U.S. Supreme Court SMILEY v. HOLM, 285 U.S. 355 (1932)

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nesota had 'made state and federal reapportionments in the form of a bill for an act which was approved by the Governor.' [Footnote 2] While, in the instant case, the Supreme Court regarded that procedure as insufficient to support the petitioner's contention as to practical construction, that question was dismissed from consideration because of the controlling effect which the court ascribed to the federal provision. 238 N. W. page 500. The court expressed the opinion that 'the various provisions of our state Constitution cited in the briefs are of little importance in relation to the matter now in controversy'; that 'the power of the state Legislature to prescribe congressional districts rests exclusively and solely in the language of article 1, 4, of the United States Constitution.' Id. 238 N. W. page 497. Construing that provision, the court reached the conclusion that the Legislature in redistricting the state was not acting strictly in the exercise of the lawmaking power, but merely as an agency, discharging a particular duty in the manner which the Federal Constitution required. Upon this point the court said (Id. 238 N. W. page 499): 'The Legislature in districting the state is not strictly in the discharge of legislative duties as a lawmaking body, acting in its sovereign capacity, but is acting as representative of the people of the state under the power granted by said article 1, 4. It merely gives expression as to district lines in aid of the election of certain federal officials; prescribing one of the essential details serving primarily the federal government and secondly the people of the state. The Legislature is designated as a mere agency to discharge the particular duty. The Governor's veto has no relation to such matters; that power pertains, under the state Constitution, exclu-

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no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted. Whether the Governor of the state, through the veto power, shall have a part in the making of state laws, is a matter of state polity. Article 1, 4, of the Federal Constitution, neither requires nor excludes such participation. And provision for it, as a check in the legislative process, cannot be regarded as repugnant to the grant of legislative authority. At the time of the adoption of the Federal Constitution, it appears that only two states had provided for a veto upon the passage of legislative bills; Massachusetts, through the Governor, and New York, through a council of revision. [Footnote 3] But the restriction which existed in the case of these states was well known. That the state Legislature might be subject to such a limitation, either then or thereafter imposed as the several states might think wise, was no more incongruous with the grant of legislative authority to regulate congressional elections than the fact that the Congress in making its regulations under the same provision would be subject to the veto power of the President, as provided in article 1, 7.

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The latter consequence was not expressed, but there is no question that it was necessarily implied, as the Congress was to act by law; and there is no intimation, either in the debates in the Federal Convention or in contemporaneous exposition, of a purpose to exclude a similar restriction imposed by state Constitutions upon state Legislatures when exercising the lawmaking power.

The practical construction of article 1, 4, is impressive. General acquiescence cannot justify departure from the law, but long and continuous interpretation in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case of constitutional provisions governing the exercise of political rights, and hence subject to constant and careful scrutiny. Certainly, the terms of the constitutional provision furnish no such clear and definite support for a contrary construction as to justify disregard of the established practice in the states. McPherson v. Blacker, 146 U.S. 1, 36, 13 S. Ct. 3; Missouri Pacific Railway Co. v. Kansas, 248 U.S. 276, 284, 39 S. Ct. 93, 2 A. L. R. 1589; Myers v. United States, 272 U.S. 52, 119, 136 S., 47 S. Ct. 21; The Pocket Veto Case, , 688-690, 49 S. Ct. 463, 64 A. L. R. 1434. That practice is eloquent of the conviction of the people of the states, and of their representatives in state Legislatures and executive office, that in providing for congressional elections, and for the districts in which they were to be held, these Legislatures were exercising the lawmaking power and thus subject, where the state Constitution so provided, to the veto of theGovernor as a part of the legislative process. The early action in Massachusetts under this authority was by 'resolves,' and these, under the Constitution of 1780, were required to be submitted to the Governor, and it appears that they were so submitted and approved by him. [Footnote 4] In New York,

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large. That would be required, in the absence of a redistricting act, in order to afford the representation to which the state is constitutionally entitled, and the general provisions of the act of 1911 cannot be regarded as intended to have a different import.

This conclusion disposes of all the questions properly before the Court. Questions in relation to the application of the standards defined in section 3 of the act of 1911 to a redistricting statute, if such a statute should hereafter be enacted, are wholly abstract. The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice CARDOZO took no part in the consideration and decision of this case. Footnotes

Footnote 1 The Act of August 8, 1911, c. 5, 37 Stat. 13 (2 USCA 2 and note, 3-5), provided for the apportionment of Representatives in Congress among the several states under the thirteenth census. After fixing the total number of Representatives and their apportionment, in sections 1 and 2, the act provided as follows:'Sec. 3. That in each State entitled under this apportionment to more than one Representative, the Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a 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.'Sec. 4. That in case of an increase in the number of Representatives in any State under this apportionment such additional Representative or Representatives shall be elected by the State at large and the other Representatives by the districts now prescribed by law until such State shall be redistricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this Act; and if there be no charge in the number of Representatives from a State, the Representatives thereof shall be elected from the districts now prescribed by law until such State shall be redistricted as herein prescribed.'Sec. 5. That candidates for Representative or Representatives to be elected at large in any State shall be nominated in the same manner as candidates for governor, unless otherwise provided by the laws of such State.'

Footnote 2 See Laws of Minnesota 1858, c. 83; 1872, c. 21; 1881, c. 128; 1891, c. 3; 1901, c. 92; 1913, c. 513; 1929, c. 64.

Footnote 3 The Constitution of Massachusetts of 1780 provided for the Governor's veto of 'bills' or 'resolves.' Part Second, ch. 1, 1, art. 2; 3 Thorpe, American Charters, Constitutions and Organic Laws, 1893, 1894. The council of revision in New York, which had the veto power under the first Constitution of 1777 (art. 3), was composed of the Governor, the chancellor, and the judges of the Supreme Court, 'or any two of them, together with the Governor.' The veto power was given to the Governor alone by the Constitution of 1821. Article 1, 12, 3 Thorpe, op. cit. 2628, 2641, 2642. In South Carolina, the veto power had been given by the Constitution of 1776 to the 'president' (article 7), but under the Constitution of 1778 the Governor had no veto power; see article 14, 6 Thorpe, op. cit., 3244, 3252.

Footnote 4 Const. Mass. 1780; 3 Thorpe, op. cit. 1893, 1894, Mass. Resolves, Oct.Nov., 1788, c. XLIX, p. 52; May-June, 1792, c. LXIX, p. 23.

Footnote 5 New York, Laws of 1789, c. 11; 1797, c. 62; 1802, c. 72. See Koenig v. Flynn, 258 N. Y. 292.

Footnote 6 Georgia, Const. 1789, art. 2, 10, 2 Thorpe, op. cit. 788; Pennsylvania, Const. 1790, art. 1, 22, 5 Thorpe, op. cit., 3094; New Hampshire, Const. 1792; Part Second, 44, 4 Thorpe, op. cit., 2482; Kentucky, Const. 1792, art. 1, 28, 3 Thorpe, op. cit., 1267. In Vermont, the Gonstitution of 1793 (chapter 2, 16) gave the Governor and council a power of suspension similar to that for which provision had been made in the Constitution of 1786 (chapter 2, 14) before the admission of Vermont to the Union. See, also, Constitution of 1777 (chapter 2, 14), 6 Thorpe, op. cit., 3744, 3757, 3767.

Footnote 7 See note 1.

Footnote 8 See note 1.