Omaha daily bee., 1888-09-27
An Important Case Called in the
State Supreme Court.
THE SALINE ELECTION MATTER.
Prisoners in the Lancaster County
Jail Make an Unsuccessful Break
for Liberty Lincoln
News Notes.
LINCOLN BUREAU OF The OMAHA BEE, !
1929 y STREET, :
LINCOLN. Sept. 2s.

~S1AN 49," $1,000 ~
fore the supreme court this morning on
n demurrer filed by General Webster, of
Lincoln. The case is an action for
mandamus to compel the county clerk
to call an election Of three members of
the house OF representatives from Saline
county under the apportionment of
1881 instead Of two members under the
act OF 1887. With the great change In
relative weight Of the different counties
OF the state between the census Of 1850
and that Of 1855, only thirty-four repre-
sentative districts by the act Of 1887 re-
tanned the representation held under
the act of 1855. This fact shows the
far-rcaching character OF the question
involved as affecting the public interest
and the organization of the Legislative
department Of the state.
Mr.. Webster submitted his brief and
a thorough abstract Of the course of the
bill, and submitted his argument upon
the following distinct propositions:
]. Is parole evidence admissible to
show the fact not appearing in the SEN
ate journal Of the action Of the confer
cnce committed? This is not to traverse
any fact recorded, but to supplement an
incomplete record.
2. If this is not permissible. then
uOts IDe failure Ol JDe eVlueDce OIL con-
curing action of the two houses in re-
spect to the Ninth district invalidate
the whole act, or merely that portion Of
the act? In other words, is the appor-
tionment an entirety, or may so much
as was correctly considered stand?
am not aware that this court has
eve spoken decidedly on the first ques
ton. In the we'll considered case of
the State VS. McLeliand, Eighteenth
Nebraska, this court has said the va
lidity Of an act cannot be sustained UNI
less the journals show Automatically that
a majority Of all the members voted by
yeas and nays entered into the journal,
in favor of its passage. But this rule
seems to be based upon the constitu-
tional requirement. The court
cites with approval Gardner VS.
Collection, 6 Wall, 400, and quotes
that the Judges who are called upon to
decide, upon the existence Of u statute,
have a right TO resort to any source OF
information which in its nature OF con-
veying to the judicial mind a clear and
satisfactory answer TO such question, al
ways seeking first for that which in Its
nature is most appropriate. unless the
positive law has enacted different rule.
And at page 2lO the courts say, in speak,
ing OF the absolute verify according to
the journals OF the parliament at com
mon aw: 1t must be borne in mind that
the parliament OF England before its
separation into two bodies was a high
court of judicature. In this country,
however, legislative bodies do not pos
.Sess judicial powers. The records,
.Gherefore, are not those of a court, but
are nevertheless primary evidence to
show the action of each house on any
matter before it. This much
was all that was necessary to
say in the case; but the present
case involves a further question
are the journals on matters not required
by the absolute rule of the constitution
to be recorded, anything more than
primary evidence. An examination of
March 81, 1887, when the action in
question was taken, ought to be an an
swer to this question. One hundred
and sixty-four printed pages form the
journal OF that days proceedings; the
legislature adjourned and the journal
was never read or approved. To hold
this to import absolute verify is accord
ing too much to the ability Of the re-
cording officer, who has this amount of
record to make during the session of a
single day, and whose work is never
submitted to the review and approval
OF the chamber, whose transactions of
such length are to be recorded IN a sim
gle day.
the other question is the apportion-
ment act entire. II one district be
omitted must the whole fall, is one of
some difficulty and upon which, in the
limited time allowed, counsel have
found no authority. The act as passed,
dropping district nine as invalid,
omits Sarpy county. The constitution,
section 2 article 3, requires apportion-
ment OF the senators and representa-
tives according to the number Of inhabi-
tants, at the first regular session after
each federal and state census, and at no
other time. To hold the present ap-
portionment bad, will, under the letter
OF the constitution, preclude any appor-
tionment till after the federal census of
1880. So unjust n result ought if possi-
BILE to be avoided.
1t Is to be observed hat but ninety
nine members have been apportioned
Excluding the Ninth dlstrict) and by
the act the house is made TO consist OF
100 members. There is one unappor-
toned chair. BY the census Sarpy
county would be entitled to one repre-
sentative. On the meeting the house,
which is the sole judge of the eligibility
OF its members, would no doubt cog
nize Sarpy as entitled TO fill this char.
This is not entirely satisfactory. but
osAA "peiN Nv y - oOgSNsioAADAS tAeh w
exclude the rapidly growing population
OF the whole western part of the state
from any fair representation.
In SO lar as the new act repeats the
a-pportionment of Sarpy (having also
one member under the former law)
without giving that county representa-
ton, it will be held unconstitutional.
The result would be the same as if the
entire present statute were withheld.
The house would consist of 100 members,
and Sarpy would be represented.
1t is q well-settled rule Of this court
that an entire act will not be declared
unconstitutional, and though some part
OF it may be so, if that part which is bad
is not so necessarily connected with the
remainder of the act that all must fall
together. The assignment Of members
to Zach separate district is an entire
subject of itself, and directly concerns
no other. Nodoubt by an ~amendatory act
the legislature might mention only such
counties or districts as by relative in
crease or decrease Of population had
changed in their relative power or
right of representation. Thirty-four of
the counties, including Sarpy, have