The per curiam opinion, in which I fully concur, decides all that is necessary to dispose of this case. But, in view of the public interest, and the desirability of knowing the law pertaining to the merits of the case, and following the precedent of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, I desire to submit the following views.
The basis upon which the mandamus in the case at bar is sought is that the redistricting act is void because of inequality in population in the several districts, and because it is in conflict with section 3 of the Act of Congress of August 8, 1911 (2 U.S.C.A., sec. 3), reading, in part, as follows: "In each state entitled under this apportionment to more than one representative, the representatives to Congress shall be elected by districts composed of contiguous and compact territory, and containing, as nearly as practicable, an equal number of inhabitants. The said districts shall be equal to the number of representatives to which such state may be entitled in Congress, no district electing more than one representative." 37 Stat. 14.
By an analysis of this statute, it will be seen that it is directory, and especially as to the feature directing districts to be contiguous, compact, and of nearly equal population. Congress itself did not undertake to create districts, nor did it undertake to prohibit a variance of *Page 811 more than a given number of inhabitants in each district, so that there is no statement by which the judiciary can measure what will be an equal number of inhabitants, or what would constitute a compact territory.
The one mandatory feature, if it can be said to be mandatory, is that the election be by districts, and that no district shall elect more than one representative. It was clearly the dominant purpose and desire of Congress that the election should be by districts, and that there should be as many districts as representatives allowed the state in Congress. The number of representatives is fixed by the congressional act, and to grant a mandamus, or declare the act void, would be to thwart the dominant purpose of Congress in directing the state to be divided into districts. It is true that if Congress had desired to enact in detail and by specified territory and population how districts should be laid off, it could have so done, but as Congress did not express its own judgment as to what territory should compose the districts, or what population each district should contain, it necessarily left it to the legal discretion and judgment of the state Legislature as to what constitutes a contiguous and compact territory, and, the discretion being so left by an act of Congress, this court cannot control that discretion. It cannot substitute its own judgment for that of the legislative body. It seems to me that there can be no doubt about the act being directory. Hubbert v. Campbellsville L. Co., 191 U.S. 70, 24 S. Ct. 28, 48 L. Ed. 101; French v. Edwards, 13 Wall. 506, 20 L. Ed. 702; 2 Words and Phrases, Second Series, 53; Lang v. Harrison County, 114 Miss. 341, 75 So. 126; Rosenstock v. Board of Sup'rs of Washington County, 112 Miss. 124, 72 So. 876. It is clearly directory in reference to the kind of districts that shall be created.
We know that, in dealing with subjects of this kind, there are many factors entering into the minds of legislators in creating districts. However much we might be *Page 812 disposed to differ with the Legislature as to the propriety and wisdom of the act, it is a question for the Legislature itself to determine, and the court will not undertake to control the Legislature in its respective separate department of state government.
It is to be regretted that there is considerable inequality of population, but no one believes that any district can be created that is absolutely equal in population and shape to every other district. This state has never had such a system of districts, nor has any other state been able to lay off congressional districts with exact equality as to size, shape, and population.
We should subordinate the secondary considerations of the act to the primary or dominant ones. It is clearly more desirable that there should be districts than that they should be equal. In our own state, for instance, on the west boundary is the great Mississippi river country subject to overflow, much of the territory of the state lying within the area so subject. Levee protection is the chief benefit of government to this area. They might subordinate other things to flood protection. A portion of the state borders on the Gulf of Mexico, and is interested in port improvement and commercial enterprises. Other sections of the state, removed from rivers and harbors, have no particular interest in such projects, being chiefly engaged in other pursuits. Each group having one representative is represented more than it would be if congressmen shall be elected from the state at large. Under the bill as drawn, each district of the state is assured of one representative to speak for it in the national House of Representatives. Should the circuit court be followed, this assurance will be destroyed, as all the congressmen might be elected from one territory to the great detriment of the rest of the people of the state.
No doubt the Legislature gave much time to the consideration of this redistricting bill. It seldom happens that everybody can be pleased. The journals show a *Page 813 number of bills were introduced, having different divisions of territory and population from the one under review. This shows a diversity of opinion in the Legislature on the subject. For this reason also, I think the public interest can be best served by not disturbing its finding. There was no state constitutional restriction upon the Legislature in creating districts, and therefore the Legislature was in full possession of power and discretion vested in it by section 4, article 1, United States Constitution. The Constitution having given Congress the power to make laws and alter laws, by implication, necessarily excludes every other power than Congress from disturbing what the state Legislature has enacted. Neither the state nor the Federal Constitution imposes any restriction upon how the state shall act in the matter, nor of how Congress shall act upon the matter, except that it shall act in the exercise of the lawmaking methods, and its regulations must be lawful. Expressio unius est exclusio alterius. This maxim is of universal statutory construction. United States v. De la Maza Arredondo, 6 Pet. 691, 8 L. Ed. 547. When an expression is used in a general statute, it excludes all other than this expression. Kendall v. U.S.,107 U.S. 123, 2 S. Ct. 277, 27 L. Ed. 437. What a statute allows to be done in a particular mode conclusively negatives any other mode. Raleigh Gaston R.R. Co. v. Reid, 13 Wall. 269, note, 20 L. Ed. 570. Where the Legislature grants authority to do a thing in a certain way, by necessary implication it prohibits the doing of it in any other way. Stephans v. Smith, 10 Wall. 321, 19 L. Ed. 933.
From this section it will be seen that the framers of the Constitution were dealing with the elective branch of the national government; the one branch of the government that was given to the people themselves in elections to be held for that purpose.
It was never contemplated that either the judicial or executive departments should have any control over the election of the people's representatives, the only direct *Page 814 touch and control that the people have over their government. The framers of this government were careful to divide it into three departments, and to have these departments separate and distinct; and, not being content to leave the matter entirely in the states' discretion, for fear the states might fail to act in electing their representatives, it was considered power to vest some control in the national authorities. It was also considered proper to vest this control in the national Legislature, and, having named the party who would correct the act of the state when it needed correction, the control cannot be delegated to any other agency. It is true every state constitutional provision is subject to the restraint of the Federal Constitution when it clashes with the Federal Constitution. Construction of the state Constitution by a state court is, of course, a different thing from the construction of the Federal Constitution by a state court. It would be permissible for the legislative power to lay restraints upon themselves, or the people could do so in Constitutional Convention assembled. This was held in the case of Ohio v. Hildebrant, 241 U.S. 565, 36 S. Ct. 708, 60 L. Ed. 1172, in which the Ohio court held that the referendum provisions of the state Constitution were a part of the legislative power, and that elections in pursuance thereof were valid so far as that power of the Supreme Court of the United States was concerned. To the same effect is the case of Mountain Timber Co. v. State of Washington,243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642.
The power to control the states being vested in Congress by express language in regard to the time and manner of holding elections for congressmen makes it a legislative or political power which is separate from, and independent of, the other departments of government. The determination of that question is exclusively for Congress, and state enactments are valid until Congress has acted, and so far as they do not conflict with the enactments of the United States Congress. In other *Page 815 words, if Congress has acted, and the state has acted, both enactments stand if not in conflict, and if they do conflict, the state being subject to limitations, the Congress is supreme. Re Siebold, 100 U.S. 371, 25 L. Ed. 717; Re Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274; Re Coy, 127 U.S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; United States v. Mosley, 238 U.S. 383, 35 S. Ct. 904, 59 L. Ed. 1355.
The power conferred on Congress by the Constitution cannot be conferred upon another department. Kilbourn v. Thompson,103 U.S. 168, 26 L. Ed. 377; Re Garland, 4 Wall. (71 U.S.) 333, 18 L. Ed. 366.
Under the provisions of the Federal Constitution by which the United States guarantees to every state a republican form of government, the courts, have no power to determine whether a particular government is republican in form or not; that question being entirely for the political department of government. Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Pacific States Telephone Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377; Georgia v. Stanton, 6 Wall. 49, 18 L. Ed. 723-725, where it is said: "This distinction results from the organization of the government into the three great departments, executive, legislative, and judicial — and from the assignment and limitation of the powers of each by the Constitution. The judicial power is vested in one Supreme Court, and in such inferior courts as Congress may ordain and establish; the political power of the government in the other two departments. The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. New York v. Conn., 4 Dall. 4 [1 L. Ed. 717]; Nabob of Carnatico v. E.I. Co., 1 Ves. Jr. 375; [S.C.] 2 Ves. Jr. 56; Penn v. Lord Baltimore, 1 Ves. Sr. 446, 447; Cherokee Nation v. Georgia, 5 Pet. 1 [8 L. Ed. 25.] . . . The remaining question on this branch *Page 816 of our inquiry is, whether, in view of the principles above stated, and which we have endeavored to explain, a case is made out in the bill of which this court can take judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul and totally abolish the existing state government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the state by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained. This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government, as contemplated in these acts of Congress; which, it is charged, if carried into effect by the defendants, will work this destruction. But, they are grievances, because they necessarily and inevitably tend to the overthrow of the state as an organized political body. They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them; and the resulting threatened mischief. So in respect to the prayers of the bill. The first is that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the state, which is or may be directed, or required of them, by or under the two acts of Congress complained of; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed. That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights, for the protection of which our authority is *Page 817 invoked, are the rights of sovereignty, of poltical jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court. It is true, the bill, in setting forth the political rights of the state, and of its people to be protected, among other matters, avers that Georgia owns certain real estate and buildings therein, state capitol, and executive mansion, and other real and personal property; and that putting the acts of Congress into execution, and destroying the state, would deprive it of the possession and enjoyment of its property. But it is apparent that this reference to property and statement concerning it, are only by way of showing one of the grievances resulting from the threatened destruction of the state, and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief. Indeed, the case, as made in the bill, would have stopped far short of the relief sought by the state, and its main purpose and design given up, by restraining its remedial effect, simply to the protection of the title and possession of its property. Such relief would have called for a very different bill from the one before us."
See, also, Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 441, 500, where the court said: "The Congress is the legislative department of the government; the president is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The improperiety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the president refuse obedience, it is needless to observe that the court is without *Page 818 power to enforce its process. If, on the other hand, the president complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the president for such refusal? And in that case could this court interfere, in behalf of the president, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves. It is true that a state may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the president in the performance of his official duties; and that no such bill ought to be received by us."
It seems to me that no more important right can be conferred than the one in this case. It gives the people of the state a representative form of government, provided Congress enforces the regulations; but even should the state, or some one in its name who has seized the political power and usurped all the powers of the state, enact a measure not in conflict with the enactments of Congress, then the courts would be powerless to intervene.
Again, the Federal Constitution provides that a person who has committed a crime in one state, and is found in another state, on demand of the executive of the state where the crime was committed, may be arrested by the executive of that other state, and delivered to the state where the crime was committed. Under this section of the Constitution, the courts cannot compel compliance. Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287. *Page 819
Questions of a political nature are exclusively for the determination of Congress.
It belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intentions expressed. United States v. The Three Friends, 166 U.S. 1, 17 S. Ct. 495, 41 L. Ed. 897.
The Federal Supreme Court has no supervising power or control over the political branch of the government in its action within the limits of the Constitution. Wilson v. Shaw, 204 U.S. 24, 27 S. Ct. 233, 51 L. Ed. 351.
For the reasons named, I am of opinion that it was error to have granted the writ of mandamus, and that the judgment should be reversed, and the petition dismissed.