ASHWANDER v. TENNESSEE VALLEY AUTHORITY, 297 U.S.

288 (1936)
297 U.S. 288 ASHWANDER et al. v. TENNESSEE VALLEY AUTHORITY et al. (two cases). * Nos. 403, 404. Argued and Submitted Dec. 19, 20, 1935. Decided Feb. 17, 1936. * Rehearing denied 297 U.S. 728 , 56 S.Ct. 588. Mandate of Supreme Court conformed to 14 F.Supp. 11.[ Ashwander v. Tennessee Valley Authority 297 U.S. 288 (1936) ] [297 U.S. 288, 291] Messrs. Forney Johnston, of Birmingham, Ala., and James M. Beck, of Washington, D.C., for petitioners. [297 U.S. 288, 307] Messrs. John Lord O'Brian and Stanley F. Reed, Sol. Gen., both of Washington, D.C., for respondent Tennessee Valley Authority. [297 U.S. 288, 314] Mr. W. H. Mitchell, f Florence, Ala., for respondent City of florence, ala. Messrs. Thomas W. Martin, Perry W. Turner, and William Logan Martin, all of Birmingham, Ala., for respondent Alabama Power Co. Messrs. Courtland Palmer, of New York City, and John T. Stokely, of Birmingham, Ala., for respondent Chemical Bank & Trust Co. [297 U.S. 288, 315] Mr. Chief Justice HUGHES delivered the opinion of the Court. On January 4, 1934, the Tennessee Valley Authority, an agency of the federal government,1 entered into a contract with the Alabama Power Company, providing (1) for the purchase by the Authority from the Power Company of certain transmission lines, substations, and auxiliary properties for $1,000,000; (2) for the purchase by the Authority from the Power Company of certain real property for $150,000; (3) for an interchange of hydroelectric energy, and, in addition, for the sale by the Authority to the Power Company of its 'surplus power,' on stated terms; and (4) for mutual restrictions as to the areas to be served in the sale of power. The contract was amended and supplemented in minor particulars on February 13 and May 24, 1934.2 The Alabama Power Company is a corporation organized under the laws of Alabama, and is engaged in the generation of electric energy and its distribution generally throughout that state; its lines reaching 66 counties. The transmission lines to be purchased by the Authority extend from Wilson Dam, at the Muscle Shoals plant owned by the United States on the Tennessee river in [297 U.S. 288, 316] northern Alabama, into seven counties in that state, within a radius of about 50 miles. These lines serve a population of approximately 190,000, including about 10,000 individual customers, or about one-tenth of the total number served directly by the Power Company. The real property to be acquired by the Authority (apart from the transmission lines above mentioned and related properties) is adjacent to the area known as the 'Joe Wheeler dam site,' upon which the Authority is constructing the Wheeler Dam. The contract of January 4, 1934, also provided for co-operation between the Alabama Power Company and the Electric Home & Farm Authority, Inc., a subsidiary of the Tennessee Valley Authority, to promote the sale of electrical appliances, and to that end the Power Company, on May 21, 1934, entered into an agency contract with the Electric Home & Farm Authority, Inc. It is not necessary to detail or discuss the proceedings in relation to that transaction, as it is understood that the latter corporation has been dissolved.

There was a further agreement on August 9, 1934, by which the Alabama Power Company gave an option to the Tennessee Valley Authority to acquire urban distribution systems which had been retained by the Power Company in municipalities within the area served by the transmission lines above mentioned. It appears that this option has not been exercised and that the agreement has been terminated. Plaintiffs are holders of preferred stock of the Alabama Power Company. Conceiving the contract with the Tennessee Valley Authority to be injurious to the corporate interests and also invalid, because beyond the constitutional power of the federal government, they submitted their protest to the board of directors of the Power Company and demanded that steps should be taken to have the contract annulled. The board refused, and the [297 U.S. 288, 317] Commonwealth & Southern Corporation, the holder of all the common stock of the Power Company, declined to call a meeting of the stockholders to take action. As the protest was unavailing, plaintiffs brought this suit to have the invalidity of the contract determined and its performance enjoined. Going beyond that particular challenge, and setting forth the pronouncements, policies, and programs of the Authority, plaintiffs sought a decree restraining these activities as repugnant to the Constitution, and also asked a general declaratory decree with respect to the rights of the Authority in various relations. The defendants, including the Authority and its directors, the Power Company and its mortgage trustee, and the municipalities within the described area, filed answers, and the case was heard upon evidence. The District Court made elaborate findings and entered a final decree annulling the contract of January 4, 1934, and enjoining the transfer of the transmission lines and auxiliary properties. 9 F.Supp. 965. The court also enjoined the defendant municipalities from making or performing any contracts with the Authority for the purchase of power and from accepting or expending any funds received from the Authority or the Public Works Administration for the purpose of constructing a public distribution system to distribute power which the Authority supplied. The court gave no consideration to plaintiffs' request for a general declaratory decree. The Authority, its directors, and the city of Florence appealed from the decree and the case was severed as to the other defendants. Plaintiffs took a cross-appeal. The Circuit Court of Appeals limited its discussion to the precise issue with respect to the effect and validity of the contract of January 4, 1934. The District Court had found that the electric energy required for the territory served by the transmission lines to be purchased [297 U.S. 288, 318] under that contract is available at Wilson Dam without the necessity for any interconnection with any other dam or power plant. The Circuit Court of Appeals accordingly considered the constitutional authority for the construction of Wilson Dam and for the disposition of the electric energy there created. In the view that the Wilson Dam had been constructed in the exercise of the war and commerce powers of the Congress and that the electric energy there available was the property of the United States and subject to its disposition, the Circuit Court of Appeals decided that the decree of the District Court was erroneous and should be reversed. The court also held that plaintiffs should take nothing by their cross-appeal. 78 F.(2d) 578. On plaintiffs' application we granted writs of certiorari. 296 U.S. 562 , 56 S.Ct. 145. First. The Right of Plaintiffs to Bring this Suit. Plaintiffs sue in the right of the Alabama Power Company. They sought unsuccessfully to have that right asserted by the Power Company itself, and, upon showing their demand and its refusal, they complied with the applicable rule. 3 While their stock holdings are small, they have a real interest, and there is no question that the suit was brought in good faith. 4 If otherwise entitled, they should not be denied the relief which would be accorded to one who owned more shares. Plaintiffs did not simply challenge the contract of January 4, 1934, as improvidently made-as an unwise exercise of the discretion vested in the board of directors. They challenged the contract both as injurious to the [297 U.S. 288, 319] interests of the interests of the corporation and as an illegal tran action-violating the fundamental law. In seeking to prevent the carrying out of the contract, the suit was directed, not only against the Power Company, but against the Authority and its directors upon the ground that the latter, under color of the statute, were acting beyond the powers which the Congress could validly confer. In such a case it is not necessary for stockholders-when their corporation refuses to take suitable measures for its protection-to show that the managing board or trustees have acted with fraudulent intent or under legal duress. To entitle the complainants to equitable relief, in the absence of an adequate legal remedy, it is enough for them to show the breach of trust or duty involved in the injurious and illegal action. Nor is it necessary to show that the

transaction was ultra vires the corporation. The illegality may be found in the lack of lawful authority on the part of those with whom the corporation is attempting to deal. Thus, the breach of duty may consist in yielding, without appropriate resistance, to governmental demands which are without warrant of law or are in violation of constitutional restrictions. The right of stockholders to seek equitable relief has been recognized when the managing board or trustees of the corporation have refused to take legal measures to resist the collection of taxes or other exactions alleged to be unconstitutional (Dodge v. Woolsey, 18 How. 331, 339, 340, 345; Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429, 433 , 553 S., 554, 15 S.Ct. 673; Brushaber v. Union Pacific R. Co., 240 U.S. 1, 10 , 36 S.Ct. 236, L.R.A. 1917D, 414, Ann.Cas. 1917B, 713); or because of the failure to assert the rights and franchises of the corporation against an unwarranted interference through legislative or administrative action (Greenwood v. Union Freight R. Co., 105 U.S. 13, 15 , 16 S.; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 114 , 22 S.Ct. 30). The remedy has been accorded to stockholders of public service corporations with respect to rates alleged to be con- [297 U.S. 288, 320] fiscatory. Smyth v. Ames, 169 U.S. 466, 469 , 517 S., 18 S.Ct. 418; Ex parte Young, 209 U.S. 123, 129 , 130 S., 143, 28 S.Ct. 441, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764. The fact that the directors in the exercise of their judgment, either because they were disinclined to undertake a burdensome litigation or for other reasons which they regarded as substantial, resolved to comply with the legislative or administrative demands, has not been deemed an adequate ground for denying to the stockholders an opportunity to contest the validity of the governmental requirements to which the directors were submitting. See Dodge v. Woolsey, supra, 18 How. 331, at pages 340, 345; Greenwood v. Union Freight R. Co., supra, 105 U.S. 13 , at page 15; Pollock v. Farmers' Loan & Trust Company, supra, 157 U.S. 429 , at pages 433, 553, 554, 15 S.Ct. 673; Brushaber v. Union Pacific R. Co., supra, 240 U.S. 1 , at page 10, 36 S.Ct. 236, L.R.A. 1917D, 414, Ann.Cas. 1917B, 713. In Smith v. Kansas City Title & Trust Company, 255 U.S. 180 , 41 S.Ct. 243, a shareholder of the Title Company sought to enjoin the directors from investing its funds in the bonds of federal land banks and jointstock land banks upon the ground that the act of Congress authorizing the creation of these banks and the issue of bonds was unconstitutional, and hence that the bonds were not legal securities in which the corporate funds could lawfully be invested. The proposed investment was not large-only $10,000 in each of the classes of bonds described. Id., 255 U.S. 180 , at pages 195, 196, 41 S.Ct. 243. And it appeared that the directors of the Title Company maintained that the Federal Farm Loan Act (see 12 U.S.C.A. 641 et seq.) was constitutional and that the bonds were 'valid and desirable investments.' Id., 255 U.S. 180 , at page 201, 41 S.Ct. 243, 45. But neither the conceded fact as to the judgment of the directors nor the small amount to be invested-shown by the averments of the complaint- availed to defeat the jurisdiction of the court to decide the question as to the validity of the act and of the bonds which it authorized. The Court held that the validity of the act was directly drawn in question and that the shareholder was entitled to maintain the suit. The Court said: 'The general allegations as to the interest of the [297 U.S. 288, 321] shareholder, and his right to have an injunction to prevent the purchase of the alleged unconstitutional securities by misapplication of the funds of the corporation, gives jurisdiction under the principles settled in Pollock v. Farmers' Loan & Trust Co. and Brushaber v. Union Pacific R.R. Co., supra.' Id., 255 U.S. 180 , at pages 201, 202, 41 S.Ct. 243, 246. The Court then proceeded to examine the constitutional question and sustained the legislation under attack. A similar result was reached in Brushaber v. Union Pacific R. Co., supra. A close examination of these decisions leads inevitably to the conclusion that they should either be followed or be frankly overruled. We think that they should be followed, and that the opportunity to resort to equity, in the absence of an adequate legal remedy, in order to prevent illegal transactions by those in control of corporate properties, should not be curtailed because of reluctance to decide constitutional questions. We find no distinctions which would justify us in refusing to entertain the present controversy. It is urged that plaintiffs hold preferred shares, and that, for the present purpose, they are virtually in the position of bondholders. The rights of bondholders, in case of injury to their interests through unconstitutional demands upon, or transactions with, their corporate debtor, are not before us. Compare Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 367 , 368 S., 14 S.Ct. 1047. Plaintiffs are not creditors but shareholders (with equal voting power share for share with the common stockholders, according to the findings), and thus they have a proprietary interest in the corporate enterprise which is subject to injury through breaches of trust or duty on the part of the directors who are not less the representatives of the plaintiffs because their shares have certain preferences. See Ball v. Rutland R. Co. (C.C.) 93 F. 513, 514, 515. It may be, as in this case, that the owner of all the common stock has participated in the transaction in question, and the owners of preferred [297 U.S. 288, 322] stock may be the only persons having a proprietary interest in the corporation who are in a position

to protect its interests against what is asserted to be an illegal disposition of its property. 5 A court of equity should not shut its door against them. It is said that here, instead of parting with money, as in the case of illegal or unconstitutional taxes or exactions, the Power Company is to receive a substantial consideration under the contract in suit. But the Power Company is to part with transmission lines which supply a large area, and plaintiffs allege that the consideration is inadequate and that the transaction entails a disruption of services and a loss of business and franchises. If, as plaintiffs contend, those purporting to act as a governmental agency had no constitutional authority to make the agreement, its execution would leave the Power Company with doubtful remedy, either against the governmental agency which might not be able, or against the government which might not be willing, to respond to a demand for the restoration of conditions as they now exist. In what circumstances and with what result such an effort at restoration might be made is unpredictable. If, as was decided in Smith v. Kansas City Title & Trust Company, supra, stockholders had the right to sue to test the validity of a proposed investment in the bonds of land banks, we can see no reason for denying to these p aintiffs a similar resort to equity in order to challenge, on the ground of unconstitutionality, a contract involving such a dislocation and misapplication of corporate property as are charged in the instant case. The government urges that the Power Company is estopped to question the validity of the act creating the Tennessee Valley Authority, and hence that the stockholders, suing in the right of the corporation, cannot [297 U.S. 288, 323] maintain this suit. It is said that the Power Company, in 1925, installed its own transformers and connections at Wilson Dam, and has ever since purchased large quantities of electric energy there generated, and that the Power Company continued its purchases after the passage of the act of 1933 constituting the Authority. The principle is invoked that one who accepts the benefit of a statute cannot be heard to question its constitutionality. Great Falls Manufacturing Co. v. Attorney General, 124 U.S. 581 , 8 S.Ct. 631; Wall v. Parrot Silver & Copper Co., 244 U.S. 407 , 37 S.Ct. 609; St. Louis, etc., Co., v. George C. Prendergast Const. Co., 260 U.S. 469 , 43 S.Ct. 178. We think that the principle is not applicable here. The prior purchase of power in the circumstances disclosed may have a bearing upon the question before us, but it is by no means controlling. The contract in suit manifestly has a broader range, and we find nothing in the earlier transactions which preclude the contention that this contract goes beyond the constitutional power of the Authority. Reference is also made to a proceeding instituted by the Power Company to obtain the approval of the contract by the Alabama Public Service Commission and to the delay in the bringing of this suit. It was brought on October 8, 1934, following plaintiffs' demand upon the board of directors in the preceding August. Estoppel in equity must rest on substantial grounds of prejudice or change of position, not on technicalities. We see no reason for concluding that the delay or the proceeding before the Commission caused any prejudice to either the Power Company or the Authority, so far as the subject-matter of the contract between them is concerned, or that there is any basis for the claim of estoppel. We think that plaintiffs have made a sufficient showing to entitle them to bring suit and that a constitutional question is property presented and should be decided. [297 U.S. 288, 324] Second. The Scope of the Issue. We agree with the Circuit Court of Appeals that the question to be determined is limited to the validity of the contract of January 4, 1934. The pronouncements, policies, and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining. The judicial power does not extend to the determination of abstract questions. Muskrat v. United States,219 U.S. 346, 361 , 31 S.Ct. 250; Liberty Warehouse Company v. Grannis, 273 U.S. 70, 74 , 47 S.Ct. 282; Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 289 , 48 S.Ct. 507; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 262 , 264 S., 53 S.Ct. 345, 87 A.L. R. 1191. It was for this reason that the Court dismissed the bill of the state of New Jersey which sought to obtain a judicial declaration that in certain features the Federal Water Power Act6 exceeded the authority of the Congress and encroached upon that of the state. New Jersey v. Sargent, 269 U.S. 328 , 46 S.Ct. 122. For the same reason, the state of New York, in her suit against the state of Illinois, failed in her effort to obtain a decision of abstract questions as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future. New York v. Illinois, 274 U S. 488, 47 S.Ct. 661. At the last term the Court held, in dismissing the bill of the United States against the state of West Virginia, that general allegations that the state challenged the claim of the United States that the rivers in question were navigable, and asserted a right superior to that of the United States to license their use for power production, raised an issue 'too vague and ill-defined to admit of judicial determination.' United States v. State of West Virginia, 295

U.S. 463, 474 , 55 S.Ct. 789. Claims based merely upon 'assumed potential invasions' [297 U.S. 288, 325] of rights are not enough to warrant judicial intervention. Arizona v. California, 283 U.S. 423, 462 , 51 S.Ct. 522 The Act of June 14, 1934,7 providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power. By its terms, it applies to 'cases of actual controversy,' a phrase which must be taken to connote a controversy of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts. See Nashville, Chattanooga & St. Louis R. Co. v. Wallace, supra. While plaintiffs, as stockholders, might insist that the board of directors should take appropriate legal measures to extricate the corporation from particular transactions and agreements alleged to be invalid, plaintiffs had no right to demand that the directors should start a litigation to obtain a general declaration of the unconstitutionality of the Tennessee Valley Authority Act in all its bearings or a decision of abstract questions as to the right of the Authority and of the Alabama Power Company in possible contingencies. Examining the present record, we find no ground for a demand by plaintiffs except as it related to the contracts between the authority and the Alabama Power Company. And as the contract of May 21, 1934, with the Electric Home & Farm Authority, Inc., and that of August 9, 1934, for an option to the Authority to acquire urban distribution systems, are understood to be inoperative (56 S.Ct. 469), the only remaining questions that plaintiffs are entitled to raise concern the contract of January 4, 1934, providing for the purchase of transmission lines and the disposition of power. There is a further limitation upon our inquiry. As it appears that the transmission lines in question run from the Wilson Dam and that the electric energy generated at that dam is more than sufficient to supply all the re- [297 U.S. 288, 326] quirements of the contract, the questions that are properly before us relate to the constitutional authority for the construction of the Wilson Dam and for the disposition, as provided in the contract, of the electric energy there generated. Third. The Constitutional Authority for the Construction of the Wilson Dam. The Congress may not, 'under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government.' Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 423; Linder v. United States, 268 U.S. 5, 15 , 17 S., 45 S. Ct. 446, 39 A.L.R. 229. The government's argument recognizes this essential limitation. The government's contention is that the Wilson Dam was constructed, and the power plant connected with it was installed, in the exercise by the Congress of its war and commerce powers (Const. art. 1, 8, cls. 3, 11); that is, for the purposes of national defense and the improvement of navigation. Wilson Dam is described as a concrete monolith one hundred feet high and almost a mile long, containing two locks for navigation and eight installed generators. Construction was begun in 1917 and completed in 1926. Authority for its construction is found in section 124 of the National Defense Act of June 3, 1916.8 It authorized the President to cause an investigation to be made in order to determine 'the best, cheapest, and ost available means for the production of nitrates and other products for munitions of war'; to designate for the exclusive use of the United States 'such site or sites, upon any navigable or non-navigable river or rivers or upon the public lands, as in his opinion will be necessary for carrying out the purposes of this Act (section)'; and 'to construct, maintain, and operate' on any such site 'dams, locks, improvements to navigation, power houses, and other plants and equipment or other [297 U.S. 288, 327] means than water power as in his judgment is the best and cheapest, necessary or convenient for the generation of electrical or other power and for the production of nitrates or other products needed for munitions of war and useful in the manufacture of fertilizers and other useful products.' The President was authorized to lease or acquire by condemnation or otherwise such lands as might be necessary, and there was further provision that 'the products of such plants shall be used by the President for military and naval purposes to the extent that he may deem necessary, and any surplus which he shall determine is not required shall be sold and disposed of by him under such regulations as he may prescribe.' Id. We may take judicial notice of the international situation at the time the act of 1916 was passed, and it cannot be successfully disputed that the Wilson Dam and its auxiliary plants, including the hydroelectric power plant, are, and were intended to be, adapted to the purposes of national defense. 9While the District Court found that there is no intention to use the nitrate plants or the hydroelectric units installed at Wilson Dam for the production [297 U.S. 288, 328] of war materials in time of peace, 'the maintenance of said properties in

operating condition and the assurance of an abundant supply of electric energy in the event of war, constitute national defense assets.' This finding has ample support. The act of 1916 also had in view 'improvements to navigation.' Commerce includes navigation. 'All America understands, and has uniformly understood,' said Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 190, 'the word 'commerce,' to comprehend navigation.' The power to regulate interstate commerce embraces the power to keep the navigable rivers of the United States free from obstructions to navigation and to remove such obstructions when they exist. 'For these purposes,' said the Court in Gilman v. Philadelphia, 3 Wall. 713, 725, 'Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.' See, also, Philadelphia Company v. Stimson, 223 U.S. 605, 634 , 32 S.Ct. 340. The Tennessee river is a navigable stream, although there are obstructions at various points because of shoals, reefs, and rapids. The improvement of navigation on this river has been a matter of national concern for over a century. Recommendation that provision be made for [297 U.S. 288, 329] navigation around Muscle Shoals was made by the Secretary of War, John C. Calhoun, in his report transmitted to the Congress by President Monroe in 1824,10 and, from 1852, the Congress has repeatedly authorized projects to develop navigation on that and other portions of the river, both by open channel improvements and by canalization. 11 The Wilson Dam project, adopted in 1918, gave a nine-foot slack water development, for fifteen miles above Florence, over the Muscle Shoals rapids, and, as the District Court found, 'flooded out the them existing canal and locks which were inadequate.' The District Court also found that a 'high dam of this type was the only feasible means of eliminating this most serious obstruction to navigation.' By the act of 1930, after a protracted study by the Corps of Engineers of the United States Army, the Congress adopted a project for a permanent improvement of the main stream 'for a navigable depth of nine feet.' 12 While, in its present condition, the Tennessee river is not adequately improved for commercial navigation, and traffic is small, we are not at liberty to conclude either that the river is not susceptible of development as an important waterway, or that Congress has not undertaken [297 U.S. 288, 330] that development, or that the construction of the Wilson Dam was not an appropriate means to accomplish a legitimate end. The Wilson Dam and its power plant must be taken to have been constructed in the exercise of the constitutional functions of the federal government. Fourth. The Constitutional Authority to Dispose of Electric Energy Generated at the Wilson Dam. The government acquired full title to the dam site, with all riparian rights. The power of falling water was an inevitable incident of the construction of the dam. That water power came into the exclusive control of the federal government. The mechanical energy was convertible into electric energy, and the water power, the right to convert it into electric energy, and the electric energy thus produced constitute property belonging to the United States. See Green Bay & M. Canal Company v. Patten Paper Company,172 U.S. 58, 80 , 19 S.Ct. 97, 101; United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53, 72 , 73 S., 33 S.Ct. 667; Utah Power & Light Co. v. Pfost, 286 U.S. 165, 170 , 52 S.Ct. 548. Autho ity to dispose of property constitutionally acquired by the United States is expressly granted to the Congress by section 3 of article 4 of the Constitution. This section provides: 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.' To the extent that the power of disposition is thus expressly conferred, it is manifest that the Tenth Amendment is not applicable. And the Ninth Amendment (which petitioners also invoke), in insuring the maintenance of the rights retained by the people, does not withdraw the rights which are expressly granted to the [297 U.S. 288, 331] federal government. The question is as to the scope of the grant and whether there are inherent limitations which render invalid the disposition of property with which we are now concerned. The occasion for the grant was the obvious necessity of making provision for the government of the vast territory acquired by the United States. The power to govern and to dispose of that territory was deemed to be indispensable to the purposes of the cessions made by the States. And yet it was a matter of grave concern

because of the fear that 'the sale and disposal' might become 'a source of such immense revenue to the national government as to make it independent of and formidable to the people.' Story on the Constitution, 1325, 1326. The grant was made in broad terms, and the power of regulation and disposition was not confined to territory, but extended to 'other property belonging to the United States,' so that the power may be applied, as Story says, 'to the due regulation of all other personal and real property rightfully belonging to the United States.' And so, he adds, 'it has been constantly understood and acted upon.' Id. This power of disposal was early construed to embrace leases, thus enabling the government to derive profit through royalties. The question arose with respect to a government lease of lead mines on public lands, under the Act of March 3, 1807 (2 Stat. 448). The contention was advanced that 'disposal is not letting or leasing'; that Congress had no power 'to give or authorize leases' and 'to obtain profits from the working of the mines.' The Court overruled the contention, saying: 'The disposal must be left to the discretion of Congress. And there can be no apprehensions of any encroachments upon State rights, by the creation of a numerous tenantry within their borders, as has been so strenuously urged in the argument.' United States v. Gratiot, 14 Pet. 526, 533, 538. The policy, early [297 U.S. 288, 332] adopted and steadily pursued, of segregating mineral lands from other public lands and providing for leases, pointed to the recognition both of the full power of disposal and of the necessity of suitably adapting the methods of disposal to different sorts of property. The policy received particular emphasis following the discovery of gold in California in 1848. 13 For example, an act of 1866, dealing with grants to Nevada, declared that 'in all cases lands valuable for mines of gold, silver, quicksilver, or copper shall be reserved from sale.' 14 And Congress from the outset adopted a similar practice in reserving salt springs. Morton v. Nebraska, 21 Wall. 660, 667; Montello Salt Company v. Utah, 221 U.S. 452 , 31 S.Ct. 706, Ann.Cas.1912D, 633. It was in the light of this historic policy that the Court held that the school grant to Utah by the Enabling Act of 189415 was not intended to embrace land known to be valuable for coal. United States v. Sweet, 245 U.S. 563, 572 , 38 S.Ct. 193. See, also, as to the reservation and leases of oil lands, Pan American Petroleum & Transport Co. v. United States, 273 U.S. 456, 487 , 47 S.Ct. 416. But, when Congress thus reserved mineral lands for special disposal, can it be doubted that Congress could have provided for mining directly by its own agents, instead of giving that right to lessees on the payment of royalties? 16 Upon what ground could it be said that the government could not mine its own gold, silver, coal, lead, or phosphates in the public domain and dispose of them as property belonging to the United States? That it could dis- [297 U.S. 288, 333] pose of its land but not of what the land contained? It would seem to be clear that under the same power of disposition which enabled the government to lease and obtain profit from sales by its lessees it could mine and obtain profit from its own sales. The question is whether a more limited power of disposal should be applied to the water power, convertible into electric energy, and to the electric energy thus produced at the Wilson Dam constructed by the government in the exercise of its constitutional functions. If so, it must be by reason either of (1) the nature of the particular property or (2) the character of the 'surplus' disposed of, or (3) the manner of disposition. (1) That the water power and the electric energy generated at the dam are susceptible of disposition as property belonging to the United States is well established. In the case of Green Bay & M. Canal Company v. Patten Paper Company, supra, the question was 'whether the water power incidentally created by the erection and maintenance of the dam and canal for the purpose of navigation in Fox river' was 'subject to control and appropriation by the United States, owning and operating those public works, or by the state of Wisconsin, within whose limits Fox river lies.' Id., 172 U.S. 58 , at pages 68, 69, 19 S.Ct. 97, 101. It appeared that, under the authority of the Congress, the United States had acquired, by purchase from a Canal Company, title to its improvement works, lands and water powers, on the Fox river, and that the United States had consented to the retention by the Canal Company of the water powers with appurtenances. We held that the 'substantial meaning of the transaction was that the United States granted to the Canal Company the right to continue in the possession and enjoyment of the water powers and the lots appurtenant thereto, subject to the rights and control of the United States as owning and operating the public works'; and that the method by which the arrangement was[297 U.S. 288, 334] effected was 'as efficacious as if the entire property had been conveyed to the United States by one deed, and the reserved properties had been reconveyed to the Canal Company by another.' Id., 172 U.S. 58 , at page 80, 19 S.Ct. 97, 105. We thought it clear that the Canal Company was 'possessed of whatever rights to the use of this incidental water power that could be validly granted by the United States.' Id., 172 U.S. 58 , at page 69, 19 S.Ct. 97, 101. And in this view it was decided that, so far as the 'water powers and appurtenant lots are regarded as property,' the title of the Canal Company could not be

controverted, and that it was 'equally plain that the mode and extent of the use and enjoyment of such property by the Canal Company' fell within the sole control of the United States. See Kaukauna Water-Power Company v. Green Bay & M. Canal Company, 142 U.S. 254 , 12 S.Ct. 173, 178; Green Bay & M. Canal Company v. Patten Paper Company, 173 U.S. 179 , 19 S.Ct. 316. In United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53 , 33 S.Ct. 667, the United States had condemned land in Michigan, lying between the St. Marys river and the ship canal strip of the government, in order to improve navigation. The riparian owner, under revocable permits from the Secretary of War, had placed in the rapids 'the necessary dams, dykes, and forebays for the purpose of controlling the current and using its power for commercial purposes.' Id., 229 U.S. 53 , at page 68, 33 S.Ct. 667, 674. The Act of March 3, 1909,17 authorizing the improvement, had revoked the permit. We said that the government 'had dominion over the water power of the rapids and falls' and could not be required to pay 'any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.' Id., 229 U.S. 53 , at page 76, 33 S.Ct. 667, 677. The act of 1909 also authorized the Secretary of War to lease 'any excess of water power which results from the conservation of the flow of the river, and the works which the government may con- [297 U.S. 288, 335] struct.' 'If the primary purpose is legitimate,' said the Court, 'we can see no sound objection to leasing any excess of power over the needs of the government. The practice is not unusual in respect to similar public works constructed by state governments.' Id., 229 U.S. 53 , at page 73, 33 S.Ct. 667, 676. Reference was made to the case of Kaukauna Water-Power Company v. Green Bay & M. Canal Company, supra, where the Court had observed in relation to a Wisconsin statute of 1848, which had reserved to the state the water power created by the dam over the Fox river: 'As there is no need of the surplus running to waste, there was nothing objectionable in permitting the state to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement.' In International Paper Company v. United States, 282 U.S. 399 , 51 S.Ct. 176, the government made a war-time requisition of electrical power, and was held bound to make compensation to a lessee who thereby had lost the use of the water to which he was entitled. The Court brushed aside attempted 'distinctions between the taking of power and the taking of water rights,' saying that the government intended 'to take and did take the use of all the water power' and had exercised its power of eminent domain to that end. Id., 282 U.S. 399 , at pages 407, 408, 51 S.Ct. 176, 177. (2) The argument is stressed that, assuming that electric energy generated at the dam belongs to the United States, the Congress has authority to dispose of this energy only to the extent that it is a surplus necessarily created in the course of making munitions of war or operating the works for navigation purposes; that is, that the remainder of the available energy must be lost or go to waste. We find nothing in the Constitution which imposes such a limitation. It is not to be deduced from the mere fact that the electric energy is only potentially available until the generators are operated. The government has no less right to the energy thus available by letting the water course over its turbines than it has[297 U.S. 288, 336] to use the appropriate processes to reduce to possession other property within its control, as, for example, oil which it may recover from a pool beneath its lands, and which is reduced to possession by boring oil wells and otherwise might escape its grasp. See Ohio Oil Company v. Indiana, 177 U.S. 190, 208 , 20 S.Ct. 576. And it would hardly be contended that, when the government reserves coal on its lands, it can mine the coal and dispose of it only for the purpose of heating public buildings or for other governmental operations. Or, if the government owns a silver mine, that it can obtain the silver only for the purpose of storage or coinage. Or that, when the government extracts the oil it has reserved, it has no constituti nal power to sell it. Our decisions recognize no such restriction. United States v. Gratiot, supra; Kansas v. Colorado, 206 U.S. 46, 88 , 89 S., 27 S.Ct. 655; Light v. United States, 220 U.S. 523, 536 , 537 S., 31 S.Ct. 485; Ruddy v. Rossi, 248 U.S. 104, 106 , 39 S.Ct. 46, 8 A.L.R. 843. The United States owns the coal, or the silver, or the lead, or the oil, it obtains from its lands, and it lies in the discretion of the Congress, acting in the public interest, to determine of how much of the property it shall dispose. We think that the same principle is applicable to electric energy. The argument pressed upon us leads to absurd consequences in the denial, despite the broad terms of the constitutional provision, of a power of disposal which the public interest may imperatively require. Suppose, for example, that in the erection of a dam for the improvement of navigation, it became necessary to destroy a dam and power plant which had previously been erected by a private corporation engaged in the generation and distribution of energy which supplied the needs of neighboring communities and business enterprises. Would any one say that, because the United States had built its own dam and plant in the exercise of its constitutional functions, and had complete ownership and dominion over both, no power could be supplied to the communities and enterprises dependent on it, not because of [297 U.S. 288, 337] any unwillingness of the Congress to supply it, or of any overriding

governmental need, but because there was no constitutional authority to furnish the supply? Or that, with abundant power available, which must otherwise be wasted, the supply to the communities and enterprises whose very life may be at stake must be limited to the slender amount of surplus unavoidably involved in the operation of the navigation works, because the Constitution does not permit any more energy to be generated and distributed? In the case of the Green Bay & M. Canal Company, above cited, where the government works supplanted those of the Canal Company, the Court found no difficulty in sustaining the government's authority to grant to the Canal Company the water powers which it had previously enjoyed, subject, of course, to the dominant control of the government. And in the case of United States v. Chandler-Dunbar Water Power Company, supra, the statutory provision (35 Stat. 822, 12) to which the Court referred was 'that any excess of water in the St. Marys River at Sault Sainte Marie over and above the amount now or hereafter required for the uses of navigation shall be leased for power purposes by the Secretary of War upon such terms and conditions as shall be best calculated in his judgment to insure the development thereof.' It was to the leasing, under this provision, of 'any excess of power over the needs of the government,' that the Court saw no valid objection. Id., 229 U.S. 53 , at page 73, 33 S. Ct. 667, 676. The decisions which petitioners cite give no support to their contention. Pollard v. Hagan, 3 How. 212, Shively v. Bowlby, 152 U.S. 1 , 14 S.Ct. 548, and Port of Seattle v. Oregon & Washington Railway Co.,255 U.S. 56 , 41 S.Ct. 237, dealt with the title of the States to tidelands and the soil under navigable waters within their borders. See Borax Consolidated v. Los Angeles, 296 U.S. 10, 15 , 56 S.Ct. 23. Those cases did not concern the dominant authority of the federal government in the interest of navigation to erect dams and avail itself of the incidental water power. We emphasized the dominant character of that authority in the case of [297 U.S. 288, 338] the Green Bay & M. Canal Company v. Patten Paper Co., supra, 172 U.S. 58 , at page 80, 19 S.Ct. 97, 105, by this statement: 'At what points in the dam and canal the water for power may be withdrawn, and the quantity which can be treated as surplus with due regard to navigation, must be determined by the authority which owns and c ntrols that navigation. In such matters there can be no divided empire.' The case of Wisconsin v. Illinois, 278 U.S. 367 , 49 S.Ct. 163, related to the diversion by the state of Illinois of water from Lake Michigan through the drainage canal at Chicago, and the questions now before us with respect to the disposition of surplus energy created at a dam erected by the federal government in the performance of its constitutional functions were in no way involved. (3) We come then to the question as to the validity of the method which has been adopted in disposing of the surplus energy generated at the Wilson Dam. The constitutional provision is silent as to the method of disposing of property belonging to the United States. That method, of course, must be an appropriate means of disposition according to the nature of the property, it must be one adopted in the public interest as distinguished from private or personal ends, and we may assume that it must be consistent with the foundation principles of our dual system of government and must not be contrived to govern the concerns reserved to the States. See Kansas v. Colorado, supra. In this instance, the method of disposal embraces the sale of surplus energy by the Tennessee Valley Authority to the Alabama Power Company, the interchange of energy between the Authority and the Power Company, and the purchase by the Authority from the Power Company of certain transmission lines. As to the mere sale of surplus energy, nothing need be added to what we have said as to the constitutional authority to dispose. The government could lease or sell and fix the terms. Sales of surplus energy to the Power Company by the Authority continued a practice begun by the government several years before. The contemplated [297 U.S. 288, 339] interchange of energy is a form of disposition, and presents no questions which are essentially different from those that are pertinent to sales. The transmission lines which the Authority undertakes to purchase from the Power Company lead from the Wilson Dam to a large area within about fifty miles of the dam. These lines provide the means of distributing the electric energy, generated at the dam, to a large population. They furnish a method of reaching a market. The alternative method is to sell the surplus energy at the dam, and the market there appears to be limited to one purchaser, the Alabama Power Company, and its affiliated interests. We know of no constitutional ground upon which the federal government can be denied the right to seek a wider market. We suppose that in the early days of mining in the West, if the government had undertaken to operate a silver mine on its domain, it could have acquired the mules or horses and equipment to carry its silver to market. And the transmission lines for electric energy are but a facility for conveying to market that particular sort of property, and the acquisition of these lines raises no different constitutional question, unless in some way there is an invasion of the rights

reserved to the state or to the people. We find no basis for concluding that the limited undertaking with the Alabama Power Company amounts to such an invasion. Certainly, the Alabama Power Company has no constitutional right to insist that it shall be the sole purchaser of the energy generated at the Wilson Dam; that the energy shall be sold to it or go to waste. We limit our decision to the case before us, as we have defined it. The argument is earnestly presented that the government by virtue of its ownership of the dam and power plant could not establish a steel mill and make and sell steel products, or a factory to manufacture clothing or shoes for the public, and thus attempt to make its [297 U.S. 288, 340] ownership of energy, generated at its dam, a means of carrying on competitive commercial enterprises, and thus drawing to the federal government the conduct and management of business having no relation to the purposes for which the federal government was established. The picture is eloquently dr wn, but we deem it to be irrelevant to the issue here. The government is not using the water power at the Wilson Dam to establish any industry or business. It is not using the energy generated at the dam to manufacture commodities of any sort for the public. The government is disposing of the energy itself which simply is the mechanical energy, incidental to falling water at the dam, converted into the electric energy which is susceptible of transmission. The question here is simply as to the acquisition of the transmission lines as a facility for the disposal of that energy. And the government rightly conceded at the bar, in substance, that it was without constitutional authority to acquire or dispose of such energy except as it comes into being in the operation of works constructed in the exercise of some power delegated to the United States. As we have said, these transmission lines lead directly from the dam, which has been lawfully constructed, and the question of the constitutional right of the government to acquire or operate local or urban distribution systems is not involved. We express no opinion as to the validity of such an effort, as to the status of any other dam or power development in the Tennessee Valley, whether connected with or apart from the Wilson Dam, or as to the validity of the Tennessee Valley Authority Act or of the claims made in the pronouncements and program of the Authority apart from the questions we have discussed in relation to the particular provisions of the contract of January 4, 1934, affecting the Alabama Power Company. The decree of the Circuit Court of Appeals is affirmed. Affirmed. [297 U.S. 288, 341] Mr. Justice BRANDEIS (concurring). 'Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.' Blair v. United States, 250 U.S. 273, 279 , 39 S. Ct. 468, 470. I do not disagree with the conclusion on the constitutional question announced by the CHIEF JUSTICE; but, in my opinion, the judgment of the Circuit Court of Appeals should be affirmed without passing upon it. The government has insisted throughout the litigation that the plaintiffs have no standing to challenge the validity of the legislation. This objection to the maintenance of the suit is not overcome by presenting the claim in the form of a bill in equity and complying with formal prerequisites required by Equity Rule 27 (28 U.S.C.A. following section 723). The obstacle is not procedural. It inheres in the substantive law, in well- settled rules of equity, and in the practice in cases involving the constitutionality of legislation. Upon the findings made by the District Court, it should have dismissed the bill. From these it appears: The Alabama Power Company, a corporation of that state with transmission lines located there, has outstanding large issues of bonds, preferred stock, and common stock. Its officers agreed, with the approval of the board of directors, to sell to the Tennessee Valley Authority a part of these lines and incidental property. The management thought that the transaction was in the interest of the company. It acted in the exercise of its business judgment with the utmost good faith. 1 [297 U.S. 288, 342] There was no showing of fraud, oppression, or gross negligence. There was no showing of legal duress. There was no showing that the management believed that to sell to the Tennessee Valley Authority was in excess of the company's corporate powers, or that it was illegal because entered into for a forbidden purpose. Nor is there any basis in law for the assertion that the contract was ultra vires the company. Under the law of Alabama, a public utility corporation may ordinarily sell a part of its transmission lines and incidental property

to another such corporation if the approval of the Public Service Commission is obtained. The contract provided for securing such approval. Moreover, before the motion to dissolve the restraining order was denied, and before the hearing on the merits was concluded, the Legislature, by Act No. 1, approved January 24, 1935 (Gen.Acts Ala.1935, p. 1) and effective immediately, provided that a utility of the state may sell all or any of its property to the Tennessee Valley Authority without the approval of the Public Service Commission or of any other state agency. First. The substantive law. The plaintiffs who object own about 1/340 of the preferred stock. They claimed at the hearing to represent about 1/9 of the preferred stock; that is, less than 1/45 in amount of all the securities outstanding. Their rights are not enlarged because the Tennessee Valley Authority entered into the transaction pursuant to [297 U.S. 288, 343] an act of Congress. The fact that the bill calls for an enquiry into the legality of the transaction does not overcome the obstacle that ordinarily stockholders have no standing to interfere with the management. Mere belief that corporate action, taken or contemplated, is illegal gives the stockholder no greater right to interfere than is possessed by any other citizen. Stockholders are not guardians of the public. The function of guarding the public against acts deemed illegal rests with the public officials. Within recognized limits, stockholders may invoke the judicial remedy to enjoin acts of the management which threaten their property interest. But they cannot secure the aid of a court to correct what appear to them to be mistakes of judgment on the part of the officers. Courts may not interfere with the management of the corporation, unless there is bad faith, disregard of the relative rights of its members, or other action seriously threatening their property rights. This rule applies whether the mistake is due to error of fact or of law, or merely to bad business judgment. It applies, among other things, where the mistake alleged is the refusal to assert a seemingly clear cause of action, or the compromise of it. United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 263 , 264 S., 37 S.Ct. 509. If a stockholder could compel the officers to enforce every legal right, courts, instead of chosen officers, would be the arbiters of the corporation's fate. In Hawes v. Oakland, 104 U.S. 450 , 462, a common stockholder sought to enjoin the Contra Costa WaterWorks Company from permitting the city of Oakland to take without compensation water in excess of that to which it was legally entitled. This Court, in affirming dismissal of the bill, said: 'It may be the exercise of the highest wisdom, to let the City use the water in the manner complained of. The directors are better able to act [297 U.S. 288, 344] understandingly on this subject than a stockholder residing in New York. The great body of the stockholders residing in Oakland or other places in California, may take this view of it and be content to abide by the action of their directors. If this be so, is a bitter litigation with the City to be conducted by one stockholder for the Corporation and all other stockholders, because the amount of his dividends is diminished ' In Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455, 463 , 23 S.Ct. 157, 160, a suit by the common stockholder to enjoin payment of an Alaska license tax alleged to be illegal, the Court said: 'The directors represent all the stockholders, and are presumed to act honestly and according to their best judgment for the interests of all. Their judgment as to any matter lawfully confided to their discretion may not lightly be challenged by any stockholder or at his instance submitted for review to a court of equity. The directors may sometimes properly waive a legal right vested in the corporation in the belief that its best interests will be promoted by not insisting on such right. They may regard the expense of enforcing the right or the furtherance of the general business of the corporation in determining whether to waive or insist upon the right. And a court of equity may not be called upon at the appeal of any single stockholder to compel the directors or the corporation to enforce every right which it may possess, irrespective of other considerations. It is not a trifling thing for a stockholder to attempt to coerce the directors of a corporation to an act which their judgment does not approve, or to substitute his judgment for theirs.' 2 Second. The equity practice. Even where property rights of stockholders are alleged to be violated by the management, stockholders seeking an injunction must [297 U.S. 288, 345] bear the burden of showing danger of irreparable injury, as do others who seek that equitable relief. In the case at bar the burden of making such proof was a peculiarly heavy one. The plaintiffs, being preferred stockholders, have but a limited interest in the enterprise, resembling, in this respect, that of a bondholder in contradistinction to that of a common stockholder. Acts may be innocuous to the preferred which conceivably might injure common stockholders. There was no finding that the property interests of the plaintiffs were imperiled by the transaction in question; and the record is barren of evidence on which any such finding could have been made.

Third. The practice in constitutional cases. The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules of corporate law and established principles of equity practice. On the contrary, the fact that such is the nature of the enquiry proposed should deepen the reluctance of courts to entertain the stockholder's suit. 'It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.' 1 Cooley, Constitutional Limitations ( 8th Ed.), p. 332. The Court has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress;3 and has restricted exercise of this function by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory [297 U.S. 288, 346] opinions. 4 On this ground it has in recent years ordered the dismissal of several suits challenging the constitutionality of important acts of Congress. In Texas v. Interstate Commerce Commission, 258 U.S. 158, 162 , 42 S.Ct. 261, the validity of titles 3 and 4 of the Transportation Act of 1920 (41 Stat. 456). In New Jersey v. Sargent, 269 U.S. 328 , 46 S.Ct. 122, the validity of parts of the Federal Water Power Act (41 Stat. 1063). In Arizona v. California, 283 U.S. 423 , 51 S.Ct. 522, the validity of the Boulder Canyon Project Act (43 U.S.C.A. 617 et seq.). Compare United States v. West Virginia, 295 U.S. 46 , 55 S.Ct. 789, involving the Federal Water Power Act and Liberty Warehouse Co. v. Grannis, 273 U.S. 70 , 47 S.Ct. 282, where this Court affirmed the dismissal of a suit to test the validity of a Kentucky statute concerning the sale of tobacco; also, Massachusetts State Grange v. Benton, 272 U.S. 525 , 47 S.Ct. 189. The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are: 1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 , 12 S.Ct. 400, 402. Compare Lord v. Veazie, 8 How. 251; Atherton Mills v. Johnston, 259 U.S. 13, 15 , 42 S.Ct. 422. 2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' [297 U.S. 288, 347] Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39 , 5 S.Ct. 352, 355;5 Abrams v. Van Schaick, 293 U.S. 188 , 55 S.Ct. 135; Wilshire Oil Co. v. United States, 295 U.S. 100 , 55 S.Ct. 673. 'It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States,196 U.S. 283, 295 , 25 S. Ct. 243, 245. 3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners, supra. Compare Hammond v. Schappi Bus Line, Inc., 275 U.S. 164 , 169-172, 48 S.Ct. 66. 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 , 29 S.Ct. 451; Light v. United States, 220 U.S. 523, 538 , 31 S.Ct. 485. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. Berea College v. Kentucky, 211 U.S. 45, 53 , 29 S.Ct. 33. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. 6 Tyler v. Judges, etc., 179 U. [297 U.S. 288, 348] S. 405, 21 S.Ct. 206; Hendrick v. Maryland, 235 U.S. 610, 621 , 35 S.Ct. 140. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus &

Greenville Ry. Co. v. Miller, 283 U.S. 96, 99 , 100 S., 51 S.Ct. 392. In Fairchild v. Hughes, 258 U.S. 126 , 42 S.Ct. 274, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447 , 43 S.Ct. 597, the challenge of the federal Maternity Act was not entertained although made by the commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7 Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581 , 8 S.Ct. 631; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411 , 412 S., 37 S.Ct. 609; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. 469 , 43 S.Ct. 178. 7. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson,285 U.S. 22, 62 , 52 S.Ct. 285, 296.8 [297 U.S. 288, 349] Fourth. I am aware that, on several occasions, this Court passed upon important constitutional questions which were presented in stockholders' suits bearing a superficial resemblance to that now before us. But in none of those cases was the question presented under circumstances similar to those at bar. In none, were the plaintiffs preferred stockholders. In some, the Court dealt largely with questions of federal jurisdiction and collusion. In most, the propriety of considering the constitutional question was not challenged by any party. In most, the statute challenged imposed a burden upon the corporation and penalties for fail re to discharge it; whereas the Tennessee Valley Authority Act (16 U.S.C.A. 831 et seq.) imposed no obligation upon the Alabama Power Company, and under the contract it received a valuable consideration. Among other things, the Authority agreed not to sell outside the area covered by the contract, and thus preserved the corporation against possible serious competition. The effect of this agreement was equivalent to a compromise of a doubtful cause of action. Certainly, the alleged invalidity of the Tennessee Valley Authority Act was not a matter so clear as to make compromise illegitimate. These circumstances present features differentiating the case at bar from all the cases in which stockholders have been held entitled to have this Court pass upon the constitutionality of a statute which the directors had refused to challenge. The cases commonly cited are these: 9 Dodge v. Woolsey, 18 How. 331, 341-346, was a suit brought by a common stockholder to enjoin a breach of trust by the directors which, if submitted to, would seriously injure the plaintiff. The Court crew clearly the distinction between 'an error of judgment' and a breach [297 U.S. 288, 350] of duty; declared that it could not interfere if there was only an error of judgment; held that on the facts the threatened action of the directors would be a breach of trust; and pointed to the serious injury necessarily resulting therefrom to the plaintiff. 10 Greenwood v. Union Freight R. Co., 105 U.S. 13, 15 , 16 S., was a suit brought by a common stockholder to enjoin the enforcement of a statute alleged to be unconstitutional as repealing the corporation's charter. The Court said: 'It is sufficient to say that this bill presents so strong a case of the total destruction of the corporate existence ... that we think the complainant as a stockholder comes within the rule ... which authorizes a shareholder to maintain a suit to prevent such a disaster, where the corporation peremptorily refuses to move in the matter.' Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 553 , 554 S., 15 S.Ct. 673, 679, was a suit brought by a common stockholder to enjoin a breach of trust by paying voluntarily a tax which was said to be illegal. The stockholder's substantive right to object was not challenged. The question raised was that of equity jurisdiction. The allegation of threatened irreparable damage to the corporation and [297 U.S. 288, 351] to the plaintiff was admitted. The Court said: 'The objection of adequate remedy t law was not raised below, nor is it now raised by appellees, if it could be entertained at all at this stage of the proceedings; and, so far as it was within the power of the government to do so, the question of jurisdiction, for the purposes of the case, was explicitly waived on the argument. ... Under these circumstances, we should not be justified in declining to proceed to judgment upon the merits.' The jurisdictional issued discussed in the dissent (157 U.S. at pages 608-612, 15 S.Ct. 673) was the effect of Rev.St. 3224 (26 U.S.C.A. 1543). Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 113 , 22 S.Ct. 30, 44, was a suit brought by a common stockholder to enjoin enforcement of a rate statute alleged to be unconstitutional against which the directors refused to protect the corporation. It was alleged and found that its enforcement would subject the company to

great and irreparable loss. The serious contention concerning jurisdiction was, as stated by Mr. Justice Brewer, whether a suit lay against the Attorney General of the State. Of the jurisdiction of the suit 'as one involving a controversy between the stockholders and the corporation and its officers, no serious question is made.' Chicago v. Mills, 204 U.S. 321 , 27 S.Ct. 286, was a suit brought by a common stockholder of the People's Gas, Light & Coke Company to enjoin enforcement of an ordinance alleged to be illegal. The sole question before this Court was whether the federal court had jurisdiction. That question raised an issue of fact. This Court in affirming the judgment below said ( 204 U.S. 321 , at page 331, 27 S.Ct. 286, 289): 'Upon the whole record we agree with the circuit court that the testimony does not disclose that the jurisdiction of the Federal court was collusively and fraudulently invoked.' Brushaber v. Union Pacific R. Co., 240 U.S. 1, 9 , 10 S., 36 S.Ct. 236, L.R.A.1917D, 414, Ann.Cas.1917B, 713, was a suit brought by a common stockholder to restrain the corporation from voluntarily paying a tax alleged to [297 U.S. 288, 352] be invalid. As stated by plaintiff's counsel: 'The contention is-and this is the only objection that is made to the suit-that it seeks to do indirectly what the Revised Statutes (section 3224) have said shall not be done; namely, enjoin the collection of a tax.' The Court, assuming that the averments were identical with those in the Pollock Case, declared that the right of the stockholder to sue was clear. Smith v. Kansas City Title & Trust Co., 255 U.S. 180 , 199-202, 41 S. Ct. 243, was a suit brought by a common stockholder to enjoin investment by the company in bonds issued under the Federal Farm Loan Act. Neither the parties, nor the government which filed briefs as amicus, made any objection to the jurisdiction. But as both parties were citizens of Missouri, the Court raised, and considered fully, the question whether there was federal jurisdiction under section 24 of the Judicial Code (28 U.S.C.A. 41). It was on this question that Mr. Justice Holmes and Mr. Justice McReynolds dissented. The Court held that there was federal jurisdiction; and upon averments of the bill, assumed to be adequate, sustained the right of the stockholder to invoke the equitable remedy on the authority of the Brushaber and Pollock Cases. Hill v. Wallace, 259 U.S. 44 , 60-63, 42 S.Ct. 453, 455, was a suit by members of the Board of Trade of Chicago to restrain enforcement of the Future Trading Act (42 Stat. 187), alleged to be unconstitutional. The Court held that the averments of the bill, which included allegations of irreparable injury, stated 'sufficient equitable grounds to justify granting the relief' on the cases above cited. If, or in so far as, any of the cases discussed may be deemed authority for sustaining this bill, they should now be disapproved. This Court, while recognizing the soundness of the rule of stare decisis where appropriate, has not hesitated to overrule earlier decisio shown, upon fuller [297 U.S. 288, 353] consideration, to be erroneous. 11 Our present keener appreciation of the wisdom of limiting our decisions rigidly to questions essential to the disposition of the case before the court is evidenced by United States v. Hastings, 296 U.S. 188 , 56 S.Ct. 218, decided at this term. There, we overruled United States v. Stevenson, 215 U.S. 190 , 195, long a controlling authority on the Criminal Appeals Act ( 18 U.S.C.A. 682). Fifth. If the Company ever had a right to challenge the transaction with the Tennessee Valley Authority, its right had been lost be estoppel before this suit was begun; and as it is the company's right which plaintiffs seek to enforce, they also are necessarily estopped. The Tennessee Valley Authority Act became a law on May 18, 1933. Between that date and January, 1934, the company and its associates purchased approximately 230,000,000 kwh electric energy at Wilson Dam. Under the contract of January 4, 1934, which is here assailed, continued purchase of Wilson Dam power was provided for and made; and the Authority has acted in other matters in reliance on the contract. In May, 1934, the Company applied to the Alabama Public Service Commission for approval of the transfers provided for in the contract; and on June 1, 1934, the commission made in general terms its finding that the proposed sale of the properties was consistent with the public interest. Moreover, the plaintiffs in their own right are estopped by their long inaction. Although widespread publicity was given to the negotiations for the contract and to these later pro- [297 U.S. 288, 354] ceedings, the plaintiffs made no protect until August 7, 1934; and did not begin this suit until more than eight months after the execution of the contract. Others-certain ice and coal companies who thought they would suffer as competitors-appeared before the commission in opposition to the action of the Authority; and apparently they are now contributing to the expenses of this litigation.

Sixth. Even where by the substantive law stockholders have a standing to challenge the validity of legislation under which the management of a corporation is acting, courts should, in the exercise of their discretion, refuse an injunction unless the alleged invalidity is clear. This would seem to follow as a corollary of the long established presumption in favor of the constitutionality of a statute. Mr. Justice Iredell said, as early as 1798, in Calder v. Bull, 3 Dall. 386, 399: 'If any act of congress, or of the legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case.' Mr. Chief Justice Marshall said, in Dartmouth College v. Woodward, 4 Wheat. 518, 625: 'On more than one occasion, this court has expressed the cautions circumspection with which it approaches the consideration of such questions; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution.' 12 [297 U.S. 288, 355] Mr. Justice Washington said, in Ogden v. Saunders, 12 Wheat. 213, 270: 'But if I could rest my opinion in favour of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone, would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.' Mr. Chief Justice Waite said in the Sinking-Fund Cases, 99 U.S. 700 , 718: 'This declaration (that an act of Congress is unconstitutional) should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.' The challenge of the power of the Tennessee Valley Authority rests wholly upon the claim that the act of [297 U.S. 288, 356] Congress which authorized the contract is unconstitutional. As the opinions of this Court and of the Circuit Court of Appeals show, that claim was not a matter 'beyond peradventure clear.' The challenge of the validity of the act is made on an application for an injunction-a proceeding in which the court is required to exercise its judicial discretion. In proceedings for a mandamus, where, also, the remedy is granted not as a matter of right but in the exercise of a sound judicial discretion, Duncan Townsite Co. v. Lane, 245 U.S. 308, 311 , 312 S., 38 S.Ct. 99, courts decline to enter upon the enquiry when there is a serious doubt as to the existence of the right or duty sought to be enforced. As was said in United States v. Interstate Commerce Commission, 294 U.S. 50, 63 , 55 S.Ct. 326, 331: 'Where the matter is not beyond peradventure clear, we have invariably refused the writ (of mandamus), even though the question were one of law as to the extent of the statutory power of an administrative officer or body.' A fortiori this rule should have been applied here where the power challenged is that of Congress under the Constitution. Mr. Justice STONE, Mr. Justice ROBERTS, and Mr. Justice CARDOZO join in this opinion. The separate opinion of Mr. Justice McREYNOLDS. Considering the consistent rulings of this court through many years, it is not difficult for me to conclude that petitioners have presented a justiciable controversy which we must decide. In Smith v. Kansas City Title & Trust Co., 255 U.S. 180 , 41 S.Ct. 243, the grounds for jurisdiction were far less substantial than those here disclosed. We may not with propriety avoid disagreeable duties by lightly forsaking ong respected precedents and established practice. Nor do I find serious difficulty with the notion that the United States, by proper means and for legitimate ends, [297 U.S. 288, 357] may dispose of water power or electricity honestly developed in connection with permissible improvement of navigable waters. But the means employed to that end must be reasonably appropriate in the circumstances. Under pretense of exercising granted power, they may not in fact undertake something not intrusted to them. Their mere ownership, e.g., of an iron mine would hardly permit the construction of smelting works followed by entry into the business of manufacturing and selling hardware,

albeit the ore could thus be disposed of, private dealers discomfited and artificial prices publicized. Here, therefore, we should consider the truth of petitioners' charge that, while pretending to act within their powers to improve navigation, the United States, through corporate agencies, are really seeking to accomplish what they have no right to undertake-the business of developing, distributing and selling electric power. If the record sustains this charge, we ought so to declare and decree accordingly. The Circuit Court of Appeals took too narrow a view of the purpose and effect of the contract of January 4, 1934. That went far beyond the mere acquisition of transmission lines for proper use in disposing of power legitimately developed. Like all contracts, it must be considered as a whole, illumined by surrounding circumstances. Especial attention should be given to the deliberately announced purpose of directors, clothed with extraordinary discretion and supplied with enormous sums of money. With $ 50,000,000 at their command they started out to gain control of the electrical business in large areas and to dictate sale prices. The power at Wilson Dam was the instrumentality seized upon for carrying the plan into effect. While our primary concern is with this contract, it cannot be regarded as a mere isolated effort to dispose of property. And certainly to consider only those provisions [297 U.S. 288, 358] which directly relate to Alabama Power Company is not permissible. We must give attention to the whole transaction-its antecedents, purpose and effect-as well as the terms employed. No abstract question is before us; on the contrary, the matter is of enormous practical importance to petitioners-their whole investment is at stake. Properly understood, the pronouncements, policies and program of the Authority illuminate the action taken. They help to reveal the serious interference with the petitioners' rights. Their property was in danger of complete destruction under a considered program commenced by an agency of the national government with vast resources subject to its discretion and backed by other agencies likewise intrusted with discretionary use of huge sums. The threat of competition by such an opponent was appalling. The will to prevail was evident. No private concern could reasonably hope to withstand such force. The Tennessee river, with headwaters in West Virginia and North Carolina, crosses Tennessee on a southwesterly course, enters Alabama near Chattanooga, and flows westerly across the northern part of that state to the northeast corner of Mississippi. There it turns northward, passes through Tennessee and Kentucky, and empties into the Ohio forty miles above Cairo. The total length is nine hundred miles; the drainage basin approximates forty thousand square miles. The volume of water is extremely variable; commercial navigation is of moderate importance. At Muscle Shoals, near Florence, Ala. (twenty miles east of the Mississippi line and fifteen south of Tennessee), a succession of falls constitutes serious interference with navigation; also presents possibilities for development of power on a large scale. During and immediately after the World War, a great dam was constructed there by the United States, intended primarily for genera- [297 U.S. 288, 359] tion of power. Production o electricity soon commenced. Some of this was devoted to governmental purposes; much was sold, delivery being made at or near the dam. During the last thirty years, several corporations have been engaged in the growing business of developing electric energy and distributing this to customers over a network of interconnected lines extending throughout Tennessee, Georgia, Alabama, and Mississippi. At great expense they gradually built up extensive businesses and acquired properties of very large value. All operated under state supervision. Through stock ownership or otherwise, they came under general control of the Commonwealth & Southern Corporation. Among the associates were the Alabama Power Company which serviced Alabama; the Mississippi Company which serviced Mississippi; and the Tennessee Company which operated in eastern Tennessee. Huge sums were invested in these enterprises by thousands of persons in many states. Apparently, the companies were diligently developing their several systems and responding to the demands of the territories which they covered. In 1933, operations began under an imposing program for somewhat improving Tennessee river navigation and especially for developing the water power along its whole course at public expense. This plan involved conversion of water power into electricity for wide distribution throughout the valley and adjacent territory. Its development was intrusted to the Tennessee Valley Authority, a federal corporation wholly controlled by the United States. This promptly took over the Wilson Dam and began work upon the Wheeler Dam, twenty miles up the river, and the Pickwick Dam, some forty miles lower down. Also it commenced construction of Norris

Dam across Clinch river, a branch of the Tennessee, two hundred miles above the Wilson Dam. All these, with probable additions, were to be connected by transmission wires, [297 U.S. 288, 360] and electric energy distributed from them to millions of people in many states. Public service corporations were to be brought to terms or put out of business. At least $75,000,000 of public funds was early appropriated for expenditure by the directors; and other governmental agencies in control of vast sums were ready to lend aid. Readily to understand the issues now before us, one must be mindful of these circumstances. The trial court made findings of fact which fill more than sixty printed pages. They are not controverted and for present purposes are accepted; upon them the cause stands for decision. They are much quoted below. Plainly they indicate, and that court, in effect, declared, the contract of January 4th was a deliberate step into a forbidden field, taken with definite purpose to continue the trespass. Nothing suggests either necessity or desirability of entering into this agreement solely to obtain solvent customers willing to pay full value for all surplus power generated at Wilson Dam. Apparently there was ample opportunity for such sales deliveries to be made at or near the dam. No attempt was made to show otherwise. The definite end in view was something other than orderly disposition. The Authority's answer to the complaint is little more than a series of denials. It does not even allege that the contract of January 4th was necessary for ready disposal of power; or that thereby better prices could be obtained; or that no buyer was ready, able and willing to take at the dam for full value; or that the board expected to derive adequate return from the business to be acquired. No sort of explanation of the contract is presented-why it was entered into or whether profitable use probably could be made of the property. And I find in the Authority's brief no serious attempt to justify the purchases because necessary or in fact an advantageous method for dispos- [297 U.S. 288, 361] ing of property. Nothing in the findings lends support to any such view. The record leaves no room for reasonable doubt that the primary purpose was to put the federal government into the business of distrib ting and selling electric power throughout certain large districts, to expel the power companies which had long serviced them, and to control the market therein. A government instrumentality had entered upon a pretentious scheme to provide a 'yardstick' of the fairness of rates charged by private owners, and to attain 'no less a goal than the electrification of America.' 'When we carry this program into every town and city and village, and every farm throughout the country, we will have written the greatest chapter in the economic, industrial and social development of America.' Any reasonable doubt concerning the purpose and result of the contract of January 4th or of the design of the Authority should be dispelled by examination of its Reports for 1934 and 1935.* * From the Annual Report, T.V.A. Board for 1934, pp. 23, 24, 25, 26, 27 and 28: To provide a workable and economic basis of operations, the Authority plans initially to serve certain definite regions and to develop its program in those areas before going outside. The initial areas selected by the Authority may be roughly described as (a) the region immediately proximate to the route of the transmission line soon to be constructed by the Authority between Muscle Shoals and the site of Norris Dam; (b) the region in proximity to Muscle Shoals, including northern Alabama and northeastern Mississippi; and (c) the region in the proximity of Norris Dam (the new source of power to be constructed by the Authority on the Clinch River in northeast Tennessee). At a later stage in the development it is contemplated to include, roughly, the drainage area of the Tennessee River in Kentucky, Alabama, Georgia, and North Carolina, and that part of Tennessee which lies east of the west margin of the Tennessee drainage area. To make the area a workable one and a fair measure of public ownership, it should include several cities of substantial size (such as Chattanooga and Knoxville) and, ultimately, at least one city of more [297 U.S. 288, 362] 'The conception was to establish an independent network comparable in all respects with the electric utility system serving the area, with which TVA sought to establish interchange arrangements, both as outlets for its [297 U.S. 288, 363] own power, and to use existing systems as a stand-by or back-up service.'

'The TVA plan as conceived and in process of execution contemplates complete and exclusive control and jurisdiction over all power sites on the Tennessee River [297 U.S. 288, 364] and tributaries.' 'The TVA policy contemplates full corporate discretion by TVA in developing, executing and extending its electric system and service within transmission limits.' 'This policy contemplated service utility in type and covered not only generation but transmission and distribution (preferably through public or nonprofit agencies, if available) both wholesale and retail. That is, ___ Relief labor was withdrawn of February 15, 1934, after which date the work was continued by the Authority with its own forces. Approximately 93.5 miles of rural electric lines were under construction in Lauderdale and Colbert Counties, Ala., on June 30, and approximately 127 miles in Lee, Pontotoc, Alcorn, Itawamba, Prentiss, Monroe, and Tishomingo Counties, Miss. A standard form of 20-year contract was devised to govern the sale of power at wholesale to municipal distribution systems, and was first used in a contract with the city of Tupelo, Miss. The Tupelo contract has been published by the Authority and is available for distribution. Annual Report, T.V.A. 1935, pp. 29, 30: The Authority has devoted special attention during the year to the problems of rural electrification, as required by section 10 of the act. By the close of the fiscal year 200 miles of rural electric line had been built, and 181 additional miles were in process of construction. These lines are divided among the various counties as follows: Miles Miles in completed progress Alabama: Colbert 19 15 Lauderdale 72 --- Mississippi: Alcorn 41 29 Lee and Itawamba 41 26 Pontotac 27 --- Prentiss 7 Tennessee: Lincoln --- 104 Total 200 181 In addition to the above, a number of the rural lines purchased from the Mississippi Power Co. were rehabilitated in ord r to improve operating and safety conditions, and to provide for increases in load. Also, additional customers were connected to all existing rural lines. [297 U.S. 288, 365] moreover, implicit in both the January 4 contract and the now terminated August 9th contract.' The challenged contract is defended upon the theory that the 'Federal Government may dispose of the surplus water power necessarily created by Wilson Dam and may authorize generation of electric energy and acquisition of transmission lines as means of facilitating this disposal.' But to facilitate disposal was not the real purpose; obviously the thing to be facilitated was carrying on business by use of the purchased property. Under the guise of disposition something wholly different was to be accomplished-devotion of electric power to purposes beyond the sphere of proper federal action, an unlawful goal. There is no plausible claim that such a contract was either necessary or desirable merely to bring about the sale of property. This Court has often affirmed that facts, not artifice, control its conclusions. The Agency has stated quite clearly the end in view: 'This public operation is to serve as a yardstick by which to measure the fairness of electric rates.' 'The TVA power policy was not designed or limited with a view to the marketing of the power produced and available at Muscle Shoals.' 'In formulating and going forward with the power policy the Board was considering that policy as a permanent and independent commercial function.' For present purposes a complete survey of relevant circumstances preceding the contract of January 4th and all its consequences is not essential. The pleadings and findings fairly outline the situation. What follows is mainly quoted or derived from them. The Act of May 18, 1933, created the Tennessee Valley Authority as a body corporate 'for the purpose of maintaining and operating the properties now owned by the United States in the vicinity of Muscle Shoals, Alabama, in the interest of the national defense and for agricultural [297 U.S. 288, 366] and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins.' Section 1, 16 U.S.C.A. 831. It provided, a board of three directors 'shall direct the exercise of all the powers of the Corporation' (section 2, 16 U.S.C.A. 831a), and 'is authorized to make alterations, modifications, or improvements in existing plants and facilities, and to construct new plants' (section 5, 16 U.S.C.A. 831d); and to 'produce, distribute, and sell electric power, as herein particularly specified.' (Section 5). The corporation 'shall have such powers as may be necessary or

appropriate for the exercise of the powers herein specifically conferred upon the Corporation' (section 4, 16 U.S.C.A . 831c); 'to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects at any point along the Tennessee River, or any of its tributaries.' (Section 4). Also, the board is 'hereby empowered and authorized to sell the surplus power not used in its operations, and for operation of locks and other works generated by it, to States, counties, municipalities, corporations, partnerships, or individuals, according to the policies hereinafter set-forth; and to carry out said authority, the board is authorized to enter into contracts for such sale for a term not exceeding twenty years.' Section 10, 16 U.S.C.A. 831i. 'In order to promote and encourage the fullest possible use of electric light and power on farms within reasonable distance of any of its transmission lines the board in its discretion shall have power to construct transmission lines to farms and small villages that are not otherwise supplied with electricity at reasonable rates, and to make such rules and regulations governing such sale and distribution of such electric power as in its judgment may be just and equitable.' Section 10. 'One of the first corporate acts of TVA after its organization was to formulate and announce a power policy to govern the commercial distribution of electric power by TVA. The evidence establishes the fact that the Board [297 U.S. 288, 367] from the outset has considered that it has general corporate discretion as to the establishment and extension of its electric power policy. In establishing a power policy the Board was not primarily considering merely the question of disposal of power produced at Muscle Shoals no longer required for governmental purposes as a result of overbuilding, obsolescence of plants or termination of war purpose. Nor was it considering disposal of prospective increases in electric power to be unavoidably created in excess of some governmental requirement. It was considering the matter from the standpoint of the successful establishment and permanent operation of an independent and well rounded government- owned electric distribution system and the general civic, social and industrial planning and development of the Tennessee Valley region as a whole.' 'Under date of August 25, 1933, TVA announced its power policy, indicating both the initial stage of its development and certain later steps originally determined upon. ... This power policy had not been rescinded or abandoned or modified at the time of submission of this cause.' 'In September, 1933, the Authority announced its wholesale and retail rate schedules, which are shown by the evidence to be materially lower than corresponding schedules of the existing utilities in the area. Following this action numerous municipalities in the area began to make efforts to construct municipal systems with which to distribute TVA current, and Public Works Administration (called PWA) gave assurances of favorable consideration of applications for loans to that end.' Under such circumstances, Commonwealth & Southern Corporation negotiated the January 4th contract for its operating subsidiaries-Alabama Power Company, Georgia Power Company, Mississippi Power Company, and Tennessee Electric Power Company. [297 U.S. 288, 368] This recited that the Alabama Company, the Mississippi Company, and the Tennessee Company desired to sell, and the Authority desired to purchase, certain land, buildings, and physical properties devoted to the generation, transmission, and distribution of electricity, together with certain franchises, contracts, and going business. The Alabama Company agreed to sell for $1,000,000 all of its low tension (44 KV or lower) transmission lines, substations (including the high tension station at Decatur and the Sheffield Steam Plant Station), and all rural lines and rural distribution systems in five Alabama counties and parts of two others. (These counties are northwestern Alabama and lie on both sides of the Tennessee river for eighty miles or more.) The Mississippi Company, in consideration of $850,000, agreed to transfer all of its transmission and distribution lines, substations, generating plants and other property in Pontoto , Lee, Itawamba, Union, Benton, Tippah, Prentiss, Tishomingo, and Alcorn counties (except one dam site in Tishomingo county), state of Mississippi, used in connection with the generation, transmission, distribution or sale of electrical energy. ( These counties are the northeastern section of the state, a territory sixty miles square.) For $900,000, the Tennessee Company agreed to convey its transmission and distribution lines, substations, distribution systems, and other properties used in connection with the transmission, distribution, and sale of electrical energy in Anderson, Campbell, Morgan, and Scott counties, East Tennessee, and 'all of the 66 KV transmission line from Cove Creek to Knoxville.' (These counties are in the mountains northward from Knoxville within a radius of about sixty miles. They lie northeast of Muscle Shoals and some points therein are

much more than a hundred miles from Wilson Dam. They have a population of 86,000.) [297 U.S. 288, 369] The power companies agreed that 'any conveyance of property shall include not only the physical property, easements and rights-of-way, but shall also include all machinery, equipment, tools and working supplies set forth in the respective exhibits, and all franchises, contracts and going business relating to the use of any of said properties.' Also, 'to transfer or secure the transfer of said franchises, contracts and going business, and to transfer said properties with all present customers attached, so far as they are able.' Also, 'that during the period of this contract none of said companies will sell electric energy to any municipality, corporation, partnership, association or individual in any portion of the above described counties or parts thereof in Alabama, Tennessee and Mississippi, etc.' The Authority agreed not to sell 'electric energy outside of the specified counties to the customers of non- utilities supplied by the power companies.' Other covenants provided for interchange of electric energy between the contracting parties and for cooperation in the sale of electric appliances throughout the entire territory served by the power companies. 'Power Companies covenant and agree that after the expiration of this agreement the interchange arrangement then in effect will be maintained by Power Companies for an additional period (not exceeding eighteen months) sufficient to permit Authority to construct its own transmission facilities for serving all of the territory which it is then serving in whole or in part with power obtained at such interchange points.' 'Power Companies agree to have available at all times for exchange, at each point of exchange, energy and capacity to supply the entire demands of the customers served by Authority from such points of exchange, subject to the limitations as to transmission capacity set forth in Section 10(h) hereof; Provided, that the maxi[297 U.S. 288, 370] mum amount which Authority shall be entitled to demand at all points of exchange shall be 70,000 k.v.' Prior to the agreement for sale the Alabama Company had derived $750, 000 gross annual revenue from its properties located within the 'ceded area.' This district had a population of 190,000; and the company had therein 10,000 individual customers-approximately one-tenth of all those directly served by it. The lines transferred by the Mississippi Power Company served directly 4,000 customers in 9 counties, having total population of 184,000. When this cause began, the Mississippi properties were being operated by TVA and rural lines were in process of extension by it in both Mississippi and Alabama. 'All of the electric properties and facilities covered by the contract of January 4, 1934, ... were contracted for by TVA for the purpose of continuing and enlarging the utility service for which they were used by the respective power companies.' 'The operation of a commercial utility service by TVA and the wholesaling and retailing by TVA of electricity in the area served by the Alabama Power Company is not and will not be in aid of the regulation of navigation or national defense or other governmental function in so far as any plan, purpose or activity of the TVA or the United States disclosed on this record would indicate.' Answering the petitioners' complaint, Alabama Company admitted 'that the public statements of TVA indicated the program therein alleged; and the directors of respondent company considered that to vest such an agency as therein alleged with unlimited power and access to public funds, in a program of business competition and public ownership promotion in the area served by respondent company would in effect destroy this respondent's property; and such conclusion on its part was the [297 U.S. 288, 371] principal inducement for it to enter into the contracts of January 4 and August 9, 1934; and respondent company thereby was and will be enabled to salvage a larger amount of its property than it could have done by competition.' Also, 'that under the circumstances of threatened competition, directed or controlled by TVA as averred therein, this respondent agreed to the sale of certain of its transmission lines and property, and entered into the contract dated January 4, 1934. ... Respondent company admits that at and before the execution of the contract, the threat was made to use federal funds to duplicate the facilities of respondent which would result in competition with rates not attainable by or permissible to this respondent, and such rates would be stipulated, controlled and regulated by TVA.' As matter of law the trial court found: 'The function intended by TVA under the evidence in relation to service, utility in type, in the area ceded by the contract of January 4, 1934, transcends the function of conservation or disposition of government property, involves continuing service and commercial functions by the government to fill contracts not governmental in origin or character.'

'Performance of the contract of January 4, 1934, would involve substantial loss and injury to the Alabama Power Company, including, inter alia, the loss or abandonment of franchises, licenses, going business and service area supporting its general system and power facilities and unless resisted would tend to invite a progressive encroachment on its service area by the Tennessee Valley Authority.' 'Congress has no constitutional authority to authorize Tennessee Valley Authority or any other federal agency to undertake the operation, essentially permanent in character, of a utility system, for profit, involving the [297 U.S. 288, 372] generation, transmission and commercial distribution of electricity within state domain, having no reasonable relation to a lawful governmental use.' 'The contract of January 4, 1934, expressly provided for the transfer of all or substantially all of the lines and properties of the Alabama Power Company for the service of the ceded area, included transmission lines, rural distribution systems and certain urban distribution systems, and contemplated the eventual transfer of fourteen urban distribution systems. This contract, expressly contemplating service of the ceded area by the Tennessee Valley Authority with electricity to be generated or purchased by the Tennessee Valley Authority for that purpose, was in furtherance of illegal proprietary operations by the Tennessee Valley Authority in violation of the Federal Constitution and void. The contract was accordingly ultra vires and void as to the Alabama Power Company.' Having made exhaustive findings of fact and law, the trial court entered a decree annulling the January 4th contract and enjoining the Alabama Power Company from performing it. The Circuit Court of Appeals reversed, upon the theory that the Authority was making proper arrangements for sale of surplus power from the Wilson dam. The injunction was continued. I think the trial court reached the correct conclusion and that its decree should be approved. If under the thin mask of disposing of property the United States can enter the business of generating, ransmitting and selling power as, when, and wherever some board may specify, with the definite design to accomplish ends wholly beyond the sphere marked out for them by the Constitution, and easy way has been found for breaking down the limitations heretofore supposed to guarantee protection against aggression. Footnotes [ Footnote 1 ] The Tennessee Valley Authority is a body corporate created by the Act of Congress of May 18, 1933, amended by the Act of Congress of August 31, 1935. 48 Stat. 58; 49 Stat. 1075 (16 U.S.C.A. 831 et seq.). [ Footnote 2 ] The Commonwealth & Southern Corporation, organized under the laws of Delaware, and the owner of the common stock of the Alabama Power Company, was a party to the contract, which also contained agreements with other subsidiaries of the Commonwealth & Southern Corporation, viz: Tennessee Electric Power Company, Georgia Power Company, and Mississippi Power Company. The agreements with these companies are not involved in this suit. [ Footnote 3 ] Equity Rule 27 (28 U.S.C.A. following section 723). [ Footnote 4 ] The District Court found that 'approximately 1900 preferred stockholders of the Alabama Company, holding over 40,000 shares of the preferred stock thereof, have associated themselves with a preferred stockholders' protective committee and authorized their names to be joined with the plaintiffs of record in this case as parties plaintiff.' [ Footnote 5 ] See note 2. [ Footnote 6 ] 41 Stat. 1063. [ Footnote 7 ] 48 Stat. 955 (28 U.S.C.A. 400). 56 S.CT.-30 1/2 [ Footnote 8 ] 39 Stat. 166, 215 (50 U.S.C.A. 79). [ Footnote 9 ] Among the findings of the District Court on this point are the following: '38. The Muscle Shoals plants, including the Sheffield steam plant and the 8 hydro-electric units installed at Wilson Dam, were authorized for war purposes by section 124 of the National Defense Act of 1916 in anticipation of participation in the great war. The original conception was for the use of Nitrate Plant No. 1

employing the Haber process and Plant No. 2 employing the cyanamid process for the fixation or manufacture of nitrogen and its subsequent conversion into ammonium nitrate for explosives. Plant No. 1 was completed but was never practicable, due to the lack of knowledge of the Haber process. Plant No. 2 successfully developed calcium cyanamid from a manufacturing standpoint but due to the availability of ammonium nitrate as a result of commercial development of by-product or synthetic processes, the commercial or peace-time manufacture of calcium cyanamid at Nitrate Plant No. 2 is considered uneconomical and undesirable and is not proposed or suggested by either the War Department or the TVA. The Court further finds, however, that the plant with the aid of electric power furnished by Wilson Dam and the Sheffield steam plant can be operated to produce annually 110,000 tons of ammonium nitrate by the cyanamid process and that the present plans of the War Department count upon that plant to supply that amount annually in the event of a major war. ... '40. The existence of these facilities which make available large quantities of nitrogenous war materials by use of either the nitrogen fixing process or the oxidation of synthetic ammonia is a valuable national defense asset.' [ Footnote 10 ] Sen.Doc.No.1, 18th Cong., 2d Sess.; H.R.Doc.No.119, 69th Cong., 1st Sess., 11, 12. [ Footnote 11 ] See Rivers and Harbors Acts of August 30, 1852, c. 104, 10 Stat. 56, 60; July 25, 1868, c. 233, 15 Stat. 171, 174; March 3, 1871, c. 118, 16 Stat. 538, 542; June 10, 1872, c. 416, 17 Stat. 370, 372; September 19, 1890, c. 907, 26 Stat. 426, 445, 446; August 18, 1894, c. 299, 28 Stat. 338, 354; April 26, 1904, c. 1605, 33 Stat. 309; March 2, 1907; c. 2509, 34 Stat. 1073, 1093; June 25, 1910, c. 382, 36 Stat. 630, 652; July 25, 1912, c. 253, 37 Stat. 201, 215; July 27, 1916, c. 260, 39 Stat. 391, 399; March 3, 1925, c. 467, 43 Stat. 1186, 1188; July 3, 1930, c. 847, 46 Stat. 918, 927, 928. See, also H.R.Docs.No.319, 67th Cong., 2d Sess.; No. 463, 69th Cong., 1st Sess.; No. 185, 70th Cong., 1st Sess.; No. 328, 71st Cong., 2d Sess. [ Footnote 12 ] Act of July 3, 1930, c. 847, 46 Stat. 918, 927, 928. [ Footnote 13 ] See citations of numerous statutes in United St tes v. Sweet, 245 U.S. 563, 568 , 569 S., 38 S.Ct. 193. [ Footnote 14 ] Act of July 4, 1866, c. 166, 5, 14 Stat. 85, 86. [ Footnote 15 ] Act of July 16, 1894, c. 138, 28 Stat. 107. [ Footnote 16 ] See, as to royalties under leases 'to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain,' the Act of February 25, 1920, c. 85, 41 Stat. 437. Also, as to leases of public lands containing potassium deposits, the Act of October 2, 1917, c. 62, 40 Stat. 297. [ Footnote 17 ] 35 Stat. c. 264, 815, 820, 821. [ Footnote 1 ] The management explained that it was in the best interest of the company to accept the offer of the Authority for the purchase of the transmission lines in a limited area coupled with an agreement on the part of the Authority not to sell outside of that area during the life of the contra t. It protected the company against possible entrance of the Authority into the territory in which were located nine-tenths of the company's customers, including the largest; and it assured the company that so long as the latter retained its urban distribution systems within the territory served by the transmission lines, those systems would be serviced by power from Wilson Dam. Upon delivery of the transmission lines, the Authority agreed to pay the company $1,150,000. [ Footnote 2 ] See, also, Samuel v. Holladay, 21 Fed. Cas. pages 306, 311, 312, No. 12,288. [ Footnote 3 ] E.g., Miller, J., in Ex parte Garland, 4 Wall. 333, 382; Hepburn v. Griswold, 8 Wall. 603, 610; Adkins v. Children's Hospital, 261 U.S. 525, 544 , 43 S.Ct. 394, 24 A.L. R. 1238; Holmes, J., in Blodgett v. Holden, 275 U.S. 142, 147 , 148 S., 276 U.S. 594 , 48 S.Ct. 105. [ Footnote 4 ] E.g., Hayburn's Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40; Gordon v. United States, 2 Wall. 561; Id., 117 U.S. 697 , append.; Muskrat v. United States, 219 U.S. 346 , 31 S.Ct. 250; Willing v. Chicago Auditorium Ass'n, 277 U.S. 274 , 48 S.Ct. 507.

[ Footnote 5 ] E.g., Ex parte Randolph, 20 Fed.Cas. pages 242, 254, No. 11,558; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553; Trade-Mark Cases, 100 U.S. 82 , 96; Arizona v. California, 283 U.S. 423 , 462464, 51 S.Ct. 522. [ Footnote 6 ] E.g., Hatch v. Reardon, 204 U.S. 152, 160 , 161 S., 27 S.Ct. 188, 9 Ann.Cas. 736; Corporation Commission v. Lowe, 281 U.S. 431, 438 , 50 S.Ct. 397; Heald v. District of Columbia, 259 U.S. 114, 123 , 42 S.Ct. 434; Sprout v. South Bend, 277 U.S. 163, 167 , 48 S.Ct. 502, 62 A.L.R. 45; Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535, 547 , 54 S.Ct. 830. [ Footnote 7 ] Compare Electric Co. v. Dow, 166 U.S. 489 , 17 S.Ct. 645; Pierce v. Somerset Ry., 171 U.S. 641, 648 , 19 S.Ct. 64; Leonard v. Vicksburg, etc., R. Co., 198 U.S. 416, 422 , 25 S.Ct. 750. [ Footnote 8 ] E.g., United States v. Delaware & Hudson Co., 213 U.S. 366, 407 , 408 S., 29 S.Ct. 527; United States v. Jin Fuey Moy, 241 U.S. 394, 401 , 36 S.Ct. 658, Ann.Cas.1917D, 854; Baender v. Barnett, 255 U.S. 224 , 41 S.Ct. 271; Texas v. Eastern Texas R. Co., 258 U.S. 204, 217 , 42 S.Ct. 281; Panama R. Co. v. Johnson, 264 U.S. 375, 390 , 44 S.Ct. 391; Linder v. United States, 268 U.S. 5, 17 , 18 S., 45 S.Ct. 446, 39 A.L.R. 229; Missouri Pacific R. Co. v. Boone, 270 U.S. 466, 471 , 472 S., 46 S.Ct. 341; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346 , 48 S.Ct. 194; Blodgett v. Holden,275 U.S. 142 , 148, 276 U.S. 594 , 48 S.Ct. 105; Lucas v. Alexander, 279 U.S. 573, 577 , 49 S.Ct. 426, 61 A.L.R. 906; Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U.S. 14, 40 , 53 S.Ct. 266. [ Footnote 9 ] Others are Memphis City v. Dean, 8 Wall. 64, 73; Smyth v. Ames, 169 U.S. 466 , 515-518, 18 S.Ct. 418; Corbus v. Alaska Treadwell Gold Mining Co., 187 U.S. 455 , 23 S.Ct. 157; Ex parte Young,209 U.S. 123, 143 , 28 S.Ct. 441, 13 L.R.A. ( N.S.) 932, 14 Ann.Cas. 764; Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 213 U.S. 435 , 29 S.Ct. 540; Wathen v. Jackson Oil & Refining Co., 235 U.S. 635 , 35 S.Ct. 225. [ Footnote 10 ] The resolution of the directors (Dodge v. Woolsey, 18 How. 331, at page 340) was this: 'Resolved, that we fully concur in the views expressed in said letter as to the illegality of the tax therein named, and believe it to be in no way binding upon the bank; but, in consideration of the many obstacles in the way of testing the law in the courts of the State, we cannot consent to take the action which we are called upon to take, but must leave the said Kleman to pursue such measures as he may deem best in the premises.' Referring to Dodge v. Woolsey, the Court pointed out in Hawes v. Oakland,104 U.S. 450 , 459: 'As the law then stood there was no means by which the bank, being a citizen of the same State with Dodge, the tax-collector, could bring into a court of the United States the right which it asserted under the Constitution, to be relieved of the tax in question, except by writ of error to a State court from the Supreme Court of the United States.' [ Footnote 11 ] A notable recent example is Humphrey's Executor v. United States, 295 U.S. 602 , page 626 et seq., 55 S.Ct. 869, which limited Myers v. United States, 272 U.S. 52 , 47 S.Ct. 21, disapproving important statements in the opinion. For lists of decisions of this Court later overruled, see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 406-409, 52 S.Ct. 443; Malcolm Sharp, Movement in Supreme Court Adjudication-A Study of Modified and Overruled Decisions, 46 Harv.L.Rev. 361, 593, 795. [ Footnote 12 ] In 1811, Chief Justice Tilghman of the Supreme Court of Pennsylvania, while asserting the power of the court to hold laws unconstitutional, but declining to exercise it in a particular case, stated the practice as follows: 'For weighty reasons, it has been assumed as a principle in constitutional const uction by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an Act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave to room for reasonable doubt.' James B. Thayer, after quoting the passage in The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.Law Review 129, 140, called attention (p. 144) to 'a remark of Judge Cooley, to the effect that one who is a member of a legislature may vote against a measure as being, in his judgment, unconstitutional; and, being subsequently placed on the bench, when this measure having been passed by the legislature in spite of his opposition, comes before him judicially, may there find it his duty, although he has in no degree changed his opinion, to declare it constitutional.' than a quarter million, within transmission distance, such as Birmingham, Memphis, Atlanta, or Louisville.

While it is the Authority's present intention to develop its power program in the above-described territory before considering going outside, the Authority may go outside the area if there are substantial changes in general conditions, facts, or governmental policy, which would necessarily require a change in this policy of regional development, or if the privately owned utilities in the area do not cooperate in the working out of the program. The Authority entered into a 5-year contract on January 4, 1934, with the Commonwealth & Southern Corporation and its Alabama, Tennessee, Georgia, and Mississippi subsidiaries. The contract covered options to purchase electric properties in certain counties of Alabama, Mississippi, and Tennessee, the sale of distribution systems to municipalities in these counties, restrictions on territorial expansion by the contracting parties, the interchange of power, and other matters. Alabama properties.-All of the low-tension (44,000 volts or lower) transmission lines, substations, rural lines, and rural distribution systems of the Alabama Power Co. in the counties of Lauderdale, Colbert, Lawrence, Limestone, and Morgan (except the Hulaco area), were included in the contract; also those in the north half of Franklin County, including the town of Red Bay, and the territory in the northern part of Cullman County served by a line of the Alabama Power Co. extending south from Decatur. The price of these properties was set at $1,101,256. The purchase had not been completed at the end of the fiscal year. The power company agreed to attempt to sell the local distribution systems in the above counties to the respective municipalities, the Authority reserving the right to serve them if sales were not consummated within 3 months of bona fide negotiation and effort. Because of the failure of any (many) of the municipalities in northern Alabama to consummate negotiations for the purchase of the distributi n systems serving them, the Authority entered into negotiations for the direct purchase of these distribution systems, but a purchase contract had not been completed on June 30. Mississippi properties.-The contract covered all of the properties of the Mississippi Power Co. in the counties of Pontotoc, Lee, Itawamba, Union, Benton, Tippah, Prentiss, Tishomingo, and Alcorn, except a dam site on the Tennessee River in Tishomingo County. The purchase price was $850,000. The purchase was completed and delivery was accepted on June 1, 1934. The transmission and generation facilities acquired in Mississippi and to be retained as part of the Authority's system include the following: 44,000-volt transmission lines miles 63 44,000-volt substations 6 22,000-volt transmission lines miles 45 22,000-volt substations 4 Tupelo steam stand-by generating plant Kilovolt-amperes 4,374 Corinth steam standby generating plant Kilovolt-amperes 2,225 Blue Mountain Diesel generating plant Kilovolt-amperes 150 Myrtle Diesel generating plant Kilovolt-amperes 75 Part of the local distribution facilities acquired in Mississippi were sold prior to the end of the fiscal year and it is expected that all will be sold eventually, as noted hereafter. Tennessee properties.-The contract covered all of the properties of the Tennessee Electric Power Co. in the counties of Anderson, Campbell, Morgan (except the lines extending into Morgan County from Harriman), and Scott; also those in the west portion of Claiborne County, and the 66,000- volt transmission line from Anderson County to Knoxville. The price of these properties was set at $900,000. The purchase had not been completed at the end of the fiscal year. Negotiations were carried on diligently for several months with the National Power & Light Co., an affiliate of the Electric Bond & Share Co., in an endeavor to acquire the eastern Tennessee electric properties of the Tennessee Public Service Co., a subsidiary of the National Power & Light Co. The electric distribution system in the city of Knoxville is included in these properties. The negotiations resulted in a contract after the end of the fiscal year.

Construction of rural electric lines in northern Alabama and northeastern Mississippi was commenced in the latter part of 1933 with relief labor, the Authority furnishing supervision and materials.

FRANCISCO V HOUSE OF REPRESENTATIVES

EN BANC [G.R. No. 160261. November 10, 2003] ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents, JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondentin-intervention. [G.R. No. 160262. November 10, 2003] SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondentin-intervention. [G.R. No. 160263. November 10, 2003] ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160277. November 10, 2003] FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDOLOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREONJALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SYALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH

SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160292. November 10, 2003] HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160295. November 10, 2003] SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160310. November 10, 2003] LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. [G.R. No. 160318. November 10, 2003] PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. [G.R. No. 160342. November 10, 2003]

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. [G.R. No. 160343. November 10, 2003] INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. [G.R. No. 160360. November 10, 2003] CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. [G.R. No. 160365. November 10, 2003] U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. [G.R. No. 160370. November 10, 2003] FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. [G.R. No. 160376. November 10, 2003] NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. [G.R. No. 160392. November 10, 2003] VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. [G.R. No. 160397. November 10, 2003]

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. [G.R. No. 160403. November 10, 2003] PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. [G.R. No. 160405. November 10, 2003] DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents. DECISION CARPIO-MORALES, J.: There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nations history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides: ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the

Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules approved by the 11th Congress. The relevant distinctions between these two Congresses House Impeachment Rules are shown in the following tabulation: 11TH CONGRESS RULES RULE II INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House. 12TH CONGRESS NEW RULES RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated . In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified

complaint or resolution of impeachment with the Secretary General. RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar . No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year. Section 17. Bar Against Initiation Of Impeachment Proceedings . Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of this Court for culpable violation of the Constitution, betrayal of the public trust and other high crimes. The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, and was referred to the House Committee on Justice on August 5, 2003 in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was sufficient in form, but voted to dismiss the same on October 22, 2003 for being insufficient in substance. To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the Members of the House of Representatives. Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that [n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year. In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment,

that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress, posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ perpetually prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ perpetually prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG and Chavez v. PEA-Amari Coastal Bay Development Corporation, prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as a class suit and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF). In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue which they are trying to inculcate in the minds of their students, pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement

and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court, prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum, and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae. In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela) and Comment, praying that the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution. Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of

the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a Petition for Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a constitutional deadlock and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention. On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a Petition-in-Intervention with Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentels Comment and Attorneys Macalintal and Quadras Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) b) c) d) e) f) locus standi of petitioners; ripeness(prematurity; mootness); political question/justiciability; Houses exclusive power to initiate all cases of impeachment; Senates sole power to try and decide all cases of impeachment; constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and

g)

judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential prerequisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim. Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Courts power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied) Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and

controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this moderating power to determine the proper allocation of powers of the different branches of government and to direct the course of government along constitutional channels is inherent in all courts as a necessary consequence of the judicial power itself, which is the power of the court to settle actual controversies involving rights which are legally demandable and enforceable. Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has been set at rest by popular acquiescence for a period of more than one and a half centuries. To be sure, it was in the 1803 leading case of Marbury v. Madison that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts , as well as other departments, are bound by that instrument. (Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts. And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza, the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them. To him, [j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation. To ensure the potency of the power of judicial review to curb grave abuse of discretion by any branch or instrumentalities of government, the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called expanded certiorari jurisdiction of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration, this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum. (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. (Emphasis and underscoring supplied supplied) As it did in Nitafan v. Commissioner on Internal Revenue where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared: x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. (Emphasis and underscoring supplied) Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon, this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary, this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review. For his part, intervenor Senator Pimentel contends that the Senates sole power to try impeachment cases (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senates power to determine constitutional questions relative to impeachment proceedings. In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States. Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents and intervenors reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senates sole power to try and decide impeachment cases, as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC, [i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs. Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, [w]e have cut the umbilical cord.

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride. But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr, judicially discoverable standards for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez and Alejandrino v. Quezon, cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara, in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco, it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and one section is not to be allowed to defeat another. Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest and transcendental importance, and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the wellentrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure while the latter has constitutional underpinnings. In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato to clarify what is meant by locus standi and to distinguish it from real party-in-interest. The difference between the rule on standing and real party in interest has been noted by authorities thus: It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens,

taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. xxx On the other hand, the question as to "real party in interest" is whether he is the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit. (Citations omitted) While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public. At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained. This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator. Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. While an association has legal personality to represent its members, especially when it is composed of substantial taxpayers and the outcome will affect their vital interests, the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned to enable the court to deal properly with all interests involved in the suit, for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court. Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public. Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention. In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that they will suffer if this insidious scheme of the minority members of the House of Representatives is successful, this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a Petition-in-Intervention with Leave to Intervene to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilons. He alleges that submitting to this Courts jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of

Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Sorianos motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayers suits as set forth in Dumlao v. Comelec, to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is being extracted and spent in violation of specific constitutional protection against abuses of legislative power, or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal, this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The deans position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives

nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco, Chief Justice Roberto Concepcion defined the term political question, viz: [T]he term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Italics in the original) Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review. In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies. Even in the landmark 1988 case of Javellana v. Executive Secretary which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Courts power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the bodys indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime

was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus , that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as citizens assemblies or barangays. Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of political question was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity. This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary. (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus: MR. NOLLEDO. The Gentleman used the term judicial power but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.

MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression judicial power? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, judicial power includes and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power. (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with truly political questions. From this clarification it is gathered that there are two species of political questions: (1) truly political questions and (2) those which are not truly political questions. Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. x x x In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases. (Emphasis and underscoring supplied) And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or

instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission. Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor. Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections, this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable. [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform, where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself. [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied. In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary. Without going into the merits of petitioners Alfonso, et. al.s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Courts opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Courts ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee, viz: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be in aid of legislation in accordance with its duly published rules of procedure and that the rights of persons appearing in or affected by such inquiries shall be respected. It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against ones self. In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the verified complaint or resolution of impeachment was not filed by at least one-third of all the Members of the House. With the exception of Representatives Teodoro and Fuentebella, the signatories

to said Resolution are alleged to have verified the same merely as a Resolution of Endorsement. Intervenors point to the Verification of the Resolution of Endorsement which states that: We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin forthwith, is that the verified complaint be filed, not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least onethird of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latters arguments and issues as their own. Consequently, they are not unduly prejudiced by this Courts decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that [t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment. But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred. Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions. In the august words of amicus curiae Father Bernas, jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty. Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so. On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness. After all, by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office. The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal. In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunals membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held: Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three JusticesMembers alone the power of valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto, it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices. (Italics in the original) Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba, this Court, through Justice Marcelo Fernan cited the seven pillars of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . . It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing pillars of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case. Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary. They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official. Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act. x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioners prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows. Thus, in Javellana v. Executive Secretary where this Court was split and in the end there were not enough votes either to grant the petitions, or to sustain respondents claims, the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will

behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit: Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments, political parties, or even the interference of their own personal beliefs. Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term initiate does not mean to file; that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean to file because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term initiate. Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of initiate as to file, as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of initiating included the act of taking initial action on the complaint, dissipates any doubt that indeed the word initiate as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. Initiate of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Websters Third New International Dictionary of the English Language concisely puts it, it means to perform or facilitate the first action, which jibes with Justice Regalados position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is deemed initiated when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say impeachment proceedings are initiated but rather are deemed initiated. The language is recognition that initiation

happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records: MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: to initiate impeachment proceedings and the comma (,) and insert on line 19 after the word resolution the phrase WITH THE ARTICLES, and then capitalize the letter i in impeachment and replace the word by with OF, so that the whole section will now read: A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded. I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words Articles of Impeachment are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of

all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President. (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers. It is thus clear that the framers intended initiation to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that the obvious reason in deleting the phrase to initiate impeachment proceedings as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution. Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word initiate as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word initiate, appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied) refers to two objects, impeachment case and impeachment proceeding. Father Bernas explains that in these two provisions, the common verb is to initiate. The object in the first sentence is impeachment case. The object in the second sentence is impeachment proceeding. Following the principle of reddendo singuala sinuilis, the term cases must be distinguished from the term proceedings. An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has exclusive power to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a proceeding must be followed to arrive at a conclusion. A proceeding must be initiated. To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House initiates an impeachment case. It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment case before the Senate as impeachment court.

Father Bernas further explains: The impeachment proceeding is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the impeachment proceeding initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings, this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does. Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, No impeachment proceeding shall be initiated against the same official more than once within a period of one year, it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of to initiate which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says The House of Representatives shall have the exclusive power to initiate all cases of impeachment, This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating impeachment cases with impeachment proceeding. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term to initiate refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term initiate a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino wherein this Court stated that their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Courts our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings. Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latters balanced perspectives and disinterestedness.

Justice Gutierrezs statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Clearly, its power to promulgate its rules on impeachment is limited by the phrase to effectively carry out the purpose of this section. Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun, this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted disorderly behavior of its members. However, in Paceta v. Secretary of the Commission on Appointments, Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith, declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia, quoting United States v. Ballin, Joseph & Co., Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: x x x The Constitution, in the same section, provides, that each house may determine the rules of its proceedings. It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule , and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained . But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. Ballin , clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers. xxx In the Philippine setting , there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion,

the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government. xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people. xxx The provision defining judicial power as including the duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives rely on Nixon v. US as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that the House of Representatives shall have the sole power of impeachment. It adds nothing more. It gives no clue whatsoever as to how this sole power is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that exclusive power is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term initiate a meaning different from filing. Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of lack of jurisdiction, nonjusticiability, and judicial self-restraint aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Courts jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison detre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branchs official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the laws moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the highprofile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individuals rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED. Davide, Jr., C.J., no part.

Bellosillo, J., see separate opinion. Puno, and Ynares-Santiago, JJ., see concurring and dissenting opinion. Vitug, J., please see separate opinion (concurring). Panganiban, and Callejo, Sr., JJ., see separate concurring opinion. Sandoval-Gutierrez, J., see separate and concurring opinion Quisumbing, J., concurring separate opinion received. Carpio, J., concur. Austria-Martinez, J., concur in the majority opinion and in the separate opinion of Justice Vitug. Corona, J., will write a separate concurring opinion. Azcuna, J., concur in the separate opinion. Tinga, J., concur. Please see separate opinion. Rollo, G.R. No. 160261 at 180-182; Annex H. Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr. (Rollo, G.R. No. 160261 at 325-363) the pertinent House Resolution is HR No. 260, but no copy of the same was submitted before this Court. Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was established to help ensure and guarantee the independence of the Judiciary as mandated by the Constitution and public policy and required by the impartial administration of justice by creating a special fund to augment the allowances of the members and personnel of the Judiciary and to finance the acquisition, maintenance and repair of office equipment and facilities. Rollo, G.R. No. 160261 at 120-139; Annex E. The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio and Renato C. Corona, and was later amended to include Justices Jose C. Vitug, and Leonardo A. Quisumbing. Supra note 4 at 123-124. Rollo, G.R. No. 160403 at 48-53; Annex A. http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999 Rollo, G.R. No. 160262 at 8. Rollo, G.R. No. 160295 at 11. Rollo, G.R. No. 160262 at 43-84; Annex B.

Supra note 2. A perusal of the attachments submitted by the various petitioners reveals the following signatories to the second impeachment complaint and the accompanying Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac (principal complainant) 2. Felix Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio Ledesma, IV, NPC, Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim Bernardo-Lokin, Party List-CIBAC 6. Marcelino Libanan, NPC, Lone District of Eastern Samar, (Chairman, House Committee on Justice) 7. Emmylou Talino-Santos, Independent, 1st District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st District, Davao del Sur 9. Sherwin Gatchalian, NPC, 1st District, Valenzuela City 10. Luis Bersamin, Jr., PDSP-PPC, Lone District of Abra 11. Nerissa Soon-Ruiz Alayon, 6th District, Cebu 12. Ernesto Nieva, Lakas, 1st District, Manila 13. Edgar R. Erice, Lakas, 2nd District, Kalookan City 14. Ismael Mathay III, Independent, 2nd District, Quezon City 15. Samuel Dangwa, Reporma, Lone District of Benguet 16. Alfredo Maraon, Jr., NPC, 2nd District, Negros Occidental 17. Cecilia Jalosjos-Carreon, Reporma, 1st District, Zamboanga del Norte 18. Agapito A. Aquino, LDP, 2nd District, Makati City 19. Fausto L. Seachon, Jr., NPC, 3rd District, Masbate 20. Georgilu Yumul-Hermida, Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson, Lakas, 3rd District, Negros Occidental 22. Manuel C. Ortega, NPC, 1st District, La Union 23. Uliran Joaquin, NPC, 1st District, Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi 25. Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan 26. Claude P. Bautista, NPC, 2nd District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28. Zeneida Cruz-Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio, Independent-LDP, 2nd District, Misamis Oriental 30. Faustino Dy III, NPC-Lakas, 3rd District, Isabela 31. Agusto Boboy Syjuco, Lakas, 2nd District, Iloilo 32. Rozzano Rufino B. Biazon, LDP, Lone District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-Lakas, 1st District, Agusan del Norte 34. Eric Singson, LP, 2nd District, Ilocos Sur 35. Jacinto Paras, Lakas, 1st District, Negros Oriental 36. Jose Solis, Independent, 2nd District, Sorsogon 37. Renato B. Magtubo, Party List-Partido ng Manggagawa 38. Herminio G. Teves, Lakas, 3rd District, Negros Oriental 39. Amado T. Espino, Jr., Lakas, 2nd District, Pangasinan 40. Emilio Macias, NPC, 2nd District, Negros Oriental 41. Arthur Y. Pingoy, Jr., NPC, 2nd District, South Cotobato 42. Francis Nepomuceno, NPC, 1st District, Pampanga 43. Conrado M. Estrella III, NPC, 6th District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District of Apayao 45. Jurdin Jesus M. Romualdo, NPC, Lone District of Camiguin 46. Juan Pablo Bondoc, NPC, 4th District, Pampanga 47. Generoso DC. Tulagan, NPC, 3rd District, Pangasinan 48. Perpetuo Ylagan, Lakas, Lone District of Romblon 49. Michael Duavit, NPC, 1st District, Rizal 50. Joseph Ace H. Durano, NPC, 5th District, Cebu 51. Jesli Lapus, NPC, 3rd District, Tarlac 52. Carlos Q. Cojuangco, NPC, 4th District, Negros Occidental 53. Georgidi B. Aggabao, NPC, 4th District, Santiago, Isabela 54. Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M. Velarde, Party ListBuhay 56. Celso L. Lobregat, LDP, Lone District of Zamboanga City 57. Alipio Cirilo V. Badelles, NPC, 1st District, Lanao del Norte 58. Didagen P. Dilangalen, Pwersa ng Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2nd District, Palawan 60. Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene Antonino-Custodio, NPC, 1st District of South Cotobato & General Santos City 62. Aleta C. Suarez, LP, 3rd District, Quezon 63. Rodolfo G. Plaza, NPC, Lone District of Agusan del Sur 64. JV Bautista, Party List-Sanlakas 65. Gregorio Ipong, NPC, 2nd District, North Cotabato 66. Gilbert C. Remulla, LDP, 2nd District, Cavite 67. Rolex T. Suplico, LDP, 5th District, Iloilo 68. Celia Layus, NPC, Cagayan 69. Juan Miguel Zubiri, Lakas, 3rd District, Bukidnon 70. Benasing Macarambon Jr,. NPC, 2nd District, Lanao del Sur 71. Josefina Joson, NPC, Lone District of Nueva Ecija 72. Mark Cojuangco, NPC, 5th District, Pangasinan 73. Mauricio Domogan, Lakas, Lone District of Baguio City 74. Ronaldo B. Zamora, Pwersa ng Masa, Lone District of San Juan 75. Angelo O. Montilla, NPC, Lone District of Sultan Kudarat 76. Roseller L. Barinaga, NPC, 2nd District, Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd District, Surigao del Sur 78. Ruy Elias Lopez, NPC, 3rd District, Davao City. Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment complaints before the House of Representatives against Ombudsman Aniano Desierto. 299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a taxpayer and a citizen, he had the legal personality to file a petition demanding that the PCGG make public any and all negotiations and agreements pertaining to the PCGGs task of recovering the Marcoses ill-gotten wealth. Petitioner Chavez further argued that the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. The Supreme Court, citing Taada v. Tuvera, 136 SCRA 27 (1985), Legaspi v. Civil Service Commission, 150 SCRA 530 (1987) and Albano v. Reyes, 175 SCRA 264 (1989) ruled that petitioner had

standing. The Court, however, went on to elaborate that in any event, the question on the standing of petitioner Chavez was rendered moot by the intervention of the Jopsons who are among the legitimate claimants to the Marcos wealth. 384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development Corporation, wherein the petition sought to compel the Public Estates Authority (PEA) to disclose all facts on its then on-going negotiations with Amari Coastal Development Corporation to reclaim portions of Manila Bay, the Supreme Court said that petitioner Chavez had the standing to bring a taxpayers suit because the petition sought to compel PEA to comply with its constitutional duties. 224 SCRA 792 (1993). Subsequent petitions were filed before this Court seeking similar relief. Other than the petitions, this Court also received Motions for Intervention from among others, Sen. Aquilino Pimentel, Jr., and Special Appearances by House Speaker Jose C. de Venecia, Jr., and Senate President Franklin Drilon. Supra note 2 at 10. Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado E. Maambong and Father Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former Minister of Justice and Solicitor General Estelito P. Mendoza, Deans Pacifico Agabin and Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,. Rollo, G.R. No. 160261 at 275-292. Id. at 292. 63 Phil 139 (1936). Id. at 157-159. Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Taada v. Cuenco, 103 Phil 1051 (1957); Ynot v. Intermediate Appellate Court, 148 SCRA 659, 665 (1987). CONST., art. VIII, sec. 1. 5 US 137 (1803). Id. at 180. In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for imprisonment for non-payment of a debt was invalid. In Casanovas v. Hord, 8 Phil 125 (1907), this Court invalidated a statute imposing a tax on mining claims on the ground that a government grant stipulating that the payment of certain taxes by the grantee would be in lieu of other taxes was a contractual obligation which could not be impaired by subsequent legislation. In Concepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of the Administrative Code, as amended, which provided that judges of the first instance with the same salaries would, by lot, exchange judicial districts every five years, was declared invalid for being a usurpation of the power of appointment vested in the Governor General. In McDaniel v. Apacible, 42 Phil 749 (1922), Act No. 2932, in so far as it declares open to lease lands containing petroleum which have been validly located and held, was declared invalid for being a depravation of property without due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act No. 2868, in so far as it authorized the Governor-General to fix the price of rice by proclamation and to make the sale of rice in violation of such a proclamation a crime, was declared an invalid delegation of legislative power. VICENTE V. MENDOZA, SHARING THE PASSION AND ACTION OF OUR TIME 62-53 (2003).

Supra note 23. Id. at 156-157. Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial Review And Decision Making, 37 AMJJUR 17, 24 (1992). Ibid. I RECORD OF THE CONSTITUTIONAL COMMISSION 434-436 (1986). 31 SCRA 413 (1970) Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Ordillo v. Commission on Elections, 192 SCRA 100 (1990). 194 SCRA 317 (1991). Id. at 325 citing Maxwell v. Dow, 176 US 581. 152 SCRA 284 (1987). Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason & Co., Inc v. Land Tenure Administration, supra note 36, and I TAADA AND FERNANDO, CONSTITUTION OF THE PHILIPPINES 21 (Fourth Ed.). 82 Phil 771 (1949). Id. at 775. Supra note 38. Id. at 330-331. Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220 and Household Finance Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808. Supra note 2. Citing Section 3 (6), Article VIII of the Constitution provides: (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. Supra note 21. 506 U.S. 224 (1993). Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis, 1996, p. 119.

227 SCRA 100 (1993). Id. at 112. US Constititon. Section 2. x x x The House of Representatives shall have the sole Power of Impeachment. 1987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Supra note 2 at 355 citing AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY, 1984, pp. 112-113. 369 U.S. 186 (1962). 141 SCRA 263 (1986). Supra note 25. 298 SCRA 756 (1998). 272 SCRA 18 (1997). 201 SCRA 792 (1991). 187 SCRA 377 (1990). 180 SCRA 496 (1989). Supra note 25. Supra note 23. Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331. Id. at 158-159. IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57. Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995). Citing Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997). Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, 163 SCRA 371, 378 (1988). Rule 3, Section 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000).

246 SCRA 540 (1995). Id. at 562-564. Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker v. Carr, supra note 57; Vide Gonzales v. Narvasa,, 337 SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998). Chavez v. PCGG, supra note 15. Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato, supra note 70; Dumlao v. COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300 (1966); Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77; Pelaez v. Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay & Corn Planters Association v. Feliciano, 13 SCRA 377 (1965). BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR, supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note 70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note 79; Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn Planters Association v. Feliciano, supra note 79; Pascual v. Sec. of Public Works, supra note 79. Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note 79; Tan v. Macapagal, 43 SCRA 677 (1972). Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra note 70 at 140-141 citing Philconsa v. Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. COMELEC, 41 SCRA 702 (1971). Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note 79. Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461 (1951) citing Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245. Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v. Hechanova, 118 Phil. 1065 (1963); Pascual v. Secretary, supra note 79. Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000). MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, G.R. No. 135306, January 28, 2003, citing Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62. Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571 (1974), citing Moore's Federal Practice 2d ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d 711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925). MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, supra note 87, dissenting opinion of Justice Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs of the Passengers of Doa Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of Court; Mathay v. Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran, supra note 17.

Kilosbayan v. Guingona, 232 SCRA 110 (1994). Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive Secretary, supra note 38; Philconsa v. Gimnez, supra note 79; Iloilo Palay and Corn Planters Association v. Feliciano, supra note 79; Araneta v. Dinglasan, 84 Phil. 368 (1949); vide Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v. Executive Secretary, 206 SCRA 290 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v. Singson, supra note 64; Dumlao v. COMELEC, supra note 79. Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing Gibson vs. Revilla, 92 SCRA 219; Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266, 271 (1989). Supra note 79. Id. at 403. Supra note 81. Id. at 681. SECTION 3. x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. Supra note 25. Id. at 1067. Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castaeda, 91 Phil. 882 (1952); De la Llana v. COMELEC, 80 SCRA 525 (1977). Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1 (1961); Cunanan v. Tan, Jr., 5 SCRA 1 (1962); Gonzales v. COMELEC, 21 SCRA 774 (1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC, supra note 82. 50 SCRA 30 (1973). RECORD OF THE CONSTITUTION COMMISSION, Vol. 1, July 10, 1986 at 434-436. Id. at 439-443. 177 SCRA 668 (1989).

Id. at 695. 203 SCRA 767 (1991). Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990). Supra note 64. Id. at 501. Supra note 57. Id at 217 2 RECORD OF THE CONSTITUTIONAL COMMISSION at 286. Id. at 278, 316, 272, 283-284, 286. 76 Phil 516 (1946). Id. at 522. Supra note 37. Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 (1989). Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA 452, 550 (2001); Demetria v. Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v. TVA, 297 U.S. 288 (1936). As adverted to earlier, neither a copy the Resolution nor a record of the hearings conducted by the House Committee on Justice pursuant to said Resolution was submitted to the Court by any of the parties. Rollo, G.R. No. 160310 at 38. Supra note 107. Id. at 777 (citations omitted). Rollo, G.R. No. 160262 at 73. Supra note 2 at 342. Perfecto v. Meer, 85 Phil 552, 553 (1950). Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral Tribunal, 166 SCRA 651 (1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316 (1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring opinion of J. Concepcion. Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993).

Ibid. Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986). Supra note 127. Estrada v. Desierto, supra note 127. Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal, supra note 127; Vargas v. Rilloraza, et al., supra note 127. Supra note 119 at 210-211. Supra note 119. Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note 69 at 575; Macasiano v. National Housing Authority, 224 SCRA 236, 242 (1993); Santos III v. Northwestern Airlines, 210 SCRA 256, 261-262 (1992), National Economic Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989). Supra note 2 at 353. Supra note 33 at 32. Supra note 102. Supra note 33. 249 SCRA 244, 251 (1995). Id. at 251. 2 RECORDS OF THE CONSTITUTIONAL COMMISSION at 342-416. Id. at 416. Commissioner Maambongs Amicus Curiae Brief at 15. 2 RECORD OF THE CONSTITUTIONAL COMMISSION at 375-376, 416 77 Phil. 192 (1946). Justice Hugo Guiterrezs Amicus Curiae Brief at 7. 109 Phil. 863 (1960). 40 SCRA 58, 68 (1971). 286 U.S. 6, 33 (1932). 277 SCRA 268, 286 (1997).

144 U.S. 1 (1862). Supra note 152 at 304-306. Id at 311. Id. at 313. Supra note 152 at 314-315. Supra note 50.

BAKER v. CARR, 369 U.S. 186 (1962)

369 U.S. 186 BAKER ET AL. v. CARR ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 6. Argued April 19-20, 1961. Set for reargument May 1, 1961. Reargued October 9, 1961. Decided March 26, 1962. Appellants are persons allegedly qualified to vote for members of the General Assembly of Tennessee representing the counties in which they reside. They brought suit in a Federal District Court in Tennessee under 42 U.S.C. 1983, on behalf of themselves and others similarly situated, to redress the alleged deprivation of their federal constitutional rights by legislation classifying voters with respect to representation in the General Assembly. They alleged that, by means of a 1901 statute of Tennessee arbitrarily and capriciously apportioning the seats in the General Assembly among the State's 95 counties, and a failure to reapportion them subsequently notwithstanding substantial growth and redistribution of the State's population, they suffer a "debasement of their votes" and were thereby denied the equal protection of the laws guaranteed them by the Fourteenth Amendment. They sought, inter alia, a declaratory judgment that the 1901 statute is unconstitutional and an injunction restraining certain state officers from conducting any further elections under it. The District Court dismissed the complaint on the grounds that it lacked jurisdiction of the subject matter and that no claim was stated upon which relief could be granted. Held: 1. The District Court had jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint. Pp. 198-204. 2. Appellants had standing to maintain this suit. Pp. 204-208. 3. The complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. Pp. 208-237. 179 F. Supp. 824, reversed and cause remanded. Charles S. Rhyne and Z. T. Osborn, Jr. reargued the cause for appellants. With them on the briefs were Hobart F. Atkins, Robert H. Jennings, Jr., J. W. Anderson, C. R. McClain, Walter Chandler, Harris A. Gilbert, E. K. Meacham and Herzel H. E. Plaine. [369 U.S. 186, 187] Jack Wilson, Assistant Attorney General of Tennessee, reargued the cause for appellees. With him on the briefs were George F. McCanless, Attorney General, and Milton P. Rice and James M. Glasgow, Assistant Attorneys General. Solicitor General Cox, by special leave of Court, 365 U.S. 864 , reargued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Assistant Attorney General Marshall, Acting Assistant Attorney General Doar, Bruce J. Terris, Harold H. Greene, David Rubin and Howard A. Glickstein. Briefs of amici curiae, in support of appellants, were filed by J. Howard Edmondson, Governor of Oklahoma, and Norman E. Reynolds, Jr. for the Governor; W. Scott Miller, Jr. and George J. Long for the City of St. Matthews, Kentucky; Roger Arnebergh, Henry P. Kucera, J. Elliott Drinard, Barnett I. Shur, Alexander G. Brown, Nathaniel H. Goldstick and Charles S. Rhyne for the National Institute of Municipal Law Officers; Eugene H. Nickerson and David M. Levitan for John F. English et al.; Upton Sisson, Clare S. Hornsby, Walter L. Nixon, Jr. and John Sekul for Marvin Fortner et al.; and Theodore Sachs for August Scholle. MR. JUSTICE BRENNAN delivered the opinion of the Court. This civil action was brought under 42 U.S.C. 1983 and 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State's 95 counties, 1 "these plaintiffs and others similarly situated, [369 U.S. 186, 188] are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes," was dismissed by a three-judge court convened under 28 U.S.C. 2281 in the Middle District of Tennessee. 2 The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief

could be granted. 179 F. Supp. 824. We noted probable jurisdiction of the appeal. 364 U.S. 898 . 3 We hold that the dismissal was error, and remand the cause to the District Court for trial and further proceedings consistent with this opinion. The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. The Tennessee Constitution provides in Art. II as follows: "Sec. 3. Legislative authority - Term of office. - The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people; who shall hold their offices for two years from the day of the general election. "Sec. 4. Census. - An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years. "Sec. 5. Apportionment of representatives. - The number of Representatives shall, at the several [369 U.S. 186, 189] periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member. "Sec. 6. Apportionment of senators. - The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district." Thus, Tennessee's standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications. 4Decennial reapportionment [369 U.S. 186, 190] in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment 5 was preceded by an 1870 statute requiring an enumeration. 6 The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to [369 U.S. 186, 191] 33 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses. 7 In 1891 there were both an enumeration and an apportionment. 8 In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the Apportionment Act here in controversy. 9 In the more than 60 years since that action, all proposals in both Houses of the General Assembly for reapportionment have failed to pass.10 [369 U.S. 186, 192] Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. 11 The 1960 Federal Census reports the State's population at 3,567,089, of whom 2,092,891 are eligible to vote. 12 The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy. Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, "made no apportionment of Representatives and Senators in accordance with the constitutional formula . . ., but instead arbitrarily and capriciously apportioned representatives in the Senate and House without reference . . . to any logical or reasonable formula whatever." 13 It is further alleged [369 U.S. 186, 193] that "because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901," the 1901 statute became "unconstitutional and obsolete." Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible. 14 The complaint concludes that "these plaintiffs[369 U.S. 186, 194] and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes." 15 They seek a [369 U.S. 186, 195] declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee

constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. They also pray for such other and further relief as may be appropriate. I. THE DISTRICT COURT'S OPINION AND ORDER OF DISMISSAL. Because we deal with this case on appeal from an order of dismissal granted on appellees' motions, precise identification [369 U.S. 186, 196] of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees' grounds "(1) that the Court lacks jurisdiction of the subject matter, and (2) that the complaint fails to state a claim upon which relief can be granted . . . ." In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal: First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act; Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants' rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment. We treat the first ground of dismissal as "lack of jurisdiction of the subject matter." The second we consider to result in a failure to state a justiciable cause of action. The District Court's dismissal order recited that it was issued in conformity with the court's per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that "The action is presently before the Court upon the defendants' motion to dismiss predicated upon three[369 U.S. 186, 197] grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and third, that indispensable party defendants are not before the Court." 179 F. Supp., at 826. The court proceeded to explain its action as turning on the case's presenting a "question of the distribution of political strength for legislative purposes." For, "From a review of [numerous Supreme Court] . . . decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826. The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F. Supp., at 827-828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation: "With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress." 179 F. Supp., at 828. In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of [369 U.S. 186, 198] action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes.16 Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial. II. JURISDICTION OF THE SUBJECT MATTER.

The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration - what we have designated "nonjusticiability." The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not "arise under" the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, 2), or is not a "case or controversy" within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237. infra, that this cause presents no nonjusticiable "political question" settles the only possible doubt that it is a case or controversy. Under the present heading of "Jurisdiction [369 U.S. 186, 199] of the Subject Matter" we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. 1343. Article III, 2, of the Federal Constitution provides that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ." It is clear that the cause of action is one which "arises under" the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 , or "frivolous," Bell v. Hood, 327 U.S. 678, 683 . 17 That the claim is unsubstantial must be "very plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274 . Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: "It is obvious . . . that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, [369 U.S. 186, 200] jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States." Swafford v. Templeton, 185 U.S. 487, 493. "For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682 . See also Binderup v. Pathe Exchange, 263 U.S. 291, 305 -308. Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U.S.C. 1343 (3): "The district courts shall have original jurisdiction of any civil action authorized by law 18 to be commenced by any person . . . [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . ." 19 [369 U.S. 186, 201] An unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained Ohio legislation against an attack for repugnancy to Art. I, 4, of the Federal Constitution, we affirmed on the merits and expressly refused to dismiss for want of jurisdiction "In view . . . of the subject-matter of the controversy and the Federal characteristics which inhere in it . . . ." Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 570 . When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355 . And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U.S. 375 ; Carroll v. Becker, 285 U.S. 380 . When a three-judge District Court, exercising jurisdiction under the predecessor of 28 U.S.C. 1343 (3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U.S. 1 , reversing 1 F. Supp. 134. A similar decree of a District Court, exercising

jurisdiction under the same statute, concerning a Kentucky redistricting act, was [369 U.S. 186, 202] reviewed and the decree reversed. Mahan v. Hume, 287 U.S. 575 , reversing 1 F. Supp. 142.20 The appellees refer to Colegrove v. Green, 328 U.S. 549 , as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. MR. JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy stated: "It is my judgment that the District Court had jurisdiction . . .," citing the predecessor of 28 U.S.C. 1343 (3), and Bell v. Hood, supra. 328 U.S., at 568 . Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U.S., at 564 , 565, n. 2. Indeed, it is even questionable that the opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and Burton, doubted jurisdiction of the subject matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U.S., at 551 . Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U.S. 675 ; Turman v. [369 U.S. 186, 203] Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804 ; 21Tedesco v. Board of Supervisors, 339 U.S. 940 ; Remmey v. Smith, 342 U.S. 916 ; Cox v. Peters, 342 U.S. 936 ; Anderson v. Jordan, 343 U.S. 912 ; Kidd v. McCanless, 352 U.S. 920 ; Radford v. Gary, 352 U.S. 991 ; Hartsfield v. Sloan, 357 U.S. 916 ; Matthews v. Handley, 361 U.S. 127 . 22 Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U.S. 281 , the District Court dismissed for want of jurisdiction, which had been invoked under 28 U.S.C. 1343 (3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State's 102 counties. This Court's disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U.S. 276 , we affirmed the dismissal of an attack on the Georgia "county unit" system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedly existed under 28 U.S.C. 1343 (3). The express words of our holding were that "Federal courts consistently refuse to exercise their equity powers in cases posing [369 U.S. 186, 204] political issues arising from a state's geographical distribution of electoral strength among its political subdivisions." 339 U.S., at 277 . We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint. III. STANDING. A federal court cannot "pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Liverpool Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 . Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law. The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for members of the General Assembly representing his county. 23 These appellants sued "on their own behalf and on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who [369 U.S. 186, 205] are similarly situated . . . ." 24 The appellees are the Tennessee Secretary of State, Attorney General, Coordinator of Elections, and members of the State Board of Elections; the members of the State Board are sued in their own right and also as representatives of the County Election Commissioners whom they appoint. 25 [369 U.S. 186, 206]

We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims. 26 And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue. 27 A number [369 U.S. 186, 207] of cases decided after Colegrove recognized the standing of the voters there involved to bring those actions. 28 These appellants seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters [369 U.S. 186, 208] in irrationally favored counties. A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299 ; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383 , or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S. 385 . It would not be necessary to decide whether appellants' allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting "a plain, direct and adequate interest in maintaining the effectiveness of their votes," Coleman v. Miller, 307 U.S., at 438 , not merely a claim of "the right, possessed by every citizen, to require that the Government be administered according to law . . . ." Fairchild v. Hughes, 258 U.S. 126, 129 ; compare Leser v. Garnett, 258 U.S. 130 . They are entitled to a hearing and to the District Court's decision on their claims. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163. IV. JUSTICIABILITY. In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases. 29 The [369 U.S. 186, 209] court stated: "From a review of these decisions there can be no doubt that the federal rule . . . is that the federal courts . . . will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a "political question" and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable "political question." The cited cases do not hold the contrary. Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection "is little more than a play upon words." Nixon v. Herndon, 273 U.S. 536, 540 . Rather, it is argued that apportionment cases, whatever the actual wording of the complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government, 30 and that complaints based on that clause have been held to present political questions which are nonjusticiable. We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants' claim that they are being denied equal protection is justiciable, and if [369 U.S. 186, 210] "discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights." Snowden v. Hughes, 321 U.S. 1, 11 . To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the "political question" doctrine. Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine - attributes which, in various settings, diverge, combine,

appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other "political question" cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the "political question." We have said that "In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Coleman v. Miller, 307 U.S. 433, 454 -455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for [369 U.S. 186, 211] case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case. Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. 31 Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; 32 but many such questions uniquely demand single-voiced statement of the Government's views. 33 Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences [369 U.S. 186, 212] of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question "governmental action . . . must be regarded as of controlling importance," if there has been no conclusive "governmental action" then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285 , with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495. 34 Though a court will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson; 124 U.S. 190 , with Kolovrat v. Oregon, 366 U.S. 187 . While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called "a republic of whose existence we know nothing," 35 and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory,36 once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area. 37 Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have [369 U.S. 186, 213] become operative. The Three Friends, 166 U.S. 1, 63 , 66. Still again, though it is the executive that determines a person's status as representative of a foreign government, Ex parte Hitz, 111 U.S. 766 , the executive's statements will be construed where necessary to determine the court's jurisdiction, In re Baiz, 135 U.S. 403 . Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments. Compare Ex parte Peru, 318 U.S. 578 , with Mexico v. Hoffman, 324 U.S. 30, 34 -35. Dates of duration of hostilities: Though it has been stated broadly that "the power which declared the necessity is the power to declare its cessation, and what the cessation requires," Commercial Trust Co. v. Miller, 262 U.S. 51, 57 , here too analysis reveals isolable reasons for the presence of political questions, underlying this Court's refusal to review the political departments' determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency's nature demands "A prompt and unhesitating obedience," Martin v. Mott, 12 Wheat. 19, 30 (calling up of militia). Moreover, "the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146,

161 , that the war power includes the power `to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507." Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116 . But deference rests on reason, not habit. 38 The question in a particular case may not seriously implicate considerations of finality - e. g., a public program of importance [369 U.S. 186, 214] (rent control) yet not central to the emergency effort. 39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: "[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . [It can] inquire whether the exigency still existed upon which the continued operation of the law depended." Chastleton Corp. v. Sinclair, 264 U.S. 543, 547 -548. 40 Compare Woods v. Miller Co., 333 U.S. 138 . On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments' determination of dates of hostilities' beginning and ending. The Protector, 12 Wall. 700. Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp. 41 Similar considerations apply to the enacting process: "The respect due to coequal and independent departments," and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U.S. 649, 672 , 676-677; see Leser v. Garnett, 258 U.S. 130, 137 . But it is not true that courts will never delve [369 U.S. 186, 215] into a legislature's records upon such a quest: If the enrolled statute lacks an effective date, a court will not hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder. The status of Indian tribes: This Court's deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions, 42 United States v. Holliday, 3 Wall. 407, 419, also has a unique element in that "the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. . . . [The Indians are] domestic dependent nations . . . in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." The Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17. 43 Yet, here too, there is no blanket rule. While [369 U.S. 186, 216] "`It is for [Congress] . . ., and not for the courts, to determine when the true interests of the Indian require his release from [the] condition of tutelage' . . ., it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe . . . ." United States v. Sandoval, 231 U.S. 28, 46 . Able to discern what is "distinctly Indian," ibid., the courts will strike down [369 U.S. 186, 217] any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power. It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution's guaranty, in Art. IV, [369 U.S. 186, 218] 4, of a republican

form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a "political question," and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization. Republican form of government: Luther v. Borden, 7 How. 1, though in form simply an action for damages for trespass was, as Daniel Webster said in opening the argument for the defense, "an unusual case." 44 The defendants, admitting an otherwise tortious breaking and entering, sought to justify their action on the ground that they were agents of the established lawful government of Rhode Island, which State was then under martial law to defend itself from active insurrection; that the plaintiff was engaged in that insurrection; and that they entered under orders to arrest the plaintiff. The case arose "out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842," 7 How., at 34, and which had resulted in a situation wherein two groups laid competing claims to recognition as the lawful government. 45 The plaintiff's right to [369 U.S. 186, 219] recover depended upon which of the two groups was entitled to such recognition; but the lower court's refusal to receive evidence or hear argument on that issue, its charge to the jury that the earlier established or "charter" government was lawful, and the verdict for the defendants, were affirmed upon appeal to this Court. Chief Justice Taney's opinion for the Court reasoned as follows: (1) If a court were to hold the defendants' acts unjustified because the charter government had no legal existence during the period in question, it would follow that all of that government's actions - laws enacted, taxes collected, salaries paid, accounts settled, sentences passed - were of no effect; and that "the officers who carried their decisions into operation [were] answerable as trespassers, if not in some cases as criminals." 46 There was, of course, no room for application of any doctrine of de facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff's very action. A decision for the plaintiff would inevitably have produced some significant measure of chaos, a consequence to be avoided if it could be done without abnegation of the judicial duty to uphold the Constitution. (2) No state court had recognized as a judicial responsibility settlement of the issue of the locus of state governmental authority. Indeed, the courts of Rhode Island had in several cases held that "it rested with the political power to decide whether the charter government had been displaced or not," and that that department had acknowledged no change. [369 U.S. 186, 220] (3) Since "[t]he question relates, altogether, to the constitution and laws of [the] . . . State," the courts of the United States had to follow the state courts' decisions unless there was a federal constitutional ground for overturning them. 47 (4) No provision of the Constitution could be or had been invoked for this purpose except Art. IV, 4, the Guaranty Clause. Having already noted the absence of standards whereby the choice between governments could be made by a court acting independently, Chief Justice Taney now found further textual and practical reasons for concluding that, if any department of the United States was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary: "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and . . . Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts. [369 U.S. 186, 221] "So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. . . . [B]y the act of February 28, 1795, [Congress] provided, that, `in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on

application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.' "By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. . . . "After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? . . . If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. . . . "It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere . . . . [C]ertainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government [369 U.S. 186, 222] . . . . In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. . . ." 7 How., at 42-44. Clearly, several factors were thought by the Court in Luther to make the question there "political": the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the executive's decision; and the lack of criteria by which a court could determine which form of government was republican. 48 [369 U.S. 186, 223] But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State's lawful government. The Court has since refused to resort to the Guaranty Clause - which alone had been invoked for the purpose - as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (claim that Kentucky's resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (claim that initiative and referendum negated republican government held nonjusticiable); Kiernan v. Portland, 223 U.S. 151 (claim that municipal charter amendment per municipal initiative and referendum negated republican government held nonjusticiable); [369 U.S. 186, 224] Marshall v. Dye, 231 U.S. 250 (claim that Indiana's constitutional amendment procedure negated republican government held nonjusticiable); O'Neill v. Leamer, 239 U.S. 244 (claim that delegation to court of power to form drainage districts negated republican government held "futile"); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (claim that invalidation of state reapportionment statute per referendum negates republican government held nonjusticiable); 49 Mountain Timber Co. v. Washington, 243 U.S. 219 (claim that workmen's compensation violates republican government held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U.S. 608 (claim that delegation to agency of power to control milk prices violated republican government, rejected). Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed "A republican State, in every political, legal, constitutional, and juridical sense," and that enforcement of the new Acts "Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, . . . is destroying that very government by force." 50 Congress had clearly refused to [369 U.S. 186, 225] recognize the republican character of the government of the suing State. 51 It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty. 52 In only a few other cases has the Court considered Art. IV, 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in

the territories before they become States, and before they have attained a sufficient population to warrant a [369 U.S. 186, 226] popularly elected legislature. Downes v. Bidwell, 182 U.S. 244, 278 -279 (dictum). 53 We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable "political question" bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home 54 if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. This case does, in one sense, involve the allocation of political power within a State, and the appellants[369 U.S. 186, 227] might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here. In this connection special attention is due Pacific States Tel. Co. v. Oregon, 223 U.S. 118 . In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage: "The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the [369 U.S. 186, 228] framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form." 223 U.S., at 150 -151. The due process and equal protection claims were held nonjusticiable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U.S. 219 , wherein the Court refused to consider whether a workmen's compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O'Neill v. Leamer, 239 U.S. 244 , wherein the Court refused to consider whether Nebraska's delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose. We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought "political," can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we [369 U.S. 186, 229] emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define "political questions," and no other feature, which

could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this. When challenges to state action respecting matters of "the administration of the affairs of the State and the officers through whom they are conducted" 55 have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 , we reversed the Nebraska Supreme Court's decision that Nebraska's Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480 , and Foster v. Kansas ex rel. Johnston, 112 U.S. 201 , we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment's due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339 , we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries. 56 Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature [369 U.S. 186, 230] as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court's dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals. This Court unanimously reversed. This Court's answer to the argument that States enjoyed unrestricted control over municipal boundaries was: "Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution . . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. `It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.'" 364 U.S., at 344 -345. To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted "out of the so-called `political' arena and into the conventional sphere of constitutional litigation" because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment. "A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. . . . While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of [369 U.S. 186, 231] their theretofore enjoyed voting rights. That was not Colegrove v. Green. "When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." 364 U.S., at 347 . 57 We have not overlooked such cases as In re Sawyer, 124 U.S. 200 , and Walton v. House of Representatives, 265 U.S. 487 , which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts' power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U.S. 366 , which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U.S. 586 , simply dismissed an appeal from an unsuccessful suit to upset a State's removal procedure, on the ground that the constitutional claim presented - that a jury trial was necessary if the removal procedure was to comport with due process requirements - was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 , where losing candidates attacked the constitutionality of Kentucky's resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon [369 U.S. 186, 232] the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law. 58 Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case

nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable. We have already noted that the District Court's holding that the subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U.S. 355 , Koenig v. Flynn, 285 U.S. 375 , and Carroll v. Becker, 285 U.S. 380 , concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U.S., at 566 , 568, and a separate one by Mr. Justice Rutledge, 328 U.S., at 564 . The argument that congressional redistricting problems presented a "political question" the resolution of which was confided to Congress might have been rested upon Art. I, 4, Art. I, 5, Art. I, 2, and Amendment [369 U.S. 186, 233] XIV, 2. Mr. Justice Rutledge said: "But for the ruling in Smiley v. Holm, 285 U.S. 355 , I should have supposed that the provisions of the Constitution, Art. I, 4, that "The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .'; Art. I, 2 [but see Amendment XIV, 2], vesting in Congress the duty of apportionment of representatives among the several states `according to their respective Numbers'; and Art. I, 5, making each House the sole judge of the qualifications of its own members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree. . . . Assuming that that decision is to stand, I think . . . that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable." 328 U.S., at 564 -565. Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he held that the dismissal of the complaint should be affirmed. His view was that "The shortness of the time remaining [before forthcoming elections] makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. . . . I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause." 328 U.S., at 565 -566. 59 [369 U.S. 186, 234] Article I, 2, 4, and 5, and Amendment XIV, 2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court's conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v. Fortson and Turman v. Duckworth, 329 U.S. 675 , as moot. MacDougall v. Green, 335 U.S. 281 , held only that in that case equity would not act to void the State's requirement that there be at least a minimum of support for nominees [369 U.S. 186, 235] for state-wide office, over at least a minimal area of the State. Problems of timing were critical in Remmey v. Smith, 342 U.S. 916 , dismissing for want of a substantial federal question a three-judge court's dismissal of the suit as prematurely brought, 102 F. Supp. 708; and in Hartsfield v. Sloan, 357 U.S. 916 , denying mandamus sought to compel the convening of a three-judge court - movants urged the Court to advance consideration of their case, "Inasmuch as the mere lapse of time before this case can be reached in the normal course of . . . business may defeat the cause, and inasmuch as the time problem is due to the inherent nature of the case . . . ." South v. Peters, 339 U.S. 276 , like Colegrove appears to be a refusal to exercise equity's powers; see the statement of the holding, quoted, supra, p. 203. And Cox v. Peters, 342 U.S. 936 , dismissed for want of a substantial federal question the appeal from the state court's holding that their primary elections implicated no "state action." See 208 Ga. 498, 67 S. E. 2d 579. But compare Terry v. Adams, 345 U.S. 461 . Tedesco v. Board of Supervisors, 339 U.S. 940 , indicates solely that no substantial federal question was raised by a state court's refusal to upset the districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See 43 So.2d 514. Similarly, in Anderson v. Jordan, 343 U.S. 912 , it was certain only that the state court had refused to issue a discretionary writ, original mandamus in the Supreme Court. That had been denied without opinion, and of course it was urged here that an adequate state ground barred this Court's review. And in Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding

rested on its state law of remedies, i. e., the state view of [369 U.S. 186, 236] de facto officers, 60 and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U.S. 920 , we cited Anderson, supra, as well as Colegrove. Nor does the Tennessee court's decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F. Supp. 184, 177 F. Supp. 803, a state court's inability to grant relief does not bar a federal court's assuming jurisdiction to inquire into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U.S. 991 , affirming the District Court's refusal to mandamus the Governor to call a session of the legislature, to mandamus the legislature then to apportion, and if they did not comply, to mandamus the State Supreme Court to do so. And Matthews v. Handley, 361 U.S. 127 , affirmed a refusal to strike down the State's gross income tax statute - urged on the ground that the legislature was malapportioned - that had rested on the adequacy of available state legal remedies for suits involving that tax, including challenges to its constitutionality. Lastly, Colegrove v. Barrett, 330 U.S. 804 , in which Mr. Justice Rutledge concurred in this Court's refusal to note the appeal from a dismissal for want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: "The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction . . . in one case is not precedent in another case [369 U.S. 186, 237] where the facts differ." 329 U.S., at 678 , n. 8. (Citations omitted.) We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment. The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE WHITTAKER did not participate in the decision of this case. APPENDIX TO OPINION OF THE COURT. The Tennessee Code Annotated provides for representation in the General Assembly as follows: "3-101. Composition - Counties electing one representative each. - The general assembly of the state of Tennessee shall be composed of thirty-three (33) senators and ninety-nine (99) representatives, to be apportioned among the qualified voters of the state as follows: Until the next enumeration and apportionment of voters each of the following counties shall elect one (1) representative, to wit: Bedford, Blount, Cannon, Carroll, Chester, Cocke, Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman, Hawkins, Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion, Marshall, Maury, Monroe, Montgomery, Moore, McMinn, McNairy, Obion, Overton, Putnam, Roane, Robertson, Rutherford, Sevier, Smith, Stewart, Sullivan, Sumner, Tipton, Warren, Washington, White, Weakley, Williamson [369 U.S. 186, 238] and Wilson. [Acts 1881 (E. S.), ch. 5, 1; 1881 (E. S.), ch. 6, 1; 1901, ch. 122, 2; 1907, ch. 178, 1, 2; 1915, ch. 145; Shan., 123; Acts 1919, ch. 147, 1, 2; 1925 Private, ch. 472, 1; Code 1932, 140; Acts 1935, ch. 150, 1; 1941, ch. 58, 1; 1945, ch. 68, 1; C. Supp. 1950, 140.] "3-102. Counties electing two representatives each. - The following counties shall elect two (2) representatives each, to wit: Gibson and Madison. [Acts 1901, ch. 122, 3; Shan., 124; mod. Code 1932, 141.] "3-103. Counties electing three representatives each. - The following counties shall elect three (3) representatives each, to wit: Knox and Hamilton. [Acts 1901, ch. 122, 4; Shan., 125; Code 1932, 142.] "3-104. Davidson County. - Davidson county shall elect six (6) representatives. [Acts 1901, ch. 122, 5; Shan., 126; Code 1932, 143.] "3-105. Shelby county. - Shelby county shall elect eight (8) representatives. Said county shall consist of eight (8) representative districts, numbered one (1) through eight (8), each district co-extensive with the county, with one (1) representative to be elected from each district. [Acts 1901, ch. 122, 6; Shan., 126al; Code 1932, 144; Acts 1957, ch. 220, 1; 1959, ch. 213, 1.] "3-106. Joint representatives. - The following counties jointly, shall elect one representative, as follows, to wit: "First district - Johnson and Carter. "Second district - Sullivan and Hawkins. "Third district - Washington, Greene and Unicoi. "Fourth district - Jefferson and Hamblen. "Fifth district - Hancock and Grainger. "Sixth district - Scott, Campbell, and Union.

"Seventh district - Anderson and Morgan. "Eighth district - Knox and Loudon. [369 U.S. 186, 239] "Ninth district - Polk and Bradley. "Tenth district - Meigs and Rhea. "Eleventh district - Cumberland, Bledsoe, Sequatchie, Van Buren and Grundy. "Twelfth district - Fentress, Pickett, Overton, Clay and Putnam. "Fourteenth district - Sumner, Trousdale and Macon. "Fifteenth district - Davidson and Wilson. "Seventeenth district - Giles, Lewis, Maury and Wayne. "Eighteenth district - Williamson, Cheatham and Robertson. "Nineteenth district - Montgomery and Houston. "Twentieth district - Humphreys and Perry. "Twenty-first district - Benton and Decatur. "Twenty-second district - Henry, Weakley and Carroll. "Twenty-third district - Madison and Henderson. "Twenty-sixth district - Tipton and Lauderdale. [Acts 1901, ch. 122, 7; 1907, ch. 178, 1, 2; 1915, ch. 145, 1, 2; Shan., 127; Acts 1919, ch. 147, 1; 1925 Private, ch. 472, 2; Code 1932, 145; Acts 1933, ch. 167, 1; 1935, ch. 150, 2; 1941, ch. 58, 2; 1945, ch. 68, 2; C. Supp. 1950, 145; Acts 1957, ch. 220, 2.] "3-107. State senatorial districts. - Until the next enumeration and apportionment of voters, the following counties shall comprise the senatorial districts, to wit: "First district - Johnson, Carter, Unicoi, Greene, and Washington. "Second district - Sullivan and Hawkins. "Third district - Hancock, Morgan, Grainger, Claiborne, Union, Campbell, and Scott. "Fourth district - Cocke, Hamblen, Jefferson, Sevier, and Blount. "Fifth district - Knox. "Sixth district - Knox, Loudon, Anderson, and Roane. [369 U.S. 186, 240] "Seventh district - McMinn, Bradley, Monroe, and Polk. "Eighth district - Hamilton. "Ninth district - Rhea, Meigs, Bledsoe, Sequatchie, Van Buren, White, and Cumberland. "Tenth district - Fentress, Pickett, Clay, Overton, Putnam, and Jackson. "Eleventh district - Marion, Franklin, Grundy and Warren. "Twelfth district - Rutherford, Cannon, and DeKalb. "Thirteenth district - Wilson and Smith. "Fourteenth district - Sumner, Trousdale and Macon. "Fifteenth district - Montgomery and Robertson. "Sixteenth district - Davidson. "Seventeenth district - Davidson. "Eighteenth district - Bedford, Coffee and Moore. "Nineteenth district - Lincoln and Marshall. "Twentieth district - Maury, Perry and Lewis. "Twenty-first district - Hickman, Williamson and Cheatham. "Twenty-second district - Giles, Lawrence and Wayne. "Twenty-third district - Dickson, Humphreys, Houston and Stewart. "Twenty-fourth district - Henry and Carroll. "Twenty-fifth district - Madison, Henderson and Chester. "Twenty-sixth district - Hardeman, McNairy, Hardin, Decatur and Benton. "Twenty-seventh district - Gibson. "Twenty-eighth district - Lake, Obion and Weakley. "Twenty-ninth district - Dyer, Lauderdale and Crockett. "Thirtieth district - Tipton and Shelby. "Thirty-first district - Haywood and Fayette. "Thirty-second district - Shelby. [369 U.S. 186, 241] "Thirty-third district - Shelby. [Acts 1901, ch. 122, 1; 1907, ch. 3, 1; Shan., 128; Code 1932, 146; Acts 1945, ch. 11, 1; C. Supp. 1950, 146.]" Today's apportionment statute is as enacted in 1901, with minor changes. For example:

(1) In 1957, Shelby County was raised from 7 1/2 to 8 representatives. Acts of 1957, c. 220. See also Acts of 1959, c. 213. The 1957 Act, 2, abolished the Twenty-seventh Joint Representative District, which had included Shelby and Fayette Counties. (2) In 1907, Marion County was given a whole House seat instead of sharing a joint seat with Franklin County. Acts of 1907, c. 178. Acts of 1915, c. 145, repealed that change, restoring the status quo ante. And that reversal was itself reversed, Acts of 1919, c. 147. (3) James County was in 1901 one of five counties in the Seventh State Senate District and one of the three in the Ninth House District. It appears that James County no longer exists but we are not advised when or how it was dissolved. (4) In 1945, Anderson and Roane Counties were shifted to the Sixth State Senate District from the Seventh, and Monroe and Polk Counties were shifted to the Seventh from the Sixth. Acts of 1945, c. 11. Footnotes [ Footnote 1 ] Public Acts of Tennessee, c. 122 (1901), now Tenn. Code Ann. 3-101 to 3-107. The full text of the 1901 Act as amended appears in an Appendix to this opinion, post, p. 237. [ Footnote 2 ] The three-judge court was convened pursuant to the order of a single district judge, who, after he had reviewed certain decisions of this Court and found them distinguishable in features "that may ultimately prove to be significant," held that the complaint was not so obviously without merit that he would be justified in refusing to convene a three-judge court. 175 F. Supp. 649, 652. [ Footnote 3 ] We heard argument first at the 1960 Term and again at this Term when the case was set over for reargument. 366 U.S. 907 . [ Footnote 4 ] A county having less than, but at least two-thirds of, the population required to choose a Representative is allocated one Representative. See also Tenn. Const., Art. II, 6. A common and much more substantial departure from the number-of-voters or total-population standard is the guaranty of at least one seat to each county. See, e. g., Kansas Const., Art. 2, 2; N. J. Const., Art. 4, 3, 1. While the Tennessee Constitution speaks of the number of "qualified voters," the exhibits attached to the complaint use figures based on the number of persons 21 years of age and over. This basis seems to have been employed by the General Assembly in apportioning legislative seats from the outset. The 1870 statute providing for the first enumeration, Acts of 1870 (1st Sess.), c. 107, directed the courts of[369 U.S. 186, 190] the several counties to select a Commissioner to enumerate "all the male inhabitants of their respective counties, who are twenty-one years of age and upward, who shall be resident citizens of their counties on the first day of January, 1871 . . . ." Reports compiled in the several counties on this basis were submitted to the General Assembly by the Secretary of State and were used in the first apportionment. Appendix to Tenn. S. J., 1871, 41-43. Yet such figures would not reflect the numbers of persons qualified to exercise the franchise under the then-governing qualifications: (a) citizenship; (b) residence in the State 12 months, and in the county 6 months; (c) payment of poll taxes for the preceding year unless entitled to exemption. Acts of 1870 (2d Sess.), c. 10. (These qualifications continued at least until after 1901. See Shan. Tenn. Code Ann., 1167, 1220 (1896; Supp. 1904).) Still, when the General Assembly directed the Secretary of State to do all he could to obtain complete reports from the counties, the Resolution spoke broadly of "the impossibility of . . . [redistricting] without the census returns of the voting population from each county . . . ." Tenn. S. J., 1871, 46-47, 96. The figures also showed a correlation with Federal Census figures for 1870. The Census reported 259,016 male citizens 21 and upward in Tennessee. Ninth Census of the United States, 1870, Statistics of the Population 635 (1872). The Tennessee Secretary of State's Report, with 15 counties not reported, gave a figure of 237,431. Using the numbers of actual votes in the last gubernatorial election for those 15 counties, the Secretary arrived at a total of 250,025. Appendix to Tenn. S. J., 1871, 41-43. This and subsequent history indicate continued reference to Census figures and finally in 1901, abandonment of a state enumeration in favor of the use of Census figures. See notes 7, 8, 9, infra. See also Williams, Legislative Apportionment in Tennessee, 20 Tenn. L. Rev. 235, 236, n. 6. It would therefore appear that unless there is a contrary showing at the trial, appellant's current figures, taken from the United States Census Reports, are apposite. [ Footnote 5 ] Acts of 1871 (1st Sess.), c. 146.

[ Footnote 6 ] Acts of 1870 (1st Sess.), c. 107. [ Footnote 7 ] The statute authorizing the enumeration was Acts of 1881 (1st Sess.), c. 124. The enumeration commissioners in the counties were allowed "access to the U.S. Census Reports of the enumeration of 1880, on file in the offices of the County Court Clerks of the State, and a reference to said reports by said commissioners shall be legitimate as an auxiliary in the enumeration required . . . ." Ibid., 4. The United States Census reported 330,305 male citizens 21 and upward in Tennessee. The Tenth Census of the United States, 1880, Compendium 596 (1883). The Tennessee Secretary of State's Report gave a figure of 343,817, Tenn. H. J. (1st Extra. Sess.), 1881, 12-14 (1882). The General Assembly was enlarged in accordance with the constitutional mandate since the State's population had passed 1,500,000. Acts of 1881 (1st Extra. Sess.), c. 5; and see, id., S. J. Res. No. III; see also Tenth Census of the United States, 1880, Statistics of the Population 77 (1881). The statute apportioning the General Assembly was Acts of 1881 (1st Extra. Sess.), c. 6. [ Footnote 8 ] Acts of 1891, c. 22; Acts of 1891 (Extra. Sess.), c. 10. Reference to United States Census figures was allowed just as in 1881, see supra, n. 7. The United States Census reported 402,476 males 21 and over in Tennessee. The Eleventh Census of the United States, 1890, Population (Part I) 781 (1895). The Tennessee Secretary of State's Report gave a figure of 399,575. 1 Tenn. S. J., 1891, 473-474. [ Footnote 9 ] Acts of 1901, S. J. Res. No. 35; Acts of 1901, c. 122. The Joint Resolution said: "The Federal census of 1900 has been very recently taken and by reference to said Federal census an accurate enumeration of the qualified voters of the respective counties of the State of Tennessee can be ascertained and thereby save the expense of an actual enumeration . . . ." [ Footnote 10 ] For the history of legislative apportionment in Tennessee, including attempts made since 1901, see Tenn. S. J., 1959, 909-930; [369 U.S. 186, 192] and "A Documented Survey of Legislative Apportionment in Tennessee, 1870-1957," which is attached as exhibit 2 to the intervening complaint of Mayor West of Nashville, both prepared by the Tennessee State Historian, Dr. Robert H. White. Examples of preliminary steps are: In 1911, the Senate called upon the Redistricting Committee to make an enumeration of qualified voters and to use the Federal Census of 1910 as the basis. Acts of 1911, S. J. Res. No. 60, p. 315. Similarly, in 1961, the Senate called for appointment of a select committee to make an enumeration of qualified voters. Acts of 1961, S. J. Res. No. 47. In 1955, the Senate called for a study of reapportionment. Tenn. S. J., 1955, 224; but see id., at 1403. Similarly, in 1961, the House directed the State Legislative Council to study methods of reapportionment. Acts of 1961, H. J. Res. No. 65. [ Footnote 11 ] Twelfth Census of the United States, 1900, Population (Part 1) 39 (1901); (Part 2) 202 (1902). [ Footnote 12 ] United States Census of Population: 1960, General Population Characteristics - Tennessee, Table 16 (1961). [ Footnote 13 ] In the words of one of the intervening complaints, the apportionment was "wholly arbitrary, . . . and, indeed, based upon no lawfully pertinent factor whatever." [ Footnote 14 ] The appellants claim that no General Assembly constituted according to the 1901 Act will submit reapportionment proposals either to the people or to a Constitutional Convention. There is no provision for popular initiative in Tennessee. Amendments proposed in the Senate or House must first be approved by a majority of all members of each House and again by two-thirds of the members in the General Assembly next chosen. The proposals are then submitted to the people at the next general election in which a Governor is to be chosen. Alternatively, the legislature may submit to the people at any general election the question of calling a convention to consider specified proposals. Such as are adopted at a convention do not, however, become effective unless approved by a majority of the qualified voters voting separately on each proposed change or amendment at an election fixed by the convention. Conventions shall not be held oftener than once in six years. Tenn. Const., Art. XI, 3. Acts of 1951, c. 130, 3, and Acts of 1957, c. 340, 3, provided that delegates to the 1953 and 1959 conventions were to be chosen from the counties and floterial districts just as are members of the State House of Representatives. The General Assembly's call for a 1953 Constitutional

Convention originally contained a provision "relating to the appointment [sic] of representatives and senators" but this was excised. Tenn. H. J., 1951, 784. A Resolution introduced at the 1959 Constitutional Convention and reported unfavorably by the Rules Committee of the Convention was as follows: "By Mr. Chambliss (of Hamilton County), Resolution No. 12 - Relative to Convention considering reapportionment, which is as follows: "WHEREAS, there is a rumor that this Limited Convention has been called for the purpose of postponing for six years a Convention that would make a decision as to reapportionment; and [369 U.S. 186, 194] "WHEREAS, there is pending in the United States Courts in Tennessee a suit under which parties are seeking, through decree, to compel reapportionment; and "WHEREAS, it is said that this Limited Convention, which was called for limited consideration, is yet a Constitutional Convention within the language of the Constitution as to Constitutional Conventions, forbidding frequent Conventions in the last sentence of Article Eleven, Section 3, second paragraph, more often than each six years, to-wit: "`No such Convention shall be held oftener than once in six years.' "NOW, THEREFORE, BE IT RESOLVED, That it is the consensus of opinion of the members of this Convention that since this is a Limited Convention as hereinbefore set forth another Convention could be had if it did not deal with the matters submitted to this Limited Convention. "BE IT FURTHER RESOLVED, That it is the consensus of opinion of this Convention that a Convention should be called by the General Assembly for the purpose of considering reapportionment in order that a possibility of Court enforcement being forced on the Sovereign State of Tennessee by the Courts of the National Government may be avoided. "BE IT FURTHER RESOLVED, That this Convention be adjourned for two years to meet again at the same time set forth in the statute providing for this Convention, and that it is the consensus of opinion of this body that it is within the power of the next General Assembly of Tennessee to broaden the powers of this Convention and to authorize and empower this Convention to consider a proper amendment to the Constitution that will provide, when submitted to the electorate, a method of reapportionment." Tenn. Constitutional Convention of 1959, The Journal and Debates, 35, 278. [ Footnote 15 ] It is clear that appellants' federal constitutional claims rest exclusively on alleged violation of the Fourteenth Amendment. Their primary claim is that the 1901 statute violates the Equal Protection Clause of that amendment. There are allegations invoking the Due Process Clause but from the argument and the exhibits it appears that the Due Process Clause argument is directed at certain tax statutes. Insofar as the claim involves the validity of those statutes [369 U.S. 186, 195] under the Due Process Clause we find it unnecessary to decide its merits. And if the allegations regarding the tax statutes are designed as the framework for proofs as to the effects of the allegedly discriminatory apportionment, we need not rely upon them to support our holding that the complaint states a federal constitutional claim of violation of the Equal Protection Clause. Whether, when the issue to be decided is one of the constitutional adequacy of this particular apportionment, taxation arguments and exhibits as now presented add anything, or whether they could add anything however presented, is for the District Court in the first instance to decide. The complaint, in addition to the claims under the Federal Constitution, also alleges rights, and the General Assembly's duties, under the Tennessee Constitution. Since we hold that appellants have - if it develops at trial that the facts support the allegations - a cognizable federal constitutional cause of action resting in no degree on rights guaranteed or putatively guaranteed by the Tennessee Constitution, we do not consider, let alone enforce, rights under a State Constitution which go further than the protections of the Fourteenth Amendment. Lastly, we need not assess the legal significance, in reaching our conclusion, of the statements of the complaint that the apportionment effected today under the 1901 Act is "contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence . . . ." [ Footnote 16 ] We need not reach the question of indispensable parties because the District Court has not yet decided it. [ Footnote 17 ] The accuracy of calling even such dismissals "jurisdictional" was questioned in Bell v. Hood. See 327 U.S., at 683 . [ Footnote 18 ] 42 U.S.C. 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [ Footnote 19 ] This Court has frequently sustained District Court jurisdiction under 28 U.S.C. 1343 (3) or its predecessors to entertain suits to redress deprivations of rights secured against state infringement by the Equal Protection and Due Process Clauses of the Fourteenth [369 U.S. 186, 201] Amendment. Douglas v. Jeannette, 319 U.S. 157 ; Stefanelli v. Minard, 342 U.S. 117 ; cf. Nixon v. Herndon, 273 U.S. 536 ; Nixon v. Condon, 286 U.S. 73 ; Snowden v. Hughes, 321 U.S. 1 ; Smith v. Allwright, 321 U.S. 649 ; Monroe v. Pape, 365 U.S. 167 ; Egan v. Aurora, 365 U.S. 514 . [ Footnote 20 ] Since that case was not brought to the Court until after the election had been held, the Court cited not only Wood v. Broom, but also directed dismissal for mootness, citing Brownlow v. Schwartz, 261 U.S. 216 . [ Footnote 21 ] Compare Boeing Aircraft Co. v. King County, 330 U.S. 803 ("the appeal is dismissed for want of jurisdiction"). See Coleman v. Miller, 307 U.S. 433, 440 . [ Footnote 22 ] Matthews did affirm a judgment that may be read as a dismissal for want of jurisdiction, 179 F. Supp. 470. However, the motion to affirm also rested on the ground of failure to state a claim upon which relief could be granted. Cf. text following, on MacDougall v. Green. And see text, infra, p. 236. [ Footnote 23 ] The Mayor of Nashville suing "on behalf of himself and all residents of the City of Nashville, Davidson County, . . ." and the Cities of Chattanooga (Hamilton County) and Knoxville (Knox County), each suing on behalf of its residents, were permitted to intervene as parties plaintiff. Since they press the same claims as do the initial plaintiffs, we find it unnecessary to decide whether the intervenors would have standing to maintain this action in their asserted representative capacities. [ Footnote 24 ] The complaint also contains an averment that the appellants sue "on their own behalf and on behalf of all other voters in the State of Tennessee." (Emphasis added.) This may be read to assert a claim that voters in counties allegedly over-represented in the General Assembly also have standing to complain. But it is not necessary to decide that question in this case. [ Footnote 25 ] The duties of the respective appellees are alleged to be as follows: "Defendant, Joe C. Carr, is the duly elected, qualified and acting Secretary of State of the State of Tennessee, with his office in Nashville in said State, and as such he is charged with the duty of furnishing blanks, envelopes and information slips to the County Election Commissioners, certifying the results of elections and maintaining the records thereof; and he is further ex officio charged, together with the Governor and the Attorney General, with the duty of examining the election returns received from the County Election Commissioners and declaring the election results, by the applicable provisions of the Tennessee Code Annotated, and by Chapter 164 of the Acts of 1949, inter alia. "Defendant, George F. McCanless, is the duly appointed and acting Attorney General of the State of Tennessee, with his office in Nashville in said State, and is charged with the duty of advising the officers of the State upon the law, and is made by Section 23-1107 of the Tennessee Code Annotated a necessary party defendant in any declaratory judgment action where the constitutionality of statutes of the State of Tennessee is attacked, and he is ex-officio charged, together with the Governor and the Secretary of State, with the duty of declaring the election results, under Section 2-140 of the Tennessee Code Annotated. "Defendant, Jerry McDonald, is the duly appointed Coordinator of Elections in the State of Tennessee, with his office in Nashville, Tennessee, and as such official, is charged with the duties set forth in the public law enacted by the 1959 General Assembly of Tennessee creating said office. "Defendant, Dr. Sam Coward, James Alexander, and Hubert Brooks are the duly appointed and qualified members constituting [369 U.S. 186, 206] the State Board of Elections, and as such they are charged with the duty of appointing the Election Commissioners for all the counties of the State of Tennessee, the organization and supervision of the biennial elections as provided by the Statutes of Tennessee, Chapter 9 of Title 2 of the Tennessee Code Annotated, Sections 2-901, et seq.

"That this action is brought against the aforenamed defendants in their representative capacities, and that said Election Commissioners are sued also as representatives of all of the County Election Commissioners in the State of Tennessee, such persons being so numerous as to make it impracticable to bring them all before the court; that there is a common question of law involved, namely, the constitutionality of Tennessee laws set forth in the Tennessee Code Annotated, Section 3-101 through Section 3-109, inclusive; that common relief is sought against all members of said Election Commissions in their official capacities, it being the duties of the aforesaid County Election Commissioners, within their respective jurisdictions, to appoint the judges of elections, to maintain the registry of qualified voters of said County, certify the results of elections held in said County to the defendants State Board of Elections and Secretary of State, and of preparing ballots and taking other steps to prepare for and hold elections in said Counties by virtue of Sections 2-1201, et seq. of Tennessee Code Annotated, and Section 2-301, et seq. of Tennessee Code Annotated, and Chapter 164 of the Acts of 1949, inter alia." The question whether the named defendants are sufficient parties remains open for consideration on remand. [ Footnote 26 ] Smiley v. Holm, supra, at 361 ("`citizen, elector and taxpayer' of the State"); Koenig v. Flynn, supra, at 379 ("`citizens and voters' of the State") Wood v. Broom, supra, at 4 ("citizen of Mississippi, a qualified elector under its laws, and also qualified to be a candidate for election as representative in Congress"); cf. Carroll v. Becker, supra (candidate for office). [ Footnote 27 ] Mr. Justice Rutledge was of the view that any question of standing was settled in Smiley v. Holm, supra; MR. JUSTICE BLACK stated "that appellants had standing to sue, since the facts alleged show that [369 U.S. 186, 207] they have been injured as individuals." He relied on Coleman v. Miller,307 U.S. 433, 438 , 467. See 328 U.S. 564, 568 . Commentators have suggested that the following statement in MR. JUSTICE FRANKFURTER'S opinion might imply a view that appellants there had no standing: "This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity." 328 U.S., at 552 . See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1298 (1961); Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 1081-1083 (1958). But since the opinion goes on to consider the merits, it seems that this statement was not intended to intimate any view that the plaintiffs in that action lacked standing. Nor do the cases cited immediately after the above quotation deal with standing. See especially Lane v. Wilson, 307 U.S. 268, 272 -273. [ Footnote 28 ] MacDougall v. Green, supra, at 282 ("the `Progressive Party,' its nominees for United States Senator, Presidential Electors, and State offices, and several Illinois voters"); South v. Peters, supra, at 277 ("residents of the most populous county in the State"); Radford v. Gary, 145 F. Supp. 541, 542 ("citizen of Oklahoma and resident and voter in the most populous county"); Matthews v. Handley, supra ("citizen of the State"); see also Hawke v. Smith (No. 1), 253 U.S. 221 ; Leser v. Garnett, 258 U.S. 130 ; Coleman v. Miller, 307 U.S. 433, 437 -446. [ Footnote 29 ] Cook v. Fortson, 329 U.S. 675 ; Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804 ; MacDougall v. Green, 335 U.S. 281 ; South v. Peters, 339 U.S. 276 ; Remmey v. Smith, 342 U.S. 916 ; [369 U.S. 186, 209] Anderson v. Jordan, 343 U.S. 912 ; Kidd v. McCanless, 352 U.S. 920 ; Radford v. Gary, 352 U.S. 991 . [ Footnote 30 ] "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. Const., Art. IV, 4. [ Footnote 31 ] E. g., "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative - `the political' - Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.S. 297, 302 . [ Footnote 32 ] See Doe v. Braden, 16 How. 635, 657; Taylor v. Morton, 23 Fed. Cas., No. 13,799 (C. C. D. Mass.) (Mr. Justice Curtis), affirmed, 2 Black 481.

[ Footnote 33 ] See Doe v. Braden, 16 How. 635, 657. [ Footnote 34 ] And see Clark v. Allen, 331 U.S. 503 . [ Footnote 35 ] United States v. Klintock, 5 Wheat. 144, 149; see also United States v. Palmer, 3 Wheat. 610, 634-635. [ Footnote 36 ] Foster & Elam v. Neilson, 2 Pet. 253, 307; and see Williams v. Suffolk Insurance Co., 13 Pet. 415, 420. [ Footnote 37 ] Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380 ; De Lima v. Bidwell, 182 U.S. 1, 180-200. [ Footnote 38 ] See, e. g., Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 . [ Footnote 39 ] Contrast Martin v. Mott, supra. [ Footnote 40 ] But cf. Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163, 184 , 187. [ Footnote 41 ] Cf. Dillon v. Gloss, 256 U.S. 368 . See also United States v. Sprague, 282 U.S. 716, 732 . [ Footnote 42 ] See also Fellows v. Blacksmith, 19 How. 366, 372; United States v. Old Settlers, 148 U.S. 427, 466 ; and compare Doe v. Braden, 16 How. 635, 657. [ Footnote 43 ] This case, so frequently cited for the broad proposition that the status of an Indian tribe is a matter for the political departments, is in fact a noteworthy example of the limited and precise impact of a political question. The Cherokees brought an original suit in this Court to enjoin Georgia's assertion of jurisdiction over Cherokee territory and abolition of Cherokee government and laws. Unquestionably the case lay at the vortex of most fiery political embroilment. See 1 Warren, The Supreme Court in United States History (Rev. ed.), 729-779. But in spite of some broader language in separate opinions, all that the Court held was that it possessed no original jurisdiction over the suit: for the Cherokees could in no view be considered either a State of this Union or a "foreign state." Chief Justice Marshall treated the question as one of de novo interpretation of words in the Constitution. The Chief Justice did say that "The acts of our government plainly recognize the Cherokee nation [369 U.S. 186, 216] as a state, and the courts are bound by those acts," but here he referred to their existence "as a state, as a distinct political society, separated from others . . . ." From there he went to "A question of much more difficulty . . . . Do the Cherokees constitute a foreign state in the sense of the constitution?" Id., at 16. Thus, while the Court referred to "the political" for the decision whether the tribe was an entity, a separate polity, it held that whether being an entity the tribe had such status as to be entitled to sue originally was a judicially soluble issue: criteria were discoverable in relevant phrases of the Constitution and in the common understanding of the times. As to this issue, the Court was not hampered by problems of the management of unusual evidence or of possible interference with a congressional program. Moreover, Chief Justice Marshall's dictum that "It savours too much of the exercise of political power to be within the proper province of the judicial department," id., at 20, was not addressed to the issue of the Cherokees' status to sue, but rather to the breadth of the claim asserted and the impropriety of the relief sought. Compare Georgia v. Stanton, 6 Wall. 50, 77. The Chief Justice made clear that if the issue of the Cherokees' rights arose in a customary legal context, "a proper case with proper parties," it would be justiciable. Thus, when the same dispute produced a case properly brought, in which the right asserted was one of protection under federal treaties and laws from conflicting state law, and the relief sought was the voiding of a conviction under that state law, the Court did void the conviction. Worcester v. Georgia, 6 Pet. 515. There, the fact that the tribe was a separate polity served as a datum contributing to the result, and despite the consequences in a heated federal-state controversy and the opposition of the other branches of the National Government, the judicial power acted to reverse the State Supreme Court. An example of similar isolation of a political question in the decision of a case is Luther v. Borden, 7 How. 1, see infra. [ Footnote 44 ] 7 How., at 29. And see 11 The Writings and Speeches of Daniel Webster 217 (1903).

[ Footnote 45 ] See Mowry, The Dorr War (1901), and its exhaustive bibliography. And for an account of circumstances surrounding the decision here, see 2 Warren, The Supreme Court in United States History (Rev. ed.), 185-195. Dorr himself, head of one of the two groups and held in a Rhode Island jail under a conviction for treason, had earlier sought a decision from the Supreme Court that his was the lawful government. His application for original habeas corpus in the Supreme Court was [369 U.S. 186, 219] denied because the federal courts then lacked authority to issue habeas for a prisoner held under a state court sentence. Ex parte Dorr, 3 How. 103. [ Footnote 46 ] 7 How., at 39. [ Footnote 47 ] Id., at 39, 40. [ Footnote 48 ] Even though the Court wrote of unrestrained legislative and executive authority under this Guaranty, thus making its enforcement a political question, the Court plainly implied that the political question barrier was no absolute: "Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it." 7 How., at 45. Of course, it does not necessarily follow that if Congress did not act, the Court would. For while the judiciary might be able to decide the limits of the meaning of "republican form," and thus the factor of lack of criteria might fall away, there would remain other possible barriers to decision because of primary commitment to another branch, which would have to be considered in the particular fact setting presented. That was not the only occasion on which this Court indicated that lack of criteria does not obliterate the Guaranty's extreme limits: "The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. "The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it[369 U.S. 186, 223] is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution." Minor v. Happersett, 21 Wall. 162, 175-176. There, the question was whether a government republican in form could deny the vote to women. In re Duncan, 139 U.S. 449 , upheld a murder conviction against a claim that the relevant codes had been invalidly enacted. The Court there said: "By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities." 139 U.S., at 461 . But the Court did not find any of these fundamental principles violated. [ Footnote 49 ] But cf. Hawke v. Smith (No. 1), 253 U.S. 221 ; National Prohibition Cases, 253 U.S. 350 . [ Footnote 50 ] 6 Wall., at 65, 66. [ Footnote 51 ] The First Reconstruction Act opened: "Whereas no legal State governments . . . now exists [sic] in the rebel States of . . . Georgia [and] Mississippi . . .; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: . . ." 14 Stat. 428. And see 15 Stat. 2, 14. [ Footnote 52 ] In Mississippi v. Johnson, 4 Wall. 475, the State sought to enjoin the President from executing the Acts, alleging that his role was purely ministerial. The Court held that the duties were in no sense ministerial, and that although the State sought to compel inaction rather than action, the absolute lack of precedent for any such distinction left the case one in which "general principles . . . forbid judicial interference

with the exercise of Executive discretion." 4 Wall., at 499. See also Mississippi v. Stanton, 154 U.S. 554 ; and see 2 Warren, The Supreme Court in United States History (Rev. ed.), 463. For another instance of congressional action challenged as transgressing the Guaranty Clause, see The Collector v. Day, 11 Wall. 113, 125-126, overruled, Graves v. O'Keefe, 306 U.S. 466 . [ Footnote 53 ] On the other hand, the implication of the Guaranty Clause in a case concerning congressional action does not always preclude judicial action. It has been held that the clause gives Congress no power to impose restrictions upon a State's admission which would undercut the constitutional mandate that the State be on an equal footing. Coyle v. Smith, 221 U.S. 559 . And in Texas v. White, 7 Wall. 700, although Congress had determined that the State's government was not republican in form, the State's standing to bring an original action in this Court was sustained. [ Footnote 54 ] See, infra, p. 235, considering Kidd v. McCanless, 352 U.S. 920 . [ Footnote 55 ] Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 183 (Field, J., dissenting). [ Footnote 56 ] Gomillion v. Lightfoot, 270 F.2d 594, relying upon, inter alia, Hunter v. Pittsburgh,207 U.S. 161 . [ Footnote 57 ] The Court's opinion was joined by MR. JUSTICE DOUGLAS, noting his adherence to the dissents in Colegrove and South v. Peters, supra; and the judgment was concurred in by MR. JUSTICE WHITTAKER, who wrote that the decision should rest on the Equal Protection Clause rather than on the Fifteenth Amendment, since there had been not solely a denial of the vote (if there had been that at all) but also a "fencing out" of a racial group. [ Footnote 58 ] No holding to the contrary is to be found in Cave v. Newell, 246 U.S. 650 , dismissing a writ of error to the Supreme Court of Missouri, 272 Mo. 653, 199 S. W. 1014; or in Snowden v. Hughes,321 U.S. 1 . [ Footnote 59 ] The ground of Mr. Justice Rutledge's vote to affirm is further explained in his footnote 3, 328 U.S., at 566 : "`The power of a court of equity to act is a discretionary one. . . . Where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only "to prevent irreparable injury which is clear and [369 U.S. 186, 234] imminent."' American Federation of Labor v. Watson, 327 U.S. 582, 593 and cases cited." No constitutional questions, including the question whether voters have a judicially enforceable constitutional right to vote at elections of congressmen from districts of equal population, were decided in Colegrove. Six of the participating Justices reached the questions but divided three to three on their merits. Mr. Justice Rutledge believed that it was not necessary to decide them. He said: "There is [an alternative to constitutional decision] in this case. And I think the gravity of the constitutional questions raised so great, together with the possibilities for collision [with the political departments of the Government], that the admonition [against avoidable constitutional decision] is appropriate to be followed here. Other reasons support this view, including the fact that, in my opinion, the basic ruling and less important ones in Smiley v. Holm, supra, would otherwise be brought into question." 328 U.S., at 564 -565. He also joined with his brethren who shared his view that the issues were justiciable in considering that Wood v. Broom, 287 U.S. 1 , decided no constitutional questions but "the Court disposed of the cause on the ground that the 1929 Reapportionment Act, 46 Stat. 21, did not carry forward the requirements of the 1911 Act, 37 Stat. 13, and declined to decide whether there was equity in the bill." 328 U.S., at 565 ; see also, id., at 573. We agree with this view of Wood v. Broom. [ Footnote 60 ] See also Buford v. State Board of Elections, 206 Tenn. 480, 334 S. W. 2d 726; State ex rel. Sanborn v. Davidson County Board of Election Comm'rs, No. 36,391 Tenn. Sup. Ct., Oct. 29, 1954 (unreported); 8 Vand. L. Rev. 501 (1955). MR. JUSTICE DOUGLAS, concurring. While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary. 1 I put to one side the problems of "political" [369 U.S. 186, 242] questions involving the

distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person's vote more heavily than it does another's. So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section 4 of the Constitution. The House - and now the Senate - are chosen by the people. The time, manner, and place of elections of Senators and Representatives are left to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the regulatory power of Congress. A "republican form" of government is guaranteed each State by Article IV, Section 4, and each is likewise promised protection against invasion. 2 Ibid. [369 U.S. 186, 243] That the States may specify the qualifications for voters is implicit in Article I, Section 2, Clause 1, which provides that the House of Representatives shall be chosen by the [369 U.S. 186, 244] people and that "the Electors (voters) in each State shall have the Qualifications requisite for Electors (voters) of the most numerous Branch of the State Legislature." The same provision, contained in the Seventeenth Amendment, governs the election of Senators. Within limits those qualifications may be fixed by state law. See Lassiter v. Northampton Election Board, 360 U.S. 45, 50 -51. Yet, as stated in Ex parte Yarbrough, 110 U.S. 651, 663 -664, those who vote for members of Congress do not "owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State." The power of Congress to prescribe the qualifications for voters and thus override state law is not in issue here. It is, however, clear that by reason of the commands of the Constitution there are several qualifications that a State may not require. Race, color, or previous condition of servitude is an impermissible standard by reason of the Fifteenth Amendment, and that alone is sufficient to explain Gomillion v. Lightfoot, 364 U.S. 339 . See Taper, Gomillion versus Lightfoot (1962), pp. 12-17. Sex is another impermissible standard by reason of the Nineteenth Amendment. There is a third barrier to a State's freedom in prescribing qualifications of voters and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another? The traditional test under the Equal Protection Clause has been whether a State has made "an invidious discrimination," as it does when it selects "a particular race or nationality for oppressive treatment." See Skinner v. Oklahoma, 316 U.S. 535, 541 . Universal equality is not [369 U.S. 186, 245] the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489 , "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination." I agree with my Brother CLARK that if the allegations in the complaint can be sustained a case for relief is established. We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County. The opportunity to prove that an "invidious discrimination" exists should therefore be given the appellants. It is said that any decision in cases of this kind is beyond the competence of courts. Some make the same point as regards the problem of equal protection in cases involving racial segregation. Yet the legality of claims and conduct is a traditional subject for judicial determination. Adjudication is often perplexing and complicated. An example of the extreme complexity of the task can be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U.S. 589, 665 . The constitutional guide is often vague, as the decisions under the Due Process and Commerce Clauses show. The problem under the Equal Protection Clause is no more intricate. See Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 10831084. There are, of course, some questions beyond judicial competence. Where the performance of a "duty" is left to the discretion and good judgment of an executive officer, the judiciary will not compel the exercise of his discretion one way or the other (Kentucky v. Dennison, 24 How. 66, 109), for to do so would be to take over the office. Cf. Federal Communications Comm'n v. Broadcasting Co., 309 U.S. 134, 145 . [369 U.S. 186, 246]

Where the Constitution assigns a particular function wholly and indivisibly 3 to another department, the federal judiciary does not intervene. Oetjen v. Central Leather Co., 246 U.S. 297, 302 . None of those cases is relevant here. [369 U.S. 186, 247] There is no doubt that the federal courts have jurisdiction of controversies concerning voting rights. The Civil Rights Act gives them authority to redress the deprivation "under color of any State law" of any "right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens . . . ." 28 U.S.C. 1343 (3). And 28 U.S.C. 1343 (4) gives the federal courts authority to award damages or issue an injunction to redress the violation of "any Act of Congress providing for the protection of civil rights, including the right to vote." (Italics added.) The element of state action covers a wide range. For as stated in United States v. Classic, 313 U.S. 299, 326 : "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." And see Monroe v. Pape, 365 U.S. 167 . The right to vote in both federal and state elections was protected by the judiciary long before that right received the explicit protection it is now accorded by 1343 (4). Discrimination against a voter on account of race has been penalized (Ex parte Yarbrough, 110 U.S. 651 ) or struck down. Nixon v. Herndon, 273 U.S. 536 ; Smith v. Allwright, 321 U.S. 649 ; Terry v. Adams, 345 U.S. 461 . Fraudulent acts that dilute the votes of some [369 U.S. 186, 248] have long been held to be within judicial cognizance. Ex parte Siebold, 100 U.S. 371 . The "right to have one's vote counted" whatever his race or nationality or creed was held in United States v. Mosley, 238 U.S. 383, 386 , to be "as open to protection by Congress as the right to put a ballot in a box." See also United States v. Classic, supra, 324-325; United States v. Saylor, 322 U.S. 385 . Chief Justice Holt stated in Ashby v. White, 2 Ld. Raym. 938, 956 (a suit in which damages were awarded against election officials for not accepting the plaintiff's vote, 3 Ld. Raym. 320) that: "To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation." The same prophylactic effect will be produced here, as entrenched political regimes make other relief as illusory in this case as a petition to Parliament in Ashby v. White would have been. 4 [369 U.S. 186, 249] Intrusion of the Federal Government into the election machinery of the States has taken numerous forms investigations (Hannah v. Larche, 363 U.S. 420 ); criminal proceedings (Ex parte Siebold, supra; Ex parte Yarbrough, supra; United States v. Mosley, supra; United States v. Classic, supra); collection of penalties (Smith v. Allwright, supra); suits for declaratory relief and for an injunction (Terry v. Adams, supra); suits by the United States under the Civil Rights Act to enjoin discriminatory practices. United States v. Raines, 362 U.S. 17 . As stated by Judge McLaughlin in Dyer v. Kazuhisa Abe, 138 F. Supp. 220, 236 (an apportionment case in Hawaii which was reversed and dismissed as moot, 256 F.2d 728): "The whole thrust of today's legal climate is to end unconstitutional discrimination. It is ludicrous to preclude judicial relief when a mainspring of representative government is impaired. Legislators have no immunity from the Constitution. The legislatures of our land should be made as responsive to the Constitution of the United States as are the citizens who elect the legislators." With the exceptions of Colegrove v. Green, 328 U.S. 549 ; MacDougall v. Green, 335 U.S. 281 ; South v. Peters, 339 U.S. 276 , and the decisions they spawned, the Court has never thought that protection of voting rights [369 U.S. 186, 250] was beyond judicial cognizance. Today's treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint. The justiciability of the present claims being established, any relief accorded can be fashioned in the light of well-known principles of equity. 5 [ Footnote 1 ] I feel strongly that many of the cases cited by the Court and involving so-called "political" questions were wrongly decided. In joining the opinion, I do not approve those decisions but only construe the Court's opinion in this case as stating an accurate historical account of what the prior cases have held.

[ Footnote 2 ] The statements in Luther v. Borden, 7 How. 1, 42, that this guaranty is enforceable only by Congress or the Chief Executive is not maintainable. Of course the Chief Executive, not the Court, determines how a State will be protected against invasion. Of course each House of Congress, not the Court, is "the Judge of the Elections, Returns, and Qualifications of its own Members." Article I, Section 5, Clause 1. But the abdication of all judicial functions respecting voting rights (7 How., at 41), however justified by the peculiarities of the charter form of government in Rhode Island at the time of Dorr's Rebellion, states no general principle. It indeed is contrary to the cases discussed in the body of this opinion - the modern decisions of the Court that give the full panoply of judicial protection to voting rights. Today we would not say with Chief Justice Taney that it is no part of the judicial function to protect the right to vote of those "to whom it is denied by the written and established constitution and laws of the State." Ibid. Moreover, the Court's refusal to examine the legality of the regime of martial law which had been laid upon Rhode Island (id., at 45-46) is indefensible, as Mr. Justice Woodbury maintained in his dissent. Id., at 59 et seq. Today we would ask with him: ". . . who [369 U.S. 186, 243] could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency?" Id., at 67. Justice Woodbury went on to say: "It would be alarming enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws of the land who disregard them in an emergency, and should look to a grateful country for indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet. "No tribunal or department in our system of governments ever can be lawfully authorized to dispense with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them; or, in other words, appoint an unrestrained military dictator at the head of armed men. "Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them, however the Assembly of Rhode Island, under the exigency, may have hastily supposed that such a measure in this instance was constitutional. It is but a branch of the omnipotence claimed by Parliament to pass bills of attainder, belonging to the same dangerous and arbitrary family with martial law." Id., at 69-70. What he wrote was later to become the tradition, as expressed by Chief Justice Hughes in Sterling v. Constantin, 287 U.S. 378, 401 : "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." [ Footnote 3 ] The category of the "political" question is, in my view, narrower than the decided cases indicate. "Even the English courts have held that a resolution of one House of Parliament does not change the law (Stockdale v. Hansard (1839), 9 A. & E. 1; and Bowles v. Bank of England (No. 2) 1913. 1 Ch. 57), and these decisions imply that the House of Commons acting alone does not constitute the `Parliament' recognized by the English courts." 103 Sol. Jour. 995, 996. The Court in Bowles v. Bank of England, 1913. 1 Ch. 57, 84-85, stated: "By the statute 1 W. & M., usually known as the Bill of Rights, it was finally settled that there could be no taxation in this country except under authority of an Act of Parliament. The Bill of Rights still remains unrepealed, and no practice or custom, however prolonged, or however acquiesced in on the part of the subject, can be relied on by the Crown as justifying any infringement of its provisions. It follows that, with regard to the powers of the Crown to levy taxation, no resolution, either of the Committee for Ways and Means or of the House itself, has any legal effect whatever. Such resolutions are necessitated by a parliamentary procedure adopted with a view to the protection of the subject against the hasty imposition of taxes, and it would be strange to find them relied on as justifying the Crown in levying a tax before such tax is actually imposed by Act of Parliament." In The Pocket Veto Case, 279 U.S. 655 , the Court undertook a review of the veto provisions of the Constitution and concluded that the measure in litigation had not become a law. Cf. Coleman v. Miller,307 U.S. 433 .

Georgia v. Stanton, 6 Wall. 50, involved the application of the Reconstruction Acts to Georgia - laws which destroyed by force the internal regime of that State. Yet the Court refused to take jurisdiction. That question was no more "political" than a host of others we have entertained. See, e. g., Pennsylvania v. West Virginia, 262 U.S. 553 ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ; Alabama v. Texas, 347 U.S. 272 . [369 U.S. 186, 247] Today would this Court hold nonjusticiable or "political" a suit to enjoin a Governor who, like Fidel Castro, takes everything into his own hands and suspends all election laws? Georgia v. Stanton, supra, expresses a philosophy at war with Ex parte Milligan, 4 Wall. 2, and Duncan v. Kahanamoku, 327 U.S. 304 . The dominance of the civilian authority has been expressed from the beginning. See Wise v. Withers, 3 Cranch 331, 337; Sterling v. Constantin, supra, note 2. [ Footnote 4 ] We are told by the National Institute of Municipal Law Officers in an amicus brief: "Regardless of the fact that in the last two decades the United States has become a predominantly urban country where well over two-thirds of the population now lives in cities or suburbs, political representation in the majority of state legislatures is 50 or more years behind the times. Apportionments made when the greater part of the population was located in rural communities are still determining and undermining our elections. "As a consequence, the municipality of 1960 is forced to function in a horse and buggy environment where there is little political recognition of the heavy demands of an urban population. These demands will become even greater by 1970 when some 150 million people will be living in urban areas. "The National Institute of Municipal Law Officers has for many years recognized the wide-spread complaint that by far the greatest [369 U.S. 186, 249] preponderance of state representatives and senators are from rural areas which, in the main, fail to become vitally interested in the increasing difficulties now facing urban administrators. "Since World War II, the explosion in city and suburban population has created intense local problems in education, transportation, and housing. Adequate handling of these problems has not been possible to a large extent, due chiefly to the political weakness of municipalities. This situation is directly attributable to considerable under-representation of cities in the legislatures of most states." Amicus brief, pp. 2-3. [ Footnote 5 ] The recent ruling by the Iowa Supreme Court that a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act (Cedar Rapids v. Cox, 252 Iowa 948, 964, 108 N. W. 2d 253, 262-263; cf. Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40) is plainly correct. There need be no fear of a more disastrous collision between federal and state agencies here than where a federal court enjoins gerrymandering based on racial lines. See Gomillion v. Lightfoot, supra. The District Court need not undertake a complete reapportionment. It might possibly achieve the goal of substantial equality merely by directing respondent to eliminate the egregious injustices. Or its conclusion that reapportionment should be made may in itself stimulate legislative action. That was the result in Asbury Park Press v. Woolley, 33 N. J. 1, 161 A. 2d 705, where the state court ruled it had jurisdiction: "If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him. The law-making body cannot by inaction alter the constitutional system under which it has its own existence." 33 N. J., at 14, 161 A. 2d, at 711. The court withheld its decision on the merits in order that the legislature might have an opportunity to consider adoption of a reapportionment act. For the sequel see Application of Lamb, 67 N. J. Super. 39, 4647, 169 A. 2d 822, 825-826. Reapportionment was also the result in Magraw v. Donovan, 159 F. Supp. 901, where a federal three-judge District Court took jurisdiction, saying, 163 F. Supp. 184, 187: "Here it is the unmistakable duty of the State Legislature to reapportion itself periodically in accordance with recent population changes. . . . Early in January 1959 the 61st Session of the Minnesota Legislature will convene, all of the members of which will be newly elected on November 4th of this year. The facts which have [369 U.S. 186, 251] been presented to us will be available to them. It is not to be presumed that the Legislature will refuse to take such action as is necessary to comply with its duty under the State Constitution.

We defer decision on all the issues presented (including that of the power of this Court to grant relief), in order to afford the Legislature full opportunity to `heed the constitutional mandate to redistrict.'" See 177 F. Supp. 803, where the case was dismissed as moot, the State Legislature having acted. [369 U.S. 186, 251] MR. JUSTICE CLARK, concurring. One emerging from the rash of opinions with their accompanying clashing of views may well find himself suffering a mental blindness. The Court holds that the appellants have alleged a cause of action. However, it refuses to award relief here - although the facts are undisputed - and fails to give the District Court any guidance whatever. One dissenting opinion, bursting with words that go through so much and conclude with so little, contemns the majority action as "a massive repudiation of the experience of our whole past." Another describes the complaint as merely asserting conclusory allegations that Tennessee's apportionment is "incorrect," "arbitrary," "obsolete," and "unconstitutional." I believe it can be shown that this case is distinguishable from earlier cases dealing with the distribution of political power by a State, that a patent violation of the Equal Protection Clause of the United States Constitution has been shown, and that an appropriate remedy may be formulated. I. I take the law of the case from MacDougall v. Green, 335 U.S. 281 (1948), which involved an attack under the Equal Protection Clause upon an Illinois election statute. The Court decided that case on its merits without hindrance from the "political question" doctrine. Although the statute under attack was upheld, it is clear [369 U.S. 186, 252] that the Court based its decision upon the determination that the statute represented a rational state policy. It stated: "It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former." Id., at 284. (Emphasis supplied.) The other cases upon which my Brethren dwell are all distinguishable or inapposite. The widely heralded case of Colegrove v. Green, 328 U.S. 549 (1946), was one not only in which the Court was bobtailed but in which there was no majority opinion. Indeed, even the "political question" point in MR. JUSTICE FRANKFURTER'S opinion was no more than an alternative ground. 1 Moreover, the appellants did not present an equal protection argument. 2 While it has served as a Mother Hubbard to most of the subsequent cases, I feel it was in that respect illcast and for all of these reasons put it to one side. 3 Likewise, [369 U.S. 186, 253] I do not consider the Guaranty Clause cases based on Art. I, 4, of the Constitution, because it is not invoked here and it involves different criteria, as the Court's opinion indicates. Cases resting on various other considerations not present here, such as Radford v. Gary, 352 U.S. 991 (1957) (lack of equity); Kidd v. McCanless, 352 U.S. 920 (1956) (adequate state grounds supporting the state judgment); Anderson v. Jordan, 343 U.S. 912 (1952) (adequate state grounds); Remmey v. Smith, 342 U.S. 916 (1952) (failure to exhaust state procedures), are of course not controlling. Finally, the Georgia county-unit-system cases, such as South v. Peters, 339 U.S. 276(1950), reflect the viewpoint of MacDougall, i. e., to refrain from intervening where there is some rational policy behind the State's system. 4 II. The controlling facts cannot be disputed. It appears from the record that 37% of the voters of Tennessee elect 20 of the 33 Senators while 40% of the voters elect 63 of the 99 members of the House. But this might not on its face be an "invidious discrimination," Williamson v. Lee Optical of Oklahoma,348 U.S. 483, 489 (1955), for a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426 (1961). It is true that the apportionment policy incorporated in Tennessee's Constitution, i. e., state-wide numerical equality of representation with certain minor qualifications, 5 is a rational one. On a county-by-county comparison [369 U.S. 186, 254] a districting plan based thereon naturally will have disparities in representation due to the qualifications. But this to my mind does not raise constitutional problems, for the overall policy is reasonable. However, the root of the trouble is not in Tennessee's Constitution, for admittedly its policy has not been followed. The discrimination lies in the action of Tennessee's Assembly in allocating legislative seats

to counties or districts created by it. Try as one may, Tennessee's apportionment just cannot be made to fit the pattern cut by its Constitution. This was the finding of the District Court. The policy of the Constitution referred to by the dissenters, therefore, is of no relevance here. We must examine what the Assembly has done. 6 The frequency and magnitude of the inequalities in the present districting admit of no policy whatever. An examination of Table I accompanying this opinion, post, p. 262, conclusively reveals that the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions. This is not to say that some of the disparity cannot be explained, but when the entire table is examined - comparing the voting strength of counties of like population as well as contrasting that of the smaller with the larger counties - it leaves but one conclusion, namely that Tennessee's apportionment is a crazy quilt without rational basis. At the risk of being accused of picking out a few of the horribles I shall allude to a series of examples that are taken from Table I. As is admitted, there is a wide disparity of voting strength between the large and small counties. Some[369 U.S. 186, 255] samples are: Moore County has a total representation of two 7 with a population (2,340) of only one-eleventh of Rutherford County (25,316) with the same representation; Decatur County (5,563) has the same representation as Carter (23,303) though the latter has four times the population; likewise, Loudon County (13,264), Houston (3,084), and Anderson County (33,990) have the same representation, i. e., 1.25 each. But it is said that in this illustration all of the under-represented counties contain municipalities of over 10,000 population and they therefore should be included under the "urban" classification, rationalizing this disparity as an attempt to effect a rural-urban political balance. But in so doing one is caught up in the backlash of his own bull whip, for many counties have municipalities with a population exceeding 10,000, yet the same invidious discrimination is present. For example: County Population Representation Carter ........................... 23,303 1.10 Maury ........................... 24,556 2.25 Washington ....................... 36,967 1.93 Madison .......................... 37,245 3.50 [369 U.S. 186, 256] Likewise, counties with no municipality of over 10,000 suffer a similar discrimination: County Population Representation Grundy ............................ 6,540 0.95 Chester ........................... 6,391 2.00 Cumberland ........................ 9,593 0.63 Crockett .......................... 9,676 2.00 Loudon ............................ 13,264 1.25 Fayette ........................... 13,577 2.50 This could not be an effort to attain political balance between rural and urban populations. Since discrimination is present among counties of like population, the plan is neither consistent nor rational. It discriminates horizontally creating gross disparities between rural areas themselves as well as between urban areas themselves, 8 still maintaining the wide vertical disparity already pointed out between rural and urban. It is also insisted that the representation formula used above (see n. 7) is "patently deficient" because "it eliminates from consideration the relative voting power of the counties that are joined together in a single election district." This is a strange claim coming from those who rely on the proposition that "the voice of every voter" need not have "approximate equality." Indeed, representative government, as they say, is not necessarily one of "bare numbers." The use of floterial districts in our political system is not ordinarily based on the theory that the floterial representative is splintered among the counties of his district per relative population. His function is to represent the whole district. However, I shall meet the charge on its own ground and by use of its "adjusted [369 U.S. 186, 257] `total representation'" formula show that the present apportionment is loco. For example, compare some "urban" areas of like population, using the HARLAN formula: County Population Representation Washington ......................... 36,967 2.65 Madison ............................ 37,245 4.87

Carter ............................. 23,303 1.48 Greene ............................. 23,649 2.05 Maury .............................. 24,556 3.81 Coffee ............................. 13,406 2.32 Hamblen ............................ 14,090 1.07 And now, using the same formula, compare some so-called "rural" areas of like population: County Population Representation Moore .............................. 2,340 1.23 Pickett ............................ 2,565 .22 Stewart ............................ 5,238 1.60 Cheatham ........................... 5,263 .74 Chester ............................ 6,391 1.36 Grundy ............................. 6,540 .69 Smith .............................. 8,731 2.04 Unicoi ............................. 8,787 0.40 And for counties with similar representation but with gross differences in population, take: County Population Representation Sullivan ........................... 55,712 4.07 Maury .............................. 24,556 3.81 Blount ............................. 30,353 2.12 Coffee ............................. 13,406 2.32 These cannot be "distorted effects," for here the same formula proposed by the dissenters is used and the result is even "a crazier" quilt. [369 U.S. 186, 258] The truth is that - although this case has been here for two years and has had over six hours' argument (three times the ordinary case) and has been most carefully considered over and over again by us in Conference and individually - no one, not even the State nor the dissenters, has come up with any rational basis for Tennessee's apportionment statute. No one - except the dissenters advocating the HARLAN "adjusted `total representation'" formula - contends that mathematical equality among voters is required by the Equal Protection Clause. But certainly there must be some rational design to a State's districting. The discrimination here does not fit any pattern - as I have said, it is but a crazy quilt. My Brother HARLAN contends that other proposed apportionment plans contain disparities. Instead of chasing those rabbits he should first pause long enough to meet appellants' proof of discrimination by showing that in fact the present plan follows a rational policy. Not being able to do this, he merely counters with such generalities as "classic legislative judgment," no "significant discrepancy," and "de minimis departures." I submit that even a casual glance at the present apportionment picture shows these conclusions to be entirely fanciful. If present representation has a policy at all, it is to maintain the status quo of invidious discrimination at any cost. Like the District Court, I conclude that appellants have met the burden of showing "Tennessee is guilty of a clear violation of the state constitution and of the [federal] rights of the plaintiffs. . . ." III. Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee. But the majority of the people of Tennessee have no [369 U.S. 186, 259] "practical opportunities for exerting their political weight at the polls" to correct the existing "invidious discrimination." Tennessee has no initiative and referendum. I have searched diligently for other "practical opportunities" present under the law. I find none other than through the federal courts. The majority of the voters have been caught up in a legislative strait jacket. Tennessee has an "informed, civically militant electorate" and "an aroused popular conscience," but it does not sear "the conscience of the people's representatives." This is because the legislative policy has riveted the present seats in the Assembly to their respective constituencies, and by the votes of their incumbents a reapportionment of any kind is prevented. The people have been rebuffed at the hands of the Assembly; they have tried the constitutional convention route, but since the call must originate in the Assembly

it, too, has been fruitless. They have tried Tennessee courts with the same result, 9 and Governors have fought the tide only to flounder. It is said that there is recourse in Congress and perhaps that may be, but from a practical standpoint this is without substance. To date Congress has never undertaken such a task in any State. We therefore must conclude that the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government. IV. Finally, we must consider if there are any appropriate modes of effective judicial relief. The federal courts are of course not forums for political debate, nor should they [369 U.S. 186, 260] resolve themselves into state constitutional convention or legislative assemblies. Nor should their jurisdiction be exercised in the hope that such a declaration as is made today may have the direct effect of bringing on legislative action and relieving the courts of the problem of fashioning relief. To my mind this would be nothing less than blackjacking the Assembly into reapportioning the State. If judicial competence were lacking to fashion an effective decree, I would dismiss this appeal. However, like the Solicitor General of the United States, I see no such difficulty in the position of this case. One plan might be to start with the existing assembly districts, consolidate some of them, and award the seats thus released to those counties suffering the most egregious discrimination. Other possibilities are present and might be more effective. But the plan here suggested would at least release the strangle hold now on the Assembly and permit it to redistrict itself. In this regard the appellants have proposed a plan based on the rationale of state-wide equal representation. Not believing that numerical equality of representation throughout a State is constitutionally required, I would not apply such a standard albeit a permissive one. Nevertheless, the dissenters attack it by the application of the HARLAN "adjusted `total representation'" formula. The result is that some isolated inequalities are shown, but this in itself does not make the proposed plan irrational or place it in the "crazy quilt" category. Such inequalities, as the dissenters point out in attempting to support the present apportionment as rational, are explainable. Moreover, there is no requirement that any plan have mathematical exactness in its application. Only where, as here, the total picture reveals incommensurables of both magnitude and frequency can it be said that there is present an invidious discrimination. [369 U.S. 186, 261] In view of the detailed study that the Court has given this problem, it is unfortunate that a decision is not reached on the merits. The majority appears to hold, at least sub silentio, that an invidious discrimination is present, but it remands to the three-judge court for it to make what is certain to be that formal determination. It is true that Tennessee has not filed a formal answer. However, it has filed voluminous papers and made extended arguments supporting its position. At no time has it been able to contradict the appellants' factual claims; it has offered no rational explanation for the present apportionment; indeed, it has indicated that there are none known to it. As I have emphasized, the case proceeded to the point before the three-judge court that it was able to find an invidious discrimination factually present, and the State has not contested that holding here. In view of all this background I doubt if anything more can be offered or will be gained by the State on remand, other than time. Nevertheless, not being able to muster a court to dispose of the case on the merits, I concur in the opinion of the majority and acquiesce in the decision to remand. However, in fairness I do think that Tennessee is entitled to have my idea of what it faces on the record before us and the trial court some light as to how it might proceed. As John Rutledge (later Chief Justice) said 175 years ago in the course of the Constitutional Convention, a chief function of the Court is to secure the national rights. 10 Its decision today supports the proposition for which our forebears fought and many died, namely, that to be fully conformable to the principle of right, the form of government must be representative. 11 That is the keystone upon which our government was founded [369 U.S. 186, 262] and lacking which no republic can survive. It is well for this Court to practice self-restraint and discipline in constitutional adjudication, but never in its history have those principles received sanction where the national rights of so many have been so clearly infringed for so long a time. National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges. In my view the ultimate decision today is in the greatest tradition of this Court. TABLE I. Present total Present total representation representation using using J. 1950 voting J. Clark's Harlan's County population formula formula

Van Buren ......... 2,039 .63 .23 Moore ............. 2,340 2.00 1.23 Pickett ........... 2,565 .70 .22 Sequatchie ........ 2,904 .63 .33 Meigs ............. 3,039 .93 .48 Houston ........... 3,084 1.25 .46 Trousdale ......... 3,351 1.33 .43 Lewis ............. 3,413 1.25 .39 Perry ............. 3,711 1.50 .71 Bledsoe ........... 4,198 .63 .49 Clay .............. 4,528 .70 .40 Union ............. 4,600 .76 .37 Hancock ........... 4,710 .93 .62 Stewart ........... 5,238 1.75 1.60 Cheatham .......... 5,263 1.33 .72 Cannon ............ 5,341 2.00 1.43 Decatur ........... 5,563 1.10 .79 Lake .............. 6,252 2.00 1.44 Chester ........... 6,391 2.00 1.36 Grundy ............ 6,540 .95 .69 Humphreys ......... 6,588 1.25 1.39 Johnson ........... 6,649 1.10 .42 [369 U.S. 186, 263] Jackson ........... 6,719 1.50 1.43 De Kalb ........... 6,984 2.00 1.56 Benton ............ 7,023 1.10 1.01 Fentress .......... 7,057 .70 .62 Grainger .......... 7,125 .93 .94 Wayne ............. 7,176 1.25 .69 Polk .............. 7,330 1.25 .68 Hickman ........... 7,598 2.00 1.85 Macon ............. 7,974 1.33 1.01 Morgan ............ 8,308 .93 .59 Scott ............. 8,417 .76 .68 Smith ............. 8,731 2.50 2.04 Unicoi ............ 8,787 .93 .40 Rhea .............. 8,937 .93 1.42 White ............. 9,244 1.43 1.69 Overton ........... 9,474 1.70 1.83 Hardin ............ 9,577 1.60 1.61 Cumberland ........ 9,593 .63 1.10 Crockett .......... 9,676 2.00 1.66 Henderson ......... 10,199 1.50 .78 Marion ............ 10,998 1.75 1.73 Marshall .......... 11,288 2.50 2.28 Dickson ........... 11,294 1.75 2.29 Jefferson ......... 11,359 1.10 .87 McNairy ........... 11,601 1.60 1.74 Cocke ............. 12,572 1.60 1.46 Sevier ............ 12,793 1.60 1.47 Claiborne ......... 12,799 1.43 1.61 Monroe ............ 12,884 1.75 1.68 Loudon ............ 13,264 1.25 .28 Warren ............ 13,337 1.75 1.89 Coffee ............ 13,406 2.00 2.32 Hardeman .......... 13,565 1.60 1.86 Fayette ........... 13,577 2.50 2.48 Haywood ........... 13,934 2.50 2.52 Williamson ........ 14,064 2.33 2.96 [369 U.S. 186, 264] Hamblen ........... 14,090 1.10 1.07 Franklin .......... 14,297 1.75 1.95 Lauderdale ........ 14,413 2.50 2.45 Bedford ........... 14,732 2.00 1.45 Lincoln ........... 15,092 2.50 2.72 Henry ............. 15,465 2.83 2.76 Lawrence .......... 15,847 2.00 2.22 Giles ............. 15,935 2.25 2.54 Tipton ............ 15,944 3.00 1.68 Robertson ......... 16,456 2.83 2.62 Wilson ............ 16,459 3.00 3.03 Carroll ........... 16,472 2.83 2.88 Hawkins ........... 16,900 3.00 1.93 Putnam ............ 17,071 1.70 2.50 Campbell .......... 17,477 .76 1.40 Roane ............. 17,639 1.75 1.26 Weakley ........... 18,007 2.33 2.63 Bradley ........... 18,273 1.25 1.67 McMinn ............ 18,347 1.75 1.97 Obion ............. 18,434 2.00 2.30 Dyer .............. 20,062 2.00 2.36 Sumner ............ 20,143 2.33 3.56 Carter ............ 23,303 1.10 1.48 Greene ............ 23,649 1.93 2.05 Maury ............. 24,556 2.25 3.81 Rutherford ........ 25,316 2.00 3.02 Montgomery ........ 26,284 3.00 3.73 Gibson ............ 29,832 5.00 5.00 Blount ............ 30,353 1.60 2.12 Anderson .......... 33,990 1.25 1.30 Washington ........ 36,967 1.93 2.65 Madison ........... 37,245 3.50 4.87 Sullivan .......... 55,712 3.00 4.07 Hamilton .......... 131,971 6.00 6.00 Knox .............. 140,559 7.25 8.96 Davidson .......... 211,930 12.50 12.93 Shelby ............ 312,345 15.50 16.85 Proposed total representation (appellants' plan), using J. Harlan's formula Van Buren ......... .11 Moore ............. .18 Pickett ........... .24 Sequatchie ........ .19 Meigs ............. .17 Houston ........... .24 Trousdale ......... .12 Lewis ............. .25 Perry ............. .40 Bledsoe ........... .24 Clay .............. .42 Union ............. .45 Hancock ........... .49 Stewart ........... .41 Cheatham .......... .20 Cannon ............ .52 Decatur ........... .52 Lake .............. .41 Chester ........... .19 Grundy ............ .43 Humphreys ......... .72 Johnson ........... .43 Jackson ........... .63 De Kalb ........... .68 Benton ............ .66 Fentress .......... .64 Grainger .......... .65 Wayne ............. .76 Polk .............. .73 Hickman ........... .80 Macon ............. .61 Morgan ............ .75 Scott ............. .62 Smith ............. .67 Unicoi ............ .63 Rhea .............. .21 White ............. .90 Overton ........... .89 Hardin ............ .93 Cumberland ........ .87 Crockett .......... .63 Henderson ......... .96 Marion ............ .72 Marshall .......... .84 Dickson ........... 1.23 Jefferson ......... 1.03 McNairy ........... 1.13 Cocke ............. .89 Sevier ............ .69 Claiborne ......... 1.34 Monroe ............ 1.30 Loudon ............ .52 Warren ............ 1.68 Coffee ............ 1.68 Hardeman .......... 1.11 Fayette ........... 1.11 Haywood ........... 1.69 Williamson ........ 1.71 Hamblen ........... 1.67 Franklin .......... 1.73 Lauderdale ........ 1.73 Bedford ........... 1.74 Lincoln ........... 1.77 Henry ............. 1.73 Lawrence .......... 1.81 Giles ............. 1.81 Tipton ............ 1.13 Robertson ......... 1.85 Wilson ............ 1.21 Carroll ........... 1.82 Hawkins ........... 1.82 Putnam ............ 1.86 Campbell .......... 1.94 Roane ............. 1.30 Weakley ........... 1.85 Bradley ........... 1.92 McMinn ............ 1.92 Obion ............. 1.94 Dyer .............. 2.32 Sumner ............ 2.54 Carter ............ 2.55 Greene ............ 2.68 Maury ............. 2.85 Rutherford ........ 2.39 Montgomery ........ 3.06 Gibson ............ 2.86 Blount ............ 2.19 Anderson .......... 3.62 Washington ........ 3.45 Madison ........... 3.69 Sullivan .......... 5.57 Hamilton .......... 15.09 Knox .............. 15.21 Davidson .......... 21.57 Shelby ............ 31.59 [ Footnote 1 ] The opinion stated at 551 that the Court "could also dispose of this case on the authority of Wood v. Broom [287 U.S. 1 (1932)]." Wood v. Broom involved only the interpretation of a congressional reapportionment Act. [ Footnote 2 ] Similarly, the Equal Protection Clause was not invoked in Tedesco v. Board of Supervisors, 339 U.S. 940 (1950). [ Footnote 3 ] I do not read the later case of Colegrove v. Barrett, 330 U.S. 804 (1947), as having rejected the equal protection argument adopted here. That was merely a dismissal of an appeal where the equal protection

point was mentioned along with attacks under three other constitutional provisions, two congressional Acts, and three state constitutional provisions. [ Footnote 4 ] Georgia based its election system on a consistent combination of political units and population, giving six unit votes to the eight most populous counties, four unit votes to the 30 counties next in population, and two unit votes to each of the remaining counties. [ Footnote 5 ] See Part I of the Appendix to MR. JUSTICE HARLAN'S dissent, post, p. 341. [ Footnote 6 ] It is suggested that the districting is not unconstitutional since it was established by a statute that was constitutional when passed some 60 years ago. But many Assembly Sessions since that time have deliberately refused to change the original act, and in any event "[a] statute [constitutionally] valid when enacted may become invalid by change in the conditions to which it is applied." Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 415 (1935). [ Footnote 7 ] "Total representation" indicates the combined representation in the State Senate (33 members) and the State House of Representatives (99 members) in the Assembly of Tennessee. Assuming a county has one representative, it is credited in this calculation with 1/99. Likewise, if the same county has one-third of a senate seat, it is credited with another 1/99, and thus such a county, in our calculation, would have a "total representation" of two; if a county has one representative and one-sixth of a senate seat, it is credited with 1.5/99, or 1.50. It is this last figure that I use here in an effort to make the comparisons clear. The 1950 rather than the 1960 census of voting population is used to avoid the charge that use of 1960 tabulations might not have allowed sufficient time for the State to act. However, the 1960 picture is even more irrational than the 1950 one. [ Footnote 8 ] Of course this was not the case in the Georgia county unit system, South v. Peters, supra, or the Illinois initiative plan, MacDougall v. Green, supra, where recognized political units having independent significance were given minimum political weight. [ Footnote 9 ] It is interesting to note that state judges often rest their decisions on the ground that this Court has precluded adjudication of the federal claim. See, e. g., Scholle v. Secretary of State, 360 Mich. 1, 104 N. W. 2d 63 (1960). [ Footnote 10 ] 1 Farrand, The Records of the Federal Convention of 1787, 124. [ Footnote 11 ] Kant, Perpetual Peace. [369 U.S. 186, 265] MR. JUSTICE STEWART, concurring. The separate writings of my dissenting and concurring Brothers stray so far from the subject of today's decision as to convey, I think, a distressingly inaccurate impression of what the Court decides. For that reason, I think it appropriate, in joining the opinion of the Court, to emphasize in a few words what the opinion does and does not say. The Court today decides three things and no more: "(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) . . . that the appellants have standing to challenge the Tennessee apportionment statutes." Ante, pp. 197-198. The complaint in this case asserts that Tennessee's system of apportionment is utterly arbitrary - without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother HARLAN, the Court does not say or imply that "state legislatures must be so structured as to reflect with approximate equality the voice of every voter." Post, p. 332. The Court does not say or imply that there is anything in the Federal Constitution "to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people." Post, p. 334. And contrary to the

suggestion of my Brother DOUGLAS, the Court most assuredly does not decide the question, "may a State weight the vote of one county or one district more heavily than it weights the vote in another?" Ante, p. 244. In MacDougall v. Green, 335 U.S. 281 , the Court held that the Equal Protection Clause does not "deny a State the power to assure a proper diffusion of political initiative [369 U.S. 186, 266] as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former." 335 U.S., at 284 . In case after case arising under the Equal Protection Clause the Court has said what it said again only last Term - that "the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others." McGowan v. Maryland, 366 U.S. 420, 425 . In case after case arising under that Clause we have also said that "the burden of establishing the unconstitutionality of a statute rests on him who assails it." Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 . Today's decision does not turn its back on these settled precedents. I repeat, the Court today decides only: (1) that the District Court possessed jurisdiction of the subject matter; (2) that the complaint presents a justiciable controversy; (3) that the appellants have standing. My Brother CLARK has made a convincing prima facie showing that Tennessee's system of apportionment is in fact utterly arbitrary - without any possible justification in rationality. My Brother HARLAN has, with imagination and ingenuity, hypothesized possibly rational bases for Tennessee's system. But the merits of this case are not before us now. The defendants have not yet had an opportunity to be heard in defense of the State's system of apportionment; indeed, they have not yet even filed an answer to the complaint. As in other cases, the proper place for the trial is in the trial court, not here. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting. The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected [369 U.S. 186, 267] only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation - a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court's "judicial Power" not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of "the supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements. A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsafe the lower courts - state and federal - guidelines for formulating specific, definite, wholly unprecedented remedies for the inevitable litigations that today's umbrageous disposition is bound to stimulate in connection with politically motivated reapportionments in so many States. In [369 U.S. 186, 268] such a setting, to promulgate jurisdiction in the abstract is meaningless. It is as devoid of reality as "a brooding omnipresence in the sky," for it conveys no intimation what relief, if any, a District Court is capable of affording that would not invite legislatures to play ducks and drakes with the judiciary. For this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd - indeed an esoteric - conception of judicial propriety. One of the Court's supporting opinions, as elucidated by commentary, unwittingly affords a disheartening preview of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication. Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to

draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges. The Framers of the Constitution persistently rejected a proposal that embodied this assumption and Thomas Jefferson never entertained it. Recent legislation, creating a district appropriately described as "an atrocity of ingenuity," is not unique. Considering the gross inequality among legislative electoral units within almost every State, the Court naturally shrinks from asserting that in districting at least substantial equality is a constitutional requirement enforceable [369 U.S. 186, 269] by courts. * Room continues to be allowed for weighting. This of course implies that geography, economics, urban-rural conflict, and all the other non-legal factors which have throughout our history entered into political districting are to some extent not to be ruled out in the undefined vista now opened up by review in the federal courts of state reapportionments. To some extent - aye, there's the rub. In effect, today's decision empowers the courts of the country to devise what should constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is put on the federal courts or on this Court, if State views do not satisfy this Court's notion of what is proper districting. We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry [369 U.S. 186, 270] confession of judicial impotence in place of a frank acknowledgement that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope. This is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions. 1 The present action, which [369 U.S. 186, 271] comes here on appeal from an order of a statutory three-judge District Court dismissing amended complaints seeking declaratory and injunctive relief, challenges the provisions of Tenn. Code Ann., 1955 3-101 to 3-109, which apportion state representative and senatorial seats among Tennessee's ninety-five counties. The original plaintiffs, citizens and qualified voters entitled to vote for members of the Tennessee Legislature in the several counties in which they respectively reside, bring this action in their own behalf and "on behalf of all other voters in the State of Tennessee," or, as they alternatively assert, "on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who are similarly situated." The cities of Knoxville and Chattanooga, and the Mayor of Nashville - on his own behalf as a qualified voter and, pursuant to an authorizing resolution by the Nashville City Council, as a representative of all the city's residents - were permitted to intervene as parties plaintiff. 2 The defendants are executive officials charged with statutory duties in connection with state elections. 3 [369 U.S. 186, 272] The original plaintiffs' amended complaint avers, in substance, the following. 4 The Constitution of the State of Tennessee declares that "elections shall be free and equal," provides that no qualifications other than age, citizenship and specified residence requirements shall be attached to the right of suffrage, and prohibits denying to any person the suffrage to which he is entitled except upon conviction of an infamous crime. Art. I, 5; Art. IV, 1. It requires an enumeration of qualified voters within every term of ten years after 1871 and an apportionment of representatives and senators among the several counties or districts according to the number of qualified voters in each 5 at the time of each decennial [369 U.S. 186, 273] enumeration. Art. II, 4, 5, 6. Notwithstanding these provisions, the State Legislature has not reapportioned itself since 1901. The Reapportionment Act of that year, Tenn. Acts 1901, c. 122, now Tenn. Code Ann., 1955, 3-101 to 3-109, 6 was unconstitutional when enacted, because not preceded by the required enumeration of qualified voters and

because it allocated legislative seats arbitrarily, unequally and discriminatorily, as measured by the 1900 federal census. Moreover, irrespective of the question of its validity in 1901, it is asserted that the Act became "unconstitutional and obsolete" in 1911 by virtue of the decennial reapportionment requirement of the Tennessee Constitution. Continuing a "purposeful and systematic plan to discriminate against a geographical class of persons," recent Tennessee Legislatures have failed, as did their predecessors, to enact reapportionment legislation, although a number of bills providing for reapportionment have been introduced. Because of population shifts since 1901, the apportionment fixed by the Act of that year and still in effect is not proportionate to population, denies to the counties in which the plaintiffs [369 U.S. 186, 274] live an additional number of representatives to which they are entitled, and renders plaintiffs' votes "not as effective as the votes of the voters residing in other senatorial and representative districts . . . ." Plaintiffs "suffer a debasement of their votes by virtue of the incorrect, arbitrary, obsolete and unconstitutional apportionment of the General Assembly . . .," and the totality of the malapportionment's effect - which permits a minority of about thirty-seven percent of the voting population of the State to control twenty of the thirty-three members of Tennessee's Senate, and a minority of forty percent of the voting population to control sixty-three of the ninety-nine members of the House - results in "a distortion of the constitutional system" established by the Federal and State Constitutions, prevents the General Assembly "from being a body representative of the people of the State of Tennessee, . . ." and is "contrary to the basic principle of representative government . . .," and "contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence . . . ." Exhibits appended to the complaint purport to demonstrate the extent of the inequalities of which plaintiffs complain. Based upon "approximate voting population," 7 these set forth figures showing that the State [369 U.S. 186, 275] Senator from Tennessee's most populous senatorial district represents five and two-tenths times the number of voters represented by the Senator from the least populous district, while the corresponding ratio for most and least populous House districts is more than eighteen to one. The General Assembly thus apportioned has discriminated against the underrepresented counties and in favor of the overrepresented counties in the collection and distribution of various taxes and tax revenues, notably in the distribution of school and highway-improvement funds, 8 this discrimination being "made possible and effective" by the Legislature's failure to reapportion itself. Plaintiffs conclude that election of the State Legislature pursuant to the apportionment fixed by the 1901 Act violates the Tennessee Constitution and deprives them of due process of law and of the equal protection of the laws guaranteed by the Fourteenth Amendment. Their prayer below was for a declaratory judgment striking down the Act, an injunction restraining defendants from any acts necessary to the holding of elections in the districts prescribed by Tenn. Code Ann., 1955, 3-101 to 3-109, until such time as the legislature is reapportioned "according to the [369 U.S. 186, 276] Constitution of the State of Tennessee," and an order directing defendants to declare the next primary and general elections for members of the Tennessee Legislature on an at-large basis - the thirty-three senatorial candidates and the ninety-nine representative candidates receiving the highest number of votes to be declared elected. 9 Motions to dismiss for want of jurisdiction of the subject matter and for failure to state a claim were made and granted, 179 F. Supp. 824, the District Court relying upon this Court's series of decisions beginning with Colegrove v. Green, 328 U.S. 549 , rehearing denied, 329 U.S. 825 , motion for reargument before the full bench denied, 329 U.S. 828 . The original and intervening plaintiffs bring the case here on appeal. 364 U.S. 898 . In this Court they have altered their request for relief, suggesting a "step-by-step approach." The first step is a remand to the District Court with directions to vacate the order dismissing the complaint and to enter an order retaining jurisdiction, providing "the necessary spur to legislative action . . . ." If this proves insufficient, appellants will ask the "additional spur" of an injunction prohibiting elections under the 1901 Act, or a declaration of the Act's unconstitutionality, or both. Finally, all other means failing, the District Court is invited by the plaintiffs, greatly daring, to order an election at large or redistrict the State itself or through a master. The Solicitor General of the United States, who has filed a brief amicus and argued in favor of reversal, asks the Court on this appeal to hold only that the District Court has "jurisdiction" and may properly exercise it to entertain the plaintiffs' claims on the merits. This would leave to that court after remand the questions of the challenged statute's [369 U.S. 186, 277] constitutionality and of some undefined, unadumbrated relief in the event a constitutional violation is found. After an argument at the last Term, the case was set down for reargument, 366 U.S. 907 , and heard this Term. I.

In sustaining appellants' claim, based on the Fourteenth Amendment, that the District Court may entertain this suit, this Court's uniform course of decision over the years is overruled or disregarded. Explicitly it begins with Colegrove v. Green, supra, decided in 1946, but its roots run deep in the Court's historic adjudicatory process. Colegrove held that a federal court should not entertain an action for declaratory and injunctive relief to adjudicate the constitutionality, under the Equal Protection Clause and other federal constitutional and statutory provisions, of a state statute establishing the respective districts for the State's election of Representatives to the Congress. Two opinions were written by the four Justices who composed the majority of the seven sitting members of the Court. Both opinions joining in the result in Colegrove v. Green agreed that considerations were controlling which dictated denial of jurisdiction though not in the strict sense of want of power. While the two opinions show a divergence of view regarding some of these considerations, there are important points of concurrence. Both opinions demonstrate a predominant concern, first, with avoiding federal judicial involvement in matters traditionally left to legislative policy making; second, with respect to the difficulty - in view of the nature of the problems of apportionment and its history in this country - of drawing on or devising judicial standards for judgment, as opposed to legislative determinations, of the part which mere numerical equality among voters should play as a criterion for the allocation of [369 U.S. 186, 278] political power; and, third, with problems of finding appropriate modes of relief - particularly, the problem of resolving the essentially political issue of the relative merits of at-large elections and elections held in districts of unequal population. The broad applicability of these considerations - summarized in the loose shorthand phrase, "political question" - in cases involving a State's apportionment of voting power among its numerous localities has led the Court, since 1946, to recognize their controlling effect in a variety of situations. (In all these cases decision was by a full Court.) The "political question" principle as applied in Colegrove has found wide application commensurate with its function as "one of the rules basic to the federal system and this Court's appropriate place within that structure." Rescue Army v. Municipal Court, 331 U.S. 549, 570 . In Colegrove v. Barrett, 330 U.S. 804 , litigants brought suit in a Federal District Court challenging as offensive to the Equal Protection Clause Illinois' state legislative-apportionment laws. They pointed to state constitutional provisions requiring decennial reapportionment and allocation of seats in proportion to population, alleged a failure to reapportion for more than forty-five years - during which time extensive population shifts had rendered the legislative districts grossly unequal - and sought declaratory and injunctive relief with respect to all elections to be held thereafter. After the complaint was dismissed by the District Court, this Court dismissed an appeal for want of a substantial federal question. A similar District Court decision was affirmed here in Radford v. Gary, 352 U.S. 991 . And cf. Remmey v. Smith, 342 U.S. 916 . In Tedesco v. Board of Supervisors, 339 U.S. 940 , the Court declined to hear, for want of a substantial federal question, the claim that the division of a municipality into voting districts of unequal population for the selection for councilmen fell [369 U.S. 186, 279] afoul of the Fourteenth Amendment, and in Cox v. Peters, 342 U.S. 936 , rehearing denied, 343 U.S. 921 , it found no substantial federal question raised by a state court's dismissal of a claim for damages for "devaluation" of plaintiff's vote by application of Georgia's county-unit system in a primary election for the Democratic gubernatorial candidate. The same Georgia system was subsequently attacked in a complaint for declaratory judgment and an injunction; the federal district judge declined to take the requisite steps for the convening of a statutory three-judge court; and this Court, in Hartsfield v. Sloan,357 U.S. 916 , denied a motion for leave to file a petition for a writ of mandamus to compel the district judge to act. In MacDougall v. Green, 335 U.S. 281, 283 , the Court noted that "To assume that political power is a function exclusively of numbers is to disregard the practicalities of government," and, citing the Colegrove cases, declined to find in "such broad constitutional concepts as due process and equal protection of the laws," id., at 284, a warrant for federal judicial invalidation of an Illinois statute requiring as a condition for the formation of a new political party the securing of at least two hundred signatures from each of fifty counties. And in South v. Peters, 339 U.S. 276 , another suit attacking Georgia's county-unit law, it affirmed a District Court dismissal, saying "Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions." Id., at 277. Of course it is important to recognize particular, relevant diversities among comprehensively similar situations. Appellants seek to distinguish several of this Court's prior decisions on one or another ground - Colegrove v. [369 U.S. 186, 280] Green on the ground that federal, not state, legislative apportionment was involved; Remmey v. Smith on the ground that state judicial remedies had not been tried; Radford v. Gary on the ground that Oklahoma has the initiative, whereas Tennessee does not. It would only darken counsel to discuss the

relevance and significance of each of these assertedly distinguishing factors here and in the context of this entire line of cases. Suffice it that they do not serve to distinguish Colegrove v. Barrett, supra, which is on all fours with the present case, or to distinguish Kidd v. McCanless, 352 U.S. 920 , in which the full Court without dissent, only five years ago, dismissed on authority of Colegrove v. Green and Anderson v. Jordan, 343 U.S. 912 , an appeal from the Supreme Court of Tennessee in which a precisely similar attack was made upon the very statute now challenged. If the weight and momentum of an unvarying course of carefully considered decisions are to be respected, appellants' claims are foreclosed not only by precedents governing the exact facts of the present case but are themselves supported by authority the more persuasive in that it gives effect to the Colegrove principle in distinctly varying circumstances in which state arrangements allocating relative degrees of political influence among geographic groups of voters were challenged under the Fourteenth Amendment. II. The Colegrove doctrine, in the form in which repeated decisions have settled it, was not an innovation. It represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as "political questions" is rather a form [369 U.S. 186, 281] of stating this conclusion than revealing of analysis. 10 Some of the cases so labelled have no relevance here. But from others emerge unifying considerations that are compelling. 1. The cases concerning war or foreign affairs, for example, are usually explained by the necessity of the country's speaking with one voice in such matters. While this concern alone undoubtedly accounts for many of the decisions, 11 others do not fit the pattern. It would hardly embarrass the conduct of war were this Court to determine, in connection with private transactions between litigants, the date upon which war is to be deemed terminated. But the Court has refused to do so. See, e. g., The Protector, 12 Wall. 700; Brown v. Hiatts, 15 wall. 177; Adger v. Alston, 15 Wall. 555; Williams v. Bruffy, 96 U.S. 176, 192 -193. It does not suffice to explain such cases as Ludecke v. Watkins, 335 U.S. 160 - deferring to political determination the question of the duration of war for purposes of the Presidential power to deport alien enemies - that judicial intrusion would seriously [369 U.S. 186, 282] impede the President's power effectively to protect the country's interests in time of war. Of course, this is true; but the precise issue presented is the duration of the time of war which demands the power. Cf. Martin v. Mott, 12 Wheat. 19; Lamar v. Browne, 92 U.S. 187, 193 ; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 ; Kahn v. Anderson, 255 U.S. 1 . And even for the purpose of determining the extent of congressional regulatory power over the tribes and dependent communities of Indians, it is ordinarily for Congress, not the Court, to determine whether or not a particular Indian group retains the characteristics constitutionally requisite to confer the power. 12 E. g., United States v. Holliday, 3 Wall. 407; Tiger v. Western Investment Co., 221 U.S. 286 ; United States v. Sandoval, 231 U.S. 28 . A controlling factor in such cases is that, decision respecting these kinds of complex matters of policy being traditionally committed not to courts but to the political agencies of government for determination by criteria of political expediency, there exists no standard ascertainable by settled judicial experience or process by reference to which a political decision affecting the question at issue between the parties can be judged. Where the question arises in the course of a litigation involving primarily the adjudication of other issues between the litigants, the Court accepts as a basis for adjudication the political departments' decision of it. But where its determination is the sole function to be served by the exercise of the judicial power, the Court will not entertain the action. See Chicago & Southern Air Lines, Inc., v. Waterman S. S. Corp., [369 U.S. 186, 283] 333 U.S. 103 . The dominant consideration is "the lack of satisfactory criteria for a judicial determination . . . ." Mr. Chief Justice Hughes, for the Court, in Coleman v. Miller, 307 U.S. 433, 454 -455. Compare United States v. Rogers, 4 How. 567, 572, with Worcester v. Georgia, 6 Pet. 515. 13 This may be, like so many questions of law, a matter of degree. Questions have arisen under the Constitution to which adjudication gives answer although the criteria for decision are less than unwavering bright lines. Often in these cases illumination was found in the federal structures established by, or the underlying presuppositions of, the Constitution. With respect to such questions, the Court has recognized that, concerning a particular power of Congress put in issue, ". . . effective restraints on its exercise must proceed from political rather than from judicial processes." Wickard v. Filburn, 317 U.S. 111, 120 . It is also true that even regarding the duration of war and the status of Indian tribes, referred to above as subjects ordinarily committed exclusively to the non-judicial branches, the Court has suggested that some limitations exist upon the range within which the decisions of those branches will be permitted to go unreviewed. See United States v. Sandoval, supra, at 46; cf. Chastleton Corp. v. Sinclair, 264 U.S. 543 . But this is merely to acknowledge that particular circumstances may differ so greatly in degree as to differ thereby in kind, and that, although within a certain range of cases on a

continuum, no standard of distinction can be found to tell between them, other cases will fall above or below the range. The doctrine of political questions, like any other, is not to [369 U.S. 186, 284] be applied beyond the limits of its own logic, with all the quiddities and abstract disharmonies it may manifest. See the disposition of contentions based on logically distorting views of Colegrove v. Green and Hunter v. Pittsburgh, 207 U.S. 161 , in Gomillion v. Lightfoot, 364 U.S. 339 . 2. The Court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court's ordinary approach to issues of state power challenged under broad federal guarantees. "We should be very reluctant to decide that we had jurisdiction in such a case, and thus in an action of this nature to supervise and review the political administration of a state government by its own officials and through its own courts. The jurisdiction of this court would only exist in case there had been . . . such a plain and substantial departure from the fundamental principles upon which our government is based that it could with truth and propriety be said that if the judgment were suffered to remain, the party aggrieved would be deprived of his life, liberty or property in violation of the provisions of the Federal Constitution." Wilson v. North Carolina,169 U.S. 586, 596 . See Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 ; Walton v. House of Representatives, 265 U.S. 487 ; Snowden v. Hughes, 321 U.S. 1 . Cf. In re Sawyer, 124 U.S. 200, 220 -221. Where, however, state law has made particular federal questions determinative of relations within the structure of state government, not in challenge of it, the Court has resolved such narrow, legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 . In such instances there is no conflict between state policy and the exercise of federal judicial [369 U.S. 186, 285] power. This distinction explains the decisions in Smiley v. Holm, 285 U.S. 355 ; Koenig v. Flynn,285 U.S. 375 ; and Carroll v. Becker, 285 U.S. 380 , in which the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146 U.S. 1 , in which, in a case coming here on writ of error from the judgment of a state court which had entertained it on the merits, the Court treated as justiciable the claim that a State could not constitutionally select its presidential electors by districts, but held that Art. II, 1, cl. 2, of the Constitution left the mode of choosing electors in the absolute discretion of the States. Cf. Pope v. Williams, 193 U.S. 621 ; Breedlove v. Suttles, 302 U.S. 277 . To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of "justiciability" derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene. Compare the reliance in South v. Peters, 339 U.S. 276 , on MacDougall v. Green, 335 U.S. 281 , and the "jurisdictional" form of the opinion in Wilson v. North Carolina, 169 U.S. 586, 596 , supra. 3. The cases involving Negro disfranchisement are no exception to the principle of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against [369 U.S. 186, 286] the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. Slaughter-House Cases, 16 Wall. 36, 67-72; Strauder v. West Virginia, 100 U.S. 303, 306 -307; Nixon v. Herndon, 273 U.S. 536, 541 . Thus the Court, in cases involving discrimination against the Negro's right to vote, has recognized not only the action at law for damages,14 but, in appropriate circumstances, the extraordinary remedy of declaratory or injunctive relief. 15Schnell v. Davis, 336 U.S. 933 ; Terry v. Adams, 345 U.S. 461 . 16 Injunctions in these cases, it should be noted, would not have restrained state-wide general elections. Compare Giles v. Harris, 189 U.S. 475 . 4. The Court has refused to exercise its jurisdiction to pass on "abstract questions of political power, of sovereignty, of government." Massachusetts v. Mellon, 262 U.S. 447, 485 . See Texas v. Interstate Commerce Commission, 258 U.S. 158, 162 ; New Jersey v. Sargent, 269 U.S. 328, 337 . The "political question" doctrine, in this aspect, reflects the policies underlying the requirement of "standing": that the litigant who would challenge official [369 U.S. 186, 287] action must claim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general frame and functioning of government

- a complaint that the political institutions are awry. See Stearns v. Wood, 236 U.S. 75 ; Fairchild v. Hughes, 258 U.S. 126 ; United Public Workers v. Mitchell,330 U.S. 75, 89 -91. What renders cases of this kind non-justiciable is not necessarily the nature of the parties to them, for the Court has resolved other issues between similar parties; 17 nor is it the nature of the legal question involved, for the same type of question has been adjudicated when presented in other forms of controversy. 18 The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade. See Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 646; Phillips v. Payne, 92 U.S. 130 ; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley, Circuit Justice); cf. Wilson v. Shaw, 204 U.S. 24 ; but see Coyle v. Smith, 221 U.S. 559 . Thus, where the Cherokee Nation sought by an original motion to restrain the State of Georgia from the enforcement of laws which assimilated Cherokee territory to the State's counties, abrogated Cherokee law, and abolished Cherokee government, the Court held that such a claim was not judicially cognizable. Cherokee Nation v. Georgia, 5 Pet. 1. 19 And in Georgia [369 U.S. 186, 288] v. Stanton, 6 Wall. 50, the Court dismissed for want of jurisdiction a bill by the State of Georgia seeking to enjoin enforcement of the Reconstruction Acts on the ground that the command by military districts which they established extinguished existing state government and replaced it with a form of government unauthorized by the Constitution: 20 "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 invoked, are the rights of sovereignty, of political 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." Id., at 77. 21 [369 U.S. 186, 289] 5. The influence of these converging considerations - the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is ill-adapted - has been decisive of the settled line of cases, reaching back more than a century, which holds that Art. IV, 4, of the Constitution, guaranteeing to the States "a Republican Form of Government," 22 is not enforceable through the courts. E. g., O'Neill v. Leamer, 239 U.S. 244 ; Mountain Timber Co. v. Washington, 243 U.S. 219 ; Cochran v. Board of Education, 281 U.S. 370 ; Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608 . 23 Claims resting on this specific [369 U.S. 186, 290] guarantee of the Constitution have been held nonjusticiable which challenged state distribution of powers between the legislative and judicial branches, Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 , state delegation of power to municipalities, Kiernan v. Portland, Oregon, 223 U.S. 151 , state adoption of the referendum as a legislative institution, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 , and state restriction upon the power of state constitutional amendment, Marshall v. Dye, 231 U.S. 250, 256 -257. The subject was fully considered in Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 , in which the Court dismissed for want of jurisdiction a writ of error attacking a state license-tax statute enacted by the initiative, on the claim that this mode of legislation was inconsistent with a Republican Form of Government and violated the Equal Protection Clause and other federal guarantees. After nothing ". . . the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction [369 U.S. 186, 291] to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for," 24the Court said: ". . . [The] essentially political nature [of this claim] is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion [369 U.S. 186, 292] has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form." Id., at 150-151. The starting point of the doctrine applied in these cases is, of course, Luther v. Borden, 7 How. 1. The case arose out of the Dorr Rebellion in Rhode Island in 1841-1842. Rhode Island, at the time of the separation from England, had not adopted a new constitution but had continued, in its existence as an independent State, under

its original royal Charter, with certain statutory alterations. This frame of government provided no means for amendment of the fundamental law; the right of suffrage was to be prescribed by legislation, which limited it to freeholders. In the 1830's, largely because of the growth of towns in which there developed a propertied class whose means were not represented by freehold estates, dissatisfaction arose with the suffrage qualifications of the charter government. In addition, population shifts had caused a dated apportionment of seats in the lower house to yield substantial numerical inequality of political influence, even among qualified voters. The towns felt themselves underrepresented, and agitation began for electoral reform. When the charter government failed to respond, popular meetings of those who favored the broader suffrage were held and delegates elected to a convention which met and drafted a state constitution. This constitution provided for universal manhood suffrage (with certain qualifications); and it was to be adopted by vote of the people at elections at which a similarly expansive franchise obtained. This new scheme of government was ratified at the polls and declared effective by the convention, but the government elected and organized under it, with Dorr at its head, never came to power. The [369 U.S. 186, 293] charter government denied the validity of the convention, the constitution and its government and, after an insignificant skirmish, routed Dorr and his followers. It meanwhile provided for the calling of its own convention, which drafted a constitution that went peacefully into effect in 1843. 25 Luther v. Borden was a trespass action brought by one of Dorr's supporters in a United States Circuit Court to recover damages for the breaking and entering of his house. The defendants justified under military orders pursuant to martial law declared by the charter government, and plaintiff, by his reply, joined issue on the legality of the charter government subsequent to the adoption of the Dorr constitution. Evidence offered by the plaintiff tending to establish that the Dorr government was the rightful government of Rhode Island was rejected by the Circuit Court; the court charged the jury that the charter government was lawful; and on a verdict for defendants, plaintiff brought a writ of error to this Court. The Court, through Mr. Chief Justice Taney, affirmed. After noting that the issue of the charter government's legality had been resolved in that government's favor by the state courts of Rhode Island - that the state courts, deeming the matter a political one unfit for judicial determination, had declined to entertain attacks upon the existence and authority of the charter government - the Chief Justice held that the courts of the United States must follow those of the State in this regard. Id., at 39-40. It was recognized that the compulsion to follow [369 U.S. 186, 294] state law would not apply in a federal court in the face of a superior command found in the Federal Constitution, ibid., but no such command was found. The Constitution, the Court said - referring to the Guarantee Clause of the Fourth Article - ". . . as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department." Id., at 42. "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts." Ibid. 26 [369 U.S. 186, 295] In determining this issue non-justiciable, the Court was sensitive to the same considerations to which its later decisions have given the varied applications already discussed. It adverted to the delicacy of judicial intervention into the very structure of government. 27 It acknowledged that tradition had long entrusted questions of this nature to non-judicial processes, 28 and that judicial processes were unsuited to their decision. 29 The absence of guiding standards for judgment was critical, for the question whether the Dorr constitution had been rightfully adopted depended, in part, upon the extent of the franchise to be recognized the very point of contention over which rebellion had been fought. ". . . [I]f the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution, unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State,

or taking it away from those to whom it is given; nor has it the right to determine what political privileges [369 U.S. 186, 296] the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision." Id., at 41. Mr. Justice Woodbury (who dissented with respect to the effect of martial law) agreed with the Court regarding the inappropriateness of judicial inquiry into the issues: "But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, - or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. . . . "Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. . . . [D]isputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, . . . if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way - slowly, but surely - a new sovereign power in the [369 U.S. 186, 297] republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. . . ." Id., at 51-53. 30 III. The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, 4, where, in fact, the gist of their complaint is the same - unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation. We have been admonished to avoid "the tyranny of labels." Snyder v. Massachusetts, 291 U.S. 97, 114 . Art. IV, 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends "on how he [the plaintiff] casts his action," Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 662 , whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause in Pacific States Telephone & Telegraph Co. v. Oregon, supra, the Court had no difficulty in "dispelling [369 U.S. 186, 298] any mere confusion resulting from forms of expression and considering the substance of things . . . ." 223 U.S., at 140 . Here appellants attack "the State as a State," precisely as it was perceived to be attacked in the Pacific States case, id., at 150. Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that "a minority now rules in Tennessee," that the apportionment statute results in a "distortion of the constitutional system," that the General Assembly is no longer "a body representative of the people of the State of Tennessee," all "contrary to the basic principle of representative government . . . ." Accepting appellants' own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be nonjusticiable not merely under Art. IV, 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate. Massachusetts v. Mellon, supra. But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they assert that the distortion of representative government complained of is produced by systematic discrimination against them, by way of "a debasement of their votes . . . ." Does this characterization, with due regard for the facts from which it is derived, add anything to appellants' case? 31 At first blush, this charge of discrimination based on legislative underrepresentation is given the appearance of [369 U.S. 186, 299] a more private, less impersonal claim, than the assertion that the frame of government is askew. Appellants appear as representatives of a class that is prejudiced as a class, in contradistinction to the polity in its entirety. However, the discrimination relied on is the deprivation of what appellants conceive to be their proportionate share of political influence. This, of course, is the practical effect of any allocation of power within the institutions of government. Hardly any distribution of political authority that could be assailed as

rendering government non-republican would fail similarly to operate to the prejudice of some groups, and to the advantage of others, within the body politic. It would be ingenuous not to see, or consciously blind to deny, that the real battle over the initiative and referendum, or over a delegation of power to local rather than statewide authority, is the battle between forces whose influence is disparate among the various organs of government to whom power may be given. No shift of power but works a corresponding shift in political influence among the groups composing a society. What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted. 32 But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state [369 U.S. 186, 300] councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful - in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of "debasement" or "dilution" is circular talk. One cannot speak of "debasement" or "dilution" of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation - ultimately, really, among competing theories of political philosophy - in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union. In such a matter, abstract analogies which ignore the facts of history deal in unrealities; they betray reason. This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot, 364 U.S. 339 . What Tennessee illustrates is an old and still widespread method of representation representation by local geographical division, only in part respective of population - in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter's vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged. To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. See Luther v. Borden, supra. Certainly, "equal protection" is no more secure [369 U.S. 186, 301] a foundation for judicial judgment of the permissibility of varying forms of representative government than is "Republican Form." Indeed since "equal protection of the laws" can only mean an equality of persons standing in the same relation to whatever governmental action is challenged, the determination whether treatment is equal presupposes a determination concerning the nature of the relationship. This, with respect to apportionment, means an inquiry into the theoretic base of representation in an acceptably republican state. For a court could not determine the equal-protection issue without in fact first determining the Republican-Form issue, simply because what is reasonable for equal-protection purposes will depend upon what frame of government, basically, is allowed. To divorce "equal protection" from "Republican Form" is to talk about half a question. The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment - that it is, in appellants' words "the basic principle of representative government" - is, to put it bluntly, not true. However desirable and however desired by some among the great political thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution - views which in all honesty cannot but give the appearance, if not reflect the reality, of [369 U.S. 186, 302] involvement with the business of partisan politics so inescapably a part of apportionment controversies - the Fourteenth Amendment, "itself a historical product," Jackman v. Rosenbaum Co., 260 U.S. 22, 31 , provides no guide for judicial oversight of the representation problem. 1. Great Britain. Writing in 1958, Professor W. J. M. Mackenzie aptly summarized the British history of the principle of representation proportioned to population: "`Equal electoral districts' formed part of the

programme of radical reform in England in the 1830s, the only part of that programme which has not been realised." 33 Until the late nineteenth century, the sole base of representation (with certain exceptions not now relevant) was the local geographical unit: each county or borough returned its fixed number of members, usually two for the English units, regardless of population. 34 Prior to the Reform Act of 1832, this system was marked by the almost total disfranchisement of the populous northern industrial centers, which had grown to significant size at the advent of the Industrial Revolution and had not been granted borough representation, and by the existence of the rotten borough, playing its substantial part in the Crown's struggle for continued control of the Commons. 35In 1831, ten southernmost English counties, numbering three and a quarter million people, had two hundred and thirty-five parliamentary representatives, while the six northernmost counties, with more than three and a half million people, had sixty-eight. 36 It was said that one hundred and eighty persons appointed three hundred and [369 U.S. 186, 303] fifty members in the Commons. 37 Less than a half century earlier, Madison in the Federalist had remarked that half the House was returned by less than six thousand of the eight million people of England and Scotland. 38 The Act of 1832, the product of a fierce partisan political struggle and the occasion of charges of gerrymandering not without foundation, 39 effected eradication of only the most extreme numerical inequalities of the unreformed system. It did not adopt the principle of representation based on population, but merely disfranchised certain among the rotten borough and enfranchised most of the urban centers - still quite without regard to their relative numbers. 40 In the wake of the Act there remained substantial electoral inequality: the boroughs of Cornwall were represented sixteen times as weightily, judged by population, as the county's eastern division; the average ratio of seats to population in ten agricultural counties was four and a half times that in ten manufacturing divisions; Honiton, with about three thousand inhabitants, was equally represented with Liverpool, which had four hundred thousand. 41 In 1866 apportionment by population began to be advocated generally in the House, but was not made the basis of the redistribution of 1867, although the act of that year did apportion representation more evenly, gauged by the population standard. 42 Population shifts increased the surviving inequalities; by 1884 the representation ratio [369 U.S. 186, 304] in many small boroughs was more than twenty-two times that of Birmingham or Manchester, forty-to-one disparities could be found elsewhere, and, in sum, in the 1870's and 1880's, a fourth of the electorate returned two-thirds of the members of the House. 43 The first systematic English attempt to distribute seats by population was the Redistribution Act of 1885. 44 The statute still left ratios of inequality of as much as seven to one, 45 which had increased to fifteen to one by 1912. 46 In 1918 Parliament again responded to "shockingly bad" conditions of inequality, 47 and to partisan political inspiration, 48 by redistribution. 49 In 1944, redistribution was put on a periodic footing by the House of Commons (Redistribution of Seats) Act of that year, 50 which committed a continuing primary responsibility for reapportioning the Commons to administrative agencies (Boundary Commissions for England, Scotland, Wales and Northern Ireland, respectively). 51The Commissions, having regard to certain rules prescribed for their guidance, are to prepare at designated intervals reports for the Home Secretary's submission to Parliament, along with the draft of an Order in Council to give effect to the [369 U.S. 186, 305] Commissions' recommendations. The districting rules adopt the basic principle of representation by population, although the principle is significantly modified by directions to respect local geographic boundaries as far as practicable, and by discretion to take account of special geographical conditions, including the size, shape and accessibility of constituencies. Under the original 1944 Act, the rules provided that (subject to the exercise of the discretion respecting special geographical conditions and to regard for the total size of the House of Commons as prescribed by the Act) so far as practicable, the single-member districts should not deviate more than twenty-five percent from the electoral quota (population divided by number of constituencies). However, apparently at the recommendation of the Boundary Commission for England, the twenty-five percent standard was eliminated as too restrictive in 1947, and replaced by the flexible provision that constituencies are to be as near the electoral quota as practicable, a rule which is expressly subordinated both to the consideration of special geographic conditions and to that of preserving local boundaries. 52 Free of the twenty-five percent rule, the Commissions drew up plans of distribution in which inequalities among the districts run, in ordinary cases, as high as two to one and, in the case of a few extraordinary constituencies, three to one. 53 The action of the Boundary Commission for England was twice challenged in the courts in 1954 - the claim being that the Commission had violated statutory rules [369 U.S. 186, 306] prescribing the standards for its judgment - and in both cases the Judges declined to intervene. In Hammersmith Borough Council v. Boundary Commission for England, 54 Harman, J., was of opinion that the nature of the controversy and the scheme of the Acts made the matter inappropriate for judicial interference, and in Harper

v. Home Secretary, 55 the Court of Appeal, per Evershed, M. R., quoting Harman, J., with approval, adverting to the wide range of discretion entrusted to the Commission under the Acts, and remarking the delicate character of the parliamentary issues in which it was sought to engage the court, reached the same conclusion. 56 The House of Commons (Redistribution of Seats) Act, 1958, 57 made two further amendments to the law. Responsive to the recommendation of the Boundary Commission for England, 58 the interval permitted between Commission reports was more than doubled, to a new maximum of fifteen years. 59And at the suggestion of the same Commission that "It would ease the future labours of the Commission and remove much local irritation if Rule 5 [requiring that the electorate of each constituency be as near the electoral quota as practicable] were to be so amended as to allow us to make recommendations preserving the status quo in any area where such a course appeared to be desirable and not inconsistent [369 U.S. 186, 307] with the broad intention of the Rules," 60 the Commissions were directed to consider the inconvenience attendant upon the alteration of constituencies, and the local ties which such alteration might break. The Home Secretary's view of this amendment was that it worked to erect "a presumption against making changes unless there is a very strong case for them." 61 2. The Colonies and the Union. For the guiding political theorists of the Revolutionary generation, the English system of representation, in its most salient aspects of numerical inequality, was a model to be avoided, not followed. 62 Nevertheless, the basic English principle of apportioning representatives among the local governmental entities, towns or counties, rather than among units of approximately equal population, had early taken root in the colonies. 63 In some, as in Massachusetts and Rhode Island, numbers of electors were taken into account, in a rough fashion, by allotting increasing fixed quotas of representatives to several towns or classes of towns graduated by population, but in most of the colonies delegates were allowed to the local units without respect to numbers. 64 This resulted in grossly unequal electoral units. 65 The representation ratio in one North Carolina county was more than eight times that in another. 66 Moreover, American rotten boroughs had appeared, 67 and apportionment was made an instrument first in the political [369 U.S. 186, 308] struggles between the King or the royal governors and the colonial legislatures, 68 and, later, between the older tidewater regions in the colonies and the growing interior. 69 Madison in the Philadelphia Convention adverted to the "inequality of the Representation in the Legislatures of particular States, . . ." 70 arguing that it was necessary to confer on Congress the power ultimately to regulate the times, places and manner of selecting Representatives, 71 in order to forestall the overrepresented counties' securing themselves a similar overrepresentation in the national councils. The example of South Carolina, where Charleston's overrepresentation was a continuing bone of contention between the tidewater and the back country, was cited by Madison in the Virginia Convention and by King in the Massachusetts Convention, in support of the same power, and King also spoke of the extreme numerical inequality arising from Connecticut's townrepresentation system. 72 Such inequalities survived the constitutional period. The United States Constitution itself did not largely adopt the principle of numbers. Apportionment of the national legislature among the States was one of the most difficult problems for the Convention; 73 its solution - involving State representation in the Senate 74 and the three-fifths compromise in the House 75 - left neither chamber apportioned proportionately to population. [369 U.S. 186, 309] Within the States, electoral power continued to be allotted to favor the tidewater. 76 Jefferson, in his Notes on Virginia, recorded the "very unequal" representation there: individual counties differing in population by a ratio of more than seventeen to one elected the same number of representatives, and those nineteen thousand of Virginia's fifty thousand men who lived between the falls of the rivers and the seacoast returned half the State's senators and almost half its delegates. 77 In South Carolina in 1790, the three lower districts, with a white population of less than twenty-nine thousand elected twenty senators and seventy assembly members; while in the uplands more than one hundred and eleven thousand white persons elected seventeen senators and fifty-four assemblymen. 78 In the early nineteenth century, the demands of the interior became more insistent. The apportionment quarrel in Virginia was a major factor in precipitating the calling of a constitutional convention in 1829. Bitter animosities racked the convention, threatening the State with disunion. At last a compromise which gave the three hundred and twenty thousand people of the west thirteen senators, as against the nineteen senators returned by the three hundred sixty-three thousand people of the east, commanded agreement. It was adopted

at the polls but left the western counties so dissatisfied that there were threats of revolt and realignment with the State of Maryland. 79 Maryland, however, had her own numerical disproportions. In 1820, one representative vote in Calvert County [369 U.S. 186, 310] was worth five in Frederick County, and almost two hundred thousand people were represented by eighteen members, while fifty thousand others elected twenty.80 This was the result of the county-representation system of allotment. And, except for Massachusetts which, after a long struggle, did adopt representation by population at the mid-century, a similar town-representation principle continued to prevail in various forms throughout New England, with all its attendant, often gross inequalities. 81 3. The States at the time of ratification of the Fourteenth Amendment, and those later admitted. The several state conventions throughout the first half of the nineteenth century were the scenes of fierce sectional and party strifes respecting the geographic allocation of representation. 82 Their product was a wide variety of apportionment methods which recognized the element of population in differing ways and degrees. Particularly pertinent to appraisal of the contention that the Fourteenth Amendment embodied a standard limiting the freedom of the States with regard to the principles and bases of local legislative apportionment is an examination of the apportionment provisions of the thirty-three States which ratified the Amendment between 1866 and 1870, at their respective times of ratification. These may be considered in two groups: (A) the ratifying States other than the ten Southern States whose constitutions, at the time of ratification or shortly thereafter, were the work of the Reconstruction Act conventions; 83 and [369 U.S. 186, 311] (B) the ten Reconstruction-Act States. All thirty-three are significant, because they demonstrate how unfounded is the assumption that the ratifying States could have agreed on a standard apportionment theory or practice, and how baseless the suggestion that by voting for the Equal Protection Clause they sought to establish a test mold for apportionment which - if appellants' argument is sound - struck down sub silentio not a few of their own state constitutional provisions. But the constitutions of the ten Reconstruction-Act States have an added importance, for it is scarcely to be thought that the Congress which was so solicitous for the adoption of the Fourteenth Amendment as to make the readmission of the late rebel States to Congress turn on their respective ratifications of it, would have approved constitutions which - again, under appellants' theory contemporaneously offended the Amendment. A. Of the twenty-three ratifying States of the first group, seven or eight had constitutions which demanded or allowed apportionment of both houses on the basis of population, 84 unqualifiedly or with only qualifications respecting the preservation of local boundaries. 85 Three [369 U.S. 186, 312] more apportioned on what was essentially a population base, but provided that in one house counties having a specified fraction of a ratio - a moiety or two-thirds - should have a representative. 86 Since each of these three States limited the size of their chambers, the fractional rule could operate - and, at least in Michigan, has in fact operated 87 - to produce substantial numerical inequalities [369 U.S. 186, 313] in favor of the sparsely populated counties. 88 Iowa favored her small counties by the rule that no more than four counties might be combined in a representative district, 89 and New York and Kansas compromised population and county-representation principles by assuring every county, regardless of the number of its inhabitants, at least one seat in their respective Houses. 90 Ohio and Maine recognized the factor of numbers by a different device. The former gave a House representative to each county having half a ratio, two representatives for a ratio and three-quarters, three representatives for three ratios, and a single additional representative for each additional ratio.91 The latter, after apportioning among counties on a population base, gave each town of fifteen hundred inhabitants one representative, each town of three thousand, seven hundred and fifty inhabitants two representatives, and so on in increasing intervals to twenty-six thousand, two hundred and fifty inhabitants - towns of that size or larger receiving the maximum permitted number of representatives: seven. 92 The departure from numerical equality under these systems is apparent: in Maine, assuming the incidence of towns in [369 U.S. 186, 314] all categories, representative ratios would differ by factors of two and a half to one, at a minimum. Similarly, Missouri gave each of its counties, however small, one representative, two representatives for three ratios, three representatives for six ratios, and one additional representative for each three ratios above six. 93New Hampshire allotted a representative to each town of one hundred and fifty ratable male polls of voting age and one more representative for each increment of three hundred above that figure; 94 its Senate was not apportioned by population but among districts based on the proportion of direct taxes paid. 95 In Pennsylvania, the basis of apportionment in both houses was taxable inhabitants; and in the House every

county of at least thirty-five hundred taxables had a representative, nor could more than three counties be joined in forming a representative district; while in the Senate no city or county could have more than four of the State's twenty-five to thirty-three senators. 96 Finally, four States apportioned at least one House with no regard whatever to population. In Connecticut 97 and Vermont 98 representation in the House was on a town basis; Rhode Island gave one senator to each of its towns or cities, 99 and New Jersey, one to each of its counties. 100 [369 U.S. 186, 315] Nor, in any of these States, was the other House apportioned on a strict principle of equal numbers: Connecticut gave each of its counties a minimum of two senators 101 and Vermont, one; 102New Jersey assured each county a representative; 103 and in Rhode Island, which gave at least one representative to each town or city, no town or city could have more than one-sixth of the total number in the House. 104 B. Among the ten late Confederate States affected by the Reconstruction Acts, in only four did it appear that apportionment of both state legislative houses would or might be based strictly on population.105 In North Carolina, 106 South Carolina, 107 Louisiana, 108 and Alabama, 109 each county (in the case of Louisiana, each parish) was assured at least one seat in the lower House irrespective of numbers - a distribution which exhausted, respectively, [369 U.S. 186, 316] on the basis of the number of then-existing counties, threequarters, one-quarter, two-fifths and three-fifths of the maximum possible number of representatives, before a single seat was available for assignment on a population basis; and in South Carolina, moreover, the Senate was composed of one member elected from each county, except that Charleston sent two. 110 In Florida's House, each county had one seat guaranteed and an additional seat for every thousand registered voters up to a maximum of four representatives; 111while Georgia, whose Senate seats were distributed among forty-four single-member districts each composed of three contiguous counties, 112 assigned representation in its House as follows: three seats to each of the six most populous counties, two to each of the thirty-one next most populous, one to each of the remaining ninety-five. 113 As might be expected, the one-representative-percounty minimum pattern has proved incompatible with numerical equality, 114 and Georgia's [369 U.S. 186, 317] county-clustering system has produced representative-ratio disparities, between the largest and smallest counties, of more than sixty to one. 115 C. The constitutions 116 of the thirteen States which Congress admitted to the Union after the ratification of the Fourteenth Amendment showed a similar pattern. Six of them required or permitted apportionment of both Houses by population, subject only to qualifications concerning local boundaries. 117 Wyoming, apportioning by population, guaranteed to each of its counties at least one seat in each House, 118 and Idaho, which prescribed (after the first legislative session) that apportionment should be "as may be provided by law," gave each county at least one representative.119 In Oklahoma, House members were apportioned among counties so as to give one [369 U.S. 186, 318] seat for half a ratio, two for a ratio and three-quarters, and one for each additional ratio up to a maximum of seven representatives per county. 120 Montana required reapportionment of its House on the basis of periodic enumerations according to ratios to be fixed by law 121 but its counties were represented as counties in the Senate, each county having one senator. 122 Alaska 123 and Hawaii 124each apportioned a number of senators among constitutionally fixed districts; their respective Houses were to be periodically reapportioned by population, subject to a moiety rule in Alaska 125 and to Hawaii's guarantee of one representative to each of four constitutionally designated areas. 126 The Arizona Constitution assigned representation to each county in each house, giving one or two senators and from one to seven representatives to each, and making no provision for reapportionment. 127 [369 U.S. 186, 319] 4. Contemporary apportionment. Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States. 128 They demonstrate a decided twentieth-century trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard, 129 and only about a dozen more prescribe such reapportionment for even a single chamber. "Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. . . ." 130 More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit's inhabitants. Of course, numerically considered, "These provisions invariably result in over-representation of the least populated areas. . . ." 131 And in an effort to curb the political dominance of metropolitan regions, at least ten States now

limit the maximum entitlement of any single county (or, in some cases, city) [369 U.S. 186, 320] in one legislative house - another source of substantial numerical disproportion. 132 Moreover, it is common knowledge that the legislatures have not kept reapportionment up to date, even where state constitutions in terms require it. 133 In particular, the pattern of according greater per capita representation to rural, relatively sparsely populated areas - the same pattern which finds expression in various state constitutional provisions, 134 and which has been given effect in England and elsewhere 135 - has, in some of the States, been made the law by legislative inaction in the face of[369 U.S. 186, 321] population shifts. 136 Throughout the country, urban and suburban areas tend to be given higher representation ratios than do rural areas. 137 The stark fact is that if among the numerous widely varying principles and practices that control state legislative apportionment today there is any generally prevailing feature, that feature is geographic inequality in relation to the population standard. 138 Examples could be endlessly multiplied. In New Jersey, counties of [369 U.S. 186, 322] thirty-five thousand and of more than nine hundred and five thousand inhabitants respectively each have a single senator. 139 Representative districts in Minnesota range from 7,290 inhabitants to 107,246 inhabitants. 140 Ratios of senatorial representation in California vary as much as two hundred and ninety-seven to one. 141 In Oklahoma, the range is ten to one for House constituencies and roughly sixteen to one for Senate constituencies.142 Colebrook, Connecticut - population 592 - elects two House representatives; Hartford - population 177,397 - also elects two. 143 The first, third and fifth of these examples are the products of constitutional provisions which subordinate population to regional considerations in apportionment; the second is the result of legislative inaction; the fourth derives from both constitutional and legislative sources. A survey made in 1955, in sum, reveals that less than thirty percent of the population inhabit districts sufficient to elect a House majority in thirteen States and a Senate majority in nineteen States. 144 These figures show more than individual variations from a generally accepted standard of electoral equality. They show that there is not - as there has never been - a standard by[369 U.S. 186, 323] which the place of equality as a factor in apportionment can be measured. Manifestly, the Equal Protection Clause supplies no clearer guide for judicial examination of apportionment methods than would the Guarantee Clause itself. Apportionment, by its character, is a subject of extraordinary complexity, involving - even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised - considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others. 145 [369 U.S. 186, 324] Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because in every strand of this complicated, intricate web of values meet the contending forces of partisan politics. 146 The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests. 147 It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them. 148 [369 U.S. 186, 325] IV. Appellants, however, contend that the federal courts may provide the standard which the Fourteenth Amendment lacks by reference to the provisions of the constitution of Tennessee. The argument is that although the same or greater disparities of electoral strength may be suffered to exist immune from federal judicial review in States where they result from apportionment legislation consistent with state constitutions, the Tennessee Legislature may not abridge the rights which, on its face, its own constitution appears to give, without by that act denying equal protection of the laws. It is said that the law of Tennessee, as expressed by the words of its written constitution, has made the basic choice among policies in favor of representation proportioned to population, and that it is no longer open to the State to allot its voting power on other principles.

This reasoning does not bear analysis. Like claims invoking state constitutional requirement have been rejected here and for good reason. It is settled that whatever federal consequences may derive from a discrimination worked by a state statute must be the same as if the same discrimination were written into the [369 U.S. 186, 326] State's fundamental law. Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362 . And see Castillo v. McConnico, 168 U.S. 674 ; Coulter v. Louisville & N. R. Co., 196 U.S. 599, 608 -609; Owensboro Waterworks Co. v. Owensboro, 200 U.S. 38 ; Hebert v. Louisiana, 272 U.S. 312, 316 -317; Snowden v. Hughes, 321 U.S. 1, 11 . Appellants complain of a practice which, by their own allegations, has been the law of Tennessee for sixty years. They allege that the Apportionment Act of 1901 created unequal districts when passed and still maintains unequal districts. They allege that the Legislature has since 1901 purposefully retained unequal districts. And the Supreme Court of Tennessee has refused to invalidate the law establishing these unequal districts. Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40; appeal dismissed here in 352 U.S. 920 . In these circumstances, what was said in the Browning case, supra, at 369, clearly governs this case: ". . . Here, according to petitioner's own claim, all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now questioned for the first time. It would be a narrow conception of jurisprudence to confine the notion of `laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text. . . . [T]he Equal Protection Clause is not a command of candor. . . ." [369 U.S. 186, 327] Tennessee's law and its policy respecting apportionment are what 60 years of practice show them to be, not what appellants cull from the unenforced and, according to its own judiciary, unenforceable words of its Constitution. The statute comes here on the same footing, therefore, as would the apportionment laws of New Jersey, California or Connecticut, 149 and is unaffected by its supposed repugnance to the state constitutional language on which appellants rely. 150 In another aspect, however, the Kidd v. McCanless case, supra, introduces a factor peculiar to this litigation, which only emphasizes the duty of declining the exercise of federal judicial jurisdiction. In all of the apportionment cases which have come before the Court, a consideration which has been weighty in determining their non-justiciability has been the difficulty or impossibility of devising effective judicial remedies in this class of case. An injunction restraining a general election unless the legislature reapportions would paralyze the critical centers of a State's political system and threaten political dislocation whose consequences are not foreseeable. A declaration devoid [369 U.S. 186, 328] of implied compulsion of injunctive or other relief would be an idle threat. 151 Surely a Federal District Court could not itself remap the State: the same complexities which impede effective judicial review of apportionment a fortiori make impossible a court's consideration of these imponderables as an original matter. And the choice of elections at large as opposed to elections by district, however unequal the districts, is a matter of sweeping political judgment having enormous political implications, the nature and reach of which are certainly beyond the informed understanding of, and capacity for appraisal by, courts. In Tennessee, moreover, the McCanless case has closed off several among even these unsatisfactory and dangerous modes of relief. That case was a suit in the state courts attacking the 1901 Reapportionment Act and seeking a declaration and an injunction of the Act's enforcement or, alternatively, a writ of mandamus compelling state election officials to hold the elections at large, or, again alternatively, a decree of the court reapportioning the State. The Chancellor denied all coercive relief, but entertained the suit for the purpose of rendering a declaratory judgment. It was his view that despite an invalidation of the statute under which the present legislature was elected, that body would continue to possess de facto authority to reapportion, and that therefore the maintaining of the suit did not threaten the disruption of the government. The Tennessee Supreme Court agreed that no coercive relief could be granted; in particular, it said, "There is no provision of law for election of our General Assembly by an election at large over the State." 200 Tenn., at 277, 292 S. W. 2d, at 42. Thus, a legislature elected at [369 U.S. 186, 329] large would not be the legally constituted legislative authority of the State. The court reversed, however, the Chancellor's determination to give declaratory relief, holding that the ground of demurrer which asserted that a striking down of the statute would disrupt the orderly process of government should have been sustained: "(4) It seems obvious and we therefore hold that if the Act of 1901 is to be declared unconstitutional, then the de facto doctrine cannot be applied to maintain the present members of the General Assembly in office. If the

Chancellor is correct in holding that this statute has expired by the passage of the decade following its enactment then for the same reason all prior apportionment acts have expired by a like lapse of time and are non-existent. Therefore we would not only not have any existing members of the General Assembly but we would have no apportionment act whatever under which a new election could be held for the election of members to the General Assembly. ..... "The ultimate result of holding this Act unconstitutional by reason of the lapse of time would be to deprive us of the present Legislature and the means of electing a new one and ultimately bring about the destruction of the State itself." 200 Tenn., at 281-282, 292 S. W. 2d, at 44. A federal court enforcing the Federal Constitution is not, to be sure, bound by the remedial doctrines of the state courts. But it must consider as pertinent to the propriety or impropriety of exercising its jurisdiction those state-law effects of its decree which it cannot itself control. A federal court cannot provide the authority requisite to make a legislature the proper governing body of the State of Tennessee. And it cannot be doubted that the striking [369 U.S. 186, 330] down of the statute here challenged on equal protection grounds, no less than on grounds of failure to reapportion decennially, would deprive the State of all valid apportionment legislation and - under the ruling in McCanless - deprive the State of an effective law-based legislative branch. Just such considerations, among others here present, were determinative in Luther v. Borden and the Oregon initiative cases. 152 Although the District Court had jurisdiction in the very restricted sense of power to determine whether it could adjudicate the claim, the case is of that class of political controversy which, by the nature of its subject, is unfit for federal judicial action. The judgment of the District Court, in dismissing the complaint for failure to state a claim on which relief can be granted, should therefore be affirmed. [ Footnote * ] It is worth reminding that the problem of legislative apportionment is not one dividing North and South. Indeed, in the present House of Representatives, for example, Michigan's congressional districts are far less representative of the numbers of inhabitants, according to the 1960 census, than are Louisiana's. Michigan's Sixteenth District, which is 93.1% urban, contains 802,994 persons and its Twelfth, which is 47.6% urban, contains 177,431 - one-fifth as many persons. Louisiana's most populous district, the Sixth, is 53.6% urban and contains 536,029 persons, and its least populous, the Eighth, 36.7% urban, contains 263,850 - nearly half. Gross disregard of any assumption that our political system implies even approximation to the notion that individual votes in the various districts within a State should have equal weight is as true, e. g., of California, Illinois, and Ohio as it is of Georgia. See United States Department of Commerce, Census Release, February 24, 1962, CB62-23. [ Footnote 1 ] See Wood v. Broom, 287 U.S. 1 ; Colegrove v. Green, 328 U.S. 549 , rehearing denied, 329 U.S. 825 , motion for reargument before the full bench denied, 329 U.S. 828 ; Cook v. Fortson, 329 U.S. 675 , rehearing denied, 329 U.S. 829 ; Turman v. Duckworth, 329 U.S. 675 , rehearing denied, 329 U.S. 829 ; Colegrove v. Barrett, 330 U.S. 804 ; MacDougall v. Green, 335 U.S. 281 ; South v. Peters, 339 U.S. 276 ; Tedesco v. Board of Supervisors, 339 U.S. 940 ; Remmey v. Smith, 342 U.S. 916 ; Cox v. Peters,342 U.S. 936 , rehearing denied, 343 U.S. 921 ; Anderson v. Jordan, 343 U.S. 912 ; Kidd v. McCanless,352 U.S. 920 ; Radford v. Gary, 352 U.S. 991 ; Hartsfield v. Sloan, 357 U.S. 916 ; Matthews v. Handley,361 U.S. 127 ; Perry v. Folsom, 144 F. Supp. 874 (D.C. N. D. Ala.); Magraw v. Donovan, 163 F. Supp. 184 (D.C. D. Minn.); cf. Dyer v. Kazuhisa Abe, 138 F. Supp. 220 (D.C. D. Hawaii). And see Keogh v. Neely, 50 F.2d 685 (C. A. 7th Cir.). [ Footnote 2 ] Although the motion to intervene by the Mayor of Nashville asserted an interest in the litigation in only a representative capacity, the complaint which he subsequently filed set forth that he was a qualified voter who also sued in his own behalf. The municipalities of Knoxville and Chattanooga purport to represent their residents. Since the claims of the municipal intervenors do not differ materially from those of the parties who sue as individual voters, the Court need not now determine whether the municipalities are proper parties to this proceeding. See, e. g., Stewart v. Kansas City, 239 U.S. 14 . [ Footnote 3 ] The original complaint named as defendants Tennessee's Secretary of State, Attorney General, Coordinator of Elections, and the three members of the State Board of Elections, seeking to make the Board members representatives of all the State's County Election Commissioners. The prayer in an intervening complaint by the City of Knoxville, that the Commissioners of Elections of Knox County be added as parties defendant seems not to have been acted on by the court below. Defendants moved to dismiss, inter alia, on the ground [369 U.S. 186, 272] of failure to join indispensable parties, and they argue in this Court that only the

County Election Commissioners of the ninety-five counties are the effective administrators of Tennessee's elections laws, and that none of the defendants have substantial duties in connection therewith. The District Court deferred ruling on this ground of the motion. Inasmuch as it involves questions of local law more appropriately decided by judges sitting in Tennessee than by this Court, and since in any event the failure to join County Election Commissioners in this action looking to prospective relief could be corrected, if necessary, by amendment of the complaints, the issue does not concern the Court on this appeal. [ Footnote 4 ] Jurisdiction is predicated upon R. S. 1979, 42 U.S.C. 1983, and 28 U.S.C. 1343 (3). [ Footnote 5 ] However, counties having two-thirds of the ratio required for a Representative are entitled to seat one member in the House, and there are certain geographical restrictions upon the formation of Senate districts. The applicable provisions of Article II of the Tennessee Constitution are: "Sec. 4. Census. - An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years." "Sec. 5. Apportionment of representatives. - The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, [369 U.S. 186, 273] until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided that any county having two-thirds of the ratio shall be entitled to one member." "Sec. 6. Apportionment of senators. - The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district." [ Footnote 6 ] It is alleged that certain amendments to the Act of 1901 made only minor modifications of that Act, adjusting the boundaries of individual districts in a manner not material to plaintiffs' claims. [ Footnote 7 ] The exhibits do not reveal the source of the population figures which they set forth, but it appears that the figures were taken from the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 41, at 76-91. These census figures represent the total population over twenty-one years of age in each Tennessee county; they do not purport to enumerate "qualified voters" or "qualified electors," the measure of apportionment prescribed by the Tennessee Constitution. See note 5, supra. To qualify to vote in Tennessee, in addition to fulfilling the age requirement, an individual must be a citizen of the United States, a resident of the State for twelve months and of the county where he offers his vote for six months next preceding the election, and must not be under the disqualification [369 U.S. 186, 275] attaching to conviction for certain offenses. Tenn. Code Ann., 1955, 2-201, 2-205. The statistics found in the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 42, at 92-97, suggest that the residence requirement, in particular, may be an unknown variable of considerable significance. Appellants do not suggest a means by which a court, on the basis of the federal census figures, can determine the number of qualified voters in the various Tennessee counties. [ Footnote 8 ] The "county aid funds" derived from a portion of a state gasoline privilege tax, for example, are distributed among the counties as follows: one-half equally among the ninety-five counties, one-quarter on the basis of area, one-quarter on the basis of population, to be used by county authorities in the building, repairing and improving of county roads and bridges. Tenn. Code Ann., 1955, 54-403. Appellants urge that this distribution is discriminatory. [ Footnote 9 ] Plaintiffs also suggested, as an alternative to at-large elections, that the District Court might itself redistrict the State. They did not, however, expressly pray such relief. [ Footnote 10 ] See Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 45 et seq. (1961).

[ Footnote 11 ] See, e. g., United States v. Palmer, 3 Wheat. 610, 634, 635; The Divina Pastora, 4 Wheat. 52; Williams v. Suffolk Ins. Co., 13 Pet. 415; Kennett v. Chambers, 14 How. 38; Doe v. Braden, 16 How. 635; Jones v. United States, 137 U.S. 202 ; Terlinden v. Ames, 184 U.S. 270 ; Charlton v. Kelly, 229 U.S. 447 ; Oetjen v. Central Leather Co., 246 U.S. 297 ; Ex parte Peru, 318 U.S. 578 ; Clark v. Allen, 331 U.S. 503 . Compare Foster and Elam v. Neilson, 2 Pet. 253, with United States v. Arredondo, 6 Pet. 691. Of course, judgment concerning the "political" nature of even a controversy affecting the Nation's foreign affairs is not a simple mechanical matter, and certain of the Court's decisions have accorded scant weight to the consideration of unity of action in the conduct of external relations. Compare Vermilya-Brown Co. v. Connell, 335 U.S. 377 , with United States v. Pink, 315 U.S. 203 . [ Footnote 12 ] Obviously, this is the equivalent of saying that the characteristics are not "constitutionally requisite" in a judicially enforceable sense. The recognition of their necessity as a condition of legislation is left, as is observance of certain other constitutional commands, to the conscience of the non-judicial organs. Cf. Kentucky v. Dennison, 24 How. 66. [ Footnote 13 ] Also compare the Coleman case and United States v. Sprague, 282 U.S. 716 , with Hawke v. Smith (No. 1), 253 U.S. 221 . See the National Prohibition Cases, 253 U.S. 350 ; and consider the Court's treatment of the several contentions in Leser v. Garnett, 258 U.S. 130 . [ Footnote 14 ] E. g., Myers v. Anderson, 238 U.S. 368 ; Nixon v. Condon, 286 U.S. 73 ; Lane v. Wilson,307 U.S. 268 ; Smith v. Allwright, 321 U.S. 649 . The action for damages for improperly rejecting an elector's vote had been given by the English law since the time of Ashby v. White, 1 Brown's Cases in Parliament 62; 2 Ld. Raym. 938; 3 Ld. Raym. 320, a case which in its own day precipitated an intra-parliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810), 225-324, 376-436. Prior to the racialdiscrimination cases, this Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U.S. 487 , and Wiley v. Sinkler, 179 U.S. 58 , both respecting federal elections. [ Footnote 15 ] Cf. Gomillion v. Lightfoot, 364 U.S. 339 . [ Footnote 16 ] By statute an action for preventive relief is now given the United States in certain voting cases. 71 Stat. 637, 42 U.S.C. 1971 (c), amending R. S. 2004. See United States v. Raines, 362 U.S. 17 ; United States v. Thomas, 362 U.S. 58 . [ Footnote 17 ] Compare Rhode Island v. Massachusetts, 12 Pet. 657, and cases following, with Georgia v. Stanton, 6 Wall. 50. [ Footnote 18 ] Compare Worcester v. Georgia, 6 Pet. 515, with Cherokee Nation v. Georgia, 5 Pet. 1, 20, 28 (Mr. Justice Johnson, concurring), 51 and 75 (Mr. Justice Thompson, dissenting). [ Footnote 19 ] This was an alternative ground of Chief Justice Marshall's opinion for the Court. Id., at 20. The question which Marshall reserved as "unnecessary to decide," ibid., was not the justiciability of the bill [369 U.S. 186, 288] in this aspect, but the "more doubtful" question whether that "part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession," might be entertained. Ibid. Mr. Justice Johnson, concurring, found the controversy non-justiciable and would have put the ruling solely on this ground, id., at 28, and Mr. Justice Thompson, in dissent, agreed that much of the matter in the bill was not fit for judicial determination. Id., at 51, 75. [ Footnote 20 ] Cf. Mississippi v. Johnson, 4 Wall. 475. [ Footnote 21 ] Considerations similar to those which determined the Cherokee Nation case and Georgia v. Stanton no doubt explain the celebrated decision in Nabob of the Carnatic v. East India Co., 1 Ves. jun. *371; 2 Ves. jun. *56, rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company. The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing. In The Duke [369 U.S. 186, 289] of York's Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh, Cases on Constitutional Law (1915), 1, the role which the Judges were asked to play appears to have been rather that of advocates than of judges, but the answer which they returned to the Lords relied on reasons equally applicable to either role.

[ Footnote 22 ] "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." [ Footnote 23 ] Cf. the cases holding that the Fourteenth Amendment imposes no such restriction upon the form of a State's governmental organization as will permit persons affected by government action to complain that in its organization principles of separation of powers have been violated. E. g., Dreyer v. Illinois, 187 U.S. 71 ; Soliah v. Heskin, 222 U.S. 522 ; Houck v. Little River Drainage District, 239 U.S. 254 . The same consistent refusal of this Court to find that the Federal Constitution restricts state power to design the structure of state political institutions is reflected in the cases rejecting claims arising out of the States' creation, alteration, or destruction of local [369 U.S. 186, 290] subdivisions or their powers, insofar as these claims are made by the subdivisions themselves, see Laramie County v. Albany County, 92 U.S. 307 ; Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394 ; Trenton v. New Jersey, 262 U.S. 182 ; Risty v. Chicago, R. I. & P. R. Co., 270 U.S. 378, 389 -390; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36 , or by the whole body of their residents who share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207 U.S. 161 . The policy is also given effect by the denial of "standing" to persons seeking to challenge state action as infringing the interest of some separate unit within the State's administrative structure a denial which precludes the arbitrament by federal courts of what are only disputes over the local allocation of government functions and powers. See, e. g., Smith v. Indiana, 191 U.S. 138 ; Braxton County Court v. West Virginia, 208 U.S. 192 ; Marshall v. Dye, 231 U.S. 250 ; Stewart v. Kansas City, 239 U.S. 14 . [ Footnote 24 ] 223 U.S., at 141 . ". . . [T]he contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed the propositions go further than this, since in their essence they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is at one and the same time one and the same government which is republican in form and not of that character." Compare Luther v. Borden, 7 How. 1, 3839: ". . . For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, - if it had been annulled by the adoption of the opposing government, - then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals. "When the decision of this court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction." [ Footnote 25 ] See Bowen, The Recent Contest in Rhode Island (1844); Frieze, A Concise History of the Efforts to Obtain an Extension of Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842). [ Footnote 26 ] The Court reasoned, with respect to the guarantee against domestic violence also contained in Art. IV, 4, that this, too, was an authority committed solely to Congress; that Congress had empowered the President, not the courts, to enforce it; and that it [369 U.S. 186, 295] was inconceivable that the courts should assume a power to make determinations in the premises which might conflict with those of the Executive. It noted further that, in fact, the President had recognized the governor of the charter government as the lawful authority in Rhode Island, although it had been unnecessary to call out the militia in his support. [ Footnote 27 ] See note 24, supra. [ Footnote 28 ] Id., at 39, 46-47. [ Footnote 29 ] Id., at 41-42. [ Footnote 30 ] In evaluating the Court's determination not to inquire into the authority of the charter government, it must be remembered that, throughout the country, Dorr "had received the sympathy of the

Democratic press. His cause, therefore, became distinctly a party issue." 2 Warren, The Supreme Court in United States History (Rev. ed. 1937), 186. [ Footnote 31 ] Appellants also allege discrimination in the legislature's allocation of certain tax burdens and benefits. Whether or not such discrimination would violate the Equal Protection Clause if the tax statutes were challenged in a proper proceeding, see Dane v. Jackson, 256 U.S. 589 ; cf. Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 268 , these recitative allegations do not affect the nature of the controversy which appellants' complaints present. [ Footnote 32 ] Appellants would find a "right" to have one's ballot counted on authority of United States v. Mosley, 238 U.S. 383 ; United States v. Classic, 313 U.S. 299 ; United States v. Saylor, 322 U.S. 385 . All that these cases hold is that conspiracies to commit certain sharp election practices which, in a federal election, cause ballots not to receive the weight which the law has in fact given them, may amount to deprivations of the constitutionally secured right to vote for federal officers. But see United States v. Bathgate, 246 U.S. 220 . The cases do not so much as suggest that there exists a constitutional limitation upon the relative weight to which the law might properly entitle respective ballots, even in federal elections. [ Footnote 33 ] Mackenzie, Free Elections (1958) (hereafter, Mackenzie), 108. [ Footnote 34 ] Ogg, English Government and Politics (2d ed. 1936) (hereafter, Ogg), 248-250, 257; Seymour, Electoral Reform in England and Wales (1915) (hereafter, Seymour), 46-47. [ Footnote 35 ] Ogg 257-259; Seymour 45-52; Carpenter, The Development of American Political Thought (1930) (hereafter, Carpenter), 45-46. [ Footnote 36 ] Ogg 258. [ Footnote 37 ] Seymour 51. [ Footnote 38 ] The Federalist, No. 56 (Wright ed. 1961), at 382. Compare Seymour 49. This takes account of the restricted franchise as well as the effect of the local-unit apportionment principle. [ Footnote 39 ] Seymour 52-76. [ Footnote 40 ] Ogg 264-265; Seymour 318-319. [ Footnote 41 ] For these and other instances of gross inequality, see Seymour 320-325. [ Footnote 42 ] Seymour 333-346; Ogg 265. [ Footnote 43 ] Seymour 349, 490-491. [ Footnote 44 ] Seymour 489-518. [ Footnote 45 ] Mackenzie 108; see also Seymour 513-517. [ Footnote 46 ] Ogg 270. [ Footnote 47 ] Ogg 253. [ Footnote 48 ] Ogg 270-271. [ Footnote 49 ] Ogg 273-274. [ Footnote 50 ] 7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House of Commons (Redistribution of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and the two, with other provisions, were consolidated in the House

of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, since amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26. [ Footnote 51 ] See generally Butler, The Redistribution of Seats, 33 Public Administration 125 (1955). [ Footnote 52 ] See note 50, supra. However, Commissions are given discretion to depart from the strict application of the local boundary rule to avoid excessive disparities between the electorate of a constituency and the electoral quota, or between the electorate of a constituency and that of neighboring constituencies. For detailed discussion, see Craig, Parliament and Boundary Commissions, 1959. Public Law 23. See also Butler, supra, note 51, at 127. [ Footnote 53 ] Mackenzie 108, 113. [ Footnote 54 ] The Times, Dec. 15, 1954, p. 4, cols 3-4. [ Footnote 55 ] 1955. 1 Ch. 238. [ Footnote 56 ] The court reserved the question whether a judicial remedy might be found in a case in which it appeared that a Commission had manifestly acted in complete disregard of the Acts. [ Footnote 57 ] Note 50, supra. [ Footnote 58 ] First Periodical Report of the Boundary Commission for England [Cmd. 9311] (1954), 4, par. 19. [ Footnote 59 ] Under the 1949 Act, see note 50, supra, the intervals between reports were to be not less than three nor more than seven years, with certain qualifications. The 1958 Act raised the minimum to ten and the maximum to fifteen years. [ Footnote 60 ] First Periodical Report, supra, note 58, at 4, par. 20. [ Footnote 61 ] 582 H. C. Deb. (5th ser. 1957-1958), 230. [ Footnote 62 ] See The Federalist, No. 56, supra, note 38; Tudor, Life of James Otis (1823), 188-190. [ Footnote 63 ] Griffith, The Rise and Development of the Gerrymander (1907) (hereafter, Griffith), 23-24. [ Footnote 64 ] Luce, Legislative Principles (1930) (hereafter, Luce), 336-342. [ Footnote 65 ] Griffith 25. [ Footnote 66 ] Griffith 15-16, n. 1. [ Footnote 67 ] Griffith 28. [ Footnote 68 ] Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340. [ Footnote 69 ] Carpenter 87; Griffith 26-29, 31. [ Footnote 70 ] II Farrand, Records of the Federal Convention (1911), 241. [ Footnote 71 ] The power was provided. Art. I, 4, cl. 1. [ Footnote 72 ] III Elliot's Debates (2d ed. 1891), 367; II id., at 50-51. [ Footnote 73 ] See Madison, in I Farrand, op. cit., supra, note 70, at 321: "The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable."

[ Footnote 74 ] See The Federalist, No. 62 (Wright ed. 1961), at 408-409. [ Footnote 75 ] See The Federalist, No. 54, id., at 369-374. [ Footnote 76 ] Carpenter 130. [ Footnote 77 ] Jefferson, Notes on the State of Virginia (Peden ed. 1955), 118-119. See also II Writings of Thomas Jefferson (Memorial ed. 1903), 160-162. [ Footnote 78 ] Carpenter 139-140. [ Footnote 79 ] Griffith 102-104. [ Footnote 80 ] Griffith 104-105. [ Footnote 81 ] Luce 343-350. Bowen, supra, note 25, at 17-18, records that in 1824 Providence County, having three-fifths of Rhode Island's population, elected only twenty-two of its seventy-two representatives, and that the town of Providence, more than double the size of Newport, had half Newport's number of representatives. [ Footnote 82 ] Carpenter 130-137; Luce 364-367; Griffith 116-117. [ Footnote 83 ] See 14 Stat. 428; 15 Stat. 2, 14, 41. [ Footnote 84 ] Various indices of population were employed among the States which took account of the factor of numbers. Some counted all inhabitants, e. g., N. J. Const., 1844, Art. IV, 3; some, only white inhabitants, e. g., Ill. Const., 1848, Art. III, 8; some, male inhabitants over twenty-one, e. g., Ind. Const., 1851, Art. IV, 4-5; some, qualified voters, e. g., Tenn. Const., 1834, Art. II, 4 to 6; some excluded aliens, e. g., N. Y. Const., 1846, Art. III, 4, 5 (and untaxed persons of color); some excluded untaxed Indians and military personnel, e. g., Neb. Const., 1866-1867, Art. II, 3. For present purposes these differences, although not unimportant as revealing fundamental divergences in representation theory, will be disregarded. [ Footnote 85 ] Ore. Const., 1857, Art. IV, 5, 6, 7; Ill. Const., 1848, Art. III, 8, 9; Ind. Const., 1851, Art. IV, 4, 5, 6; Minn. Const., 1857, [369 U.S. 186, 312] Art. IV, 2; Wis. Const., 1848, Art. IV, 3 to 5; Mass. Const., 1780, Amends. XXI, XXII; Neb. Const., 1866-1867, Art. II, 3. All of these but Minnesota made provision for periodic reapportionment. Nevada's Constitution of 1864, Art. XV, 13, provided that the federal censuses and interim state decennial enumerations should serve as the bases of representation for both houses, but did not expressly require either numerical equality or reapportionment at fixed intervals. Several of these constitutions contain provisions which forbid splitting counties or which otherwise require recognition of local boundaries. See, e. g., the severe restriction in Ill. Const., 1848, Art. III, 9. Such provisions will almost inevitably produce numerical inequalities. See, for example, University of Oklahoma, Bureau of Government Research, Legislative Apportionment in Oklahoma (1956), 21-23. However, because their effect in this regard will turn on idiosyncratic local factors, and because other constitutional provisions are a more significant source of inequality, these provisions are here disregarded. [ Footnote 86 ] Tenn. Const., 1834, Art. II, 4 to 6 (two-thirds of a ratio entitles a county to one representative in the House); W. Va. Const., 1861-1863, Art. IV, 4, 5, 7, 8, 9 (one-half of a ratio entitles a county to one representative in the House); Mich. Const., 1850, Art. IV, 2 to 4 (one-half of a ratio entitles each county thereafter organized to one representative in the House). In Oregon and Iowa a major-fraction rule applied which gave a House seat not only to counties having a moiety of a single ratio, but to all counties having more than half a ratio in excess of the multiple of a ratio. Ore. Const., 1857, Art. IV, 6, note 85, supra; Iowa Const., 1857, Art. III, 33, 34, 35, 37, note 89, infra. [ Footnote 87 ] See Bone, States Attempting to Comply with Reapportionment Requirements, 17 Law & Contemp. Prob. 387, 391 (1952).

[ Footnote 88 ] It also appears, although the section is not altogether clear, that the provisions of West Virginia's Constitution controlling apportionment of senators would operate in favor of the State's less populous regions by limiting any single county to a maximum of two senators. W. Va. Const., 1861-1863, Art. IV, 4. [ Footnote 89 ] Iowa Const., 1857, Art. III, 33, 34, 35, 37. [ Footnote 90 ] N. Y. Const., 1846, Art. III, 4, 5 (except Hamilton County); Kan. Const., 1859, Art. 2, 2; Art. 10. The Kansas provisions require periodic apportionment based on censuses, but do not in terms demand equal districts. [ Footnote 91 ] Ohio Const., 1851, Art. XI, 1 to 5. See Art. XI, 6 to 9 for Senate apportionment. [ Footnote 92 ] Me. Const., 1819, Art. IV, Pt. First, 2, 3. See Art. IV, Pt. Second, 2, for Senate apportionment based on numbers. [ Footnote 93 ] Mo. Const., 1865, Art. IV, 2, 7, 8. See Art. IV, 4 to 8, for Senate apportionment based on numbers. [ Footnote 94 ] Towns smaller than one hundred and fifty, if so situated that it was "very inconvenient" to join them to other towns for voting purposes, might be permitted by the legislature to send a representative. [ Footnote 95 ] N. H. Const., 1792, Pt. Second, IX to XI; Pt. Second, XXVI. [ Footnote 96 ] Pa. Const., 1838, as amended, Art. I, 4, 6, 7. [ Footnote 97 ] Conn. Const., 1818, Art. Third, 3. [ Footnote 98 ] Vt. Const., 1793, c. II, 7. [ Footnote 99 ] R. I. Const., 1842, Art. VI, 1. [ Footnote 100 ] N. J. Const., 1844, Art. IV, 2, cl. One. [ Footnote 101 ] Conn. Const., 1818, Amend. II. [ Footnote 102 ] Vt. Const., 1793, Amend. 23. [ Footnote 103 ] N. J. Const., 1844, Art. IV, 3, cl. One. [ Footnote 104 ] R. I. Const., 1842, Art. V, 1. [ Footnote 105 ] Ark. Const., 1868, Art. V, 8, 9; Va. Const., 1864, Art. IV, 6 (this constitution was in effect when Virginia ratified the Fourteenth Amendment); Va. Const., 1870, Art. V, 4 (this was Virginia's Reconstruction-Act convention constitution); Miss. Const., 1868, Art. IV, 33 to 35; Tex. Const., 1868, Art. III, 11, 34. The Virginia Constitutions and Texas' provisions for apportioning its lower chamber do not in terms require equality of numbers, although they call for reapportionment following a census. In Arkansas, the legislature was authorized, but not commanded, to reapportion periodically; it is not clear that equality was required. [ Footnote 106 ] N.C. Const., 1868, Art. II, 6, 7. See Art. II, 5, for Senate apportionment based on numbers. [ Footnote 107 ] S. C. Const., 1868, Art. I, 34; Art. II, 4 to 6. [ Footnote 108 ] La. Const., 1868, Tit. II, Arts. 20, 21. See Tit. II, Arts. 28 to 30, for Senate apportionment based on numbers.

[ Footnote 109 ] Ala. Const., 1867, Art. VIII, 1. See Art. VIII, 3, for Senate apportionment based on numbers. [ Footnote 110 ] S. C. Const., 1868, Art. II, 8. [ Footnote 111 ] Fla. Const., 1868, Art. XIV, par. 1. See Art. XIV, par. 2, for Senate apportionment. [ Footnote 112 ] Ga. Const., 1868, Art. III, 2. The extent of legislative authority to alter these districts is unclear, but it appears that the structure of three contiguous counties for each of forty-four districts is meant to be permanent. [ Footnote 113 ] Ga. Const., 1868, Art. III, 3. The extent of legislative authority to alter the apportionment is unclear, but it appears that the three-tiered structure is meant to be permanent. [ Footnote 114 ] See, e. g., Durfee, Apportionment of Representation in the Legislature: A Study of State Constitutions, 43 Mich. L. Rev. 1091, 1097 (1945); Short, States That Have Not Met Their Constitutional Requirements, 17 Law & Contemp. Prob. 377 (1952); Harvey, Reapportionments of State Legislatures - Legal Requirements, 17 Law & Contemp. Prob. 364, 370 (1952). For an excellent case study of numerical inequalities deriving solely from a one-member-per-county minimum provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat. Mun. Rev. 189, 191-192 (1957). [ Footnote 115 ] Dauer and Kelsay, Unrepresentative States, 44 Nat. Mun. Rev. 571, 574 (1955). (This is the effect of a later Georgia constitutional provision, Ga. Const., 1945, 2-1501, substantially similar to that of 1868.) The same three-tiered system has subsequently been adopted in Florida, Fla. Const., 1885, Art. VII, 3, 4, where its effects have been inequalities of the order of eighty to one. Dauer and Kelsay, supra, at 575, 587. [ Footnote 116 ] The constitutions discussed are those under which the new States entered the Union. [ Footnote 117 ] Colo. Const., 1876, Art. V, 45, 47; N. D. Const., 1889, Art. 2, 29, 35; S. D. Const., 1889, Art. III, 5; Wash. Const., 1889, Art. II, 3, 6; Utah Const., 1895, Art. IX, 2, 4; N. M. Const., 1911, Art. IV, following 41. The Colorado and Utah Constitutions provide for reapportionment "according to ratios to be fixed by law" after periodic census and enumeration. In New Mexico the legislature is authorized, but not commanded, to reapportion periodically. North Dakota does not in terms demand equality in House representation; members are to be assigned among the several senatorial districts, which are of equal population. [ Footnote 118 ] Wyo. Const., 1889, Art. III, Legislative Department, 3; Art. III, Apportionment, 2, 3. [ Footnote 119 ] Idaho Const., 1889, Art. III, 4. [ Footnote 120 ] Okla. Const., 1907, Art. V, 10 (b) to (j). See Art. V, 9 (a), 9 (b) for Senate apportionment based on numbers. [ Footnote 121 ] Mont. Const., 1889, Art. VI, 2, 3. [ Footnote 122 ] Mont. Const., 1889, Art. V, 4; Art. VI, 4. The effective provisions are, first, that there shall be no more than one senator from each county, and, second, that no senatorial district shall consist of more than one county. [ Footnote 123 ] Alaska Const., 1956, Art. VI, 7; Art. XIV, 2. The exact boundaries of the districts may be modified to conform to changes in House districts, but their numbers of senators and their approximate perimeters are to be preserved. [ Footnote 124 ] Hawaii Const., 1950, Art. III, 2. [ Footnote 125 ] Alaska Const., 1956, Art. VI, 3, 4, 6. The method of equal proportions is used. [ Footnote 126 ] Hawaii Const., 1950, Art. III, 4. The method of equal proportions is used, and, for subapportionment within the four "basic" areas, a form of moiety rule obtains.

[ Footnote 127 ] Ariz. Const., 1910, Art. IV, Pt. 2, 1. On the basis of 1910 census figures, this apportionment yielded, for example, a senatorial-ratio differential of more than four to one between Mohave and Cochise or between Mohave and Maricopa Counties. II Thirteenth Census of the United States (1910), 71-73. [ Footnote 128 ] The pertinent state constitutional provisions are set forth in tabular form in XIII Book of the States (1960-1961), 54-58; and Greenfield, Ford and Emery, Legislative Reapportionment: California in National Perspective (University of California, Berkeley, 1959), 81-85. An earlier treatment now outdated in several respects but still useful is Durfee, supra, note 114. See discussions in Harvey, supra, note 114; Shull, Political and Partisan Implications of State Legislative Apportionment, 17 Law & Contemp. Prob. 417, 418-421 (1952). [ Footnote 129 ] Nebraska's unicameral legislature is included in this count. [ Footnote 130 ] Greenfield, Ford and Emery, supra, note 128, at 7. [ Footnote 131 ] Harvey, supra, note 114, at 367. See Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md. L. Rev. 277, 282-283 (1956). [ Footnote 132 ] See, e. g., Mather and Ray, The Iowa Senatorial Districts Can Be Reapportioned - A Possible Plan, 39 Iowa L. Rev. 535, 536-537 (1954). [ Footnote 133 ] See, e. g., Walter, Reapportionment and Urban Representation, 195 Annals of the American Academy of Political and Social Science 11, 12-13 (1938); Bone, supra, note 87. Legislative inaction and state constitutional provisions rejecting the principle of equal numbers have both contributed to the generally prevailing numerical inequality of representation in this country. Compare Walter, supra, with Baker, One Vote, One Value, 47 Nat. Mun. Rev. 16, 18 (1958). [ Footnote 134 ] See, e. g., Griffith 116-117; Luce 364-367, 370; Merriam, American Political Ideas (1929), 244245; Legislation, Apportionment of the New York State Senate, 31 St. John's L. Rev. 335, 341-342 (1957). [ Footnote 135 ] In 1947, the Boundary Commission for England, ". . . impressed by the advantages of accessibility [that large compact urban regions] . . . enjoy over widely scattered rural areas . . . came to the conclusion that they could conveniently support electorates in excess of the electoral quota, and would in the majority of cases prefer to do so rather than suffer severance of local unity for parliamentary purposes" - that "in general urban constituencies could more conveniently support large electorates than rural constituencies . . . ." Initial Report of the Boundary Commission for England [Cmd. 7260] (1947), 5. See also Mackenzie 110-111; De Grazia, General Theory of Apportionment, 17 Law & Contemp. Prob. 256, 261-262 (1952). [ Footnote 136 ] See Walter, supra, note 133; Walter, Reapportionment of State Legislative Districts, 37 III. L. Rev. 20, 37-38 (1942). The urban-rural conflict is often the core of apportionment controversy. See Durfee, supra, note 114, at 1093-1094; Short, supra, note 114, at 381. [ Footnote 137 ] Baker, Rural Versus Urban Political Power (1955), 11-19; MacNeil, Urban Representation in State Legislatures, 18 State Government 59 (1945); United States Conference of Mayors, Government Of the People, By the People, For the People (ca. 1947). [ Footnote 138 ] See, in addition to the authorities cited in notes 130, 131, 136 and 137, supra, and 140 to 144, infra, (all containing other examples than those remarked in text), Hurst, The Growth of American Law, The Law Makers (1950), 41-42; American Political Science Assn., Committee on American Legislatures, American State Legislatures (Zeller ed. 1954), 34-35; Gosnell, Democracy, The Threshold of Freedom (1948), 179-181; Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat. Civ. Rev. 184, 185-186 (1960); 106 Cong. Rec. 14901-14916 (remarks of Senator Clark and supporting materials); H. R. Rep. No. 2533, 85th Cong., 2d Sess. 24; H. R. Doc. No. 198, 84th Cong., 1st Sess. 38-40; Hadwiger, Representation in the Missouri General Assembly, 24 Mo. L. Rev. 178, 180-181 (1959); Hamilton, Beardsley and Coats, Legislative Reapportionment in Indiana: Some Observations and a Suggestion, 35 Notre Dame Law. 368-370 (1960); Corter, Pennsylvania Ponders Apportionment, 32 Temple L. Q. 279, 283-288 (1959). Concerning the classical gerrymander, see Griffith, passim; Luce 395-404;

Brooks, Political Parties and Electoral Problems (3d ed. 1933), 472-481. For foreign examples of numerical disproportion, see Hogan, Election and Representation (1945), 95; Finer, Theory and Practice of Modern Government (Rev. ed. 1949), 551-552. [ Footnote 139 ] Baker, supra, note 137, at 11. Recent New Jersey legislation provides for reapportionment of the State's lower House by executive action following each United States census subsequent to that of 1960. N. J. Laws 1961, c. 1. The apportionment is to be made on the basis of population, save that each county is assured at least one House seat. In the State's Senate, however, by constitutional command, each county elects a single senator, regardless of population. N. J. Const., 1947, Art. IV, II, par. 1. [ Footnote 140 ] Note, 42 Minn. L. Rev. 617, 618-619 (1958). [ Footnote 141 ] Greenfield, Ford and Emery, supra, note 128, at 3. [ Footnote 142 ] University of Oklahoma, Bureau of Government Research, The Apportionment Problem in Oklahoma (1959), 16-29. [ Footnote 143 ] 1 Labor's Economic Rev. 89, 96 (1956). [ Footnote 144 ] Dauer and Kelsay, Unrepresentative States, 44 Nat. Mun. Rev. 571, 572, 574 (1955). [ Footnote 145 ] See the Second Schedule to the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26, 2, and the English experience described in text at notes 50 to 61, supra. See also the Report of the Assembly Interim Committee on Elections and Reapportionment, California Assembly (1951) (hereafter, California Committee Report), 37: "The geographic - the socio-economic - the desires of the people - the desires of the elected officeholders - the desires of political parties - all these can and do legitimately operate not only within the framework of the `relatively equal in population districts' factor, but also within the factors of contiguity and compactness. The county and Assembly line legal restrictions operate outside the framework of theoretically `equal in population districts.' All the factors might conceivably have the same weight in one situation; in another, some factors might be considerably more important than others in making the final determination." A Virginia legislative committee adverted to ". . . many difficulties such as natural topographical barriers, divergent business and social interests, lack of communication by rail or highway, and disinclinations of communities to breaking up political ties of long standing, resulting in some cases of districts requesting to remain with populations more than their averages rather than have their equal [369 U.S. 186, 324] representation with the changed conditions." Report of the Joint Committee on the Re-apportionment of the State into Senatorial and House Districts, Virginia General Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And the Tennessee State Planning Commission, concerning the problem of congressional redistricting in 1950, spoke of a "tradition [which] relates to the sense of belonging - loyalties to groups and items of common interest with friends and fellow citizens of like circumstance, environment or region." Tennessee State Planning Commission, Pub. No. 222, Redistricting for Congress (1950), first page. [ Footnote 146 ] See, e. g., California Committee Report, at 52. ". . . [T]he reapportionment process is, by its very nature, political. . . . There will be politics in reapportionment as long as a representative form of government exists . . . . "It is impossible to draw a district boundary line without that line's having some political significance. . . ." [ Footnote 147 ] See, e. g., Celler, Congressional Apportionment - Past, Present, and Future, 17 Law & Contemp. Prob. 268 (1952), speaking of the history of congressional apportionment: ". . . A mere reading of the debates [from the Constitutional Convention down to contemporary Congresses] on this question of apportionment reveals the conflicting interests of the large and small states and the extent to which partisan politics permeates the entire problem." [ Footnote 148 ] See Standards for Congressional Districts (Apportionment), Hearings before Subcommittee No. 2 of the Committee on the [369 U.S. 186, 325] Judiciary, House of Representatives, 86th Cong., 1st Sess. 23, concerning a proposed provision for judicial enforcement of certain standards in the laying out of districts:

"Mr. KASEM. You do not think that that [a provision embodying the language: `in as compact form as practicable'] might result in a decision depending upon the political inclinations of the judge? "Mr. CELLER. Are you impugning the integrity of our Federal judiciary? "Mr. KASEM. No; I just recognize their human frailties." For an instance of a court torn, in fact or fancy, over the political issues involved in reapportionment, see State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S. W. 1017, and especially the dissenting opinion of Higbee, J., 290 Mo., at 613, 235 S. W., at 1037. [ Footnote 149 ] See text at notes 139-143, supra. [ Footnote 150 ] Decisions of state courts which have entertained apportionment cases under their respective state constitutions do not, of course, involve the very different considerations relevant to federal judicial intervention. State-court adjudication does not involve the delicate problems of federal-state relations which would inhere in the exercise of federal judicial power to impose restrictions upon the States' shaping of their own governmental institutions. Moreover, state constitutions generally speak with a specificity totally lacking in attempted utilization of the generalities of the Fourteenth Amendment to apportionment matters. Some expressly commit apportionment to state judicial review, see, e. g., N. Y. Const., 1938, Art. III, 5, and even where they do not, they do precisely fix the criteria for judicial judgment respecting the allocation of representative strength within the electorate. See, e. g., Asbury Park Press. Inc., v. Woolley. 33 N. J. 1, 161 A. 2d 705. [ Footnote 151 ] Appellants' suggestion that, although no relief may need be given, jurisdiction ought to be retained as a "spur" to legislative action does not merit discussion. [ Footnote 152 ] See note 24, supra. Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER joins. The dissenting opinion of MR. JUSTICE FRANKFURTER, in which I join, demonstrates the abrupt departure the majority makes from judicial history by putting the federal courts into this area of state concerns an area which, in this instance, the Tennessee state courts themselves have refused to enter. It does not detract from his opinion to say that the panorama of judicial history it unfolds, though evincing a steadfast underlying principle of keeping the federal courts out of these domains, has a tendency, because of variants in expression, to becloud analysis in a given case. With due respect to the majority, I think that has happened here. Once one cuts through the thicket of discussion devoted to "jurisdiction," "standing," "justiciability," and "political [369 U.S. 186, 331] question," there emerges a straightforward issue which, in my view, is determinative of this case. Does the complaint disclose a violation of a federal constitutional right, in other words, a claim over which a United States District Court would have jurisdiction under 28 U.S.C. 1343 (3) and 42 U.S.C. 1983? The majority opinion does not actually discuss this basic question, but, as one concurring Justice observes, seems to decide it "sub silentio." Ante, p. 261. However, in my opinion, appellants' allegations, accepting all of them as true, do not, parsed down or as a whole, show an infringement by Tennessee of any rights assured by the Fourteenth Amendment. Accordingly, I believe the complaint should have been dismissed for "failure to state a claim upon which relief can be granted." Fed. Rules Civ. Proc., Rule 12 (b) (6). It is at once essential to recognize this case for what it is. The issue here relates not to a method of state electoral apportionment by which seats in the federal House of Representatives are allocated, but solely to the right of a State to fix the basis of representation in its own legislature. Until it is first decided to what extent that right is limited by the Federal Constitution, and whether what Tennessee has done or failed to do in this instance runs afoul of any such limitation, we need not reach the issues of "justiciability" or "political question" or any of the other considerations which in such cases as Colegrove v. Green, 328 U.S. 549 , led the Court to decline to adjudicate a challenge to a state apportionment affecting seats in the federal House of Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287 U.S. 1 . The appellants' claim in this case ultimately rests entirely on the Equal Protection Clause of the Fourteenth Amendment. It is asserted that Tennessee has violated the Equal Protection Clause by maintaining in effect a [369 U.S. 186, 332] system of apportionment that grossly favors in legislative representation the rural

sections of the State as against its urban communities. Stripped to its essentials the complaint purports to set forth three constitutional claims of varying breadth: (1) The Equal Protection Clause requires that each vote cast in state legislative elections be given approximately equal weight. (2) Short of this, the existing apportionment of state legislators is so unreasonable as to amount to an arbitrary and capricious act of classification on the part of the Tennessee Legislature, which is offensive to the Equal Protection Clause. (3) In any event, the existing apportionment is rendered invalid under the Fourteenth Amendment because it flies in the face of the Tennessee Constitution. For reasons given in MR. JUSTICE FRANKFURTER'S opinion, ante, pp. 325-327, the last of these propositions is manifestly untenable, and need not be dealt with further. I turn to the other two. I. I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to reflect with approximate equality the voice of every voter. Not only is that proposition refuted by history, as shown by my Brother FRANKFURTER, but it strikes deep into the heart of our federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters of basically local concern. [369 U.S. 186, 333] In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. To consider that we may ignore the Tennessee Legislature's judgment in this instance because that body was the product of an asymmetrical electoral apportionment would in effect be to assume the very conclusion here disputed. Hence we must accept the present form of the Tennessee Legislature as the embodiment of the State's choice, or, more realistically, its compromise, between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State's internal political conflict is desirable or undesirable, wise or unwise. With respect to state tax statutes and regulatory measures, for example, it has been said that the "day is gone when this Court uses the . . . Fourteenth Amendment to strike down state laws . . . because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488 . I would think it all the more compelling for us to follow this principle of self-restraint when what is involved is the freedom of a State to deal with so intimate a concern as the structure of its own legislative branch. The Federal Constitution imposes no limitation on the form which a state government may take other than generally committing to the United States the duty to guarantee to every State "a Republican Form of Government." And, as my Brother FRANKFURTER so conclusively proves (ante, pp. 308-317), no intention to fix immutably the [369 U.S. 186, 334] means of selecting representatives for state governments could have been in the minds of either the Founders or the draftsmen of the Fourteenth Amendment. In short, there is nothing in the Federal Constitution to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people. I would have thought this proposition settled by MacDougall v. Green, 335 U.S. 281 , in which the Court observed (at p. 283) that to "assume that political power is a function exclusively of numbers is to disregard the practicalities of government," and reaffirmed by South v. Peters, 339 U.S. 276 . A State's choice to distribute electoral strength among geographical units, rather than according to a census of population, is certainly no less a rational decision of policy than would be its choice to levy a tax on property rather than a tax on income. Both are legislative judgments entitled to equal respect from this Court. II. The claim that Tennessee's system of apportionment is so unreasonable as to amount to a capricious classification of voting strength stands up no better under dispassionate analysis.

The Court has said time and again that the Equal Protection Clause does not demand of state enactments either mathematical identity or rigid equality. E. g., Allied Stores of Ohio v. Bowers, 358 U.S. 522, 527 -528, and authorities there cited; McGowan v. Maryland, 366 U.S. 420, 425 -426. All that is prohibited is "invidious discrimination" bearing no rational relation to any permissible policy of the State. Williamson v. Lee Optical Co., supra, at 489. And in deciding whether such discrimination has been practiced by a State, it must be borne in mind that a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived [369 U.S. 186, 335] to justify it." McGowan v. Maryland, supra. It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it. What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, 364 U.S. 339 , or that some religious group is intentionally underrepresented. Nor is it a charge that the legislature has indulged in sheer caprice by allotting representatives to each county on the basis of a throw of the dice, or of some other determinant bearing no rational relation to the question of apportionment. Rather, the claim is that the State Legislature has unreasonably retained substantially the same allocation of senators and representatives as was established by statute in 1901, refusing to recognize the great shift in the population balance between urban and rural communities that has occurred in the meantime. It is further alleged that even as of 1901 the apportionment was invalid, in that it did not allocate state legislators among the counties in accordance with the formula set out in Art. II, 5, of the Tennessee Constitution. In support of this the appellants have furnished a Table which indicates that as of 1901 six counties were overrepresented and 11 were underrepresented. But that Table in fact shows nothing in the way of significant discrepancy; in the instance of each county it is only one representative who is either lacking or added. And it is further perfectly evident that the variations are attributable to nothing more than the circumstance that the then enumeration of voters resulted in fractional remainders with respect to which the precise formula of the Tennessee Constitution was in some [369 U.S. 186, 336] instances slightly disregarded. Unless such de minimis departures are to be deemed of significance, these statistics certainly provide no substantiation for the charge that the 1901 apportionment was arbitrary and capricious. Indeed, they show the contrary. Thus reduced to its essentials, the charge of arbitrariness and capriciousness rests entirely on the consistent refusal of the Tennessee Legislature over the past 60 years to alter a pattern of apportionment that was reasonable when conceived. A Federal District Court is asked to say that the passage of time has rendered the 1901 apportionment obsolete to the point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one that involves a classic legislative judgment? Surely it lies within the province of a state legislature to conclude that an existing allocation of senators and representatives constitutes a desirable balance of geographical and demographical representation, or that in the interest of stability of government it would be best to defer for some further time the redistribution of seats in the state legislature. Indeed, I would hardly think it unconstitutional if a state legislature's expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State's agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, e. g., American Sugar Rfg. Co. v. Louisiana, 179 U.S. 89 , and recognition of the special problems of agricultural interests has repeatedly been reflected in federal legislation, e. g., Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of 1938, 52 Stat. 31. Even the exemption of agricultural activities from state criminal statutes of otherwise general application has not been deemed offensive to the Equal Protection Clause. [369 U.S. 186, 337] Tigner v. Texas, 310 U.S. 141 . Does the Fourteenth Amendment impose a stricter limitation upon a State's apportionment of political representatives to its central government? I think not. These are matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment. The suggestion of my Brother FRANKFURTER that courts lack standards by which to decide such cases as this, is relevant not only to the question of "justiciability," but also, and perhaps more fundamentally, to the

determination whether any cognizable constitutional claim has been asserted in this case. Courts are unable to decide when it is that an apportionment originally valid becomes void because the factors entering into such a decision are basically matters appropriate only for legislative judgment. And so long as there exists a possible rational legislative policy for retaining an existing apportionment, such a legislative decision cannot be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords. Certainly, with all due respect, the facile arithmetical argument contained in Part II of my Brother CLARK'S separate opinion (ante, pp. 253-258) provides no tenable basis for considering that there has been such a breach in this instance. (See the Appendix to this opinion.) These conclusions can hardly be escaped by suggesting that capricious state action might be found were it to appear that a majority of the Tennessee legislators, in refusing to consider reapportionment, had been actuated by self-interest in perpetuating their own political offices or by other unworthy or improper motives. Since Fletcher v. Peck, 6 Cranch 87, was decided many years ago, it has repeatedly been pointed out that it is not the business of the federal courts to inquire into the personal motives of legislators. E. g., Arizona v. California, 283 U.S. 423, 455 & n. 7. The function of the federal judiciary ends in [369 U.S. 186, 338] matters of this kind once it appears, as I think it does here on the undisputed facts, that the state action complained of could have rested on some rational basis. (See the Appendix to this opinion.) It is my view that the majority opinion has failed to point to any recognizable constitutional claim alleged in this complaint. Indeed, it is interesting to note that my Brother STEWART is at pains to disclaim for himself, and to point out that the majority opinion does not suggest, that the Federal Constitution requires of the States any particular kind of electoral apportionment, still less that they must accord to each voter approximately equal voting strength. Concurring opinion, ante, p. 265. But that being so, what, may it be asked, is left of this complaint? Surely the bare allegations that the existing Tennessee apportionment is "incorrect," "arbitrary," "obsolete" and "unconstitutional" - amounting to nothing more than legal conclusions - do not themselves save the complaint from dismissal. See Snowden v. Hughes, 321 U.S. 1 ; Collins v. Hardyman, 341 U.S. 651 . Nor do those allegations shift to the appellees the burden of proving the constitutionality of this state statute; as is so correctly emphasized by my Brother STEWART (ante, p. 266), this Court has consistently held in cases arising under the Equal Protection Clause that "`the burden of establishing the unconstitutionality of a statute rests on him who assails it.' Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 ." (Emphasis added.) Moreover, the appellants do not suggest that they could show at a trial anything beyond the matters previously discussed in this opinion, which add up to nothing in the way of a supportable constitutional challenge against this statute. And finally, the majority's failure to come to grips with the question whether the complaint states a claim cognizable under the Federal Constitution - an issue necessarily presented by appellees' motion to dismiss - [369 U.S. 186, 339] does not of course furnish any ground for permitting this action to go to trial. From a reading of the majority and concurring opinions one will not find it difficult to catch the premises that underlie this decision. The fact that the appellants have been unable to obtain political redress of their asserted grievances appears to be regarded as a matter which should lead the Court to stretch to find some basis for judicial intervention. While the Equal Protection Clause is invoked, the opinion for the Court notably eschews explaining how, consonant with past decisions, the undisputed facts in this case can be considered to show a violation of that constitutional provision. The majority seems to have accepted the argument, pressed at the bar, that if this Court merely asserts authority in this field, Tennessee and other "malapportioning" States will quickly respond with appropriate political action, so that this Court need not be greatly concerned about the federal courts becoming further involved in these matters. At the same time the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled. Thus, what the Court is doing reflects more an adventure in judicial experimentation than a solid piece of constitutional adjudication. Whether dismissal of this case should have been for want of jurisdiction or, as is suggested in Bell v. Hood, 327 U.S. 678, 682 -683, for failure of the complaint to state a claim upon which relief could be granted, the judgment of the District Court was correct. In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break [369 U.S. 186, 340] with the past. Those who consider that continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication, will view the decision with deep concern.

I would affirm. APPENDIX TO OPINION OF MR. JUSTICE HARLAN. THE INADEQUACY OF ARITHMETICAL FORMULAS AS MEASURES OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT. Two of the three separate concurring opinions appear to concede that the Equal Protection Clause does not guarantee to each state voter a vote of approximately equal weight for the State Legislature. Whether the existing Tennessee apportionment is constitutional is recognized to depend only on whether it can find "any possible justification in rationality" (ante, p. 265); it is to be struck down only if "the discrimination here does not fit any pattern" (ante, p. 258). One of the concurring opinions, that of my Brother STEWART, suggests no reasons which would justify a finding that the present distribution of state legislators is unconstitutionally arbitrary. The same is true of the majority opinion. My Brother CLARK, on the other hand, concludes that "the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions" (ante, p. 254), solely on the basis of certain statistics presented in the text of his separate opinion and included in a more extensive Table appended thereto. In my view, that analysis is defective not only because the "total representation" formula set out in footnote 7 of the opinion (ante, p. 255), rests on faulty mathematical foundations, but, more basically, because the approach taken wholly [369 U.S. 186, 341] ignores all other factors justifying a legislative determination of the sort involved in devising a proper apportionment for a State Legislature. In failing to take any of such other matters into account and in focusing on a particular mathematical formula which, as will be shown, is patently unsound, my Brother CLARK'S opinion has, I submit, unwittingly served to bring into bas-relief the very reasons that support the view that this complaint does not state a claim on which relief could be granted. For in order to warrant holding a state electoral apportionment invalid under the Equal Protection Clause, a court, in line with well-established constitutional doctrine, must find that none of the permissible policies and none of the possible formulas on which it might have been based could rationally justify particular inequalities. I. At the outset, it cannot be denied that the apportionment rules explicitly set out in the Tennessee Constitution are rational. These rules are based on the following obviously permissible policy determinations: (1) to utilize counties as electoral units; (2) to prohibit the division of any county in the composition of electoral districts; (3) to allot to each county that has a substantial voting population - at least two-thirds of the average voting population per county - a separate "direct representative"; (4) to create "floterial" districts (multicounty representative districts) made up of more than one county; and (5) to require that such districts be composed of adjoining counties. 1 Such a framework unavoidably [369 U.S. 186, 342] leads to unreliable arithmetic inequalities under any mathematical formula whereby the counties' "total representation" is sought to be measured. It particularly results in egregiously deceptive disparities if the formula proposed in my Brother CLARK'S opinion is applied. That formula computes a county's "total representation" by adding (1) the number of "direct representatives" the county is entitled to elect; (2) a fraction of any other seats in the Tennessee House which are allocated to that county jointly with one or more others in a "floterial district"; (3) triple the number of senators the county is entitled to elect alone; and (4) triple a fraction of any seats in the Tennessee Senate which are allocated to that county jointly with one or more others in a multicounty senatorial district. The fractions used for items (2) and (4) are computed by allotting to each county in a combined district an equal share of the House or Senate seat, regardless of the voting population of each of the counties that make up the election district. 2 [369 U.S. 186, 343] This formula is patently deficient in that it eliminates from consideration the relative voting power of the counties that are joined together in a single election district. As a result, the formula unrealistically assigns to Moore County one-third of a senator, in addition to its direct representative (ante, p. 255), although it must be obvious that Moore's voting strength in the Eighteenth Senatorial District is almost negligible. Since Moore County could cast only 2,340 votes of a total eligible vote of 30,478 in the senatorial district, it should in truth

be considered as represented by one-fifteenth of a senator. Assuming, arguendo, that any "total representation" figure is of significance, Moore's "total representation" should be 1.23, not 2. 3 The formula suggested by my Brother CLARK must be adjusted regardless whether one thinks, as I assuredly do not, that the Federal Constitution requires that each vote be given equal weight. The correction is necessary simply to reflect the real facts of political life. It may, of course, be true that the floterial representative's "function [369 U.S. 186, 344] is to represent the whole district" (ante, p. 256). But can it be gainsaid that so long as elections within the district are decided not by a county-unit system, in which each county casts one vote, but by adding the total number of individual votes cast for each candidate, the concern of the elected representatives will primarily be with the most populous counties in the district? II. I do not mean to suggest that any mathematical formula, albeit an "adjusted" one, would be a proper touchstone to measure the rationality of the present or of appellants' proposed apportionment plan. For, as the Table appended to my Brother CLARK'S opinion so conclusively shows, whether one applies the formula he suggests or one that is adjusted to reflect proportional voting strength within an election district, no plan of apportionment consistent with the principal policies of the Tennessee Constitution could provide proportionately equal "total representation" for each of Tennessee's 95 counties. The pattern suggested by the appellants in Exhibits "A" and "B" attached to their complaint is said to be a "fair distribution" which accords with the Tennessee Constitution, and under which each of the election districts represents approximately equal voting population. But even when tested by the "adjusted" formula, the plan reveals gross "total representation" disparities that would make it appear to be a "crazy quilt." For example, Loudon County, with twice the voting population of Humphreys County would have less representation than Humphreys, and about one-third the representation of Warren County, which has only 73 more voters. Among the more populous counties, similar discrepancies would appear. Although Anderson County has only somewhat over 10% more voters than Blount County, it would have [369 U.S. 186, 345] approximately 75% more representation. And Blount would have approximately two-thirds the representation of Montgomery County, which has about 13% less voters. 4 III. The fault with a purely statistical approach to the case at hand lies not with the particular mathematical formula used, but in the failure to take account of the fact that a multitude of legitimate legislative policies, along with circumstances of geography and demography, could account for the seeming electoral disparities among counties. The principles set out in the Tennessee Constitution are just some of those that were deemed significant. Others may have been considered and accepted by those entrusted with the responsibility for Tennessee's apportionment. And for the purposes of judging constitutionality under the Equal Protection Clause it must be remembered that what is controlling on the issue of "rationality" is not what the State Legislature may actually have considered but what it may be deemed to have considered. For example, in the list of "horribles" cited by my Brother CLARK (ante, p. 255), all the "underrepresented" counties are semiurban: all contain municipalities of over 10,000 population. 5This is not to say, however, that the [369 U.S. 186, 346] presence of any such municipality within a county necessarily demands that its proportional representation be reduced in order to render it consistent with an "urban versus rural" plan of apportionment. Other considerations may intervene and outweigh the Legislature's desire to distribute seats so as to achieve a proper balance between urban and rural interests. The size of a county, in terms of its total area, may be a factor. 6 Or the location within a county of some major industry may be thought to call for dilution of voting strength. 7 Again, the combination of certain smaller counties with their more heavily populated neighbors in senatorial or "floterial" districts may result in apparent arithmetic inequalities. 8 More broadly, the disparities in electoral strength among the various counties in Tennessee, both those relied upon by my Brother CLARK and others, may be [369 U.S. 186, 347] accounted for by various economic, 9 political, 10 and geographic 11 considerations. No allegation is made by the appellants that the existing apportionment is the result of any other forces than are always at work in any legislative process; and the record, briefs, and arguments in this Court themselves attest to the fact that the appellants could put forward nothing further at a trial.

By disregarding the wide variety of permissible legislative considerations that may enter into a state electoral apportionment my Brother CLARK has turned a highly complex process into an elementary arithmetical puzzle. [369 U.S. 186, 348] It is only by blinking reality that such an analysis can stand and that the essentially legislative determination can be made the subject of judicial inquiry. IV. Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this result by providing for minimum and maximum representation from various political subdivisions such as counties, districts, cities, or towns. See Harvey, Reapportionments of State Legislatures - Legal Requirements, 17 Law & Contemp. Probs. (1952), 364, 368-372. It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature's continued refusal to recognize the growth of the urban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. And I understand it to be conceded by at least some of the majority that this policy is not [369 U.S. 186, 349] rendered unconstitutional merely because it favors rural voters. Once the electoral apportionment process is recognized for what it is - the product of legislative give-and-take and of compromise among policies that often conflict - the relevant constitutional principles at once put these appellants out of the federal courts. [ Footnote 1 ] The relevant provisions of the Tennessee Constitution are Art. II, 5 and 6: "Sec. 5. Apportionment of representatives. - The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the [369 U.S. 186, 342] number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having twothirds of the ratio shall be entitled to one member. "Sec. 6. Apportionment of senators. - The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no counties shall be divided in forming a district." [ Footnote 2 ] This formula is not clearly spelled out in the opinion, but it is necessarily inferred from the figures that are presented. Knox County, for example, is said to have a "total representation" of 7.25. It [369 U.S. 186, 343] elects (1) three direct representatives (value 3.00); (2) one representative from a two-county district (value .50); (3) one direct senator (value 3.00); and (4) one senator in a four-county district (value .75). See Appendix to opinion of MR. JUSTICE CLARK, ante, pp. 262-264. [ Footnote 3 ] If this "adjusted" formula for measuring "total representation" is applied to the other "horribles" cited in the concurring opinion (ante, p. 255), it reveals that these counties - which purportedly have equal "total representation" but distinctly unequal voting population - do not have the same "total representation" at all. Rather than having the same representation as Rutherford County, Moore County has only about 40% of what Rutherford has. Decatur County has only 55% of the representation of Carter County. While Loudon and Anderson Counties are substantially underrepresented, this is because of their proximity to Knox County, which outweighs their votes in the Sixth Senatorial District and in the Eighth Floterial District.

[ Footnote 4 ] These disparities are as serious, if not more so, when my Brother CLARK'S formula is applied to the appellants' proposal. For example, if the seven counties chosen by him as illustrative are examined as they would be represented under the appellants' distribution, Moore County, with a voting population of 2,340, is given more electoral strength than Decatur County, with a voting population of 5,563. Carter County (voting population 23,302) has 20% more "total representation" than Anderson County (voting population 33,990), and 33% more than Rutherford County (voting population 25,316). [ Footnote 5 ] Murfreesboro, Rutherford County (pop. 16,017); Elizabethton, Carter County (pop. 10,754); Oak Ridge, Anderson County (pop. 27,387). Tennessee Blue Book, 1960, pp. 143-149. [ Footnote 6 ] For example, Carter and Washington Counties are each approximately 60% as large as Maury and Madison Counties in terms of square miles, and this may explain the disparity between their "total representation" figures. [ Footnote 7 ] For example, in addition to being "semi-urban," Blount County is the location of the City of Alcoa, where the Aluminum Company of America has located a large aluminum smelting and rolling plant. This may explain the difference between its "total representation" and that of Gibson County, which has no such large industry and contains no municipality as large as Maryville. [ Footnote 8 ] For example, Chester County (voting population 6,391) is one of those that is presently said to be overrepresented. But under the appellants' proposal, Chester would be combined with populous Madison County in a "floterial district" and with four others, including Shelby County, in a senatorial district. Consequently, its total representation according to the Appendix to my Brother CLARK'S opinion would be .19. (Ante, p. 262.) This would have the effect of disenfranchising all the county's voters. Similarly, Rhea County's almost 9,000 voters would find their voting strength so diluted as to be practically nonexistent. [ Footnote 9 ] For example, it is primarily the eastern portion of the State that is complaining of malapportionment (along with the Cities of Memphis and Nashville). But the eastern section is where industry is principally located and where population density, even outside the large urban areas, is highest. Consequently, if Tennessee is apportioning in favor of its agricultural interests, as constitutionally it was entitled to do, it would necessarily reduce representation from the east. [ Footnote 10 ] For example, sound political reasons surely justify limiting the legislative chambers to workable numbers; in Tennessee, the House is set at 99 and the Senate at 33. It might have been deemed desirable, therefore, to set a ceiling on representation from any single county so as not to deprive others of individual representation. The proportional discrepancies among the four counties with large urban centers may be attributable to a conscious policy of limiting representation in this manner. [ Footnote 11 ] For example, Moore County is surrounded by four counties each of which has sufficient voting population to exceed two-thirds of the average voting population per county (which is the standard prescribed by the Tennessee Constitution for the assignment of a direct representative), thus qualifying for direct representatives. Consequently Moore County must be assigned a representative of its own despite its small voting population because it cannot be joined with any of its neighbors in a multicounty district, and the Tennessee Constitution prohibits combining it with nonadjacent counties. See note 1, supra. [369 U.S. 186, 350]

LOZANO V NOGRALES

ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO, - versus -

G.R. No. 187883 Petitioners,

SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, Respondent. x----------------------x LOUIS BAROK C. BIRAOGO, G.R. No. 187910 Petitioner, Present: - versus SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of the Philippines, Respondent. PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES*, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ. Promulgated: June 16, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x RESOLUTION PUNO, C.J.: This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government."[1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper. The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress. In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners supplications. While some may interpret petitioners moves as

vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes. It is well settled that it is the duty of the judiciary to say what the law is.[2] The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its solemn and sacred obligation under the Constitution.[3] This Courts power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented.[4] The case-or-controversy requirement bans this court from deciding abstract, hypothetical or contingent questions,[5] lest the court give opinions in the nature of advice concerning legislative or executive action.[6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission[7]: Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all.[8] Another approach is the evaluation of the twofoldaspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration.[9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.[10] An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in.[11] In the present case, the fitness of petitioners case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court. Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus: More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being

overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law.[12] Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought.[13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions.[14] The lack of petitioners personal stake in this case is no more evident than in Lozanos three-page petition that is devoid of any legal or jurisprudential basis. Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayers suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation.[15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved.[16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standiunder the transcendental importance doctrine. The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr.,[17] viz.: x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies. xxxx A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today. Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of personal injury to the broader transcendental importance doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit. In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.[18] When warranted by the presence of indispensible minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it. IN VIEW WHEREOF, the petitions are dismissed.

SO ORDERED.

REYNATO S. PUNO Chief Justice WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

(on official leave) CONCHITA CARPIO MORALES Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

* On official leave. [1] Article VIII, Section 1, 1987 Constitution. [2] Marbury v. Madison , 1 Cranch 137, 2L. Ed. 60 [1803]. [3] Angara v. Electoral Commission, 63 Phil. 139 (1936). [4] Ibid. [5] Alabama State Fed. of Labor v. McAdory, 325 U.S. 450 461 (1945). [6] Muskrat v. United States, 219 U.S. 346, 362 (1911). [7] Supra, see note 3. [8] Tribe, American Constitutional Law, 3d ed. 2000, p. 335. [9] Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). [10] Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998). [11] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003). [12] G.R. No. L-34161, February 29, 1972, 43 SCRA 677, 682. [13] Tolentino v. COMELEC, 465 Phil. 385, 402 (2004). [14] Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540. [15] Pascual v. Secretary of Public Works, 110 Phil. 331 (1960). [16] Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81. [17] See Dissent of then Associate Justice Reynato S. Puno, G.R. No. 113375, May 5, 1994, 232 SCRA 110. [18] Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972).