author: Mr. Chief Justice TANEY Mr. Justice McLEAN

text:
    Arthur Bronson, Complainant, v. John H. Kinzie and Juliette A., his wife, Edmund K. Bussing and John S. Bussing, The President, Directors, and Company of the State Bank of Illinois, Jay Hathway, Mary Ann Wolcott, Daniel S. Griswold, Caroline Dunham, and Alonzo Huntington, Defendants.
    A state law, passed subsequently to the execution of a mortgage, which declares that the equitable estate of the mortgagor shall not be extinguished for twelve months after a sale under a decree in chancery, and which prevents any sale unless two-thirds of the- amount at which the property has been valued by appraisers shall be bid therefor, iarwithin the clause of the tenth section of the first article of the Constitution of the United States, which prohibits a. state from passing a law impairing the obligation of contracts.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case comes before the court upon a division of opinion in the Circuit Court of the United States for the district of Illinois, upon certain questions which arose in the case, and which have been certified to this court according to the act of Congress.

It appears from the record, that, on the 13th-of July, 1838, John H. Kinzie executed -a bond to Arthur Bronson, conditioned for the payment of $4000, on the 1st-of July, 1842, with interest thereon, to be paid semi-annually; and, in order to secure the payment of the said sum of money and interest, Kinzie and wife, on the same day, conveyed to the said Bronson, in fee simple, by way of mortgage, one undivided half part of certain houses and lots in the town of Chicago, with the usual proviso that the deed should, be null átid void if the said, principal and interest were duly paid; and Kinzie, among other things, covenanted that, if default should be made in the payment of the principal or interest, or any part thereof, it should be lawful for Bronson or his representatives to enter upon and sell the mortgaged -premises at public auction, and, as attorney of Kinzie and wife, to convey the same to the purchaser; and out of the moneys arising from such sale, to retain the amount that might then be due him on the afo.esaid bond, with the cost&and charges of sale, rendering the overplus, if any, to Kinzie. .

The interest not having, been» paid, Bronson, on the 27th of March, 1841, filed his bill to foreclose the mortgage. In the mean time, after the mortgage was made, and before the bill was filed, the legislature of Illinois, on the 19th of February, 1841, passed a law, the 8th section of which provided that mortgagors and judgment creditors should have the same right to redeem mortgaged premises sold' by the decree of a court of chancery, that had been given to the debtors and judgment creditors by a previous law passed in 1825, in cases where lands were sold under execution. The law of i8£5 authorized- the-.party whose lands should be sold by execution, after that law took effect, to redeem them within twelve months from the day of sale, by- repaying the purchase-money with interest- at-the rate of 10 percent. ; and if the debtor did not redeem it within the time limited, any judgment creditor was authorized to do so upon the like terms, within fifteen- months from tlie sale. This act,-which took effect on the 1st of May, 1825, was held, it seems, not to fextend to sales of mortgaged premises under a decree of foreclosure; and the act of February 19,1841, above mentioned, was passed to embrace them.

By another act of the legislature of Illinois, approved the 27thof February, 1841, it was directed that, “when any execution should - be issued out of any of the courts of the state, and be levied.on any property, real or personal, or both, it should be the, duty of the officer levying such.execution to.summon -three"householders of the proper county, one of whom should- be chosen by such officer, one by the plaintiff, and one by-the defendant-in the-execution j or, in default of the parties making.-such choice, the officer should’choose for them; which>househblders,-after being duly sworn by such officer so to do, should fairly and impartially value the property upon which such execution was levied, having reference to its cash value-; and¡ that .they should endorse the valuation thereof upon the execution, or upon a piece .of- paper, thereunto attached, signed by them; and when /such property should be offered for sale, it should not he struck off, Unless two-thirds of the amount of such valuation should be bid therefor.” It further provided, among, other things, that all sales of mortgaged property should be made according to the provisions of that act; whether the foreclosure of said'mortgage was by judgment at law or decree in chancery. It also directed that the provisions of this law should extend to all judgments rendered prior to the 1st of May,-1841, and to all judgments that might be rendered on any contract or cause of action accruing prior to that day, and not to any other judgments than as before specified. These are, in substance, the provisions of these acts, as far as they are material to the present controversy.

On the 19th of June; 1841, after the' laws above mentioned had been passed, the Circuit Court of the United States for the district cf Illinois adopted the'following rules:

“ Ordered, that when the marshal shall'levy an execution upon real estate, he shall have it appraised and sold under the provisions of the law of this state, entitled C-An act regulating the sale of property/- approved February 27, 1841, if the case come within the provisions of that law; and any two or three householders selected under the law, agreeing, may make the valuation of the premises required.

“ Before the sale of any real estate on execution, the marshal shall give notice thirty days in a newspaper published in the county where the land lies; and if there be no paper published in the county, then the notice shall be- given thirty days before the sale, by notice, as the statute requires. The court adopt the 8th section of the act of this state, to amend the act concerning judgments,'&c., passed 19th of February, 1841, which regulates the sale of mortgaged premises, &c'., except where special direction shall be given in the decree of sale.”

After these rules were adopted — that is to say, at December term, 1S41 — the bill filed by Bronson, as hereinbefore mentioned, came on for final hearing in the Circuit Court; and thereupon the complainant moved the court for a final decree of strict foreclosure of said mortgage, or that the mortgaged premises should be sold to the highest bidder, without being subject to said rule and the act referred to. This motion was resisted on part of defendants, who moved that the decree should direct the sale according to said rule' and act.

And the judges being opposed in opinion on the following points, to wit:

1. Whether the decree in this case should be so entered as to direct the sale of the said mortgaged premises according to the said statute'of the state' of -Illinois above mentioned; or whether the same premises should be sold at public auction, to the' highest bidder, without regard to the said law.

2.. Whether the decree in this case shall or shall not direct the sale of the mortgaged premises, without being first valued by-three householders, and without requiring two-thirds .of the amount of the said valuation to be bid, according to the said act of the state of Illinois.

3. Whether the terms of the mortgage in this case do or do not require it to be excepted from the operation of the rule above recited.

On motion of the complainant, it was ordered and directed that this cause, with said points, be certified to the Supreme Court, in pursuance of the act of Congress. And it is upon these questions, thus certified, that the case is now before us; and the 8th section of the act of February 19th, and the entire act of February 27, are set forth at large in the record, as the laws referred to in the above-mentioned rules of the Circuit Court. The case has been submitted to the court, for decision, by a written agreement between the counsel on both sides. On the part of the complainant, a printed argument has been filed, but none has been offered on behalf of the defendant. As the case involves a’ constitutional question of great importance, we should have preferred a full argument at the bar. But the parties are entitled, by the rules of the court, to bring it before us in the manner they have adopted; and it being our duty to decide the questions certified to us by the Circuit Court, we have bestowed upon the subject the careful and' deliberate consideration which its importance demands.

Upon the points certified, the question is, whether the laws of Illinois, of the 19th and the 27th of February, 1841, come within that clause of the 10th section of the 1st article of the Constitution of the United States, which prohibits a state from passing a law impairing the obligation of contracts.

The laws of a state, regulating the process of its courts, and prescribing the manner in which it shall be executed, of course, do. not bind the courts of the United States, whose ■ proceedings must be governed by the acts of Congress. The act of 1792, however, adopted the process used in the state courts, as it stood .in 1789; and, since -then, the act of 1828, on .the same subject, has been passed: and' the 3d section of this law directs that final process issued on judgments qnd decrees in any of the courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each state, respectively, as were then used in the courts of such state, and authorizes the courts of the .United States, if they see fit, in their discretion, by rules of court, so far to alter final process as to conform the same to any change which might afterwards be adopted, by the legislatures of the respective states, for the state courts. Any acts of a state legisT lature, therefore, in relation to final process, passed since 1828, are of no force in the courts of the United States, unless adopted by rules of court, according to the provisions of this act of Congress. And, although such state laws may have been so adopted, yet. they are inoperative and of no force, if in conflict with the Constitution or an act of Congress.

As concerns the obligations of the contract upon which this controversy has arisen, they'depend upon the laws of Illinois as-they stood at the time the mortgage deed was executed. The money due was indeed to be paid in New York. But the mortgage given to secure the debt was made in Illinois for' real property situated in that state, and the rights which the mortgagee acquired in the premises depended upo» the laws of th it state. In other words, the existing laws of Illinois created and defined the legal and equitable obligations of the mortgage contract.

If the laws of the state passed afterwards had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection. For, undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for exaniple, shorten the. period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the’ necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture,- shall, like wearing apparel, not be liable to. execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It 'must reside in every state to enable it to secure its citizens from unjust aqd harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will riot follow that' the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to' the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial, whether it is done by .acting on the remedy or directly on the- contract itself. In either case it is prohibited by the Constitution.

This subject came before the Supreme Court in the case of Green v. Biddle, decided in 1823, and reported in 8 Wheat. 1. It appears to have been twice elaborately argued by counsel on both sides, and deliberately considered by the court. On the part of the demandant in. that case, it was insisted that the laws of Kentucky passed in 1797 and 1812, concerning occupying claimants of land, impaired the obligation of the compact made with Virginia in 1789. On the other hand, it was contended that these laws only regulated the remedy, and did not operate on the right to the lands. In deciding the point the court say, “ It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedie? as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they directly overturned his rights arid interests.” And in the opinion delivered by the court after the second argument, the same rule is reiterated in language equaiiy strong. (See pages 75." 76, dnd 84.) This judgment of the court is entitled to the more weight, because the opinion is stated in the report of the case to have been unani-. mous; and Judge Washington, who was the only member of the court absent at the first argument; delivered the opinion of the second.

We concur entirely in the correctness of the rule above stated. It is difficult, perhaps, to draw a line that would be applicable in all cases between legitimate alterations of the remedy and provisions which, jn the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions; so as to make the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or encumbered it with conditions that rendered it useless or impracticable tó pursue it. Blackstone, in his Commentaries on the Laws of England, 1 vol. 55, after having treated of the declaratory and directory parts of the law, defines the remedial in the following words:

“ The remedial part of the law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For, in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those -rights when wrongfully, withheld- or invaded. This is what we mean properly when we speak of the protection of the law. When, for instance, the declaratory part of the law has said that the field or inheritance which belonged to Titius’s father is vested by his death in Titius; and the directory part has' forbidden any one to enter on another’s property without the leave of the owner; if Gaius, after this, will presume to take possession of the land, the remedial part of the law will then interpose its office, will make Gaius restore the possession to Titius, and also pay him damages for the invasion.”

We have quoted the entire paragraph, because it shows, in a few plain words, and illustrates by a familiar example, the connection of the remedy with the right. It is the part of the municipal law which protects-the right, and the obligation by which it enforces and maintains it. It is this protection which the clause in the Constitution now in question mainly intended to secure. And it would be unjust to the memory of the distinguished men who framed it, to suppose that it was designed to protect a mem barren and abstract right, without any practical operation upon the business of life. It was undoubtedly adopted as a part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout this Union, by placing them under the protection of the Constitution of the United States. And it would but ill become this court, under any circumstances, to depart from the plain meaning of the words used, and to sanction a distinction between the right and the remedy, vt hich would render this provision illusive and nugatory; mere words of form, -affording no-protection, and producing no practical result.

We proceed to apply these principles to the case before us. According to the longTsettled rules of law and equity in all of the states whose jurisprudence has been modelled upon the principles of the common law, the legal title to the premises in question vested- in the complainant, upon the. failure of the mortgagor to comply with the conditions contained in the proviso; and at law, he had a right to sue for and recover the land itself. But, in equity, this legal title is regarded as a trust estate, to secure the payment of the money; and, therefore, when the debt is discharged, there is a resulting trust for the mortgagor. Conard v. The Atlantic Insurance Company, 1 Peters, 441. It is upon this construction of the contract, that courts of equity lend their aid either to the mortgagor or mortgagee, in order to enforce their respective rights. The court will, upon the application of the mortgager, direct the reconveyance of the property to him, upon the payment of the money; and, upon the application of the mortgagee, it-will order a sale of the property to discharge the debt. But, as courts of equity follow the law, they acknowledge the legal title of the mortgagee, and never deprive him of his right al law until his debt is paid; and he is entitled to the aid of the court to .extinguish the equitable title of the mortgagor, in-order that he may obtain the benefit of his security. For this purpose, it is his absolute and undoubted right, under an ordinary mortgage deed, if the money is not paid at the appointed day, to go into the' Court of Chancery, and obtain its order for the sale of the whole mortgaged property, (if the whole is necessary,) free and discharged from the equitable interest of the mortgagor. This is his right, by the law of the contract; and it is the duty of the court to maintain and enforce it, without any unreasonable delay.

When this contract was made, no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. None such, at least, has been brought to the notice of the court; and it must, therefore, be governed, and the rights of the parties1 under it measured, by the rules above stated. They were the laws of Illinois at the time; and, therefore, entered into the contract, and formed a part of it, without any. express stipulation to that effect in the deed. Thus, for example, there is no covenant in the instrument giving the mortgagor the right to redeem, by paying the money after the day limited in the deed, and before he was foreclosed by the decrfie of the Court of Chancery. Yet no one doubts his right or his remedy; for, by the laws of the state then iri force, this right and this remedy were a part of the law of the contract, without any express agreement by the parties. So, also, the rights of the mortgagee, as known to the laws, required no express stipulation to define or secure them. They were annexed to the contract at the time it was made, and formed a .part of it; and any subsequent law, impairing the rights thus acquired, impairs the obligations which the contract imposed.

This- brings us to examine the statutes -of Illinois which: have given rise to this controversy. As -concerns the law of February 19, 1841, it appears to the court not to act merely on the remedy, but directly upon the contract itself, and to engraft upon it new conditions injurious and unjust to the mortgagee. It declares that, although the mortgaged .premises should be sold under the decree of the Court of Chancery, yet that the equitable estate of the mortgagor shall not. be extinguished, but shall continue for twelve months after the sale; and it moreover gives a.riew and like estate, which before had no existence, to the judgment credit- or, to-continue for fifteen months. If such rights may be added to the original contract by subsequent legislation, it would be difficult ■ to say at what point they must stop. An equitable interest in the.premises may, in like manner, be conferred upon others; and the right to redeem may be so prolonged, as to deprive the mortgagee of the benefit of his security, by rendering the property unsaleable for any thing like its value. This law gives to the mortgagor, and to the judgment creditor, an equitable estate in the premises, which neither of them would have been entitled to under the original contract; and these new interests are directly and materially in conflict with those which the mortgagee acquired when the mortgage was made. Any such modification of a contract by subsequent legislation, against the consent of one of the parties, unquestionably impairs its obligations, and is prohibited by the'Constitution.

Thé second point certified arises under the law of February 27, 1841. The observations already made in relation to the other act apply with equal force to this. It is true that this law apparently acts upon the remedy, and not directly upon the contract. Yet its effect is to deprive the party of his pre-existing'right to foreclose the mortgage by a sale of the premises, and to impose upon him conditions which would frequently render any sale altogether impossible. And this law is still more objectionable, because it is not a general one, and prescribing the mode of selling mortgaged premises in all cases, but is confined to judgments rendered, and contracts made, prior to the 1st of May, 1841. The act was passed on the 27th of February in that year; and it operates mainly on past contracts, and not'on future. If the contracts intended to be affected by it had been specifically enumerated in the law, and these conditions applied to them, while other contracts of the same description were to be.enforced in the ordinary course of legal proceedings, no one would doubt that such a law was unconstitutional. Here a particular class of contracts is selected, and encumbered with thesé new conditions; and it can make no difference, in principle, whether they are described by the names of the parties, or by the time at which they were made.

In the case before us, the conflict of these laws with the obligations of the contract is made the more evident by an express covenant contained in the instrument itself, whereby the mortgagee, in default of payment, was authorized to enter on the premises, and sell them at public auction; and to retain out of the money thus raised, the amount due, and to pay the overplus, if any, to the mortgagor. It is impossible to read this covenant, and compare it with the laws now under consideration, without seeing that both of these acts materially interfere with the express agreement of the parties contained in this covenant. Yet, the right here secured to the mortgagee is substantially nothing more than the right to sell, free arid discharged of the equitable interest of Kinzie and wife, in order to obtain Iqis money. Now, at the time this deed was executed, the right to sell, free and discharged of the equitable estate of the mortgagor, was a part of every ordinary contract of mortgage in the state, without the aid of this express covenant; and the only difference between the right annexed by law and that given by the covenant consists in this: that in the former case, the right of sale must be exercised under the direction of the Court of Chancery, upon such terms as it shall prescribe, and the sale made by an agent of the court; in the latter, the sale is to be made by the party himself. But, even under this covenant, the sale made by the party is so far subject to the supervision of the court, that it will be set aside, and a new one ordered, if reasonable notice is not given, or the proceedings be regarded, in any respect, as contrary to equity and justice. There is, therefore, in truth but little material difference between the rights of the mortgagee with or without this covenant. The distinction consists rather in the form of the remedy, than in the substantial right; and as it is evident that the laws in question invade the right secured by this covenant, there can be no sound reason for a different conclusion, where similar rights are incorporated by law into the contract, and form a part of it at the time it .is made.

Mortgages made since the passage of these laws must undoubtedly be governed by them; for every state has the power to prescribe the legal and equitable obligations of a contract to be made and executed within its jurisdiction. It may exempt any property it thinks proper from sale, for the payment of a debt ; and may impose such conditions and restrictions upon the creditor as its judgment and policy may dictate. And all future contracts would be subject to such provisions; and they would be obligatory upon the parties in the courts of the United States, as well as in those of the state. We speak, of course, of contracts made and to be executed in the state. It is a case of that description that is how before us; and we do not thinit it proper to go beyond it.

Upon the questions presented by the Circuit Court, we therefore answer:

1. That the decree should direct the premises to be sold at public auction to' the highest bidder, without regard. to the law of February 19, 1S41, which gives the right of redemption to the mortgagor for twelve months, and to the judgment -creditor for fifteen.

2. That the decree should direct the sale of the mortgaged premises, without being first valued by three householders, and without requiring two-thirds of the amount of the said valuation to be bid according to-the law of February 27, 1841.

The decision of these two questions disposes of the third. And we shall direct these answers to be certified to the Circuit Court.

Mr. Justice McLEAN

dissented.

The act of Illinois of the 27th February, 1841, does not apply to the case under consideration. The rule of the Circuit Court adopting that act, limits it to executions on judgments at law. It can have no application, therefore, to any proceeding in chancery. The only rule ad.op'ted in relation to a chancery proceeding, is that which gives the mortgagor a year within which to redeem the'premises sold, on the payment of the purchase-money and 10 per cent, interest, agreeably to the 8th section of the act of 19th February, 1841. And that rule was to operate only in decrees of. foreclosure and sale, where a different order was not made. So.that, in fact-, no positive rule was adopted in Illinois by the CircuifCourt, in relation to sales of mortgaged premises' under a decree.

' By the rules -regulating chancery proceedings adopted by this court at its last term, it is supposed the above rule and all others regulating the practice in chancery was rescinded. But this is not material. The points certified would be answered by saying, that the acts of the legislature referred .to can have no operation in the case; as no state law can govern the proceedings of a chancery court of the United States.

Under such circumstances, I cannot but regret that the court have deemed it necessary or proper to consider the constitutionality of the above acts, and to hold that they are unconstitutional. The decision of the-matters before the court does not require this judgment. And it is the more to be regretted, as there was no argument, written or oral, to sustain these laws. Heretofore this court have not deemed it proper to act on so grave a subject as the constitutionality of a state law, unless the question were essentially involved in the decision of the case before them.

The act of the 27th of February, 1841, is held to be unconstitutional as regards all contracts or mortgages entered into prior to its enactment, because it requires real property levied on by execution to be appraised and to sell for two-thirds of its value.

As preliminary to an examination of this question, 1 will take a cursory review of the policy and laws of the federal government in respect to state process. By the act of the 29th September, 17S9, it is provided, “ that the forms of writs and executions, except their style, in the. Circuit and District Courts, in suits at common law, shall be the same in each state respectively as are now used, or allowed, in the Supreme Court of the same.” Again: By the act of the 8th of May, 1792, the above provision is re-enacted, “subject to such alterations and additions as the courts respectively shall, in their discretion, deem expedient; or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule to prescribe to any Circuit or District Court concerning the same.”

In the 8th section of the act of the 2d March, 1793, it is provided, “that where it is now required by the laws of any state, that goods taken in execution, on a writ of fieri fiadas, shall be appraised previous to the sale thereof, it shall be lawful for the appraisers appointed under the authority of the state to appraise goods taken in execution on a fieri fiadas issued out of any court of'the United States, in the same manner as if such writ . had issued out of a state court.” 'And it is made the duty of the marshal to summon appraisers, &c*

Under the foregoing process acts, a question was made in the state/>f Kentucky, whether the executions'from the Circuit Court of the United States should be governed by the. laws of that state. In the case of Wayman v. Southard, 10 Wheat. 2, among several points certified from the Circuit Court, for the decision of this court, were the two following.:

“ That, if the statutes of Kentucky, in relation to executions, are binding on'this court, viz.: the statute which requires the plaintiff to endorse on the execution, that bank notes of the Bank of Kentucky, or notes of the Bank of the Commonwealth of Kentucky, will be received in payment, or that the defendant may replevy the debt for two years, are in violation of the Constitution of the United States.”
“ That all the statutes of Kentucky, which authorize a defendant to give a replevin bond, in satisfaction of a judgment or execution are unconstitutional and void.”

This court held that the process acts of 1789, and of 1792, did not apply to states subsequently admitted into the Unionand that as the act regulating executions had not been adopted by the Circuit Court of thé United States for Kentucky, it could not regulate final process in that court. But the court did not deem it necessary or proper to decide on the constitutionality of the laws referred to.

In the case of the Bank of the United States v. Halstead, 10 Wheat. 51, a point was certified from'the Circuit Court of Kentucky, involving, the question, whether “ the act of Assembly of Kentucky, of the 21st December, 1821, which prohibits the sale of property taken under-executions for less than three-fourths of its appraised value,.was repugnant to the Constitution of the United States.” And this court held, Judge- Thompson giving the opinion, as in the case of Wayman v. Southard, that the law of the state did not apply to the courts of the United States, it - never having been adopted. And they remark: “ This renders it unnecessary to inquire into the constitutionality of the law of, Kentucky.”

These cases in principle are analogous to the one under consideration. The only rule of court affecting a proceeding in chancery having been repealed or rescinded by the general’ rules adopted by this court at its last term, and if not repealed does not apply; the laws of the state of Illinois, as regards the proceeding under consideration, are as. inapplicable as were the laws of Kentucky in the above cases. And it is a subject of regret, that the precedent of the above cases has not been followed in the present decision.

Out of the above decisions grew the process act of the 19th May, 1828. That act declares, “that writs of execution and other final process, issued on judgments and decrees rendered in any of the courts of the United States, and the proceedings thereupon, shall be the same as are now used in the courts of the state.” And power was gi.ven to “ the courts, if they shall see fit in their discretion, by rules of courts, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.”

The above enactments show that the settled policy of the federal government is, to adopt the state laws regulating final process. And so far as the acts of Congress have operated, state laws have governed executions in the federal courts.

In Virginia real estate is not liable to be sold on execution. In Connecticut, and, I believe, in Massachusetts, lands are taken in satisfaction of judgments on a valuation. In Ohio, and in many of the other states, real estate must be sold for one-half or two-thirds of .its valuation. In Indiana, and in some of the other states, the defendant has a right within twelve months to redeem his land sold on execution, on paying some 10 or 12 per cent, interest. Iri Virginia, Mississippi, and some of the other states, forthcoming bonds are given, which suspend further proceedings on executions, and in some degree changes the security under the judgment.

Now these laws prevail in some of the states, and there is no reason why, under the Constitution, they may not be adopted' in all of them. If Virginia may withdraw her lands from execution, and Ohio admit them to be sold under a valuation, why may not Illinois do the same ?

But I understand the" objection to the Illinois statute is, its limited operation and its applicability to prior contracts.

The 2d section of the act provides, that it “ shall extend to all judgments rendered prior to the 1st of May, 1841, and to all judgments that may be rendered on any contract or cause of action, accruing prior to the 1st May, 1841.”

This provision may seem to be somewhat capricious and of doubtful policy; but the inquiry must be, does it violate the Constitution of the United States? On the 27th February, 1841, this law was enacted, and although it is limited in its effects, yet it is general in its provisions. And I know of no power iu the Constitution to limit the legislative discretion of the states as to the duration of their enactments. The only question under this act as to its constitutionality must be, whether it impairs the obligations of contracts entered into before it was passed. And iu this view, the question arises, whether the remedy, in the sense of the Constitution, can be considered as a part of the contract.

That the law objected to is remedial, no one can controvert. It does not purport to act upon contracts, but modifies the remedy for the enforcement of contracts. But my brethren suppose, that, as this remedy may be retarded by the limitation on the sale of - land under judgments, the obligation of the contract is thereby impaired. This conclusion can only be sustained on the ground that the remedy is a part of the contract. On this hypothesis every contract embraces the existing remedy, and that remedy cannot be protracted by the legislature. This is a question of constitutional power, and cannot be affected by any notions of expediency. If the remedy be so modified as to protract the recovery of a debt a week, or a month, in the view now taken by the court, it impairs the obligation of the contract as clearly as any longer period of time. The question cannot, in any degree, depend upon time. What, could be more preposterous than to say the legislature of a state may prolong the remedy a week, a month, or three months, but cannot prolong it beyond that period ? Where shall this judicial discretion find a limit? Theré must be some limit. If the legislature may not modify the remedy at their discretion, in regard to existing contracts, they must be prohibited from making any change. Any departure from this rule of construction must depend upon the arbitrary decision of the courts. And each court, in this respect, may exercise its own discretion,- until- the question shall be settled by this tribunal.

But the question may be asked, suppose, the legislature shall repeal all remedy; is the contract not thereby impaired ? This ' question may be asked with no more propriety and effect than many others. May not a state fail to appoint judges, clerks, and other officers essential to the administration of justice ?

X am aware that, in the case of Green v. Biddle, 8 Wheat, 17, this court say: “ It is no answer, that the acts of Kentucky, now in question, are regulations of the remedy, and not of the right to lands. If these a cits- so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they directly overturned his rights and interests.”

The above question arose under the compact between Virginia and Kentucky, which declared, “that all private rights and interests of lands, within Kentucky, derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws then existing in the state of Virginia.”

The above article, say the court in their opinion, “declares in the most explicit terms that all private rights and interests of lands, derived from the laws of Virginia, shall remain valid and secure under the laws of Kentucky, and shall-be determined by the laws then existing in Virginia. It plainly imports, therefore, that these rights and interests, as to their nature and extent* shall be exclusively determined by the laws of Virginia, and that their security and validity shall not be in any way* impaired by the laws of Kentucky. .Whatever law, therefore, of Kentucky does narrow these rights and diminish these interests, is a- violation of the compact, and is consequently unconstitutional.”

And again the court observe : “ The only question, therefore, is, whether the acts of 1797 and 1812 have this effect. ■ It is undeniable that no acts of a similar character were in existence in Virginia at the time when.the compact yvas made; and, therefore, no aid can be derived from the actual legislation of Virginia to support them.” These, acts were held to abridge the rights of the holder under the Virginia title, and, whether remedial or otherwise, were consequently repugnant to thé compact. By the compact, the rights and interests of the Virginia claimant, botinas to their nature and extent, say the court, were to be exclusively determined by the law's of Virginia. In other'words, where rights are to be determined by one law, another and a repugnant law can have no influence upon them. And this was the point adjudged in the case of Green v. Biddle. The question did not arise under the Constitution of the United States, but under the compact.

In the case of Sturges v. Crowninshield, 4 Wheat. 200, the late chief justice says: “ The distinction between the obligation of a contract and the rerhedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” This is the true principle laid down in explicit terms.

The doctrine that the remedy constitutes a part of the contract' is a mere abstraction, which cannot be carried into practical ope.ration. If the doctrine-be sound, it secures the means for the' enforcement of the contract at its date.

Now does any one. doubt that a state legislature may-abolish imprisonment for debt, as well on past as future contracts ? Here is a modification of the remedy, which takes away a means, and often a principal means, of enforcing the payment of the debt. And yet this is admitted by all .to be a constitutional law. Nor does any one doubt the constitutionality of a statute of limitations. . This operates upon contracts entered into before its enactment, and bars the right of action.

Now, if the remedy existing at the time of the contract.is a part of the contract, the state legislature cannot modify the remedy, much less, as by the above statute, take it away. It is no answer to this argument to say, that the statutory bar' is only interposed where the obligee has been grossly negligent. There was no such condition of vigilance at the date of the contract, and if the above argument -be sound, no subsequent action of the legislature can impair its obligation by materially retarding its enforcement, much' less by barring the remedy.

The argument in favour of the statute is, that it does not act upon the contract, but withdraws the remedy. Now if this be a constitutional exercise of power by a state legislature, surely the exercise of the lesser power, by modifying the remedy at discretion, must also be constitutional. Does not 'the greater power include the lesser ? The power-, whether exercised in passing a statute of limitations, ,or in modifying the laws in relation to judgments and executions,acts'iipon the remedy. In both instances the enactments constitute the laws of the forum. And in my judgment, they depend upon the same power over the remedy.

But if the remedy be a part of the contract, how must it be applied ? Instead of looking to the laws regulating judicial proceedings at the time the action is brought, the court must look to the date of the contract and the laws then in force. The contract, in this view, gives ^vitality to laws annulled by the legislature, and the law of the remedy becomes as diversified as the contracts to which it is applied. Can such a rule of construction be enforced?

How is a contract made in one state to be enforced in another? If the remedy in. the state where the contract is made enter into it, does it carry this remedy into another jurisdiction ? This will not be contended; and why not? If the contract within the state include the law of the remedy, why does it not carry into a foreign jurisdiction the same conditions? Every contract does this, which is governed by the local law. A contract for the payment of money, made and to be performed in the state of New York, bears 7 per cent, interest: And this rate of interest is recovered on the contract, in a state where 7 per cent, would be usurious. And so of every other contract made under a local law, however repugnant may be its conditions to the laws and policy of the jurisdiction where the remedy is sought. This is emphatically the law of the contract. And if the remedy be also the law of the contract, it must follow the-contract wherever it shall be prosecuted. If this be not the case, the argument falls; the remedy exists independently of the contract, and does not constitute a part of it.

A contract void by the local law on the ground of usury, or because it is against, the policy of the law, can be enforced nowhere. Thére is no exception to the principle that where a contract is entered into under the sanctions of a state law, that law governs the contract in whatever jurisdiction suit may be brought on it. And so where a contract is made in one state to be performed in another, the place of performance gives the law of the contract. But in no case does the remedy attach-itself to the contract, so as to constitute a part of it. Such -an idea is too abstract for practical operations. At most, it could only affect contracts sued on in the state where they were made. Such a principle could not be carried out. It would diversify the remedy to an impracticable extent.

Every contract is entered into with a supposed knowledge by the parties, that the law-making power may modify the remedy. And this it may do, at its discretion, so far as it acts only on the remedy.. It may regulate the mode in which process shall be issued and served; how the pleadings shall be filed, and at what term judgment shall or may be entered. ■ And it may also regulate final process. It may require that the personal property of ihe defendant shall be levied on and sold, before land shall be taken in execution. It may say what notice shall be given on the sale of real estate on execution -; and also require that it shall sell for one-half or two-thirds of its value. A valuation law in those states where it has been adopted' has been found salutary in guarding the rights of debtor and creditor. A debtor, under this law, cannot defeat the claim of his .creditor, by purchasing the real estate levied on, through the agency of a friend, at a nominal price; and this protects the rights of the creditors of the defendant generally. There may be some cases'of hardship-to creditors under such a law, but -they must be few and unimportant in comparison with the benefits secured by the law both to' creditors. and debtors. Some restriction on the sale of land .on execution .is required by á sound policy, especially in new and rising states, where real property can scarcely be said to have'a final value.

But this law is supposed to be unconstitutional from its retrospective effect. I had supposed that such a supposition could not be raised, under the decision of this court.

In the case' of Satterlee v. Matthewson, 2 Peters, 407, “the plaintiff, at the trial, set up-a title under a warrant'dated the 10th-January, 1812, founded upon an improvement in the year 1785, which .it was admitted-was under a Connecticut title, and a patent dated 19th February, 1813.

“ The defendant claimed title under a patent issued to John Wharton in the year 1781, and a conveyance by him to Satterlee in 1812.” Some time in the year 1790, the defendant had come into possession as tenant to the plaintiff, and it was insisted that the defendant was estopped from setting up his title. The Court of Common Pleas decided in favour of the plaintiff; but on a writ of error, the Supreme Court of Pennsylvania held, that “ by the settled law of that state, the'relation of landlord and tenant could not subsist under a Connecticut, tillé.” Upon which ground the judgment was reversed, and a venir-e facias de novo was awarded.

On the 8th day of April, 1826, and before, the second trial of-the cause took place, the legislature of that state passed a law, declaring", “ that the relation of landlord and tenant shall exist, and be held as fully and effectually between Connecticut settlers and Pennsylvania- .claimants, as between other citizens of this commonwealth, on the trial of any cause -now pending or hereafter to be brought within this commonwealth, any law or usage to the contrary notwithstanding.” Under the instruction of the court in accordance with that statute, the jury found a verdict for the plaintiff, on which judgment was entered. This judgment, on being removed by writ of error to the'Supreme Court of Pennsylvania, was affirmed. On the ground.- that the above statute impaired the. obligation of the contract between Satterlee and Matthewson, the cause was removed to this court from the Supreme Court of Pennsylvania, by a writ of error.

In their opinion this court say, “ If the effect of the statute in question be not to impair the obligation of the contract, is there any other part of the Constitution of the United States to which •it is repugnant ? It is said to be retrospective. Be it so; but retrospective laws which do not impair the obligation of contracts,- or partake of the character of ex' post facto laws, are not condemned or forbidden by any part of that instrument.”

And again, “ The objection is urged that the effect of this act was to divest rights which were vested by law in Satterlee. There is certainly no part of the Constitution of the United States which applies to a state law of this description; nor are we aware of any decision of this, or of any Circuit Court, which condemned such a la upon this ground.”

Here was a direct legislation not only on existing rights grow ing out of contracts, but such an effect was given to the law a: to divest vested rights. And yet this act was held not to be in violation of the Constitution of the United States.

What vested right is there or can there be, in the nature of ■things, in the holder of a contract to the particular remedy for its enforcement which existed at its date ? But if there were such a vested right as to the remedy, which there is not, it may, under the above authority, be divested by law. If the decision do not mean this, it means nothing.

A state legislature cannot impair the contract by changing the time or manner of its performance. . By. the contract, the parties have fixed their rights and obligations; and these are guarded by the .Constitution. But the remedy for the enforcement of the contract being established by the law-making power, may be modified at its discretion. This is admitted as regards subsequent contracts, but the same rule applies to prior ones. So far as the mere remedy is concerned, in my judgment, no sound and practical distinction can be drawn between prior and future contracts.

I. think, in the case under consideration, that the laws of Illinois referred to do not apply, and, therefore, I agree to the answers given by the court to the points certified.

ORDER.

This cause came on to be heard on the transcript of the record from the- Circuit Court of the United States for the district of Illinois, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st. That the decree should direct the premises to be sold at public auction to the highest bidder, without regard to the law of February 19.th, 1841, which gives the right of redemption to the mortgagor for twelve months, and to the judgment creditor for fifteen. 2d. That the decree should direct the sale of the mortgaged premises without being first valued by three householders, and without requiring two-thirds of the amount of the said valuation to be bid according to the law of February 27th, 1841; and that the decision of these two questions disposes -of the third. It is thereupon now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.

       “Nothing, m short, can be more clear, upon principlesof law and reason, than that a law which denies to the owner of land a remedy to'recover the possession of it when withheld by any person, however innocently he may have obtained it; or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits, by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified .and restrained by conditions of any kind, the right of the owner may indeed subsist, and be acknowledged, but it is impaired, and rendered insecure, according to' the nature and extent of such restrictions.’" 8 Wheat. 75.

       Present Mr. Chief Justice Taney; and Justices Thompson, McLean, Baldwin, Wayne, Cathon, and Daniel.


source: Caselaw Access Project

author: Mr. Justice Blackmun

license: Public Domain

text:
    CHAPMAN et al. v. MEIER, SECRETARY OF STATE OF NORTH DAKOTA
    No. 73-1406.
    Argued November 13, 1974
    Decided January 27, 1975

      John D. Kelly argued the cause and filed a brief for appellants.

      Paul M. Sand, First Assistant Attorney General of North Dakota, argued the cause for appellee. With him on the brief was Allen I. Olson, Attorney General.
   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue of the constitutionality of a federal-court-ordered reapportionment of the North Dakota Legislature, called in that State the Legislative Assembly. That State, like many others, has struggled to satisfy constitutional requirements for legislative apportionment delineated in Baker v. Carr, 369 U. S. 186 (1962); Reynolds v. Sims, 377 U. S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U. S. 633 (1964); Maryland Committee v. Tawes, 377 U. S. 656 (1964); Davis v. Mann, 377 U. S. 678 (1964); Roman v. Sincock, 377 U. S. 695 (1964); Lucas v. Colorado General Assembly, 377 U. S. 713 (1964), and other cases. This litigation is the culmination of that struggle, totally ineffectual on the legislative side, during the past decade.

I

The State’s Constitution and Its Statutes

North Dakota's original Constitution, adopted at the State’s admission into the Union in 1889, is still in effect. It has been amended, of course, from time to time. Since 1918, §25 thereof has read: “The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives.” N. D. Const. Art. II, § 25. That legislative power for 70 years has been subject to the initiative and the referendum. Ibid. The Constitution has further provided that the State’s senate “shall be composed of forty-nine members,” § 26, elected for a four-year term, § 27, with one-half thereof elected every two years, § 30, and that no one shall be a senator unless he is a qualified elector of the senatorial district, has attained the age of 25 years, and has been a resident of the State for the two years next preceding the election, § 28. Since 1960, § 29 has read:

“Each existing senatorial district as provided by law at the effective date of this amendment shall permanently constitute a senatorial district. Each senatorial district shall be represented by one senator and no more.” Laws 1969, c. 438; Laws 1961, c. 405.

The document also states that the house of representatives “shall be composed of not less than sixty, nor more than one hundred forty members,” § 32, elected for a two-year term, § 33, and that no one shall be a representative unless he is a qualified elector of the district, has attained the age of 21 years, and has been a resident of the State for the two years next preceding the election, § 34. Section 35 provides for at least one representative for each senatorial district and for as many representatives as there are counties in the district; states that the Legislative Assembly, after each federal decennial census, shall apportion “the balance of the members of the House of Representatives,” and, if the Legislative Assembly fails in its apportionment duty, places the task of apportioning the house in a designated group of officials of the State.

There have been complementary statutory provisions. An apportionment effected by Laws 1931, c. 7, N. D. Cent. Code §54-03-01 (1960), was in effect for over 30 years despite the mandate of § 35 of the Constitution that apportionment be effected after each federal census.

II

Prior Litigation

A. Things began to stir in North Dakota even prior to this Court’s decision in Baker v. Carr in 1962. The State’s Legislative Assembly of 1961 had failed to apportion the house following the 1960 census. After Baker had been decided at the District Court level, 179 F. Supp. 824 (MD Tenn. 1959), and between the argument and reargument of the case here, the Supreme Court of North Dakota dismissed an original action for a prerogative writ to enjoin its Chief Justice from issuing the apportionment proclamation which would have announced the conclusions of the statutorily designated “apportionment group” that were then anticipated. The petition asserted that the group's plan would apportion the house in an unconstitutional manner and not according to population. The Supreme Court ruled that the function of the group was legislative; that it had not yet completed its work; that it was performing a function the Legislative Assembly should have performed; and that, until the proclamation was issued, the group's action was not subject to challenge in the courts. State ex rel. Aamoth v. Sathre, 110 N. W. 2d 228 (1961).

B. Citizens of North Dakota then sought declaratory and injunctive relief in federal court under the Civil Rights Acts, 42 U. S. C. §§ 1983 and 1988. By this time the State's Chief Justice had issued the proclamation. A three-judge District Court held that the presence of the proclamation eliminated the aspect of prematurity that had characterized the earlier challenge in the state court. But the “basic issues,” the court concluded with one dissent, had not been presented to the Supreme Court of North Dakota. “We believe that court should have the opportunity of passing on all questions herein.” The court, accordingly, abstained from passing upon those issues; it stayed further proceedings before it, but did not dismiss the action. Lein v. Sathre, 201 F. Supp. 535, 542 (ND 1962).

C. The plaintiffs in the federal case promptly took to the Supreme Court of North Dakota their attack upon the plan adopted by the apportionment group. That court assumed jurisdiction. State ex rel. Lein v. Sathre, 113 N. W. 2d 679, 681 (1962). It noted that no question arising under the United States Constitution was presented, id., at 681-682, and that it was not concerned with the validity of the allotment of one representative to each senatorial district, as prescribed by the first sentence of § 35 of the Constitution, id., at 683. The court recognized that there was inherent in a constitutional direction to apportion according to population “a limited discretion to make the apportionment that will approach, as nearly as is reasonably possible, a mathematical equality.” Id., at 685. It then went on to hold that the apportionment made by the group “violates the constitutional mandate of apportionment according to the population of the several districts and is void,” id., at 687, and that the apportionment effected by the 1931 statute continued to be the law until superseded by an apportionment valid under § 35 or under a further amendment of the Constitution. Id., at 687-688.

D. The same plaintiffs then turned again to the federal court. The three-judge court, with one judge dissenting, denied the request for injunctive relief on the ground that the only challenge before it was to the apportionment group’s plan, and that the 1931 apportionment was not challenged. Lein v. Sathre, 205 F. Supp. 536 (ND 1962). It noted that the Legislative Assembly would meet the following January, that it had “the mandatory duty” to apportion the house, and that the court would not presume that it would not perform that duty. Jurisdiction was retained, with the observation that if the Legislative Assembly failed to act, the plaintiffs, upon appropriate amendment of their complaint, might further petition the court for relief. Id., at 540.

E. The 1963 Legislative Assembly did reapportion. Laws 1963, c. 345.

F. Reynolds v. Sims, 377 U. S. 533, and its companion cases were decided in June 1964. A new suit then was instituted in federal court to invalidate North Dakota's entire apportionment system on federal constitutional grounds. Sections 26, 29, and 35 of the Constitution and the 1963 statute were challenged. 'I&e three-judge court held that these constitutional and statutory provisions were violative of the Equal Protection Clause. Paulson v. Meier, 232 F. Supp. 183 (ND 1964). It went oh to hold that the 1931 apportionment, being “the last valid apportionment,” as described by the North Dakota Supreme Court, and by which the 1963 legislators had been elected, was also invalid. Thus, “there is no constitutionally valid legislative apportionment law in existence in the State of North Dakota at this time.” Id., at 187. The court encountered difficulty as to an appropriate remedy. It concluded, one judge dissenting, that adequate time was not available within which to formulate a proper plan for the then forthcoming 1964 elections, id., at 188; that the 1965 Legislative Assembly would have a de jacto status; and that that Assembly should promptly devise a constitutional system. In-junctive relief was denied. Id., at 190.

G. The 1965 Legislative Assembly produced a reapportionment act although it was not approved or disapproved by the Governor. Laws 1965, c. 338.

H. The North Dakota Secretary of State, defendant in the federal court, then moved to dismiss the federal action on the ground that the 1965 act met constitutional requirements. The three-judge court, however, ruled otherwise. Paulson v. Meier, 246 F. Supp. 36, 43 (ND 1965). It turned to the question of remedy and concluded that the Legislative Assembly had had its opportunity and that the court now had the duty itself to take affirmative action. Id., at 43-44. It considered several plans that had been introduced in the Assembly and centered its attention on the Smith plan. Although the court found the plan “not perfect” (five multimember senatorial districts, and county lines violated in 12 instances), it concluded that the plan, if “slightly” modified, would meet constitutional standards (“impressive mathematical exactness,” namely, 25 of 39 districts within 5% of the average population, four slightly over 5%, and only two exceeding 9%). Id., at 44 — 45. The “slight” modification was made and reapportionment, really the first to be finally effected since 1931, was therefore accomplished in North Dakota by federal-court intervention.

I. Still another original proceeding in the State's Supreme Court was instituted. This one challenged the right of senators from the multimember districts to hold office. It was claimed that this multiple membership violated § 29 of the North Dakota Constitution which provided that each senatorial district “shall be represented by one senator and no more.” The state court held that the 1965 judgment of the federal court was not res judicata as to the then plaintiffs; that the initial or “freezing” portion of §29 was clearly invalid; that the concluding portion, restricting representation of a district to one senator, would not have been desired by the people without the “balance” of the freezing portion; and that § 29 as a unit must fall as violative of equal protection. State ex rel. Stockman v. Anderson, 184 N. W. 2d 53 (1971). The result was that multi-member senatorial districts were not held illegal by the state court.

Ill

The Present Litigation

The 1970 federal census was taken in due course. The 1971 Legislative Assembly failed to reapportion. The present federal action was instituted the following November. The plaintiffs alleged that substantial shifts in population had taken place, and that the court-ordered plan of 1965 no longer complied with the requirements of the Equal Protection Clause. The relief requested was that the court order apportionment upon the 1970 census figures and also provide for single-member districts; that the 1965 plan be declared invalid; and that the Secretary of State be restrained from administering the election laws under that plan.

On May 22, 1972, the three-judge court entered an order to the effect that the existing North Dakota apportionment failed to meet federal constitutional standards and that the court would attempt to reapportion. Jurisdictional Statement A-54. It appointed a commission to formulate and present a plan within 30 days, and it submitted guidelines to the commission. With respect to multimember districts, the order provided:

“We have considered the matter of ‘multi-member’ districts and conclude there is insufficient time prior to the 1972 elections to fully explore and resolve the issues involved. The matter of ‘multi-member’ districts will be studied in depth by the Commission, and the results of that study be made available to us.” Id., at A-55.

An opinion was filed on June 30. 372 F. Supp. 363 (ND). This recited that the commission had presented eight separate plans to the court; that shifts in population since 1960 had resulted in constitutionally impermissible population variations among existing districts; that a plan submitted by Commissioner Dobson substantially reduced the disproportionate representation, although it decreased the number of districts by one and increased the number of senators by two and the number of representatives by four. “[C]ertain weaknesses” in the plan were recognized, including “some variance in population . . . which, in a few instances, seems substantial,” and a continuation of multimember districts. Id., at 366. These districts included the State’s five largest cities. The court noted that the districts had been created, not by enactment of the Legislative Assembly, but by the federal court in the 1965 Paulson decision, and observed, ibid.: “In light of subsequent [United States] Supreme Court pronouncements, we believe it would be improper for this Court to permit their continuation in a court-fashioned plan.” Connor v. Johnson, 402 U. S. 690 (1971), and Connor v. Williams, 404 U. S. 549, 551 (1972), were cited. The court, however, felt

“constrained to permit multi-member districts to continue during the 1972 elections ... to avoid extreme disruptions in the elective processes. . . . We feel that the electorate will be better served by minimizing the confusion surrounding the impending elections, than it would be by the abolition of multi-member districts at this eleventh hour.” 372 P. Supp., at 366.

The Dobson plan was therefore approved “for the 1972 election only.” Id., at 367. An alternative, the Osten-son plan, was commended to the commission for “further study,” with a direction to modify it “so as to eliminate the existing multi-member senate districts.” Id., at 367-368. Chief District Judge Benson dissented as to the limitation of the Dobson plan to the 1972 election; for him, the Connor litigation was distinguishable on racial grounds and the desirability of multimember districts was a question for the Legislative Assembly and not for the court. Id., at 368-369. Jurisdiction was retained.

On November 8, 1972, immediately after the election that year, the three-judge court suspended its June 30 order until further notice and directed the State’s Attorney General promptly to report any action taken by the 1973 Legislative Assembly.

That Assembly not only passed an apportionment Act but overrode its veto by the Governor. Laws 1973, c. 411, and Note, at 1178. The Act provided for 37 legislative districts, each having one senator and two representatives, except for five multimember senatorial districts. Section 3 thereof specifically recited the population of each district and the population variance (plus 3.3% to minus 3.5%, a total of 6.8%; or plus 408 persons to minus 432 persons, a total of 840 persons) from the average of 12,355 per senator.

The effectiveness of the legislative plan, however, promptly was suspended by a referendum petition. See Laws 1973, p. 1549. By a companion initiative petition, an amendment to the State’s Constitution was proposed ; this would have created a commission to reapportion the State and, in addition, would have mandated single-member senatorial districts. A special election on these took place December 4, 1973. Both were defeated. The Legislative Assembly’s work to reapportion was thus nullified by the people. It could be suggested, and apparently was, that the people also reacted against the elimination of the five multimember districts. In any event, the defendant thereupon moved the federal court to readopt the plan temporarily approved by its order of June 1972. The plaintiffs resisted.

The three-judge District Court, with Circuit Judge Bright dissenting, then made “permanent” the 1972 Dob-son plan, with its five multimember districts providing 18 senators out of a statewide total of 51. 372 F. Supp. 371, 379 (ND 1974). We noted probable jurisdiction. 416 U. S. 966 (1974).

IV

Jurisdiction

We are met at the threshold with a mild question of jurisdiction not pressed by the parties. We have jurisdiction under 28 U. S. C. § 1253 only if a three-judge court was required by 28 U. S. C. § 2281.

It might be suggested that the three-judge court here did not restrain the enforcement of a statute but, instead, the enforcement of the court-ordered plan of 1965 which had become unconstitutional in the circumstances of 1972, and, hence, that the provisions of § 2281 were not satisfied. The argument is less than persuasive and we conclude that it is without merit. Although the reapportionment now under attack was indeed court ordered, its enforcement is doubly based on the State’s Constitution and statutes. Its effectuation directly depends on the state election law machinery and, in addition, the plan itself is a court-imposed replacement of the North Dakota constitutional provisions and the 1931, 1963, and 1965 reapportionment statutes. It is these that are, and have been, the primary objects of attack. It would be highly anomalous if jurisdiction were not here, for then it would follow that a single judge could invalidate a reapportionment plan that had been evolved or approved, and was required so to be, by a three-judge court some time before. Subject matter of this kind is regular grist for the three-judge court, and that route typically has been employed under conditions similar to those present here. See, e. g., Skolnick v. State Electoral Board of Illinois, 336 F. Supp. 839 (ND Ill. 1971). We think this is correct procedure and we conclude that we have jurisdiction.

V

The Multimember Districts

From the above review of the North Dakota constitutional and statutory provisions and of the litigation of the past 12 years, two significant facts emerge: The first is that some multimembership on the house side of the Legislative Assembly traditionally has existed. This plainly qualifies as established state policy. The second is that, in contrast, multimembership on the senate side, even as to the five districts, has never existed except as imposed (a) by the three-judge federal court by its 1965 Paulson decision; (b) by a majority of the three-judge court as a temporary expedient for the 1972 election only; (c) by the provisions of the 1973 act immediately nullified by referendum; and (d) by a different majority of the three-judge court as a “permanent” solution in the judgment under review. Thus only once has the Legislative Assembly provided for multimember senate representation and that effort was promptly aborted. Every other such provision in North Dakota’s history has been court imposed. Multimember senate representation, therefore, obviously does not qualify as established state policy.

This Court has refrained from holding that multi-member districts in apportionment plans adopted by States for their legislatures are per se unconstitutional. White v. Regester, 412 U. S. 755, 765 (1973), and cases cited therein. On the contrary, the Court has upheld numerous state-initiated apportionment schemes utilizing multimember districts. See, e. g., Kilgarlin v. Hill, 386 U. S. 120 (1967); Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965). And, beginning with Reynolds v. Sims, 377 U. S., at 577, the Court has indicated that a State might devise an apportionment plan for a bicameral legislature with one body composed of at least some multimember districts, as long as substantial equality of population per representative is maintained.

Notwithstanding this past acceptance of multimember districting plans, we recognize that there are practical weaknesses inherent in such schemes. First, as the number of legislative seats within the district increases, the difficulty for the voter in making intelligent choices among candidates also increases. See Lucas v. Colorado General Assembly, 377 U. S., at 731. Ballots tend to become unwieldy, confusing, and too lengthy to allow thoughtful consideration. Second, when candidates are elected at large, residents of particular areas within the district may feel that they have no representative specially responsible to them. Ibid. Third, it is possible that bloc voting by delegates from a multimember district may result in undue representation of residents of these districts relative to voters in single-member districts. This possibility, however, was rejected, absent concrete proof, in Whitcomb v. Chavis, 403 U. S. 124, 147 (1971). Criticism of multimember districts has been frequent and widespread. Id., at 157-160, and articles cited therein. See generally Carpeneti, Legislative Apportionment : Multimember Districts and Fair Representation, 120 U. Pa. L. Rev. 666 (1972); Banzhaf, Multi-Member Electoral Districts — Do They Violate the “One Man, One Vote” Principle, 75 Yale L. J. 1309 (1966).

In Fortson v. Dorsey, supra, we held that the mere assertion of such possible weaknesses in a legislature's multimember districting plan was insufficient to establish a denial of equal protection. Rather, it must be shown that

“designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 379 U. S., at 439.

Further, there must be more evidence than a simple dis-proportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups. White v. Regester, 412 U. S., at 765-766. Such evidence may be more easily developed where the multi-member districts compose a large part of the legislature, where both bodies in a bicameral legislature utilize multi-member districts, or where the members’ residences are concentrated in one part of the district. Burns v. Richardson, 384 U. S., at 88. Whether such factors are present or not, proof of lessening or cancellation of voting strength must be offered.

This requirement that one challenging a multimember districting plan must prove that the plan minimizes or cancels out the voting power of a racial or political group has been applied in cases involving apportionment schemes adopted by state legislatures. In Connor v. Johnson, 402 U. S. 690 (1971), however, which came to us on an application for a stay, we were presented with a court-ordered reapportionment scheme having some multimember districts in both bodies of the state legislature. We stated explicitly that “when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter.” Id., at 692. Exercising our supervisory power, we directed the District Court to devise a single-member districting plan, “absent insurmountable difficulties.” Ibid. This preference for and emphasis upon single-member districts in court-ordered plans was reaffirmed in Connor v. Williams, 404 U. S., at 551, and again in Mahan v. Howell, 410 U. S. 315, 333 (1973). In the latter case a District Court was held to have acted within its discretion in forming a multimember district as an interim remedy in order to alleviate substantial underrepresentation of military personnel in an impending election.

The standards for evaluating the use of multimember districts thus clearly differ depending on whether a federal court or a state legislature has initiated the use. The practical simultaneity of decision in Connor v. Johnson and in Whitcomb v. Chavis, supra, so demonstrates. When the plan is court ordered, there often is no state policy of multimember districting which might deserve respect or deference. Indeed, if the court is imposing multimember districts upon a State which always has employed single-member districts, there is special reason to follow the Connor rule favoring the latter type of districting.

Appellants do not contend that any racial or political group has been discriminated against by the multi-member districting ordered by the District Court. They only suggest that the District Court has not followed our mandate in Connor v. Johnson, and that the court has failed to articulate any reasons for this departure. We agree. Absent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State.

The District Court cannot avoid the multimember issue by labeling it, see 372 F. Supp., at 377, a political issue to be resolved by the State. The District Court itself created multimember districting in North Dakota, and it might be said to be disingenuous to suggest that the judicial creation became a political question simply by the passage of nine 'years. The District Court’s treatment of this issue directly conflicts with its prior opinion in this case, where it allowed continuation of the multimember districts first established in the Paulson decision in 1965 only as an interim remedy. 372 F. Supp., at 367. The court there noted that in the largest multimember district, a voter would be asked to evaluate the qualifications of at least 30 candidates for the state legislature, a “most formidable” task. Id., at 366. Taking note of Connor v. Johnson, the court held in 1972 that it would be improper to permit multimember districts to remain permanently, and allowed continued use only for the impending election because of the great confusion that otherwise would result. The court appears now to have abandoned that position, with no suggestion of reasons for the abrupt change. It is especially anomalous that the court would continue with the multimem-ber districting plan, when the Special Master who initially proposed it has disavowed use of permanent multimem-ber districts. Dobson, Reapportionment Problems, 48 N. D. L. Rev. 281,289 (1972).

In contrast, the dissent in the District Court suggests a wide range of attributes of single-member districts. 372 F. Supp., at 391. One advantage is obvious: confusion engendered by multiple offices will be removed. Other advantages perhaps are more speculative: single-member districts may prevent domination of an entire slate by a narrow majority, may ease direct communication with one’s senator, may reduce campaign costs, and may avoid bloc voting. Of course, these are general virtues of single-member districts, and there is no guarantee that any particular feature will be found in a specific plan. Neither the District Court majority nor appellee, however, has provided us with any suggestion of a legitimate state interest supporting the abandonment of the general preference for single-member districts in court-ordered plans which we recognized in Connor v. Johnson. The fact that no allegation of minority group discrimination is raised by appellants here does hot make Connor inapplicable.

It is true that in 1973 the voters of North Dakota voted down a proposed constitutional amendment which would have re-established the State's tradition of single-member senatorial districts. At the same time the voters also rejected by referendum the Legislative Assembly’s 1973 Act which would have continued the multimember format for five districts. We are unable to infer from these simultaneous actions of the electorate any particular attitude toward multimember districts. It simply appears that North Dakota’s voters have not been satisfied with any reapportionment proposal, and that they are frustrated by the years of confusion since the obviously impermissible apportionment provisions of the State’s Constitution were invalidated.

We are confident that the District Court, with perhaps the aid of its Special Masters, will be able to reinsti-tute the use of single-member districts while also attaining the necessary goal of substantial population equality. Special Master Ostenson had indicated that it “ 'would not be terribly difficult to adopt single-member districts.’ ” See 372 F. Supp., at 392. Unless the District Court can articulate such a “singular combination of unique factors” as was found to exist in Mahan v. Howell, 410 U. S., at 333, or unless the 1975 Legislative Assembly appropriately acts, the court should proceed expeditiously to reinstate single-member senatorial districts in North Dakota.

VI

The Population Variance

The second aspect of the court-ordered reapportionment plan that is challenged by the appellants is the population divergence in the various senatorial districts. Since the population of the State under the 1970 census was 617,761, and the number of senators provided for by the court’s plan was 51, each senatorial district would contain 12,112 persons if population equality were achieved. In fant, however, one district under the plan has 13,176 persons, and thus is underrepresented by 8.71%, while another district has 10,728 persons, and is overrepresented by 11.43%. The total variance between the largest and smallest districts consequently is 20.14%, and the ratio of the population of the largest to the smallest is 1.23 to 1.

Reynolds v. Sims, supra, established that both houses of a state legislature must be apportioned so that districts are “as nearly of equal population as is practicable.” 377 U. S., at 577. While “ [mathematical exactness or precision” is not required, there must be substantial compliance with the goal of population equality. Ibid. Reynolds v. Sims, of course, involved gross population disparity among districts.

Since Reynolds, we have had the opportunity to observe attempts in many state legislative reapportionment plans to achieve the goal of population equality. Although each case must be evaluated on its own facts, and a particular population deviation from the ideal may be permissible in some cases but not in others, Swann v. Adams, 385 U. S. 440, 445 (1967), certain guidelines have been developed for determining compliance with the basic goal of one person, one vote. In Swann we held that a variance of 25.65% in one house and 33.55% in the other was impermissible absent “a satisfactory explanation grounded on acceptable state policy.” Id., at 444. See also Kilgarlin v. Hill, 386 U. S., at 123-124. In Swann, no justification of the divergences had been attempted. Possible justifications, each requiring adequate proof, were suggested by the Court. Among these were “such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines.” 385 U. S., at 444. See also Reynolds v. Sims, 377 U. S., at 578-581.

On the other hand, we have acknowledged that some leeway in the equal-population requirement should be afforded States in devising their legislative reapportionment plans. As contrasted with congressional districting, where population equality appears now to be the preeminent, if not the sole, criterion on which to adjudge constitutionality, Wesberry v. Sanders, 376 U. S. 1 (1964); Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells v. Rockefeller, 394 U. S. 542 (1969); White v. Weiser, 412 U. S. 783 (1973), when state legislative districts are at issue we have held that minor population deviations do not establish a prima facie constitutional violation. For example, in Gaffney v. Cummings, 412 U. S. 735 (1973), we permitted a deviation of 7.83% with no showing of invidious discrimination. In White v. Regester, supra, a variation of 9.9% was likewise permitted.

The treatment of the reapportionment plan in Mahan v. Howell, supra, is illustrative of our approach in this area. There the Virginia Legislature had fashioned a plan providing a total population variance of 16.4% among house districts. This disparity was of sufficient magnitude to require an analysis of the state policies asserted in justification. We found that the deviations from the average were caused by the attempt of the legislature to fulfill the rational state policy of refraining from splitting political subdivisions between house districts, and we accepted the policy as legitimate notwithstanding the fact that subdivision splits were permitted in senatorial districts. Since the population divergences in the Virginia plan were “based on legitimate considerations incident to the effectuation of a rational state policy,” Reynolds v. Sims, 377 U. S., at 579, we held that the plan met constitutional standards.

It is to be observed that this measure of acceptable deviation from population equality has been developed in cases that concerned apportionment plans enacted by state legislatures. In the present North Dakota case, however, the 20% variance is in the plan formulated by the federal court. We believe that a population deviation of that magnitude in a court-ordered plan is constitutionally impermissible in the absence of significant state policies or other acceptable considerations that require adoption of a plan with so great a variance. The burden is on the District Court to elucidate the reasons necessitating any departure from the goal of population equality, and to articulate clearly the relationship between the variance and the state policy furthered.

The basis for the District Court’s allowance of the 20% variance is claimed to lie in the absence of “electorally victimized minorities,” in the fact that North Dakota is sparsely populated, in the division of the State caused by the Missouri River, and in the goal of observing geographical boundaries and existing political subdivisions. We find none of these factors persuasive here, and none of them has been explicitly shown to necessitate the substantial population deviation embraced by the plan.

First, a variance of this degree cannot be justified simply because there is no particular racial or political group whose voting power is minimized or canceled. All citizens are affected when an apportionment plan provides disproportionate voting strength, and citizens in districts that are underrepresented lose something even if they do not belong to a specific minority group.

Second, sparse population is not a legitimate basis for a departure from the goal of equality. A State with a sparse population may face problems different from those faced by one with a concentrated population, but that, without more, does not permit a substantial deviation from the average. Indeed, in a State with a small population, each individual vote may be more important to the result of an election than in a highly populated State. Thus, particular emphasis should be placed on establishing districts with as exact population equality as possible. The District Court’s bare statement that North Dakota’s sparse population permitted or perhaps caused the 20% deviation is inadequate justification.

Third, the suggestion that the division of the State caused by the Missouri River and the asserted state policy of observing existing geographical and political subdivision boundaries warrant departure from population equality is also not persuasive. It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines. As the dissenting judge in this case noted, appellee’s counsel acknowledged that reapportionment proposed by the Legislative Assembly broke county lines, 372 F. Supp., at 393 n. 22, and the District Court indicated as long as a decade ago that the legislature had abandoned the strict policy. Paulson v. Meier, 246 F. Supp., at 42-43. Furthermore, a plan devised by Special Master Ostenson demonstrates that neither the Missouri River nor the policy of maintaining township lines prevents attaining a significantly lower population variance. We do not imply that the Ostenson plan should be adopted by the District Court, or that its 5.95% population variance necessarily would be permissible in a court-ordered plan. What we intend by our reference to the Ostenson plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible. The District Court has provided no rationale for its rejection of the Ostenson plan.

Examination of the asserted justifications of the court-ordered plan thus plainly demonstrates that it fails to meet the standards established for evaluating variances in plans formulated by state legislatures or other state bodies. The plan, hence, would fail even under the criteria enunciated in Mahan v. Howell and Swann v. Adams. A court-ordered plan, however, must be held to higher standards than a State’s own plan. With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features. We h^ve felt it necessary in this case to clarify the greater responsibility of the District Court, when devising its own reapportionment plan, because of the severe problems occasioned for the citizens of North Dakota during the several years of redistricting confusion.

VII

We hold today that unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must- avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation. Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court’s responsibility to articulate precisely why a plan of single-member districts with minimal population variance cannot be adopted.

We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court. Reynolds v. Sims, 377 U. S., at 586; Maryland Committee v. Tawes, 377 U. S., at 676. It is to be hoped that the 1975 North Dakota Legislative Assembly will perform that duty and enact a constitutionally acceptable plan. If it fails in that task, the responsibility falls on the District Court and it should proceed with dispatch to resolve this seemingly interminable problem.

The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Prior to the 1960 amendment, § 29 read:
      “The legislative assembly shall fix the number of senators, and divide the state into as many senatorial districts as there are senators, which districts,, as nearly as may be, shall be equal to each other in the number of inhabitants entitled to representation. Each district shall be entitled to one senator and no more, and shall be composed of compact and contiguous territory; and no portion of any county shall be attached to other county, or part thereof, so as to form a district. The districts as thus ascertained and determined shall continue until changed by law.”

       Section 35 reads in full as follows:
      "Each senatorial district shall be represented in the House of Representatives by at least one representative except that any senatorial district comprised of more than one county shall be represented in the House of Representatives by at least as many representatives as there are counties in such senatorial district. In addition the Legislative Assembly shall, at the first regular session after each federal decennial census, proceed to apportion the balance of the members of the House of Representatives to be elected from the several senatorial districts, within the limits prescribed by this Constitution, according to the population of the several senatorial districts. If any Legislative Assembly whose duty it is to make an apportionment shall fail to make the same as herein provided it shall be the duty of the chief justice of the supreme court, attorney general, secretary of state, and the majority and minority leaders of the House of Representatives within ninety days after the adjournment of the legislature to make such apportionment and when so made a proclamation shall be issued by the chief justice announcing such apportionment which shall have the same force and effect as though made by the Legislative Assembly.”
      Prior to the 1960 amendment, § 35 called for the Legislative Assembly (seemingly at least every 10 years) “to fix by law” the number of senators and the number of representatives “within the limits prescribed by this constitution” and to "proceed to reapportion the state into senatorial districts as prescribed by this constitution, and to fix the number of members of the house of representatives to be elected from the several senatorial districts,” with the proviso that at any regular session "the legislative assembly may . . . redistrict the state into senatorial districts, and apportion the senators and representatives respectively.”

       This feature was later described as “a radical departure from state precedent.” Chapman v. Meier, 372 F. Supp. 371, 382 (ND 1974) (dissenting opinion).

       Cf. Minnesota State Senate v. Beens, 406 U. S. 187 (1972).

       The Governor’s principal objection, as announced in his veto message, was the failure of the Legislative Assembly to eliminate the multimember senatorial districts. Return to and Compliance with Order, filed March 30, 1973.

       28 U. S. C. § 1253:
      “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying) after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”

       28 U. S. C. §2281:
      “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application thereof is heard and determined by a district court of three judges under section 2284 of this title.”

       Indeed, at oral argument, the appellants did not oppose the allocation of two house members to each senatorial district. Tr. of Oral Arg. 16-17.

       Cf., however, Fort-son v. Dorsey, 379 U. S. 433, 438 (1965), for the suggestion that the at-large representative serves all residents in the subdistricts. Furthermore, while we mentioned these potential weaknesses of multimember districts in Lucas v. Colorado General Assembly, 377 U. S., at 731 n. 21, we noted that we
      “do not intimate that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective. Rather, we merely point out that there are certain aspects . . . that might well make the adoption of such a scheme undesirable to many voters residing in multimember counties.”

       In Whitcomb v. Chavis, 403 U. S., at 158-159, we acknowledged that
      “[c]ritieism [of multimember districts] is rooted in their winner-take-all aspects, their tendency to submerge minorities and to over-represent the winning party as compared with the party’s statewide electoral position, a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests.”
      Such criticism did not amount to a showing that the use of multi-member districts was “inherently invidious” or violative of the Fourteenth Amendment. Id., at 160.

       These factors have been criticized as not being particularly helpful. See Carpeneti, Legislative Apportionment: Multimember Districts and Fair Representation, 120 U. Pa, L. Rev. 666, 69-5H395 (1972).

       In Mahan v. Howell, 410 U. S., at 333, we stated that the District Court
      “was confronted with plausible evidence of substantial malapportionment with respect to military personnel, the mandate of this Court that voting discrimination against military personnel is constitutionally impermissible, Davis v. Mann, [377 U. S. 678,] 691-692 [(1964)], and the fear that too much delay would have seriously disrupted the fall 1971 elections. Facing as it did this singular combination of unique factors, we cannot say that the District Court abused its discretion in fashioning the interim remedy of combining the three districts into one multimember district.”
      North Dakota, too, has its military personnel apportionment problem with respect to the bases near Grand Forks and Minot. The appellants recognize the existence of that problem and acknowledge that, conceivably, it could result in some type of multimember districting. Tr. of Oral Arg. 10.

       The only minority group of significant size in North Dakota is Indians, and the court-ordered reapportionment plan affects them no differently from any other group.

       For an example of a conceivable rationale supporting multi-member districts, see Carpeneti, supra, n. 11, at 695-696, where it is suggested that multimember districts may insure that certain interests such as city- or region-wide views are represented.

       See also the views of the late Special Master Smith, 372 F. Supp., at 392.

       As early as Reynolds v. Sims, 377 U. S. 533 (1964), the Court indicated that suggestions that population deviation was necessary “to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large [geographically] that the availability of access of citizens to their representatives is impaired” were unconvincing. Id., at 580.

       See Appendix B to memorandum opinion and order of June 30, 1972, by Judges Bright and Van Sickle (the Ostenson plan), App. 12-22. The Ostenson plan would allow a total population deviation of only 5.95%.

       Another plan appearing to be more acceptable with respect to population variance than that adopted by the District Court is the one suggested by the State’s Special Committee on Reapportionment, referred to in Judge Bright’s dissenting opinion, 372 F. Supp., at 394 n. 23.

       This is not to say, however, that court-ordered reapportionment of a state legislature must attain the mathematical preciseness required for congressional redistricting under Wesberry v. Sanders, 376 U. S. 1 (1964); Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells V. Rockefeller, 394 U. S. 542 (1969); and White v. Weiser, 412 U. S. 783 (1973).