Shortly stated, this is an attack upon the validity of the Kentucky act of March 12, 1898, and certain amendments thereto, apportioning the state into eleven congressional districts. The bill alleges that the districts do not conform to the requirement of the acts of Congress apportioning representatives among the states, which acts require that such districts shall be of contiguous territory, 'containing as nearly as practicable an equal number of inhabitants.' The averments of the bill are that the districts are grossly and unnecessarily unequal in population.
The bill was filed in an equity court of the state. A demurrer, as not stating a case good in law, was sustained and the bill dismissed. This judgment was affirmed upon an appeal to the court of appeals of Kentucky. The ground upon which the Kentucky court rested its judgment was, in substance, that neither the Constitution of the United States nor of the state contained any provision which vested in the court any authority to annul an apportionment of the state into districts for the election of Congressmen, and that the matter pertained to the political department of the government, and was subject only to the supervising control of the Congress, if any such power of supervision existed at all.
The bill, in substance, alleges that a congressional election in each of the eleven congressional districts of the state will be held in November, 1908. That under the law of Kentucky it is the duty of the defendant H. V. McChesney, as secretary of the commonwealth, or his successor in office at the time, to certify, within sixty days prior to said election, the names of the nominees of the Republican and Democratic parties for members of Congress in each district, to clerks of the various county courts of the state, and the duty of such clerks to print the name so certified upon the official ballots to be used in said congressional election.
The complainant's interest in the matter is that he is a citizen of the United States and of the state of Kentucky, and a qualified voter and resident of Hart county, one of the counties of said state, and as such entitled to vote for a Congressman in the district to which that county is lawfully attached. The act of the general assembly dividing the state in congressional districts prior to the act of March 12, 1898, was an act passed April 15, 1882. By this act of 1882 the counties of Hart, Green, and Taylor formed part of the fourth congressional district. By the act of March 12, 1898, and acts amendatory, the three counties named were made part of the eleventh district, and certain counties were taken from the eleventh and placed in other districts.
The contention is that, the act of 1898 and its amendments being void, because of gross inequality of inhabitants, the aforesaid act of April 15, 1882, is the apportionment act in force, and that the approaching election should be held for the election of eleven members of Congress in the eleven districts organized by the act of 1882, and not in the districts as shaped by the later illegal arrangement.
The object and prayer of the bill is to require the defendant H. V. McChesney, or his successor in office, to proceed in conformity with the apportionment act of April 15, 1882, by certifying the names of party nominees for Congress made in districts organized in conformity with that act, and to require the county court clerks, who are made defendants, to print only the names of nominees so certified upon the ballots for the election of Congressmen at the election to be held in November, 1908, and that said McChesney, or his successor, be restrained from certifying, or the defendant clerks from printing, otherwise.
Without considering the question of the authority for judicial interference in respect to a congressional apportionment act, we are of opinion that this writ of error must be dismissed.
