Plaintiffs appeal from a judgment dismissing an order to show cause in the nature of an alternative writ of mandamus and sustaining the action of the county commissioners as to their manner of redistricting Dakota county, as required by M.S.A. 375.02, into districts composed of contiguous territory and containing as nearly as practicable an equal population.
The primary issue is whether proof of a gross disparity in the population of the various county commissioner districts in and of itself, without more, establishes that the board of commissioners has not complied with § 375.02 in redistricting the county. Secondary issues arise as to the requirements of contiguity of territory and as to the jurisdiction of the district court.
On June 10, 1952, pursuant to § 375.02, which requires a redistricting whenever one county commissioner district is found to contain 30 percent or more of the population of the county (according to the latest federal or state census), the defendant Board of Commissioners of Dakota County, Minnesota, redistricted the county. The plaintiffs do not contest the fact that redistricting was necessary, nor do they contest the validity of the procedures followed by the board in effecting the redistricting. The plaintiffs' only objection is to the results of the redistricting. Before redistricting, according to the 1950 federal census, the populations of the five commissioner districts were:
1st District 7,406 or 15.07% 2nd District 16,576 or 33.74% 3rd District 13,242 or 26.96% 4th District 6,461 or 13.15% 5th District 5,446 or 11.08%
After redistricting the populations were:
1st District 7,992 or 16.27% 2nd District 13,653 or 27.79% 3rd District 12,630 or 25.71% 4th District 7,140 or 14.53% 5th District 7,716 or 15.70%
Plaintiffs commenced an action to have the redistricting resolution of the board declared null and void and to mandamus the board to redistrict in accordance with § 375.02. The court upon stipulated facts concluded that the board's redistricting action was not erroneous, arbitrary, unreasonable, unlawful, or contrary to law and that the districts as redistricted are composed of contiguous territory and contain as nearly as practicable an equal population. Plaintiffs' appeal is taken from the judgment dismissing what was in effect an alternative writ of mandamus.
1. Plaintiffs contend that the 3rd District, as redistricted, is not composed of contiguous territory — as required by § 375.02 — because two municipalities within such district, namely, the city of West St. Paul and the village of Inver Grove are not contiguous to each other. There is no merit to this contention. Obviously a commissioner district may be composed of contiguous territory although two municipalities within its boundaries are separated from each other by intervening territory which also belongs to the district.
2-3. Although mandamus does not lie to control or interfere with the manner in which county commissioners exercise their discretion in discharging their statutory duty to redistrict their county, it does lie to set the exercise of that discretion into motion where the board fails to act or to obtain a new and bona fide exercise of discretion when it appears that the board has acted without discretion or in a clearly arbitrary and capricious manner.
4. We come to the primary issue of whether proof of a gross disparity in the population of the commissioner districts in and of itself, without more, establishes that the board has abused its discretion and thereby failed to comply with § 375.02. In seeking to ascertain whether there has been an abuse of discretion it is of no significance that the redistricting has brought all districts below 30 percent of the county population as a whole. The legislature, in providing that when it appears after a state or federal census that 30 percent or more of a county's population resides in one district the county must be redistricted, did not indicate that anything less than such percentage figure necessarily constituted reasonable equality. The 30-percent figure merely designates the extreme limit beyond which inequalities in population can no longer be tolerated and require prompt corrective action. If it were otherwise the redistricting remedy provided by § 375.02 would become futile because its purpose could be defeated after each census merely by bringing the population of a district two or three percentage points below the 30-percent limit. No statute is to be given an absurd construction if the language thereof will reasonably bear any other construction. § 645.17(1).
5. Undoubtedly the board of commissioners in redistricting are vested with a broad discretion to effect as nearly as practicable an equal population for the various districts. Mathematical equality of course is not required. A well-established population trend may justify for the moment the award of a slightly greater representation
We do not have here, however, minor differences in the division of the county's population. Three districts have a population varying from 7,140 to 7,992, and two others have each nearly twice that population. Can it be said that the county commissioners have properly exercised their discretion in redistricting when a resident of one district, as measured by the effectiveness of his voting privilege, amounts to slightly more than half a citizen when compared to the resident of another district? The right to vote on a basis of reasonable equality with other citizens is a fundamental and personal right essential to the preservation of self-government. Fundamental rights may be lost by dilution as well as by outright denial. To whatever extent a citizen is disenfranchised by denying him reasonable equality of representation, to that extent he endures taxation without representation and the democratic process itself fails to register the full weight of his judgment as a citizen. The importance of the franchise right is recognized by the Bill of Rights in Minn. Const. art. 1, § 2, and the principle of equality of representation has been preserved with respect to the legislature (art. 4, § 2). Although we are now concerned only with a construction of a statute we cannot be unmindful of these fundamental principles when we are asked to approve the gross disparity in population reflected by the redistricting of Dakota county.
6-7. It follows that in redistricting a county pursuant to the statutory requirement that the commissioner districts shall "contain
Remanded with directions.
ON APPEAL FROM CLERK'S TAXATION OF COSTS.
On December 24, 1953, the following opinion was filed:
Defendants appeal from clerk's taxation of costs.
It is not contended here that plaintiffs' disbursements were not necessary. Defendants assert, however, that plaintiffs are not prevailing parties. We hold to the contrary. When plaintiffs obtained a vacation of the judgment for the purpose of remanding the case to the trial court for the taking of additional evidence as a basis for an additional finding on the avoidability of the gross inequalities in population, they thereby obtained the equivalent of a new trial with respect to a vital issue which had not theretofore been litigated. Clearly plaintiffs prevailed, although the relief afforded them was not in the particular form which they had sought or expected. An appellant who obtains the equivalent of a new trial upon a vital issue is unquestionably entitled to his disbursements under § 607.01. See, Propper v. C.R.I. & P.R. Co. 237 Minn. 386, 54 N.W.2d 840.
Defendants further assert, however, that the clerk's award to plaintiffs of their necessary disbursements, even though they be prevailing parties, is erroneous because there is no judgment in the supreme court upon which a taxation of costs may properly be made. This position is without merit. This case is no different in principle from one in which this court reverses a judgment of the trial court and grants a new trial upon one or more of the basic issues. Cf. Lee v. Zaske, 213 Minn. 244, 6 N.W.2d 793. A judgment, whether it is reversed or vacated, ceases to exist; but such termination of its existence has no bearing upon the prevailing party's right to the allowance of his necessary disbursements.
Section 607.01 does, however, vest this court with discretion in the allowance of statutory costs in an amount not to exceed $25. Trinity Church v. First Spiritualist Church, 221 Minn. 15, 20 N.W.2d 534, 21 N.W.2d 611. Plaintiffs will be denied their statutory costs for the reason that they made no effort in the court
With the exception of the item of $25 statutory costs, the clerk's taxation is affirmed.