No allegation is made by the appellants that the existing apportionment is the result of any other forces than are always at work in any legislative process; and the record, briefs, and arguments in this Court themselves attest to the fact that the appellants could put forward nothing further at a trial.

By disregarding the wide variety of permissible legislative considerations that may enter into a state electoral apportionment my Brother Clark has turned a highly complex process into an elementary arithmetical puzzle. It is only by blinking reality that such an analysis can stand and that the essentially legislative determination can be made the subject of judicial inquiry.

IV.

Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this result by providing for minimum and maximum representation from various political subdivisions such as counties, districts, cities, or towns. See Harvey, Reapportionments of State Legislatures-Legal Requirements, 17 Law & Contemp. Probs. (1952), 364, 368–372.

It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature's continued refusal to recognize the growth of the urban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. And I understand it to be conceded by at least some of the majority that this policy is not rendered unconstitutional merely because it favors rural voters.

Once the electoral apportionment process is recognized for what it is-the product of legislative give-and-take and of compromise among policies that often conflict-the relevant constitutional principles at once put these appellants out of the federal courts.

[Constitutional Law.]

COHENS V. VIRGINIA

This court, has constitutionally, appellate jurisdiction, under the judiciary act of 1789, ch. 20, g. 25, from the final judgment or decree of the highest court of law or equity of a state, having jurisdiction of the subject-matter of the suit, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such, their validity; or of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed, by either party, under such clause of the constitution, treaty, statute, or commission.

It is no objection to the exercise of this appellate jurisdiction, that one of the parties is a state, and the other a citizen of that state.

*The act of Congress of the 4th of May, [*265 1812, entitled, "an act further to amend the charter of the city of Washington," which provides (s. 6), that the corporation of the city shall be empowered, for certain purposes, and under certain restrictions, to authorize the drawing of lotteries, does not extend to authorize the corporation to force the sale of the tickets in such lottery, in states where such sale may be prohibited by the state laws.

This was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the state of Virginia, under the 25th section of the judiciary act of 1789. c. 20, it being the highest court of law or equity of that state having jurisdiction of the case.

Pleas at the Court-House of Norfolk borough, before the Mayor, Recorder, and Alderman of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth.

Be it remembered, that heretofore, to wit, at a Quarterly Session Court, held the twenty-sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impaneled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:

We present P. J. and M. J. Cohen, for vending and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in that case, since January, 1820. On the information of William H. Jennings.

Whereupon the regular process of [266 law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the sergeant of the borough of Norfolk"Executed."

And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words:

Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the commonwealth of Virginia, in the court of the said borough of Norfolk, cometh into court, in his proper person, and with leave of the court, giveth the said court to understand and be informed, that by an act of the General Assembly of the said commonwealth of Virginia, entitled, "An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming." It is, among other things, enacted and declared, that no person or persons shall buy, or sell, within the said commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and the said James Nimmo, as attorney aforesaid, further giveth the court to understand and be informed that P. J. & M. J. Cohen, traders and partners, late of the 267 parish of Elizabeth River, and borough of Norfolk aforesaid, being evil-disposed persons, and totally regardless of the laws and statutes of the said commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of June, in that year, and within the said commonwealth of Virginia, to wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lottery tickets, and four quarter lottery tickets of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth, to the evil example of all other persons in the like case offending, and against the form of the act of the General Assembly, in that case made and provided.

JAMES NIMMO, FOR THE COMMONWEALTH

And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the commonwealth, in this court, as the defendants by their attorney, and the said defendants, for plea, say, that they are not guilty in manner and form, as in the information against them is alleged, and of this they put themselves upon the country, and the attorney for the commonwealth doth the same: whereupon a case 268 was agreed by them to be argued in lieu of a special verdict, and is in these words:

COMMONWEALTH AGAINST COHENS-CASE AGREED

In this case, the following statement is admitted and agreed by the parties in lieu of a special verdict: That the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the commonwealth of Virginia, sold to William H. Jennings a lottery ticket, in the lottery called, and denominated the National Lottery, to be drawn in the city of Washington, within the District of Columbia.

That the General Assembly of the state of Virginia enacted a statute, or act of Assembly, which went into operation on the first day of January, in the year of our Lord 1820, and which is still unrepealed, in the words following:

No person, in order to raise money for himself or another, shall, publicly or privately, put up a lottery to be drawn or adventured for, or any prize or thing to be raffled or played for. And whosoever shall offend herein, shall forfeit the whole sum of money proposed to be raised by such lottery, raffling or playing, to be recovered by action of debt, in the name of anyone who shall sue for the same, or by indictment or information in the name of the commonwealth, in either case, for the use and benefit of the literary fund. Nor shall any person or persons buy, or sell, within this commonwealth, any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and any person or persons 269 offending herein, shall forfeit and pay, for every such offense, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid.

That the Congress of the United States, enacted a statute on the 3d day of May, in the year of our Lord 1802, entitled, an act, etc., in the words and figures following:

An Act to incorporate the inhabitants of the city of Washington, in the District of Columbia.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the inhabitants of the city of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the city of Washington, and by their corporate name may sue and be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons, and may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city; and may have and use a city seal, which may be altered at pleasure. The city of Washington shall be divided into three divisions or wards, as now divided by the levy court for the county, for the purposes of assessment, but the number may be increased hereafter, as in the wisdom of the city council shall seem most conducive to the general interest and convenience.

Sec. 2. And be it further enacted, That the council of the city of Washington shall consist of twelve members, residents of the 270 city, and upwards of twenty-five years of age, to be divided into two chambers; the first chamber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of councilors, elected by their joint ballot. The city council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held; the justices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint.

Sec. 3. And be it further enacted, That the first election of members of the city council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may prescribe.

Sec. 4. And be it further enacted, That the polls shall be kept open from eight o'clock in the morning till seven o'clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judges shall close and seal their ballot-boxes, and meet on the day following, in the presence of the marshal of the district, on the first election, and the council afterwards; when the seal shall be broken, and the votes counted; within three days after such election, they shall give notice to the persons having the greatest number of legal votes, that they are duly elected, and shall make their return to the mayor of the city. 271*] *Sec. 5. And be it further enacted, That the mayor of the city shall be appointed annually by the President of the United States; he must be a citizen of the United States, and a resident of the city prior to his appointment. Sec. 6. And be it further enacted, That the city council shall hold their sessions in the city hall, or until such building is erected, in such place as the mayor may provide for that purpose, on the second Monday in June, in each year; but the mayor may convene them oftener, if the public good require their deliberations; three-fourths of the members of each council, may be a quorum to do business, but a smaller number may adjourn from day to day; they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide; they shall appoint their respective presidents, who

shall preside during their sessions, and shall vote on all questions where there is an equal division; they shall settle their rules of proceedings, appoint their own officers, regulate their respective fees, and remove them at pleasure; they shall judge of the elections, returns, and qualifications of their own members, and may, with the concurrence of three-fourths of the whole, expel any member for disorderly behavior, or malconduct in office, but not a second time for the same offense; they shall keep a journal of their proceedings, and enter the yeas and nays on any question, resolve or ordinance, at the request of any member, and their deliberations shall be public. The mayor shall appoint to all offices under the 272*] corporation. All ordinances *or acts passed by the city council, shall be sent to the mayor for his approbation, and when approved by him, shall then be obligatory as such. But if the said mayor shall not approve of such ordinance or act, he shall return the same within five days, with his reasons in writing therefor; and if three-fourths of both branches of the city council, on reconsideration thereof, approve of the same, it shall be in force in like manner as if he had approved it, unless the city council, by their adjournment, prevent its return. Sec. 7. And be it further enacted, That the corporation aforesaid shall have full power and authority to pass all by-laws and ordinances to prevent and remove nuisances; to prevent the introduction of contagious diseases within the city; to establish night watches or patrols, and erect lamps; to regulate the stationing, anchorage, and mooring of vessels; to provide for licensing and regulating auctions, retailers of liquors, hackney carriages, wagons, carts and drays, and pawn-brokers within the city; to restrain or prohibit gambling, and to provide for licensing, regulating, or restraining theatrical or other public amusements within the city; to regulate and establish markets; to erect and repair bridges; to keep in repair all necessary streets, avenues, drains and sewers, and to pass regulations necessary for the preservation of the same, agreeably to the plan of the said city; to provide for the safe keeping of the standard of weights and measures fixed by Congress, and for the regulation of all weights and measures used in the city; to provide *for the licensing and regulating [*273 the sweeping of chimneys, and fixing the rates thereof; to establish and regulate fire wards and fire companies; to regulate and establish the size of bricks that are to be made and used in the city; to sink wells, and erect and repair pumps in the streets; to impose and appropriate fines, penalties and forfeitures for breach of their ordinances; to lay and collect taxes; to enact by-laws for the prevention and extinguishment of fires; and to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the city of Washington: Provided, That the by-laws, or ordinances of the said corporation, shall be in no wise obligatory upon the persons of nonresidents of the said city, unless in cases of intentional violation of the by-laws or ordinances previously promulgated. All the fines, penalties and forfeitures imposed by the corporation of the city of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable; and if such fines, penalties and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt, in the District Court of Columbia, for the county of Washington, in the name of the corporation, and for the use of the city of Washington.

Sec. 8. And be it further enacted, That the person or persons appointed to collect any tax imposed in virtue of the powers granted by this act, shall have authority to collect the same, by distress and sale of the goods and chattels of the person chargeable therewith; no sale shall be made, unless ten days' *previous notice thereof be given; no [*274 law shall be passed by the city council subjecting vacant or unimproved city lots, or parts of lots, to be sold for taxes.

Sec. 9. And be it further enacted, That the city council shall provide for the support of the poor, infirm and diseased of the city.

Sec. 10. Provided always, and be it further enacted, That no tax shall be imposed by the city council on real property in the said city, at any higher rate than three-quarters of one per centum, on the assessment valuation of such property.

Sec. 11. And be it further enacted, That this act shall be in force for two years from the passing thereof, and from thence to the end of the next session of Congress thereafter, and no longer.

And another act, on the 23d day of February, 1804, entitled, "An act supplementary to an act, entitled, an act to incorporate the inhabitants of the city of Washington, in the District of Columbia."

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the act, entitled, An act to incorporate

the inhabitants of the city of Washington, in the District of Columbia, except so much of the same as is consistent with the provisions of this act, be, and the same is hereby continued in force, for and during the term of fifteen years from the end of the next session of Congress.

Sec. 12. And be it further enacted, That the council of the city of Washington, from and after the period for which the members [275 of the present council have been elected, shall consist of two chambers, each of which shall be composed of nine members, to be chosen by distinct ballots, according to the directions of the act to which this is a supplement; a majority of each chamber shall constitute a quorum to do business. In case vacancies shall occur in the council, the chamber in which the same may happen, shall supply the same by an election by ballot, from the three persons next highest on the list to those elected at the preceding election, and a majority of the whole number of the chamber in which such vacancy may happen, shall be necessary to make an election.

Sec. 13. And be it further enacted, That the council shall have power to estab lish and regulate the inspection of flour, tobacco, and salted provisions, the gaug. ing of casks and liquors, the storage of gunpowder, and all naval and military stores, not the property of the United States, to regulate the weight and equality of bread, to tax and license hawkers and peddlers, to restrain or prohibit tippling houses, lotteries, and all kinds of gaming; to superintend the health of the city; to preserve the navigation of the Potomac and Anacostia rivers adjoining the city, to erect, repair, and regulate public wharves, and to deepen docks and basins; to provide for the establishment and superintendence of public schools; to license and regulate, exclusively, hackney coaches, ordinary keepers, retailers and ferries; to provide for the appointment of inspectors, constables, and such other officers as may be necessary to ex 276] ecute the laws of the corporation, and to give such compensation to the mayor of the city as they may deem fit.

Sec. 14. And be it further enacted, That the Levy Court of the county of Washington shall not hereafter possess the power of imposing any tax on the inhabitants of the city of Washington.

That the Congress of the United States, on the 4th day of May, in the year of our Lord 1812, enacted another statute, entitled, "An act further to amend the charter of the city of Washington."

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That from and after the first Monday in June next, the corporation of the city of Washington shall be composed of a mayor, a board of aldermen, and a board of common council, to be elected by ballot, as hereafter directed. The board of aldermen shall consist of eight members, to be elected for two years, two to be residents of, and chosen from, each ward, by the qualified voters therein; and the board of common council shall consist of twelve members, to be elected for one year; three to be residents of, and chosen from each ward, in manner aforesaid; and each board shall meet at the council chamber on the second Monday in June next (for the despatch of business), at ten o'clock in the morning, and on the same day, and at the same hour, annually, thereafter. A majority of each board shall be necessary to form a quorum to do business, but a less number may adjourn from day to day. The board of alder- 277] men, immediately after they shall have assembled in consequence of the first election, shall divide themselves by lot into two classes; the seats of the first class shall be vacated at the expiration of one year, and the seats of the second class shall be vacated at the expiration of two years, so that one-half may be chosen every year. Each board shall appoint its own president from among its own members, who shall preside during the sessions of the board, and shall have a casting vote on all questions where there is an equal division; provided such equality shall not have been occasioned by his previous vote.

Sec. 2. And be it further enacted, That no person shall be eligible to a seat in the board of aldermen or board of common council, unless he shall be more than twenty-five years of age, a free white male citizen of the United States, and shall have been a resident of the city of Washington one whole year next preceding the day of election; and shall, at the time of his election, be a resident of the ward for which he shall be elected, and possessed of a freehold estate in the said city of Washington, and shall have been assessed two months preceding the day of election. And every free white male citizen of lawful age, who shall have resided in the city of Washington for the space of one year next preceding the day of election, and shall be a resident of the ward in which he shall offer to vote, and who shall have been assessed on the books of the corporation, not less than