I concur in holding the apportionment act to be valid. The gravest objection which has been urged against its validity is that it has violated the constitutional requirement as to equality of representation in the legislature. I consider that the other points, which have been presented, have been sufficiently answered. They do not seem to me to suggest reasonable grounds for assailing this legislative act. But if any provision of the fundamental law of the state, intended to secure the equal representation of its citizens in the legislative department, has been violated by the act in question, it is then, properly, the duty of the judicial department of power to declare it unconstitutional and, therefore, void. The judiciary has a duty to pronounce all legislative acts null, which are contrary to the manifest tenor of the Constitution of the state.
Is that the case here? If it is, it arises out of the apportionment of members of assembly. I fail to see that in the arrangement of senate districts there exists any substantial ground for complaint. As to members of assembly, the constitutional requirement is that the legislature shall apportion them among the counties "as nearly as may be according to the number of their respective inhabitants." I think this language imports that some amount of discretion may be exercised by the legislature in perfecting an apportionment. For such an opinion I find support, both in the juxtaposition of the words and in the manner of their introduction into our Constitution. If no discretionary power resided in the legislature to vary from a mathematical and methodical adjustment of members of assembly, according to the population of counties, the presence of the words "as nearly as may be" *Page 511 is meaningless. Their absence would better consist with the sense contended for. But they were brought in by an amendment of our first Constitution, which was adopted in 1801. Previously, the Constitution required that "the legislature do adjust and apportion" the representatives in assembly to the number of electors in the counties. By the amendment in 1801, that provision was amended so as to require them to apportion "as nearly as may be according to the number of electors, etc." In this change, or substitution, of language, I deem an intention evidenced to confide something to the judgment of the legislature, and, in view of many obvious considerations, very wisely and justly so.
It was apparent that greater or less inequalities must arise in an apportionment and that, after each county had received its full number of assemblymen, according to the ratio of apportionment established, there would remain some members to be distributed among those counties having excesses of population over the ratio. The contention of counsel is that that distribution must be in the order of the highest excesses, or remainders over, and any discretion in the matter is denied. In the present case, for instance, there were eleven members of assembly to be so distributed among counties having fractional excesses, and the showing is that three were apportioned out of the strict order in which those excesses stood. It may be remarked, in passing, that in an apportionment of one hundred and twenty-eight members among the counties, this showing evidences no glaring departure from strict equality, nor any scheme to defraud the people in the matter of representation. It is the general rule of law that the courts have no concern with the motives of the legislative body in passing an act. If they find the power conferred to so enact, they may not intervene to prevent the execution; and at all times they should be slow to interfere with the legislative department of power. If there were here a flagrant disregard and an unmistakable violation of the constitutional injunction that the apportionment should be "as nearly as may be" according to the number of citizens, the courts *Page 512 might feel justified in declaring the act void for unconstitutionality. But we have no reason to impute any fraudulent motives, and the showing of three instances of departure from a methodical apportionment is not enough to evidence any deliberate violation of the constitutional requirement. The legal presumption is in favor of the constitutionality of every act of the legislature, and that presumption is not overcome in this instance, where the legislative act simply evidences the exercise of discretion in performing a political duty. We may concede that adherence to a simply mathematical system of distribution of members among the counties, in the order of their excesses of population over the ratio, is the better rule; but deviations may be demanded by public exigencies. Some consideration must be had of the difficulties which environ the passage of an act of apportionment, in the conflicting claims and demands of representatives; some latitude of action must be permitted in considerations which pertain to the geographical situation and necessities of counties, and some allowance must be made for active opposition engendered by political feeling. As the bill was reported, an exact and mathematical apportionment appeared, but to secure the passage of the act some changes were made by the legislature. I do not think that the legislature is to act as a mechanical contrivance for the mathematical distribution of members of assembly. The Constitution does not say so in unmistakable terms, and, if it does not, courts should hesitate to assert it. Something is confided to the wisdom and judgment of the legislative body in performing this constitutional duty, and if in the execution of the duty the result is not perfect, the courts should presume that the legislature endeavored to accomplish it as nearly as might be. I think, according to a logical and candid view of the constitutional requirement, it might be impracticable, unless there was some discretion vested in the legislature with respect to carrying it into effect. There has been no abuse of this discretion, and for us to adjudge the act unconstitutional and to declare it void, would be, in my judgment, a most unwise construction, and would be to arrogate *Page 513 a power of interference, as dangerous in the precedent as it seems unwarranted in the law.