ter, require, that the districts should conform as nearly as may be to county lines in all respects, so that every part of the district lines should be as little distant from the county lines as may be practicable, while the equality of the apportionment is preserved. If the true construction of the constitution be, that it requires, that the districts should conform to county lines as nearly as may be having regard to the number of inhabitants and not to territorial limits; it is not perceived, that a similar result must not be obtained.

For the second question must be presumed to have for its basis a constitutional mode of proceeding to form the two senatorial districts. And on the construction of the constitution, now under consideration, the terms "smaller part," used in the question, must be considered as having reference to a smaller part of the population or number of inhabitants, instead of a smaller part of the territory. And in such case it is unnecessary again to recur to mathematical illustrations to prove, that on this construction of the constitution, by the annexation of a smaller number of inhabitants to the county of Waldo, than were taken from it, the county lines would be less departed from by extending them than by contracting them to exclude the larger number. And that a similar result, by an inverse ratio, would take place with respect to the county of Kennebec, and the district to be formed from the remainder of it. Whichever may be considered as the true construction of the constitution, the spirit of the rule, as well as the letter, would seem to require, that when any apportionment for the State is regarded as one system, as it should be, that it should present the least practicable departures, considered as a whole as well as in districts, from county lines. If this be not necessary, the Legislature, instead of separating from the county of Franklin a part containing the

few thousands of inhabitants more than sufficient to entitle it to send one Senator, and annexing it to some other county; might take a part of Kennebec three times as large and annex it to Franklin to form a district to send two Senators, if the remainder of Kennebec could have been formed into a district with a less number of Senators apportioned equally upon the remaining number of inhabitants. And more than half of a small county mig it be annexed to a large one to form a district, when a small portion of the latter might be annexed to the former to form a district, and the equality of the apportionment be preserved. These are put as examples, merely to illustrate a course of legislation, quite as objectionable in many other cases, which might be pursued, if there be no rule binding upon the Legislature and forbidding in any case a departure from it by the exercise of an enlarged discretion not limited strictly to that, which may necessarily arise, while acting upon the rule. The rule prescribed in the constitution for the apportionment of the Senate is not considered, by the undersigned, as an impracticable one; but as capable of being applied without serious difficulty. And so far as it relates to county lines, in nearly if not quite all cases, with mathematical certainty and exactness. If, however, cases could be presented, in which he perceived that there must be a slight departure from the rule from the necessity of the case, he would not feel at liberty to answer this question differently, from what he now does; because the question submitted does not present or imply, that any such difficulty could arise in applying the rule to the case presented by it. It may be said, that the terms used in the constitution that, "the districts shall conform as near as may be to county lines," permit a departure from them; and that how far it shall extend is submitted to the

sound discretion and judgment of the Legislature. But the very language limits, or more properly prohibits, any such discretion by declaring, that the conformity shall be "as near as may be;" that is, as near as it may be practicable to make them, having regard to the number of inhabitants. The language must have been used to define the rule, not to permit a departure from it at discretion, however soundly and justly exercised it might be. If there may be a sound and a just exercise of discretion, it cannot be overlooked, that there may be also an unsound and unjust exercise of it, if it be permitted at all in any other case, than when it arises out of an absolute moral necessity. And between such a discretion and any other, there is this great and most favorable distinction. It finds its own certain limit in the necessity, which gave rise to it; and it can extend no further than that necessity requires that it should; and it is not therefore liable to be abused. And this is the only discretion, that can in this case be admitted. Again, the constitution requires, that the Senators "shall be apportioned according to the number of inhabitants," and it may not in all cases be possible exactly to conform to this rule. It may not at any time of making an apportionment be possible to assign to each senatorial district the exact number of inhabitants required for any number of Senators without dividing towns or separating their inhabitants, which is inadmissible. And here also it may be said, there must exist a discretion to be exercised by the Legislature making an apportionment. That power, which a legislative body is compelled to exercise by such a moral necessity cannot properly be considered as discretionary. If, however, it be so designated, it is a discretion like that last named, limited in the same manner, and not subject to be abused. There can be no warrant for the exercise of

this kind of discretion, if it may be so called, beyond what is required by the case to be provided for. If the Legisla ture has any other discretion, it is necessarily an unlimited one in practice, however it may be attempted to limit it in theory. And the provisions of the constitution relating to this matter must become in practice merely directory. And an apportionment must then be considered as constitutional, although the county lines should be wholly disregarded and the number of inhabitants required to elect a Senator should be very unequal. It is not intended to intimate, that any one contends for a construction, that would knowingly authorize such results; but it is believed, that such is the legitimate and practical tendency of admitting any other discretion than that, which arises out of an absolute moral necessity. Any other discretion would in effect repeal or annihilate that clause in the constitution, which prescribes the rule for an apportionment, and would therefore violate one of the fundamental rules of interpretation, that effect is to be given to all the language, if it be possible. And without permitting that clause to have effect upon the legislation, the constitution would no longer secure the same rights, that are now believed to be secured; nor would it practically be the same instrument of government.

It may be said, that the manner, in which the power has heretofore been exercised by the Legislature, exhibits a practical construction of the constitution favorable to the exercise of a discretion more enlarged and different from the one herein admitted. If each past exercise of the power should be wholly irreconcilable with the provisions of the constitution in particular cases, if the clause alluded to should be consid ered as excluding a more enlarged discretion; those exercises, so far as they may be regarded as unauthorized by the

constitution, have not been sufficiently well known to be so, and numerous, and free from complaint to authorize the conclusion, that the construction, which would sanction them, would be a correct one, or that the people had acquiesced in it. The second question is therefore answered in the negative.

In attempting to answer the third question, it is proper to observe, that it is a well established rule of law, that an act of a legislative body containing several separate and distinct sections, clauses, or enactments, is not wholly void, because one section, clause, or enactment, may be unconstitutional, and therefore void. It is void so far as it may be unconstitutional, and no farther. When any enactment, which is determined to be unconstitutional is so connected with other enactments, that they cannot without it operate, as the constitution requires, that they should; such other enactments thereby become unconstitutional and inoperative. To such extent as an apportionment is determined not to be made as the constitution requires, that it should be; the State may be considered as not divided into districts for the choice of Senators. And the duty required of the Legislature making it to such extent as unperformed. If such must be the legal result in the present instance, it may be said, that the existing Legislature cannot perform that duty, because the constitution required it of the last and does not now permit it to be done oftener than once in ten years. When however the constitution requires an act to be done at a specified time, and there is an omission to perform it at the time; there is the discretion, if so it may be called, before alluded to, arising out of the moral necessity of the case, and limited to it and by it as before stated. And to deny the right and to withhold the power of performing it at the earliest possible