 to 1870 inclusive gave construction to the constitution, that construction will not sustain the act of 1891. The result of the districting in the county of Essex by that act has already been stated. The districts into which the county was divided are unequal in population, and the legal voters of the county are so adjusted in the several districts that of the eleven members apportioned to the county, eight members are elected by majorities aggregating three thousand seven hundred and seventy-one votes, and the other three by majorities aggregating five thousand and eighty-seven votes. The inequalities in other counties appear by map A on the part of the relators, conspicuous among which are. those in the counties of Burlington and Camden—Burlington being divided into two districts, with the population respectively of twenty-two thousand five hundred and fifty-five and thirty-four thousand two hundred and four; Camden into three districts, with the population respectively of sixty-one thousand five hundred and ten, fifteen thousand five hundred and six, and ten thousand six hundred and seventy-one.

A new system of constructing assembly districts was introduced by the act of 1871, plainly for the furtherance of political purposes. Township, ward and city lines were disregarded, and assembly districts were carved out within the counties without regard to population, and were so devised, by massing together the qualified voters of one political party, as to secure to the minority of qualified voters of the county an unjust advantage in the choice of members of the assem bly—the members of that body, representing counties, being no longer “ elected by the legal voters of the counties respectively.” This was conspicuously, but not exclusively, the case in the county of Hudson. Exhibit No. 9 on the part of the defendants discloses the result of the first election under that act, and the return of the votes in the second election district of that county illustrates the object that may be effectuated by the arbitrary establishment of districts that shall mass in one district a great body of the qualified voters of one political party. The “ Horseshoe District ” is as well known in this state as a synonym for (to use a subdued expression) unfair political methods as is the word “gerrymander” throughout the United States. At the legislative session of 1878, seven different acts were passed altering assembly districts in the several counties. In 1881 a new apportionment was made and new districts were created, some of which were remodeled in 1889. In 1891 there was a new apportionment among the counties and new assembly districts were created, and in 1892 three acts were passed altering the districts in three counties. The maps and election returns made exhibits in this case show districts with areas of grotesque shapes—inequalities in population and the massing in districts of the voters of one political party to overcome the constitutional rights of the legal voters of the counties to equality in the choice of representatives of the county in the general assembly.

The maps and exhibits which, by the written stipulation of counsel, are evidence in these cases, exhibit the capacity that lies in the assembly district system to enable the political party that happens to control the legislature to provide means for its continuance in power. Certain it is that if the legislative usage and practice, beginning in 1871 and coming down to the present time, has established a construction of the constitution that is now a finality, then it must be conceded that the legislative power and discretion in the premises are unqualified and unrestrained; and, to adopt the language of the brief of the defendants’ counsel: “There is not any constitutional restriction upon the lawmaking power controlling or directing the subdivision of counties into assembly districts. The division may be fair or unfair, equal or unequal, proportionate or disproportionate, and this court may not review the exercise of that power.”

How far contemporaneous exposition, long usage and practical interpretation shall control in the construction of constitutional provisions, is the vital question on this branch of the case.

Contemporaneous construction and long usage, and especially the practical interpretation by the various departments of the government, are entitled to great weight in the construction of constitutional provisions. But it is only when the words of the constitution are of doubtful significance, or the meaning is obscure, that resort to extraneous aid is permissible. Mr. Justice Story, in his treatise on the Constitution, says: “ When its terms are plain, clear and determinate, they require no interpretation, and it should therefore be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence or to guard against some fatal evil.” And, again: “ Contemporary construction is properly resorted to to illustrate and confirm the text, to explain a doubtful phrase or to expound an obscure clause. * * * It can never abrogate the text; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” 1 Story Const., §§ 405, 407.

The case most frequently cited to illustrate the effect of contemporaneous construction, long use and practical interpretation in the construction of constitutional provisions is Stuart v. Laird, 1 Cranch 299. Congress passed an act establishing Circuit Courts and designated the justices of the Supreme Court to hold the circuits. The question before the court was whether congress possessed the power to assign justices of the Supreme Court to hold Circuit Courts, or whether the judges of those courts should be specially appointed as such and have distinct commissions for that purpose. The only provisions of the federal constitution relating to the organizing of courts and the mode of appointment are those that provide that the judicial power of the United States should be vested in one Supreme Court and such inferior courts as congress may from time to time ordain and establish, and that the power of appointing judges of the Supreme Court and all other officers of the United States whose appointments were not therein otherwise provided for should vest in the president, by and with the advice and consent of the senate. The constitution had nowhere defined the duties of the justices of the Supreme Court; nor did it contain any express designation of the persons by whom the inferior courts established by congress should be held. The only other provision there was on the subject was that the judges both of the Supreme and inferior courts should hold office during good behavior, and should receive a compensation which should not be diminished during their continuance in office. It being left undefined in the constitution by what judges these courts should be held, the court considered the practical exposition, by long practice and acquiescence, to have fixed the construction of the constitution in a matter which the language of that instrument left in a state of. uncertainty. Rogers v. Goodwin, 2 Mass. 475, is another case in the same line of decision. A statute passed in 1636 authorized the freemen of every town to dispose of their lands, and in the preamble of another statute, passed in 1753, it was recited that the proprietors of lands lying in common have power “ to manage, dispose and divide the same in such way and manner as hath been or shall be concluded and agreed on by the major part of the interested.” Under this authority the proprietors of the town made conveyance by deed to a stranger. The point relied on against the validity of this deed was that the proprietors had no authority to sell lands to a stranger. The conveyance was sustained on the legal ground that long and continued usage furnished a contemporaneous construction, which must prevail over the mere technical import of the words. It will be observed that the statute in question contained no provision with respect to the manner in which com jnon lands should be disposed of. The act was silent on that subject. Neither of these cases is pertinent to the subject under discussion, for the constitutional provisions under consideration expressly provide that members of the assembly shall be elected by the legal voters of the county, and qualified voters resident in the county are declared to be entitled to vote for all officers elective by the people.

Judge Cooley states the controlling principle in this language : “ Where no ambiguity or doubt appears in the law, the same rule obtains here as in other cases, that the court should confine its attention to the' law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the lawmakers.” And' the same learned jurist, after citing Stuart v. Laird, Rogers v. Goodwin, and other cases of similar import, which the author says appear on first reading not to have observed proper limitations, concludes his observations in these words: “It is believed, however, that in each of these eases an examination of the constitution left in the minds of the judges sufficient doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are' not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the constitution was designed to guard against appearing, or without anyone being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the constitution. We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed.” Cooley Const, Lim. 84, 85.

An examination of the cases in the Supreme Court of the United States will disclose the fact that long usage, contemporaneous construction and practical interpretation have been resorted to in construing statutes and constitutional provisions only to ascertain the meaning of technical terms, or to confirm a construction deduced from the language of the instrument, or explain a doubtful phrase, or to expound an instrument obscurely expressed and of uncertain meaning. Colder v. Bull, 3 Dall. 386; United States v. Wilson, 7 Pet. 150; Martin v. Hunter’s Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Id. 264; United States v. Dickson, 15 Pet. 141, 161; Prigg v. Commonwealth of Pennsylvania, 16 Id. 539, 621, 622; Cooley v. Board of Wardens, 12 How. 299, 314, 315; Hahn v. United States, 107 U. S. 402, 406; Lithographic Co. v. Sarony, 111 Id. 53, 56, 57; Brown v. United States, 113 Id. 568, 571; McPherson v. Blacker, 146 Id. 1, 27. In United States v. Dickson Mr. Justice Story said : “The construction given by the treasury department to any law affecting its arrangements and concerns is certainly entitled to great respect. Still, however, if it is not in conformity to the true.intendment and provisions of the law, it cannot be permitted to conclude the judgment of a court of justice. * * * It is not to be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it by the constitution the solemn duty to interpret the laws in the last resort; and however disagreeable that duty may be in cases where our judgment shall differ from that of other high functionaries, it is not our liberty to surrender or to waive it.” These observations were made by a learned jurist with respect, to the construction of statutes which are laws subject to alteration or repeal at any time in the discretion of the legislative department of the government. They apply with irresistible forcé to the fundamental instrument of government—the constitution—the supreme and irresistible power to make or unmake which (to quote the language of Chief Justice Mai’shall in Cohen v. Virginia) “ resides only in the whole body of the people, and not in any subdivisions of them.”

In this state the rule of construction is stated with accuracy rand discrimination in State v. Kelsey, 15 Vroom 1. The subject is discussed by the Chief Justice in his opinion (atp. 22), -and by Mr. Justice Magie in his dissenting opinion (at _p. 47), with a citation of authorities. The conclusion reached by the court is stated in the head-note as follows: “A statute of uncertain meaning, which has been enforced in a certain sense for a long series of years by the different departments of goernment, will be judicially construed in that sense.”. The majority of the court, finding the language of the statute broad •enough to embrace the meaning contended for, permitted a practical construction of it to that effect for more than fifty years to prevail.

The subject was again brought under judicial decision in Engeman v. State, 25 Vroom 247. The question before the court in that instance was 'the constitutionality of an act of the legislature, passed in 1855, making justices of the Supreme Court ex offioio judges of the Court of Common Pleas, Orphans’ Court and Court of Quarter Sessions. State v. Kelsey was cited with approbation by Mr. Justice Van Syckel, in delivering the opinion of the court. But it will be observed that the learned judge (at p. 252) lays particular stress upon the fact that the constitution gave the legislature power to alter or abolish all these courts, as the public good might require; and that the power to alter or abolish seemed necessarily to imply and carry with it authority to change or modify the structure of the court, as well in the mode of appointment as in the number of the judges. The leárned judge therefore concluded that the power of the legislature over the controverted subject was unrestrained by the fundamental law. To such a condition of affairs, State v. Kelsey was properly applied. Neither of these precedents •can be invoked as justifying long usage or practical interpretation as controlling the construction of constitutional or statu tory law, unless under the exceptional circumstances above mentioned.

Nor are we without precedents directly affirming the' domination of the constitution, notwithstanding long usage and practical construction to the contrary and the most conclusive arguments ab inconvenienü. I refer to Dred Scott v. Sandford, 19 How. 393, and Hepburn v. Griswold, 8 Wall. 603. In the first of these cases the federal court, in 1856, decided that the eighth section of an act of congress passed in 1820, and known as the Missouri Compromise act, which prohibited slavery in all that part of the territory ceded by France under the name of Louisiana, lying north of the line of thirty-six degrees and thirty minutes, not included within the limits of Missouri, was unconstitutional-and void, notwithstanding the fact that the act was designed as a final settlement of the agitation of the slavery question, and a state had been admitted into the Union under its provisions, and that congress, from its first session down to the year 1848, had repeatedly exercised the power which was denied by that decision, and notwithstanding the doctrine of a practical construction continued through a long series of years, was invoked by the dissentient judges. The keynote of that decision is expressed by the Chief Justice (at p. 426) in these words : “No one, we presume, supposes that any change in public opinion or feeling should'induee the court to give to the words of the constitution a more liberal construction than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended, but while it remains unaltered' it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make 'it the mere reflex of the popular opinion or passion of the day.” Whatever criticisms were made upon the result of this decision or its policy, in the discussions that followed its promulgation, the soundness of the doctrine of the supremacy of the constitution whenever invoked, so forcibly expressed by the Chief Justice, has never been denied or impugned.

In Hepburn v. Griswold, acts of congress passed in 1862 and 1863, making treasury notes of the United States a legal tender for debts, were in 1869. declared to be unconstitutional. This decision was subsequently overruled in the Legal Tender Cases, 12 Wall. 457. But in both of these cases the court rested its opinion on the language in which the constitutional grant of power to congress was expressed. In the decision of the latter case, Mr. Justice Strong, in delivering the opinion of the court, refers to the situation of the country at the time these acts were passed, and the “ great business derangement, widespread distress and rank injustice” that would result if these acts were held to be invalid; but he adds: “ The consequences of which we have spoken, serious as they are, must be accepted if there is a clear incompatibility between the constitution and the Legal Tender acts.” The authority of congress to pass the acts in question was, in the opinion of the court (at pp. 533, 534), deduced from the last clause of the eighth section of the first article of the constitution, granting the power to congress to make all laws which should be necessary and proper for carrying into execution the powers by the constitution conferred upon congress. “The means or instrumentalities referred to'in that clause, and authorized (it was said by the learned judge who prepared the opinion of the court), are not enumerated or defined; * * * they were left to the discretion of congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to congress.”

Precedents of the same import are numerous in the federal and state courts. I have cited Scott v. Sandford and Hepburn v. Griswold for the reason that the interests involved in these cases gave these decisions a conspicuous place in the domaifl of constitutional law.

The constitution contains the permanent will of the people. It is paramount to the power of the legislature, and can be revoked or altered only by the power which created it. Popular government can be maintained only by upholding the constitution at all times and on all occasions as it was when it came from the hands of 'the people, by whose fiat it was established as the fundamental articles of government, to abide until altered by the authority which created it. To adopt the language of Chief Justice Bronson, in Oalkey v. Aspinwall, 3 N. Y. 568 : “There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. * * * One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.”

Within the domain of construction there is room for argument and discussion—nay, even for a diversity of opinion; but when the meaning of the constitution, interpreted by its letter and in its spirit, is ascertained, extraneous considerations are of no avail. In the process of construction, long usage and practical interpretation are entitled to great weight if the language be obscure or doubtful; but such extraneous considerations cannot be allowed “to abrogate the text” or “ fritter away its obvious sense.”

I have already said that, on a construction of the words of the constitutional provision regulating this subject, fortified by the policy and institutions which prevailed in this state prior to the framing of the constitution, and a comparison of other of its provisions, the constitutional mandate requires the election of members of the general assembly by the legal voters of the counties respectively, and that the division of counties into assembly districts and the distribution of the members among these districts for the purpose of electing such members is in conflict with the constitutional mandate. No one can examine the legislation on this subject from 1871 to the ■ present time and contemplate the results without realizing the evils which have been fostered under this system. Eelief from these wrongs through the ballot-box cannot be assured, the majority in the legislature being elected under this system by a minority of the legal voters of the state. Precedent has been followed by retaliation, to be repeated from time to time as supremacy in the legislature has passed from one political party to the other. For this condition of affairs the only remedy is by a return to constitutional methods. If it be that the election of members of the general assembly in districts furnishes a more perfect system of popular representation in the popular branch of the legislature, the change devolves upon the people who made, and who alone can alter the constitutional method of electing these representatives; and it may be affirmed with considerable confidence, that if such a power be conferred upon the legislature it will be accompanied with qualifications and conditions that will secure to each qualified voter equality in the election of representatives, as nearly as may be.

The remaining question is whether these proceedings were prematurely instituted, the contention being that a previous demand and refusal to perform a duty are essential to an application for a mandamus in any case and under all circumstances.

There is a distinction between duties of a public nature and duties of a private nature affecting only the rights of individuals. In the latter class of cases demand and refusal are held to be necessary as a condition precedent to relief by mandamus. In the former class, the duty being of a public nature, there is not the same necessity, for a literal demand and refusal. In such cases the law itself stands in lieu of a demand, and omission to perform the required duty is an equivalent for a refusal. High Mand., § 13.

To postpone the commencement of these proceedings until the time preceding the annual elections, at which the county clerk and the clerks of the cities and townships of the county are required to perform the duties devolved upon them under the election laws, would effectually prevent proceedings then instituted being practically, of any avail. The testimony of the county clerk and of other election officers taken under: this rule makes it apparent that these officials intend to conduct elections in the county, under the act of 1891, until otherwise directed, so long as that act is unrepealed. Indeed, the presumption is not to be entertained that these officers would, on constitutional grounds, disregard an act of legislation conforming to precedents of upwards of twenty years’ standing, unless the invalidity of the act be first judicially determined. In McPherson v. Blacker, the writ was allowed '■ on the answer of the secretary of state, denying that he had' refused to give the notice of election required by the petition for the writ, but averring that he intended to give notices under the law the constitutionality of which was assailed, as will appear by the report of the case in 146 U. S. 3.

The rule to, show cause should be made absolute for a peremptory mandamus commanding that all future general elections for members of the general assembly, in the county of Essex, shall be so conducted that such members shall be voted for throughout the .county, as prayed for by the relators. To this extent the rule to show cause is made absolute, without costs.

Justices Reed and Lippincoxt concur in this opinion.