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When the term was originally embraced in the districts “now prescribed by law until the Constitution the Legislatures of Penn- such state shall be redistricted in the mansylvania, Georgia, and Vermont consisted of ner provided by the laws thereof and in acbut a single house, with a second body in cordance with the rules enumerated in seceach, called an executive council. These tion 3 of this act." Under the constitustates later abolished their councils and es- tional provision that Congress might, at any tablished a Legislature consisting of two time by law, make or alter regulations prebranches, and such is the character generally scribed by the state Legislature, it had full of the various state Legislatures to-day. 1 power to direct, as it did, that Congressmen Bryce's American Commonwealth, page 461, should be elected by the districts prescribed note.

by the laws of the various states. The ConThe constitutional provision relating to the gress could, under its supervisory contro] 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 referenced 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 "By the Legislature thereof in the manner Sup. Ct. 3, 6 (36 L. Ed. 869), is relied on by herein prescribed.” the relator as sustaining his contention. When the bill came before the Senate of That case simply decides that under clause the United States, Mr. Burton, Senator from 2, § 1, art. 2, of the United States Constitu- Ohio, offered an amendment, which was passtion, state Legislatures had exclusive and ed, striking out that language and inser plenary power to direct the manner in which in lieu thereof the words found in the preselectors of President and Vice President ent act, to wit: should be appointed, and that the Legislature "In the manner provided by the laws thereof might appoint the same directly, or provide and in accordance with the rules enumerated in for their appointment by popular vote. The

section three of this act." 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

62d Congress, found in 47 Congressional RecChief Justice Fuller said:

ord, pt. 4, pp. 3436, 3737, and in support of “The legislative power is the supreme author. the amendment referred to, Senator Burton ity except as limited by the Constitution of the said: state, and the sovereignty of the people is exer

"A due respect to the rights, to the established cised through their Representatives in the Legis- methods, and to the laws of the respective states lature unless by the fundamental law power is requires us to allow them to establish congreselsewhere reposed."

sional districts in whatever way they may have [3] However, there is another valid reason provided by their Constitution and by their stat


If you have a referendum in a why the writ should be denied in this case. state the object of which is to submit to the peoWhile article 1, § 4, of the United States Con- ple at large the question of whether or no a statstitution commits to state Legislatures the ute shall stand, the question whether it is just right to prescribe the times, places, and ply to a law dividing a state into districts, where

or unjust, that provision ought especially to apmanner of holding elections, that article ex- there is such an opportunity for monstrous injuspressly reserves to the Congress full and tice. If there is any case in the whole list of complete control of that subject. If there be laws where you should apply your referendum,

it is to a districting bill. 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 sedes any law or regulation upon the subject whether they will permit the restriction, 'by the

I shall be interested to know 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 proRecurring now to the provisions of the act vided by the laws thereof.' This gives to each of Congress of August 8, 1911 (chapter 5, state full authority to employ in the creation of § 4) it was stipulated that the Represen- tions. What objection can be made to a provi:

congressional districts its own laws and regula


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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.'”

The fact is, and it was conceded in the dis- been cited. Section 5, art. 1, of the federal cussion, that the earlier apportionment acts Constitution provides that: passed by Congress, following the decennial "Each house shall be the judge of the elections, censuses of 1880, 1890, and 1900, employed returns and qualifications of its own members. the language of the bill, "by the Legislature thereof." In the controversy over the amendment the which affect the wisdom or policy of legis

Did the case presented involve questions storm raged over the single question whether lation, this court could, of course, not interthere was any necessity for the Burton

Thus, in cases where the legislative amendment; that the language of the bill discretion in the creation of congressional would vouchsafe a referendum of an act of districts was sought to be reviewed, the questhe Legislature without employing the lan- tion would be purely political and not judiguage proposed in the amendment. On page cial. In such cases the furthest that the 3508 of the record the Senator from Ohio courts have gone is to interfere only where said:

there has been such a gross abuse of legis“In several states

the referendum bas been adopted. It was very natural in 1890, lative discretion as to be palpably an evasion and even in 1900, that a provision should be in- of the law or Constitution. The record in corporated that the state should be redistricted this case discloses that the defendants, as by the Legislature thereof,' because that was the ministerial officers of the state, are refusing only lawmaking power; but since then a new method of making laws has been devised, and we to proceed under an act of the General As cannot afford to cling either to obsolete phraseol- sembly which they claim to be an invalid ogy or, in our dealing with the states, to adhere law. The power of determining whether a to obsolete methods; that is, to ignore their law or constitutional provision is valid or methods of enacting laws.

"Mr. Shively: Mr. President, it is not a mat- otherwise is lodged solely in the judicial ter of adhering to obsolete methods or dealing department. The construction of the laws with obsolete phraseology. I am entirely willing and Constitution is for the courts, and it is that a state shall determine what shall be the generally held in such cases, although they rule of apportionment within that state, but I still insist that the language of this bill does not may indirectly involve the election of politiprohibit the Legislature from arranging the dis- cal officers, that where the validity of such tricts by referendum of the act to the people.” election depends upon the construction of a

In view of what we have said as to the law or constitutional provision under which construction to be given to the term “Leg. such election is held, then the question is islature” in the constitutional provision re- justiciable and not political. This rule has ferred to, it would seem that the amendment been applied in cases involving apportionoffered by Senator Burton was not necessary ment of congressional and other districts in to accomplish the result sought. However the following cases: State v. South Kings that may be, it is self-evident that Congress town, 18 R. I. 258, 27 Atl. 599, 22 L. R. A. took the subject out of the realm of doubt by 65; State ex rel. Morris v. Wrightson, 56 providing that the redistricting should be N. J. Law, 126, 187, 28 Atl. 56, 22 L. R. A. made in the manner provided by the state 548; Denney, Clerk, et al. v. State ex rel. laws, and, furthermore, that the language of Basler, 144 Ind. 503, 42 N. E: 929, 31 L. R. A. the act was specifically changed to conform | 726; Harmison v. Ballot Com’rs, 45 W. Va. to the Constitutions of those states where | 179, 31 S. E. 394, 42 L. R. A. 591 ; State ex the referendum is employed. Congress had rel. Lamb v. Cunningham, Secy. of State, 83 full power, under the provision of section 4, Wis. 90, 135, 53 N. W. 35, 17 L. R. A. 145, art. 1, of the United States Constitution that 35 Am. St. Rep. 27; People ex rel. Wood"the Congress may at any time by law make yatt v. Thompson, 155 Ill. 451, 40 N. E. 307; or alter such regulations,” to pass an act of Giddings v. Blacker, Secy. of State, 93 Mich. this character.

1, 52 N. W. 944, 16 L. R. A. 402; McPherson The act of Congress is paramount, and v. Blacker, Secy. of State, 92 Mich. 377, 52 N. supersedes any and all laws or regulations W. 469, 10 L. R. A. 475, 31 Am. St. Rep. 587. made by the state Legislature upon that sub The last-named case was taken on error ject. This is implied in the power to "make to the Supreme Court of the United States or alter.” Ex parte Siebold, 100 U. S. 371, and reported in 146 U. S. 1, 24, 13 Sup. Ct. 3, 383, 25 L. Ed. 717.

6 (36 L. Ed. 869). It was urged in that case We therefore hold that the act of April that the subject-matter of the controversy 28, 1913, passed by the General Assembly of was not of judicial cognizance, for the reason Ohio, was valid, and that the act of May 27, that all the questions connected with the 1915, thereafter passed by the General As-election of a presidential elector were politisembly and failing of approval by popular cal in their nature, and that any decision vote under the referendum, was invalid and the court might make would be subject to void,

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:
here in question was in these words:

"The question of the validity of this act, as presented to us by this record, is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the state as revised by our own."

"Moved that the president be directed to have the title to the property No. 48 Bliss street examined and if found good, to purchase said property at a cost not exceeding $26,000; and procure a good and sufficient warranty deed of the same to this corporation."

Therefore, whether the secretary of state and his deputies in their ministerial capacity

shall act under the legislative act of April 28, 1913, or under the later act of May 27,

Soon after this vote on October 28, 1914, the president through the treasurer employed fore the president had taken any other action a title company to examine the title. Beunder the vote and before the title company had made a final report upon the title the de

fendant post voted "to rescind" the vote of

1915, and the determination as to which of said acts is valid, is a judicial question, and not a political one, and this court, under the constitutional provision giving it original jurisdiction in mandamus, assumes jurisdiction.

October 28, here in question.

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.
Writ refused.

the property" here in question "examined,"
and (second) "if found good to purchase said
Property" at the price named in the plain-
tiff's offer and (third) to procure a warranty
deed of the same to the defendant post. The
vote does not purport by its terms to be an
acceptance of the plaintiff's offer so as to
bring into being "an agreement which creates

(225 Mass. 136)

SALVATION ARMY, Inc., v. E. R. WILCOX an obligation." In form it is a direction to
POST NO. 16.


(Supreme Judicial Court of Massachusetts.
Hampden. Nov. 6, 1916.)
Where a post of the Grand Army of the
Republic by vote directed its president to have
title to property examined and, if found good, to
purchase at a cost not exceeding $26,000, and
procure a good and sufficient warranty deed to
it, and at a subsequent meeting, after examina-
tion of title was commenced and before it was
finished, rescinded the vote, there was no con-
tract for breach of which the other party could
recover, the vote being only an initiatory step,
nor did it become binding by attempted accept-
ance by the other party.

the president of the defendant post to enter
into a contract under the conditions there
specified and not of itself a vote by which the
post entered into a contract. We are of
opinion that by the true construction of it
the vote was what in form it purports to be,
namely, an initiatory step directing the pres-
ident to make a contract and (as we have
said) not an act by which the post made a
contract. The case comes within Shaw v.
Stone, 1 Cush. 228, 244; Dunham v. Boston,
12 Allen, 375; Sears v. Kings County Elec.
Ry., 152 Mass. 151, 25 N. E. 98, 9 L. R. A.
117; Edge Moor Bridge Works v. Bristol, 170
Mass. 528, 49 N. E. 918; Benton v. Spring-

[Ed. Note.-For other cases, see Vendor and
Purchaser, Cent. Dig. § 21; Dec. Dig. 17.] field, etc., Ass'n, 170 Mass. 534, 49 N. E. 928,
2. APPEAL AND ERROR 843(1)-SCOPE-RE-64 Am. St. Rep. 320; Madden v. Boston, 177
PORT-MATTERS NOT NECESSARY TO DECISION. Mass. 350, 58 N. E. 1024. See, also, in this
connection Wheaton Building & Lumber Co.
v. Boston, 204 Mass. 218, 90 N. E. 598; Mont-
gomery Ward & Co. v. Johnson, 209 Mass. 89,
95 N. E. 290; McCormick v. Oklahoma City,
203 Fed. 921, 122 C. C. A. 215.


Exception to the master's report for including evidence not requested until after submission of the report to the parties is immaterial, where the case is disposed of on the report, and not on the evidence.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; Dec. Dig. 843(1).]

It would seem that by the terms of the vote the president was directed and so authorized to purchase only after the title had been "examined and found good." Whether that be so or not the vote was rescinded before the president took any action under it except to employ a title company to examine the title. Knowledge of the vote had reached the plaintiff. But that kuowledge had not come from the president and there was no pretence that the president had undertaken to buy the property for the defendant post or (as we have said) to take any action under the vote LORING, J. [1] The vote of the defend-except to employ a title company to examine ant post which the plaintiff relies on as an the title.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Case Reserved and Report from Superior Court, Hampden County.

Bill by the Salvation Army, Incorporated, against E. R. Wilcox Post No. 16. Reserved and reported on plaintiff's exceptions to the master's report. Report confirmed, and bill dismissed.

Edmund A. Whitman, of Boston, for plaintiff. Wm. H. Brooks and Thos. C. Maher, both of Holyoke, for defendant.

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The plaintiff's main reliance is on the deci- that we had engaged the Ellis Title & Consion of this court in McManus v. Boston, 171 veyancing Company to examine the title, and Mass. 152, 50 N. E. 607. In that case the that their report showed two mortgages on court held that the vote of the street com- the property jointly amounting to about $14,missioners there in question "imports a con- 000, leaving the Salvation Army with an tract of purchase by its own terms, and it equity of some $12,000; that beyond this must, we think, be construed as a binding title search, nothing whatever had been done agreement to purchase, either upon its pas- looking to the purchase of the property or sage if the plaintiff's offer to sell was then informing the Salvation Army that we inin, or upon the making of his covenant if tended to purchase." Thereupon the motion 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 28, 1914, wherein it was voted to purchase the plaintiff made his offer to sell before or the property, No. 48 Bliss street, be rescindafter the street commissioners voted to buy. ed" was unanimously carried. It hardly can Later the plaintiff signed the written agree-be said that the meeting took the plaintiff's ment under seal referred to above. Speaking | view of the nature of the vote of October 28. of Dunham v. Boston, ubi supra, this court The defendant has contended that if the in that case said, at page 156 of 171 Mass., vote of October 28 was not an acceptance of at page 609 of 50 N. E.: 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.

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

[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.

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;

(225 Mass. 140)

YOUNG v. CITY OF HOLYOKE. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 13, 1916.)


Where the contractor with a city to build a dam at a fixed price per cubic yard of masonry and excavation, and for each pound or ton of metal work, was informed that there was no express agreement that the surface of the rock to be excavated, or its depth, or the character of the material, was even approximately correct in the information given to bidders, and the contractor was given the fullest opportunity to make inspection, which he made and relied upon, and, after changes were made and the extent of the excavation ascertained, he continued the work with knowledge of the facts and without complaint, being informed of a change in the location of the gatehouse and expressing satisfaction when told it would mean an increase of several hundred cubic yards of masonry, no fraud was practiced on the contractor, entitling him, on abandonment of the work, to have cancellation of the contract, though some of the city's estimates were grossly inadequate.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 868; Dec. Dig. 339(1).]

CARROLL, J. The plaintiff contracted in
writing with the board of water commission-
ers of the city of Holyoke, acting for the
defendant, to build a concrete masonry dam
across the Manham brook in the town of
Southampton, at "certain unit quantity pric-
es," for the different kinds of labor and ma-
He abandoned the work
terials involved.
before its completion, and seeks to have the
contract cancelled either on the ground of the
defendant's fraud in falsely estimating the
quantities of material and labor necessary
for the work, or on the ground of the mutual
mistake of the parties in relying on these
339(1)-CON- erroneous estimates; and if this relief is not
granted, he seeks to recover the balance due
under the contract; and also asks for com-
pensation because the location of the dam as
shown on the plan was changed by moving
its west end twenty-five feet to the north and


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 east; and for the reason that the gatehouse inspection, on which he relied, was not entitled was built on the upper side of the dam, the 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 Municipal Corporations, Cent. Dig. § 868; Dec. Dig. 339(1).]

plan showing it on the lower side; as well as for changes made in the slope of the dam, in the core wall, and spillway, so that the amount of excavation and concrete construction was greatly increased; and further because he was required to remove certain concrete laid in accordance with the specifications, and was paid for only one foot thickness of class A concrete when he should have been paid for four feet.

The defendant does not question the plaintiff's pleadings. It denies his claims and asks for relief against him under a clause in the contract giving it the right, in case the contract is abandoned, to complete the work deducting the additional expense for so doing from the sum otherwise payable to the plaintiff.


Where the evidence is not reported, the findings of the master must stand.

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[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2911, 2916; Dec. Dig. 907(2).]



In an action against a city by its contractor to build a dam for cancellation on the ground of fraud and mutual mistake in gross inadequacy of some of the city's estimates, the contractor's conversation with the city's engineer, before submission of his bid, when he was told that it had been decided to place the gatehouse on the upstream side of the dam instead of the downstream side, a change, necessitating an increase in the masonry work, was admissible on the question of fraud and mistake.

The master found there was no fraud on the part of the defendant; that the plaintiff was not justified in abandoning the contract and was not entitled to recover on a quantum meruit basis for what was done under the contract. After deducting the extra cost of completing the structure, he found the sum due the plaintiff. A decree was entered, awarding him the sum of $4,433.63 with interest from May 19, 1915. The plaintiff appealed.

[1] A printed pamphlet called "Informa1078(1).]tion to Bidders" was in the possession of the

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. 374(4).]


Appeal from Supreme Judicial Court, Hampden County.

Suit by Lewis M. Young against the City of Holyoke. From a decree awarding plaintiff a sum with interest, he appeals. Decree affirmed, and decree directed to be entered, dismissing the cross-bill.

Clinton E. Bell, of Springfield, for appellant. T. D. O'Brien and T. B. O'Donnell, both of Holyoke, for appellee.

1078(1)-FAILURE TO

A question not argued on appeal will be

treated as waived.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4256; Dec. Dig.

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