The committee on the judiciary, having been directed by the house to consider and report, whether, under the thirteenth *380article of the amendments to the constitution, the right of being represented in the general court, on the division of a town, or the setting off a portion of one town to another, by the legislature, belonged exclusively to the old town, or might be divided with the new town, or apportioned, made the following report

“ The decision of these important questions must, depend entirely upon the construction of the late amendment of the constitution, which is now a part of the fundamental law, and cannot be altered by the legislature.

The article of amendment was incorporated into the constitution, for the single purpose of regulating and determining the rigid; of representation in the general court. It provided, that a non si is should he taken on the first, day of May, A. D. 1837, and every tenth year afterwards, as the basics of the apportionment among the several towns and cities of the cooi-liislied the principles upon which such be made. It is obvious, that it was the lent, to provide for an equality of right he time the first census was taken, and ¡very ten years, to keep up that equality, isus, and making a new apportionment. due nuciuafions in die population ui towns anu cities, which may lessen in the intervening time, may be productive of some practical inequality, but no other provision is made for this case, than the taking of a new census, and making a just and equal apportionment, once in every ten years.

The article of amendment provides, that when the census has been duly taken, and returned to the governor and council, they shall ‘ ascertain and determine/ according to the principles prescribed therein, the number of representatives which each town and city are entitled to elect, * and when the number of representatives, to be elected by each city, town, or representative district, is ascertained and determined as aforesaid, the • governor shall cause the same to be published forthwith, for the information of the people, and that number shall remain fixed and unalterable for the period of ten years/

*381A census was taken in May, 1837, and duly returned to the governor and council, and they have ‘ ascertained and determined’ the number of representatives, which each city and town are entitled to send to the general court, for the next ten years, and this is a‘fixed and unalterable’ right of each city and town, for that period of time. A new census cannot properly be taken in the interim, between the taking of the first and second census, for this purpose.

The first question contained in the order may be answered in the very words of the constitution. When a town is divided, or a portion of one town set off to another, does the right of being represented belong exclusively to the old town, or may it be apportioned between them? The answer is, that the right of the town, from which the‘territory is taken, has been ‘ ascertained and determined’ bv legal authority, and is ‘fixed and unalterable.’ Any number of persons may move into it, or, may remove from it, but its number of representatives cannot thereby be increased or diminished, until the census is taken. The same principle must apply to the incorporation of a new town. The rights of those from which it is taken cannot be impaired or affected in the slightest degree as to representation. And it is very obvious, that if the new town fins the right of being represented, gross practical injustice would be done to the oilier eiiizeus of the commonwealth. The towns from which it is taken would retain the right of sending their full number of representatives to the general court, although their number of ratable polls might be diminished to a dozen, and these added to the representatives from the new town, might give to both a far greater number of representatives, than the constitution ever contemplated. It is manifest, also, that if a different principle were now to be adopted, the number of representatives, so far from remaining ‘fixed and unalterable, for the period of ten years,’ as is expressly provided in the amendment, would be unfixed and alterable every year. As to the question, whether the legislature can apportion the representation in cases where towns *382are divided, it is sufficient to remark, that this duty is imposed upon the governor and council, and not upon the legislature.”