Wood v. State Ex Rel. Gillespie

A petition for a writ of mandamus was filed by the district attorney, attacking the validity of the congressional redistricting act of the Legislature of 1932, under House Bill No. 197. The basis of the attack is that the third and seventh congressional districts as laid out in said act do not conform to the provisions of section 3, chapter 5, Act of Congress 1911, 37 Stat. 14 (2 U.S.C.A., sec. 3), which requires or directs that the several districts shall be composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants. The prayer of the petition is that appellant, as secretary of state, shall be compelled by a mandate of the court to disregard, in his preparation of the sample ballots to be used in the November, 1932, election, any designations of candidates for congress by districts, and should be ordered to prepare said ballots for said candidates only as candidates from the state at large. Appellant demurred to the petition, the demurrer was overruled, and the mandate was issued as prayed in the petition.

We have therefore fully before us everything that was before the trial court, and, as these are questions of law only, we must reverse the judgment and dismiss the petition on three grounds, which we will now state.

The first ground is upon the established rule that a writ of mandamus will not issue unless and until there has been actual default in the performance of some duty required of the defendant. There is no allegation in the petition in this case that there has been a demand on the secretary of state to perform any duty required of him; neither is there such a showing in the petition as to put the case within the rule that where a public duty to do or not to do a certain thing is enjoined by law upon a public official, and the matter is of public interest, the refusal or failure to act in the premises on the part of the official is of itself a demand and refusal, that by his own failure to perform the duty the demand has been made and refusal presumed. The fact is that this court judicially knows that on the 23rd day of August, 1932, a primary election is to be held in this state for the election of Congressmen, Supreme Court judges, and highway commissioners, and that in event a second primary is necessary the further election is fixed by law to be held on September 13, 1932. See section 5870 of the Code of 1930. These two elections must be held before the secretary of state is required to perform any act for which mandamus is sought in this case.

Section 6231, Code of 1930, provides that the ballot to be used in the general November election shall contain the names of all candidates put in nomination not less than fifteen days previous to the day of the election by the primary election of any political party. Likewise it is provided that the name of any qualified elector who has been requested to be a candidate by written petition, signed by a requisite number of electors not less than fifteen days before the election, shall be printed on the ballot. At that time, and when the names of the candidates by either of the methods have been made known to him, it is the duty of the secretary of state, with the approval of the governor, to furnish the ticket commissioners of each county with a sample ballot. We judicially know that the general election of this year in which congressmen and the other officers named are to be elected will be held on Tuesday, November 7th, and that prior to the antecedent fifteen days it cannot be legally known by any official connected with the election or the secretary of state as to the names that shall be printed on the sample ballot. It then is evident that the secretary of state is not required to perform any duty with reference to the elections complained of in this petition for mandamus until within fifteen days of the 7th day of November next.

In virtue of section 6234, Code of 1930, the secretary of state is not empowered to furnish sample ballots unless and until the governor of the state has approved the same. The duty sought to be imposed upon the secretary of state is not to be performed until some day subsequent to the 21st day of October, 1932. The relator in this case filed his petition for writ of mandamus in the circuit court on the 21st day of June, 1932, and this case has already been submitted in this court practically four months in advance of the time when the secretary of state is called upon or required by law to perform any duty with reference to the general November election. Certain it is then that an election must be had by the political parties, and the result thereof certified, and the opportunity given a candidate who desires to run upon petition of electors. The governor must approve the ballot before the secretary of state is called upon to discharge any duty relative to the matter here in controversy.

Section 2348, Code of 1930, is authority for the writ of mandamus in this state, and provides that the writ "shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station," etc. The gist of the mandamus in this case is to prohibit the secretary of state from making up the ballot. He cannot make up this ballot without the approval of the governor. This act of the governor is a prerequisite to the discharge of the main function of the secretary of state in this behalf. This mandamus does not attempt to reach the governor. In fact, the governor cannot by compelled by mandamus to perform any act. See Vicksburg Ry. Co. v. Lowry,61 Miss. 102, 48 Am. Rep. 76, in which case Chief Justice CAMPBELL said: "Can a mandamus be issued to the governor in any case? It has been held by some courts that the governor may be compelled by mandamus to perform ministerial acts; but the overwhelming weight of authority is in favor of the denial of the writ against the governor in any case. In Arkansas, Georgia, Florida, Illinois, Louisiana, Maine, Michigan, Minnesota, Missouri, New Jersy, Rhode Island, Tennessee, and Texas, it is held that mandamus cannot be issued against the governor, and the decisions are supported by the most satisfactory reasons arising from the nature of our government, which consists of distinct departments which are independent and must be so maintained. Hawkins v. Governor, 1 Ark. 570 (33 Am. Dec. 346); [State ex rel.] Bisbee v. Drew, Gov., 17 Fla. 67; Low v. Towns, 8 Ga. 360; People v. Bissell, 19 Ill. 229 (68 Am. Dec. 591); People v. Yates, 40 Ill. 126; State v. Warmoth, 22 La. Ann. 1 (2 Am. Rep. 712); In re Dennett, 32 Me. 508 (54 Am. Dec. 602); [People ex rel.] Sutherland v. Governor, 29 Mich. 320 (18 Am. Rep. 89); Rice v. [Austin] Governor, 19 Minn. 103 (Gil. 74), (18 Am. Rep. 330); State v. [Fletcher] Governor, 39 Mo. 388; [Opinion of court in response to] Inquiries of Governor, 58 Mo. 369; State v. Governor, 1 Dutch. (25 N.J. Law) 331; Mauran v. Smith, 8 R.I. 192 (5 Am. Rep. 564); Turnpike Co. v. Brown, 8 Baxt. (Tenn.) 490 (35 Am. Rep. 713); Houston Railroad Co. v. Randolph, 24 Tex. 317." So that the judgment in mandamus in this case creates the anomalous situation that the governor of the state may approve the official sample ballot while the secretary of state will be prohibited thereby from receiving the ballot and sending it out. This but demonstrates, in our judgment, the futility of granting the writ of mandamus in this case.

It appears to be quite well settled that mandamus will not lie when the act is only to be done in case another party approves thereof. See Merrill on Mandamus, p. 66, sec. 58. It being perfectly obvious that the secretary of state has not in any way failed to discharge any duty, nor has he had the opportunity to fail, nor can it be presumed that he will fail to discharge any duty enjoined upon him by the law, how, then, can it be said that a suit may be instituted against him and a judgment entered that he shall perform a duty long prior to the time when he is called upon to act? The cause of action must exist at the date of the filing of a petition for mandamus; that is elementary with reference to mandamus and all other suits, except perhaps injunction suits against threatened invasion of the complaining party's rights.

In the case of Anderson v. Robins, 161 Miss. 604, 137 So. 476, this court held that mandamus will lie only to require the performance of an official duty that an officer has refused to discharge, and cited High, Extr. Legal Rem. (3 Ed.), sec. 385; 38 C.J. 579.

In the case of State v. Board of Sup'rs of Coahoma County,64 Miss. 358, 1 So. 501, 505, this court held that mandamus to compel the proper authorities to hold an election to locate the county site of Coahoma county, where the election was to be held in August and petition was presented on January 8, 1887, would not lie, as it would be presumed that when the time came the proper authorities would discharge their duty. Judge CAMPBELL therein said: "It is not to be assumed, and on that assumption to base a judicial proceeding, that the body charged with a duty under this act will not perform it at the proper time. A presumption must be indulged that duty will be performed."

The citation of these two authorities from our own court would seem to be sufficient to settle the case, but there is an abundance of authority, in fact it is elementary, that a mandamus will not issue against a public official in advance of and before the time arrives when that official is required to perform a duty. A demand cannot be legally made upon him to perform a duty which is impossible of performance at the time of the demand. The secretary of state could not now print a ballot, nor could he assume for that matter anything relative thereto; and, if it be conceded for the sake of this opinion that the apportionment act complained of with reference to the election of congressmen in this state is void, it cannot be assumed or presumed that the governor of the state will violate the plain law, or that the secretary of state will likewise, if the governor violates the law, so ignore the Constitution and acts of Congress.

A demand cannot be made before the time has expired wherein the officer is allowed to do the act, in this case fifteen days before the 7th of November next. See Merrill on Mandamus, section 226. There is neither refusal to act nor conduct equivalent to a refusal in the case at bar. "Mandamus is never issued unless the respondent is in default in the performance of his duty . . . It will not be issued in anticipation of such failure, but he must be in actual default. It is immaterial how strong the presumption may be that the party at the proper time will refuse to perform his duty. No threats or previous determination not to perform his duty will take the place of an actual default." See Merrill on Mandamus, section 221. Also, 38 C.J., p. 581, and 18 R.C.L., p. 122.

In the Coahoma county case, supra, the board of supervisors had actually passed a resolution that they would not perform the duty of ordering an election in anticipation and before the time when the duty was to be performed, and this court said that mandamus would not lie. See, also, L.R.A. 1917F, 221, and the annotations under the head "Mandamus to compel steps preliminary to an election before the arrival or expiration of the time fixed therefor."

A writ of mandamus is never granted to take effect prospectively. Spelling, Inj. and Extr. Rem., sec. 1385; High, Extr. Legal Rem. (3 Ed.), sec. 1236; Tapping, Mandamus (10 Am. Ed.), p. 63; Wood, Mandamus (2 Ed.) 51.

In the case of North Carolina Public Service Co. v. Southern Power Co. (C.C.A. 4), 282 Fed. 837, 840, that court said: "The office of mandamus is to compel the performance of a plain and positive duty. It is never granted in anticipation of an omission of duty, but only after actual default. Injunction is the proper remedy for threatened violation of a duty, entailing an injury for which the law gives no adequate compensation. Board of Liquidation v. McComb, 92 U.S. 531, 23 L. Ed. 623; In re Cutting,94 U.S. 14, 24 L. Ed. 49." In the case at bar there is not even threatened injury.

The duty must exist at the time the application for mandamus is made. In United States v. Lamont, 155 U.S. 303, 15 S. Ct. 97, 98, 39 L. Ed. 160, Chief Justice WHITE said: "The duty to be enforced by mandamus must not only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus in the case of Ex parte Rowland, 104 U.S. 604 [26 L. Ed. 861], this court, speaking through Mr. Chief Justice WAITE, said: ``It is settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one.'"

We must desist from the citation of authorities. If there is any one principle of law settled in this state and nation it is that mandamus will not lie until default is made in the performance of a duty constituting the gravamen of the complaint; and the facts of this case cannot bring it within any exception to the general rule. The secretary of state has violated no duty. The courts of this state are powerless to make him perform a duty not now enjoined upon him by the statutes or otherwise. To allow the issuance of the writ of mandamus would be to create a new duty, and a different duty, and would put the officer in default, tax him with costs, put him to the expense of litigation, and adjudge him to be remiss and defaulting in the performance of a duty nearly four months in advance of the time when he is required to act. In such a case it is extremely unwise for the court to open the gates wide to the flood of vexatious litigation which would most likely ensue. This is by no means technical; it is elementary law everywhere.

In closing the opinion on this point we may mention that stress was laid, in argument, on the fact that the Supreme Court of the United States considered the cases of W. Yale Smiley v. Mike Holm as Secretary of State of Minnesota, 284 U.S. 616, 52 S. Ct. 266, 76 L.Ed. ___; Samuel S. Koenig et al. v. Edw. J. Flynn, Secretary of State of State of New York, 52 S. Ct. 403, 76 L.Ed. ___; and John J. Carroll v. Chas. U. Becker, Secretary of State of Missouri, 52 S. Ct. 402, 76 L.Ed. ___, and that in these cases the remedy by mandamus was inferentially recognized, because the point was ignored. In the case at bar, the point was sharply presented by the demurrer in the court below, and is forcibly argued here; the only answer thereto being an oral argument to the above effect.

In State v. Holm, supra, it is clear from the statement of the case in 184 Minn. 228, 238 N.W., at page 494, that the secretary of state had been called upon, and had refused, to file nominations for the office of congressman, by accepting some filings, and refusing those who sought to be candidates at large. This case clearly shows a demand and refusal, and an alleged default of duty, and is the same case appealed to the United States Supreme Court.

In Carroll v. Becker, Secretary of State of Missouri, supra, it appears that the time had arrived for the secretary of state to file declarations of candidates for Congress, as disclosed by the report of that case from the Supreme Court of Missouri, found in45 S.W.2d 533, so that we are warranted in saying that there was demand and refusal to perform a duty on the part of the official at a time when he was called upon to act. The statement of fact is that the secretary of state refused to receive or file a relator's declaration.

In Koenig v. Flynn, supra, the facts will be found in 141 Misc. 840, 253 N.Y. Supp, pages 554, 556, wherein it is disclosed that the attorney-general had rendered an opinion to the secretary of state that a resolution was ineffective to accomplish a redistricting of the state into congressional districts; and to use the language there found: "And, for the purpose of this proceeding, it is conceded that the secretary of state will refuse to follow this resolution in his certificate for the election of 1932." This statement of facts clearly recognizes the point of law here decided, and a waiver thereof by the respondent in that case.

We conclude, therefore, that no one of the three cases, cited supra, militate in the slightest degree against the rule of law which we have herein announced.

In the second place, a writ of mandamus will not issue if in ultimate effect it will be nugatory or incomplete, and if its effect in respect to the public will be to introduce serious doubt or confusion or irremediable controversy into those public questions which the writ is invoked to settle. These are fundamental principles in respect to the remedy by mandamus. It is apparent that the writ is sought here in order to attempt to control the party primaries of the democratic party in August, 1932, so as to make these primaries statewide, and in disregard of congressional districts, and with the fact in full view that nominations by that party in this state are inevitably followed by the election of the nominees in the election in November. All will concede that courts have no jurisdiction over party political matters. True, these party primaries are regulated by statute, and courts may inflict criminal punishment for offenses against these laws, but the courts have no jurisdiction to direct how the party authorities shall act in the administration of the party machinery under the primary election statutes.

The statutes on primary elections are absolutely silent on any such proposition as the nomination of candidates for Congress from the state at large. Two sections only of the statutes on primary elections deal with nominations for congressmen. These are sections 5870 and 5900, Code of 1930, and both of these sections require that these candidates for Congress shall be nominated by districts. There is no allowance anywhere in the primary election statutes that congressmen may be nominated by the state at large. True it is that these statutes may be taken as having presupposed a valid congressional districting act as resting in the general election laws. But suppose the majority of this court should conclude that it has the judicial power, and that it should exercise that power, to declare the 1932 congressional redistricting act to be absolutely void because in contravention of the federal statute on the subject; this would take the act out of the general election laws, but would still leave the primary election statutes standing untouched, that party nominations for congressmen shall be by districts; for all must concede that federal statutes have nothing to do, and can have nothing to do, with party primaries and party nominations within a state. Federal statutes may deal with elections, but not with the internal affairs of a state in respect to the political party machinery in that state, and which deal with party nominations, not with the elections themselves. Newberry v. United States, 256 U.S. 232, 41 S. Ct. 469, 65 L. Ed. 913, 921.

So that if we were to declare the state redistricting act of 1932 invalid as a part of the general election laws and of no more effect as a general election law than if never passed, because obnoxious to the federal statute, there would still remain the provisions in the primary election laws that the nominations for congressmen shall be made by districts, and we repeat that the provisions aforesaid would remain in the primary election statutes because congressional laws have no sort of force or effect in regard to primary elections within a state. Would it not then be the duty of the state democratic executive committee to immediately assemble and to carry out the primary election statutes, order the nominations of congressmen by and from districts, the nominees to be voted on at the general election by the state at large? And as Congress has no power or authority over primaries or over statutes relating to primaries, and in so far as state statutes are applied to primaries, would not the said state executive committee be authorized to hold and to declare that the said state districting act is valid and observable so far as the party primary elections are concerned, and so far as concerns the selection of party candidates by and from districts; these to be certified for the general election as candidates of the party at large? We would hold in the affirmative on the questions put if the same were judicial questions, but if not judicial questions, then if the supreme committee of the party were to so assemble and order, what power would there be in any court to stop them or order otherwise? Absolutely none in any court. We do not know what the supreme authorities in the party would do, in the respects above mentioned, and it is none of our business, nor is it the business of any judicial court. We only mention what they could do, and, so far as we know, would do. And if they should do this, and should certify the nominees to the secretary of state, to be placed on the ticket from the state at large, he could and would do so, under the mandate issued from this court ordering him to place the congressional candidates on the general election ticket as candidates from the state at large, and thus the said mandate would have become, in its ultimate effect, nugatory, without substantial effect, and, instead of being of any use, would be merely a judicial scarecrow.

And suppose that when the supreme executive committee of the state should meet and order the primary election for congressmen to be held by and from districts, but for the state at large, some of the county executive committees would proceed to obey the order, and so print and distribute the primary election tickets, while other county executive committees would challenge the authority of the supreme executive committee, and these county executive committees would upon their own authority proceed to print and to distribute the tickets from the state at large, what confusion, doubt, and irremediable controversy would thereby result? And absolutely irremediable, because no court would have the jurisdiction and power to intervene.

We do not need to press the discussion upon this second point further. It can be approached from numerous other angles, but all lead out at last to the unwisdom, the futility, the violation of fundamental principle, in courts being called upon to intrude into matters which resolve themselves at last into issues which are political, and which in the final analysis would be an infringement by the courts upon liberties reserved to the people to be exercised by them through their own party associations, and according to their own party rules.

In the third place, and even if the insurmountable obstacles heretofore mentioned did not exist, we would be obliged to refuse the writ in this case because to allow it would, to use a brief and common phrase, do more harm than good; it would be to subvert that which has been a dominant and paramount consideration for nearly one hundred years in the election of congressmen, namely, the selection of these officers from districts, and to attempt to destroy the district representation unless and until the secondary and inferior consideration that these districts shall be equal in population shall be observed according to a strict rule of judicial measurement. For nearly one hundred years it has been the settled policy and practice to select representatives in Congress from districts, and this has grown as a necessity out of the obvious fact that the different sections of the state have their own particular and peculiar interests and needs in national legislation and in national aid. This is strikingly illustrated in our own state by the Delta district wherein the paramount interest and need is in flood protection and in river matters, whereas the people in the northeastern district of the state have no immediate interest in those problems, except as all people in the entire nation are interested therein. In 1842 Congress provided that representatives in Congress should be elected from districts, and between 1842 and 1872 provisions were inserted in the congressional act that the districts should be contiguous and compact, and it was not until 1872 that for the first time a further provision was made that each district in the state should contain as nearly as practicable an equal number of inhabitants.

No complaint is urged against the redistricting act on account of contiguity or compactness, but the attack is because of inequality of inhabitants. It is shown that the districts in that respect are as follows: First district, two hundred fourteen thousand seven hundred five; Second district, two hundred nineteen thousand six hundred sixty-one; Third district, four hundred two thousand nine hundred sixty-nine; Fourth district, one hundred eighty-four thousand two hundred sixty-six; Fifth district, two hundred forty-four thousand five hundred sixty-two; Sixth district, two hundred eighty-four thousand five hundred forty-seven; Seventh district, four hundred fourteen thousand three hundred one. It is apparent upon the face of the stated figures that there is an inequality of inhabitants; but there has been an inequality in this respect in every congressional districting act that has been passed in this state, going back even to the beginning. And this has not been the case only in this state, but has prevailed in nearly all the states. For instances: The state of Alabama has one district with two hundred fifty thousand inhabitants, and another with four hundred fifty thousand; the state of California has one district with one hundred sixty-five thousand inhabitants, and another with three hundred fifty thousand; Michigan has one district with two hundred twenty-five thousand, and another with four hundred thousand; Missouri, under a previous redistricting act, had one district with one hundred fifty thousand, and another with five hundred twenty thousand; South Dakota has one district with two hundred thousand, and another with six hundred fifty thousand; Pennsylvania has one with one hundred twenty-five thousand, and another with four hundred forty-five thousand; Ohio has one with one hundred sixty-eight thousand, and another with six hundred thirty-four thousand; Tennessee has one with one hundred ninety-five thousand, and another with three hundred eighty thousand. These facts show that the matter of equality of inhabitants has by long and general practice been regarded both by the states and by Congress as a subordinate or secondary question, and that the paramount and controlling consideration has been to create districts in which homogeneity in national interest and needs shall be preserved, rather than to be bound by a strict judicial rule of equality in number of inhabitants.

We are not confronted here with a situation wherein there has been a mere pretense towards the creation of congressional districts, as would be the case, for instance, if the Legislature had taken only one or two counties or even three and made one congressional district of them, and so on for six districts, and had then placed the remainder of some fifty or sixty counties into a seventh district. This would be so far a mere pretense and fraud as to demonstrate that the paramount requirement of districts as substantial and homogeneous units had been utterly flouted and subverted. But here there has been the substantial creation of fairly compact and homogeneous districts, and, while we regret the inequality of population, we must in approaching this question do so as judges, and not as legislators, nor as individuals, and in doing so we must broadly look to the whole state and to all its parts and sections and to the ultimate interests of all the people of the state who in the vast majority have had no direct part in, or connection with, this particular piece of legislation. We are thus confronted with the plain and obtrusive question whether by a mandate from this court, if such a mandate could be made effective, the districts and the district interests shall be allowed to be destroyed, the dominant practice and policy of nearly a century's duration shall be reversed, and in lieu thereof the representatives shall be elected from the state at large without regard to districts or the interests of the people of the state in the preservation of district representation.

It is not necessary for us to dwell upon the important necessity that representation in the lower house of Congress, in this day and time of a vastly increased population and of the complexities and varieties of national activities, shall be elected by districts, and that each section shall be represented by a person closely familiar with the people in that section and district; with their habits, desires, aspirations, and problems. Under a statewide nomination it would be possible that broad sections of the state would find themselves without immediate or direct representation, while another section or territory might by the chances of practical politics or the influences of sectional resentments absorb the entire membership from this state in the said lower house.

And this is not the only consideration. The people of this state in their present condition of economic distress have been wearily, hoping to be permitted to remain for a while in a condition of comparative political peace, and to avoid any such strife and turmoil and such inevitable bitterness as would be introduced and engendered by a state-wide struggle just now by a field of candidates, so large that the people and their more important interests would be engulfed in a maelstrom of politics, and at the most unhappy time in many years of their history.

In such a situation it seems to us that the interest of the general public should and must be the paramount and controlling consideration upon the question of the issuance of a writ of mandamus; and that our duty, acting in behalf of the people of the whole state, as we must act here, requires us to refuse the writ when the interest of the public at large, every portion of the state considered, would be detrimentally affected. Mandamus is a discretionary writ, and, even in cases where an abstract legal right is shown, the writ will be withheld whenever the public interest would be adversely affected. This is the law where private property rights, and other private juridical rights, are involved, but even stronger is the rule when, as is the case here, no private right is asserted, but only the public political rights of those for whom the petition is filed, in which latter case the writ will not issue to enforce a public right when in fact it will operate to the detriment rather than to the benefit of the general public. 18 R.C.L. 138, 139; 38 C.J. 550.

The rule above stated is thoroughly settled in this state. In the case of Effingham v. Hamilton, 68 Miss. 523, 10 So. 39, in an opinion by Judge CAMPBELL, and when the personnel of our court was perhaps the strongest in all its history, the court said: "But it is not in every case of clear legal right, and the absence of a sufficient legal remedy, and where, therefore, mandamus is an appropriate remedy, that it was be issued. It is settled by numerous decisions that a sound judicial discretion is to be used, and, where circumstances make it unwise and inexpedient to allow this writ, to refuse it when sought to enforce merely private right." And the court then goes on to show that the petitioners had a clear legal right, and that their contract was a valid legal contract and should be protected in some form; nevertheless, because of the situation into which the affected public had been brought and although by no fault of the petitioners, the court concluded that, "In view of these complications, and the evil consequences likely to arise affecting public interest, we deem it proper to deny the remedy sought;" and the court went on further to say that the private rights there involved were entitled to protection and enforcement in proper cases, yet these rights "must be subordinated to the public interest as to the particular remedy (mandamus) here invoked." This case was reviewed and the holding reaffirmed in Bogan v. Holder, 76 Miss. 597, at page 607, 24 So. 695, 697, wherein the court said: "The writ of mandamus is not strictly one of right. Our code has assimilated the action of mandamus to other ordinary actions, but the courts may still grant or deny the writ according to the circumstances of the case."

Such being the settled law in this state in respect to private property rights, how much more strongly must and does the rule run when the petition is for the enforcement of an asserted public right, and when the court, looking to all the circumstances and to the entire body of the public to be affected, can clearly see that the "circumstances make it unwise and inexpedient to allow the writ;" that more of the public, a greater part of the public, will be definitely affected adversely than would be the abstract benefit to some other and smaller parts of the same body of the public. As we have already said, the vast majority of the people of this state have been void of any offense or of any part in this congressional redistricting act. To punish this large majority in depriving them of their district representation in the national Congress, in order to right a wrong to a minority, would be to right a wrong by doing another wrong, and this we do not conceive to be any part of the functions or office of a writ of mandamus, which in such a case as this is not only discretionary but is issued upon principles which are equitable, and this means that it must be equitable as to all concerned and to be affected thereby, not that it shall be equitable only as to a smaller part when at the same time it would be unjust to the greater part of our public body in this state. The argument for the petitioners here is that in order to cure a felon on one finger we shall cut off the hand.

Having reached the conclusion that the writ of mandamus should not and cannot equitably be issued in this case, we need not, as an entire court, go further and decide whether the issues presented in respect to the validity of said congressional redistricting act are political issues resting solely within and between the legislative branches of the state and federal governments, or whether judicial; and whether, if judicial, the question is one solely for the determination of the federal judiciary and with which state courts have utterly no concern, as was held in Richardson v. McChesney, 128 Ky. 363, 108 S.W. 322, 129 Am. St. Rep. 299. We need not decide whether the act of Congress in respect to the number of inhabitants in each district is mandatory or directory, or whether, if mandatory, the only correcting authority is Congress itself. All these and the other interesting and far-reaching questions raised in this case are therefore pretermitted, except as discussed by the judges each for himself, and we rest our action upon the solid foundation of the settled law in respect to the character and applicability of the writ of mandamus, and for the reasons in that regard which we have heretofore outlined.

Reversed, and petition dismissed.