When the term was originally embraced in the districts "now prescribed by law until the Constitution the Legislatures of Pennsylvania, Georgia, and Vermont consisted of but a single house, with a second body in each, called an executive council. These states later abolished their councils and established a Legislature consisting of two branches, and such is the character generally of the various state Legislatures to-day. 1 Bryce's American Commonwealth, page 461, note.

such state shall be redistricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section 3 of this act." Under the constitutional provision that Congress might, at any time by law, make or alter regulations prescribed by the state Legislature, it had full power to direct, as it did, that Congressmen should be elected by the districts prescribed by the laws of the various states. The ConThe constitutional provision relating to the gress could, under its supervisory control election of Congressmen, conferring the pow-granted by article 1, § 4, of the United States er therein defined upon the various state Constitution, require that a Legislature must Legislatures, should be construed as confer-act with an eye to the referendum. It could ring it upon such bodies as may, from time to require legislative action in accordance with time, assume to exercise legislative power, local state Constitutions. This Congress did, whether that power is lodged in a single or in its apportionment law of August 8, 1911, two-chambered body, or whether the func- when it recognized as lawful newly created tions of the latter be curbed by a popular districts after the state had been "redistrictvote or its enactments approved by a referen- ed in the manner provided by the laws theredum vote. This view was sustained in State of." Section 4 of the original act as introex rel. Schrader v. Polley, 26 S. D. 5, 127 N. duced in Congress contained, after the word W. 848, a case similar to this. The case of "redistricted," the following language: McPherson v. Blacker, 146 U. S. 1, 25, 13 Sup. Ct. 3, 6 (36 L. Ed. 869), is relied on by the relator as sustaining his contention. That case simply decides that under clause 2, § 1, art. 2, of the United States Constitution, state Legislatures had exclusive and plenary power to direct the manner in which electors of President and Vice President should be appointed, and that the Legislature might appoint the same directly, or provide for their appointment by popular vote. The court did not undertake to define the term This action was taken by the Senate ad"Legislature," or to deny that the authority visedly, and for the purpose of meeting such granted to the Legislature as a representative a situation as we have in Ohio, where the body might not likewise be exercised by any initiative and referendum is employed under agency invested by the people with legisla-state Constitutions. In the report of the tive power. In disposing of the case Mr. Chief Justice Fuller said: "The legislative power is the supreme authority except as limited by the Constitution of the state, and the sovereignty of the people is exercised through their Representatives in the Legislature unless by the fundamental law power is elsewhere reposed."

"By the Legislature thereof in the manner herein prescribed."

When the bill came before the Senate of the United States, Mr. Burton, Senator from Ohio, offered an amendment, which was passed, striking out that language and inserting in lieu thereof the words found in the present act, to wit:

"In the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this act."

62d Congress, found in 47 Congressional Record, pt. 4, pp. 3436, 3737, and in support of the amendment referred to, Senator Burton said:

"A due respect to the rights, to the established methods, and to the laws of the respective states requires us to allow them to establish congressional districts in whatever way they may have provided by their Constitution and by their statutes. * * * If you have a referendum in a state the object of which is to submit to the peo

ute shall stand, the question whether it is just or unjust, that provision ought especially to apply to a law dividing a state into districts, where there is such an opportunity for monstrous injustice. If there is any case in the whole list of laws where you should apply your referendum, it is to a districting bill.

[3] However, there is another valid reason why the writ should be denied in this case. While article 1, § 4, of the United States Con-ple at large the question of whether or no a statstitution commits to state Legislatures the right to prescribe the times, places, and manner of holding elections, that article expressly reserves to the Congress full and complete control of that subject. If there be any conflict between the legislative and con"Senators on the other side, and on this side as gressional provisions upon that subject, the well, have of late addressed the Senate ardently latter control, and the law of Congress super-advocating the principle of the referendum and I shall be interested to know sedes any law or regulation upon the subject whether they will permit the restriction, 'by the the initiative. made by the state Legislature. The conclud- Legislature thereof' to remain in this statute. ing sentence of the article is as follows: So I have suggested that the Senate "But the Congress may at any time by law strike out the words 'by the Legislature thereof make or alter such regulation." in the manner herein prescribed,' and insert in lieu thereof, first, the words 'in the manner provided by the laws thereof.' This gives to each state full authority to employ in the creation of congressional districts its own laws and regulations. What objection can be made to a provi

Recurring now to the provisions of the act of Congress of August 8, 1911 (chapter 5, § 4) it was stipulated that the Represen

* * *

you will transmit to each state the message, 'Pro- | ney General contends that the questions inceed and district your state in accordance with volved in this case are not justiciable; that your laws.' This act does not do that. It sends they are political rather than judicial. In the message, 'Do it in only one specified way; support of this contention many cases have that is, by your Legislature.'' been cited. Section 5, art. 1, of the federal Constitution provides that:

The fact is, and it was conceded in the discussion, that the earlier apportionment acts passed by Congress, following the decennial censuses of 1880, 1890, and 1900, employed the language of the bill, "by the Legislature thereof."

In the controversy over the amendment the storm raged over the single question whether there was any necessity for the Burton amendment; that the language of the bill would vouchsafe a referendum of an act of the Legislature without employing the language proposed in the amendment. On page 3508 of the record the Senator from Ohio

said:

"In several states

the referendum

has been adopted. It was very natural in 1890, and even in 1900, that a provision should be incorporated that the state should be redistricted 'by the Legislature thereof,' because that was the only lawmaking power; but since then a new method of making laws has been devised, and we cannot afford to cling either to obsolete phraseology or, in our dealing with the states, to adhere to obsolete methods; that is, to ignore their methods of enacting laws.

"Mr. Shively: Mr. President, it is not a matter of adhering to obsolete methods or dealing with obsolete phraseology. I am entirely willing that a state shall determine what shall be the rule of apportionment within that state, but I still insist that the language of this bill does not prohibit the Legislature from arranging the districts by referendum of the act to the people."

In view of what we have said as to the construction to be given to the term "Legislature" in the constitutional provision referred to, it would seem that the amendment offered by Senator Burton was not necessary to accomplish the result sought. However that may be, it is self-evident that Congress took the subject out of the realm of doubt by providing that the redistricting should be made in the manner provided by the state laws, and, furthermore, that the language of the act was specifically changed to conform to the Constitutions of those states where the referendum is employed. Congress had full power, under the provision of section 4, art. 1, of the United States Constitution that "the Congress may at any time by law make or alter such regulations," to pass an act of this character.

The act of Congress is paramount, and supersedes any and all laws or regulations made by the state Legislature upon that subject. This is implied in the power to "make or alter." Ex parte Siebold, 100 U. S. 371, 383, 25 L. Ed. 717.

We therefore hold that the act of April 28, 1913, passed by the General Assembly of Ohio, was valid, and that the act of May 27, 1915, thereafter passed by the General Assembly and failing of approval by popular vote under the referendum, was invalid and void.

"Each house shall be the judge of the elections, returns and qualifications of its own members.

which affect the wisdom or policy of legisDid the case presented involve questions lation, this court could, of course, not intervene. Thus, in cases where the legislative discretion in the creation of congressional districts was sought to be reviewed, the question would be purely political and not judicial. In such cases the furthest that the courts have gone is to interfere only where there has been such a gross abuse of legislative discretion as to be palpably an evasion of the law or Constitution. The record in this case discloses that the defendants, as ministerial officers of the state, are refusing to proceed under an act of the General Assembly which they claim to be an invalid law. The power of determining whether a law or constitutional provision is valid or otherwise is lodged solely in the judicial department. The construction of the laws and Constitution is for the courts, and it is generally held in such cases, although they may indirectly involve the election of political officers, that where the validity of such election depends upon the construction of a law or constitutional provision under which such election is held, then the question is justiciable and not political. This rule has been applied in cases involving apportionment of congressional and other districts in the following cases: State v. South Kingstown, 18 R. I. 258, 27 Atl. 599, 22 L. R. A. 65; State ex rel. Morris v. Wrightson, 56 N. J. Law, 126, 187, 28 Atl. 56, 22 L. R. A. 548; Denney, Clerk, et al. v. State ex rel. Basler, 144 Ind. 503, 42 N. E. 929, 31 L. R. A. 726; Harmison v. Ballot Com'rs, 45 W. Va. 179, 31 S. E. 394, 42 L. R. A. 591; State ex rel. Lamb v. Cunningham, Secy. of State, 83 Wis. 90, 135, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27; People ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N. E. 307; Giddings v. Blacker, Secy. of State, 93 Mich. 1, 52 N. W. 944, 16 L. R. A. 402; McPherson v. Blacker, Secy. of State, 92 Mich. 377, 52 N. W. 469, 10 L. R. A. 475, 31 Am. St. Rep. 587.

The last-named case was taken on error to the Supreme Court of the United States and reported in 146 U. S. 1, 24, 13 Sup. Ct. 3, 6 (36 L. Ed. 869). It was urged in that case that the subject-matter of the controversy was not of judicial cognizance, for the reason that all the questions connected with the election of a presidential elector were political in their nature, and that any decision the court might make would be subject to review by political officers or agencies, such

[4] On behalf of the defendants the Attor- as a state board of canvassers or the Con

gress. Mr. Chief Justice Fuller, touching acceptance of its offer to sell to it the land that question, said:

We are of opinion that the vote of October 28 was not an acceptance of the plaintiff's The demurrer to the petition will be sus- the defendant post (first) "to have the title to offer. It purports to direct the president of tained, and the writ denied.

SALVATION ARMY, Inc., v. E. R. WILCOX an obligation." In form it is a direction to

It would seem that by the terms of the vote the president was directed and so authorized Case Reserved and Report from Superior to purchase only after the title had been "exCourt, Hampden County.

that we had engaged the Ellis Title & Conveyancing Company to examine the title, and that their report showed two mortgages on the property jointly amounting to about $14,000, leaving the Salvation Army with an equity of some $12,000; that beyond this title search, nothing whatever had been done looking to the purchase of the property or informing the Salvation Army that we intended to purchase." Thereupon the motion

The plaintiff's main reliance is on the decision of this court in McManus v. Boston, 171 Mass. 152, 50 N. E. 607. In that case the court held that the vote of the street commissioners there in question "imports a contract of purchase by its own terms, and it must, we think, be construed as a binding agreement to purchase, either upon its passage if the plaintiff's offer to sell was then in, or upon the making of his covenant if that was made after the vote." On the evi-"that the vote of the corporation of October dence in that case it was not clear whether the plaintiff made his offer to sell before or after the street commissioners voted to buy. Later the plaintiff signed the written agreement under seal referred to above. Speaking of Dunham v. Boston, ubi supra, this court in that case said, at page 156 of 171 Mass., at page 609 of 50 N. E.:

"In Dunham v. Boston the vote did not import a contract, but was merely a step which might

result in a sale."

The vote in McManus v. Boston was: "Voted to purchase" and nothing more, while the vote in the case at bar was: "The president is directed to purchase," etc. Without going further this is enough to distinguish that case from the case at bar.

In aid of its contention that by the true construction of the vote of October 28 it was a vote to purchase, the plaintiff has relied upon the terms of the call for the meeting and of the vote by which it was rescinded. The meeting was called "to see if the corporation will rescind the vote passed October 28, 1914, wherein it was voted to purchase the property numbered 48 Bliss street." But the view of the character of this vote taken by the plaintiff was not the view taken by the defendant post at that meeting. At that meeting "the chair" was asked "what had been done toward carrying out the vote of October 28." Comrade Bowen (the treasurer) replied “that nothing had been done committing the corporation to the purchase;

28, 1914, wherein it was voted to purchase the property, No. 48 Bliss street, be rescinded" was unanimously carried. It hardly can be said that the meeting took the plaintiff's view of the nature of the vote of October 28.

The defendant has contended that if the vote of October 28 was not an acceptance of the offer made by the plaintiff it was an offer which the plaintiff accepted after it was made. But the same reasons which are decisive against its being an acceptance of the plaintiff's offer are decisive against its being an offer on the part of the defendant, namely it was an initiatory step which would ripen into a contract when the president, acting under it, made the purchase he was thereby directed to make.

[2] The plaintiff excepted to the master's report because he annexed to the report at the request of the defendant portions of the evidence and it appears from the master's report that this request was not made until after the draft report had been submitted to the parties. In the view which we have taken of this case this exception has become immaterial. The conclusion to which we have arrived is founded upon the master's report alone and in no respect upon the evidence reported by the master.

It follows that a decree must be entered confirming the master's report and dismissing the bill with costs.

It is so ordered.

2. MUNICIPAL CORPORATIONS 339(1)-CON- erroneous estimates; and if this relief is not TRACTS-CANCELLATION-MUTUAL MISTAKE INADEQUACY OF ESTIMATES.

Where the estimates of a city inviting bids for the contract to build a dam at so much per cubic yard of excavation and masonry were intended as approximations, a matter expressly stated in a pamphlet, entitled "Information to Bidders," the contractor, whose bid was accepted by extending its east end seven feet to the only after he was accorded full opportunity of inspection, on which he relied, was not entitled to cancellation of the contract on the ground of mutual mistake, though some of the estimates were grossly inadequate.

[Ed. Note.-For other cases, see Appeal and [1] A printed pamphlet called "InformaError, Cent. Dig. § 4256; Dec. Dig. 1078(1).]| tion to Bidders" was in the possession of the