Any clear violation of the constitutional provisions will make an apportionment in valid ; as, the division of a county or dis trict where the constitution forbids it ; State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561; or the allotment of a greater number of representatives than the constitu tion directs ; State v. Francis, 26 Kan. 724; and glaring inequalities either of representa tion or of population in the districts will be considered a sufficient indication that the legislature has exceeded its discretion ; State v. Cunningham, 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27; Giddings v. Blacker, 93 Mich. 1, 52 N. W. 944, 16 L. R. A. 402 ; People v. Canaday, 73 N. C. 198, 21 Am. Rep. 465; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567 ; contra People v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, gs to which see 31 Am. Law Reg. 851. The opinion by Peckham, J., in the New York case takes a radically differ ent view of the nature of the power involved in the apportionment of a state for representa tives from that expressed in the other cases cited, particularly those from Indiana and New Jersey. He says: "From the forma tion of government under written constitu tions in this country the question of the basis of representation in the legislative branch of the government has been one of the most important and most frequently debated. It is not true that equality of members in repre sentation has been the leading idea at all times in regard to republican institutions. . . . The power to readjust the politi cal divisions of a sovereignty with the view of representation of those divisions or of the inhabitants thereof, in the legislature, re sides, of course, in the first instance, with the people, who in this country are the source of all political power. The essential nature of the power itself is not, however, altered by that fact. In its nature it is political as distinguished from legislative or judicial." If the discretion of the legislature is fair ly exercised, the apportionment will be sus tained even if not mathematically correct ; State v. Campbell, 48 Ohio St. 438, 27 N. E.
884 ; Prouty v. Stover, 11 Kan. 235, per Brewer, J.; Opinion of the Justices, 18 Me. 458; but there can be no legislative discre tion to give a county of less population than another greater representation under a con stitution requiring representative districts to contain "as nearly as may be" an equal number of inhabitants ; Board of Supervisors v. Blacker, 92 Mich. 638.
These principles have been also applied to apportionments made by minor administrative bodies to which the power is granted ; In re Baird, 142 N. Y. 523, 37 N. E. 619; In re Whitney, 142 N. Y. 531, 37 N. E. 621; Baird v. Supervisors, 138 N. Y. 95, 33 N. E. 827, 20 L. R. A. 81. In the case last cited a dis tinction was Made by Peckham, J., between the legislative power of apportionment and that confided to an inferior body. The form er, it was said, might reasonably be consider ed a power to divide according to the legis lative discretion, "but in the case of inferior bodies, like boards of supervisors, who have no legislative power excepting what is specif ically granted, the power to divide being given, the implication would be strong that it was only a power to divide equally." Nev ertheless, as some discretion was necessarily involved, it must be an honest and a fair discretion arising out of the circumstances of the case and reasonably affecting the exer cise of the power of equal division. But it was not to be considered "that every trifling deviation from equality of population would justify or warrant an application to a court for redress. . . . It must be a grave, palpable, and unreasonable deviation from the standard," making it apparent "that very great and wholly unnecessary inequality has been intentionally provided for." Baird v. Supervisors, 138 N. Y. 95, 33 N. E. 827, 20 L. R. A. 81.
As to the apportionment of representatives in congress among the states, see APPORTION MENT; and see, generally, Junicrat. POWER; LEGISLATIVE POWER.