silent as to the number of senators and assemblymen, the census, the apportionment, and the formation of senate and assembly districts, it is quite obvious that the legislature would have possessed the discretionary powers suggested. It was because the framers of the constitution were unwilling to vest such discretionary and unlimited powers in the legislature that they prescribed specific methods, restrictions, and limitations upon the exercise of such powers. Thus the constitution expressly provides that "the number of the members of the assembly shall never be less than fifty-four nor more than one hundred ": Sec. 2, art. 4. Here is a discretion in the legislature, in making an apportionment or otherwise, to fix the number of assemblymen at fifty-four or one hundred, or any number between those figures; but should they attempt to fix the number at only fifty-three or less, or one hundred and one or more, it is very manifest that the enactment would be a simple nullity, for want of power to make it. So by the same section it is provided that "the senate shall consist of a number not more than one-third nor less than one-fourth of the number of the members of the assembly." Here is a discretion left in the legislature, but it is limited to the two fractions named, or some intermediate number, but any attempt to constitute a senate of a greater or less number than thus authorized would obviously be repugnant to the constitution and void.

Leaving out matters not relevant here, and section 4 of the same article, as amended, provides that "the members of the assembly shall be chosen biennially, by single districts, .... by the qualified electors of the several districts; such districts to be bounded by county, . . . . town, or ward lines, to consist of contiguous territory, and be in as compact form as practicable." It is obvious from this that the number of districts must be the same as the number of members; that the qualified electors of each district have power to elect one member, and no more; that neither a town nor a ward can be divided in the formation of an assembly district; so that each town, and the whole of it, must be in some one assembly district, and each ward, and the whole of it, must be in some one assembly district. It was determined in the former case, and is now conceded, that no county line is to be broken in the formation of any assembly district. This section also requires that each assembly district must consist of contiguous territory; that is to say, it cannot be made up of two or

more pieces of detached territory. All admit that these sev. eral conditions are absolutely binding upon the legislature, and that that body has no power, much less discretion, to dispense with any one of them. It is conceded that the act in question conforms to these several requirements, but it will be observed that no one of these requirements is calculated to secure or aid in securing the equality of representation; on the contrary, their observance must necessarily, to a limited extent, prevent such equality of representation, so that, unless there are other provisions in the constitution calculated to secure such equality within certain limits, then there is no restriction whatever.

It will be observed that the section quoted speaks of "ward lines," but contains no other reference to cities. From this it is manifest that the framers of the constitution, even at that early day, contemplated that the necessity was likely to arise for dividing up cities by ward lines in the formation of assembly districts, and thus allow smaller factors to enter into the formation of such districts, and to that extent facilitate the equality of representation. Thus, the primary factors of each assembly district are either towns or wards or both; and this is equally true whether the assembly district is wholly within a county, or consists of two or more counties, since each county is subdivided into towns, or towns and wards.

The section quoted also provides that each assembly district must "be in as compact form as practicable." As this clause, to a certain extent, limits legislative discretion, and at the same time and to a certain extent authorizes such discretion, it will be considered in connection with the discretionary powers of the legislature. The constitution provides that the legislature shall, "at their first session after" the prescribed census, either by the state or the United States, "apportion and district anew the members of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy": Sec. 3, art. 4. Thus it appears that the legislature must not only apportion the members of the senate and assembly "according to the number of inhabitants," but must also district anew the members of the senate and assembly "according to the number of inhabitants." The requirement that such apportionment shall be made at the first session of the legislature after the taking of such census very clearly indicates that the census so taken is

to be the basis of such apportionment; otherwise the apportionment might as well be made the year prior to the taking of such census at the first session of the legislature thereafter. On this point, Mr. Justice Pinney, in the former case, in effect said, as will appear from a quotation herein, that the apportionment must be based upon such prior census or enumeration: State v. Cunningham, 81 Wis. 510.

It is here conceded that the total population of the state, according to the census of 1890, was one million six hundred and eighty-six thousand eight hundred and eighty; and that if it were possible to secure exact and equal representation upon the basis of that census, the unit of representation of each assembly district would be sixteen thousand eight hundred and sixty-eight. But, as already indicated, it is impossible to secure exact and equal representation by reason of the constitutional hindrances mentioned; and it is because of such hindrances, and only because of such hindrances, that the legislature, under the constitution, are at liberty to depart from the equality of representation. Hence they are required by that instrument to apportion and district anew the members of the assembly "according to the number of inhabitants," and in doing so the districts are to "be in as compact form as practicable." The thing thereby sought to be secured, and in fact secured, is equality of representation, in so far as it is practically attainable without violating any of the other provisions of the constitution named. And this rule is not only applicable in the formation of a district out of two or more counties, but also to the formation of two or more assembly districts in one county. In apportioning a county into two or more assembly districts there is necessarily a new unit of representation. The act in question provides for six assembly districts, each made up of one or more counties in the northern portion of the state, containing in the aggregate only sixty-seven thousand eight hundred and forty-nine inhabitants, which is less than four times the unit, and when there is no constitutional impediment to their being grouped together into four districts. In the formation of two or more assembly districts in any one county the legislature have the discretionary power to group towns as they may see fit, and to group wards as they may see fit, or to group towns and wards as they may see fit; provided, that in doing so, they do not violate any of the provisions of the constitution mentioned. Perhaps this may be made to appear more clearly by an

illustration. Dane county contains thirty-five towns and two cities, with an aggregate population, according to the last census, of fifty-nine thousand five hundred and seventy-eight. Of these thirty-five towns, twenty-nine contain less than fifteen hundred inhabitants each, and eight of these contain less than a thousand, and only one exceeds two thousand, and that contains only two thousand three hundred and seventynine. The city of Stoughton contains two wards, with each less than fifteen hundred inhabitants. Madison has six wards, and the largest contains only two thousand nine hundred and forty-three inhabitants. The act in question assigned to this county four members. It is simply impossible to apportion and district Dane county anew "according to the number of inhabitants" contained in it, and have a difference in the districts to exceed a minor fraction of adjoining towns, or adjoining towns and wards; but with the city of Madison all in one district, as it is in the act, there is no constitutional reason for any difference in the remaining districts to exceed five hundred, or at most one thousand; and yet, as apportioned under the act, there is a difference of seven thousand two hundred and thirty-three, and this, too, is done at the expense of compactness. Similar views may be regarded as entertained in respect to a large number of counties. In consequence of the very large wards in Milwaukee-eleven of which contain to exceed ten thousand inhabitants each, and one of which contains twenty-two thousand four hundred and sixty-nine-it is more difficult to approximate equality of representation; but it should be done, as far as practicable, under the restrictions mentioned.

Compactness, being of lesser importance, may to some extent, yield in aid of securing a nearer approach to equality of representation; but in some instances, in the act in question, it is made to yield in aid of securing inequality of representation. Thus, in Rock county, there are three assembly districts, and there is a difference in two of them of six thousand two hundred and eighty-five, when it is quite obvious that minor fractions of adjoining towns do not exceed from five hundred to a thousand; and yet the smallest district is entirely surrounded by one of the other districts, thus destroying compactness in the outside district. Counsel is undoubtedly right in saying, in effect, that whether the formation of such hollow district destroys its compactness, within the meaning of the constitution, is simply a question of fact.

F

3

According to Mr. Webster, Marshall, C. J., once said from the bench that "a legislature may alter the law, but no power can reverse a fact": 2 Webster's Works, 334.

The constitution also requires that "the legislature shall apportion and district anew the members of the senate... according to the number of inhabitants": Sec. 3, art. 4. The only constitutional impediment to the securing of equality of representation in such senate districts is the requirement that "senators shall be chosen by single districts of convenient contiguous territory, . . . . and no assembly district shall be divided in the formation of a senate district": Sec. 5, art. 4. The proposed answer alleges that "in the forma tion of senate districts the legislature is given the dicretionary power to compose them of assembly districts containing two, three, or four assembly districts, of such numbers and situation as to the said legislature shall seem convenient and proper with reference to the situation of the inhabitants of such districts, and best for a proper representation of the interests of different parts of the state." This claim goes to the extent of authorizing the legislature, in its discretion, to form a senate district from two of the smaller or four of the larger assembly districts. Here the smallest contains only 8,626 inhabitants, and twice that number would only be 17,252, or only 213 more than one-third of the senate unit; whereas the largest contains 25,111 inhabitants, and four times that number would be nearly twice the senate unit. It is true the act in question does not in any instance show such wide disparity in the population of senate districts; but to here sanction the discretionary power thus claimed is to open the door for its exercise to the maximum by any future legislature. But the present act does go in that direction to the extent of forming one senate district from two assembly districts with an aggregate population of only 30,732, and forming another senate district from four assembly districts, with an aggregate population of 65,952. This is a plain dis regard of the constitutional mandate, which requires such apportionment to be made "according to the number of inhabitants."

The vice which seems to run through the act in question is in assuming that the only limit to the discretionary power of the legislature in making such apportionment is the major and minor fractions of such units of representation. Thus, the smallest assembly district above mentioned is only one