The Indianapolis journal., 1892-10-12
CONCLUSION is REACHED
Supreme Court Has Decided the Prelim-
mary Motions In Re Gerrymander.
Out of Court, or Smith Sat Upon Will
Not Be Known for Some Hours
The Supreme Court was in executive ses-

in the gerrymander suit. Judge Mcbride.
chief Justice. when asked last night when
a decision may be handed down. said that
the court had reached o aconclusion. and the
opinion would be completed some time this
afternoon. No inkling however. vas given
as to the nature of the conolusion. The is
sue is the Attorney-generap motion to dis
miss. There is no attempted concealment
Of the fact that the Attorney general is
working to defeat a decision by delay.
He was invited into the case. in the
language of the order, to "assist the
court In coming to a just determination of
the matter" but, in the opinion of the OBJ
servant, he is not fulfilling the terms OF
his invitation. Green Smith," SAID cit
IZcn yesterday, who is animated by an
aversion to the injustice of gerrymander
laws. of which Judge Morse. of Michigan,
spoke In his decision, lis incapable of
, arguing this question on Its merits by
nature. His principles are all prejudices
He is aching for an oral argument. so as TO
make stump speech. | am at loss to sec
how how he can assist in promoting prom justice IN IN
no worse" In Mr. Smiths brief,
which he has fled. he asks the court to re-
quire the parties in interest TO appear and
answer such questions he might desire
to ask, In hope of finding something show.
ing the collusion which he charges. in the
face of affidavits of denial. He says the
record shows that the suit ls o fictitious
one, and should be dismissed. On the
point to adj ancs the suit. he says the time
is now too short to allow of full consld-
GRAFTON of the case with expectation of a
decision within the time adm bic for the
filing of nominations Concerning his own
in a
eral cites the invitation of the court to
appeSr upon the part OF the State"
The appellees' brief in the gerrymander
| suit 10 a printed pamphlet of forty-fve
pages The first point considered Is the
position of the appellants that the action
was not properly begun. The Indiana
court records are quoted to show that In
| other cases, analogous, q similar action has
been sustaiDed. Then the case being prop
| erly before the court the appellees quote
| the articles of the Constitution giving the
mandatory provisions how tn apportion the
| State. The rule is then quoted which Gays
| the law in question mnst conform to the
national ana State Constitutions. and sp-
| pellees discuss the point as follows:
Recent authorities need not be cited to show
that the rule thus clearly announced still exists
of the Legislature apportioning State for legis-
| latiye purposes should be exempt from the
operation OF this rule. tis the duty of the
court when called upon In proper case to test
such a law as 1t would any other, by that Consti-
tuition to which the legislative department of
Nor are provisions like those contained in the
| sections OF our Constitution above quoted
to be frittered away and rendered
% merely directory or no % Imitation upon what is
called the discretion of the Legislature Judge
itations, in speaking of this subject says: ..The
| courts tread upon very dangerous ground when
they venture to apply rules which distinguish
| ions of a constitution. Constitutions do not
usually undertake to prescribe mere rules Of
upon as essential to the thing to be done, and
| they must then be regarded In the light
the the PSwer Of to Ss
| instrument of this solemn and permanent char
| aeter to establish those fundamental maxims
| partm ents of the government must at all times
shape their conduct IL directions are
| given respecting the times or modes of proceed
| ing, in which power should be exercised, there
| is at least presumption that the people de-
| signed it should be exercised In that time and
pe sqd on us 70 Of the
| pose and proper province OF such an in
| strument when we infer that such directions are
been already said, it is but fair To presume that
| the people in their constitution have expressed
themselves in careful and measured terms, cor
| responding with the Immense Importance of the
| powers delegated, and with view TO leave as
little as possible to implication" n."-Cooley's Con-
| stitutional Limitations. 5th edition. PIP. SO and
| %. The doctrine thus clearly announced has
| always been the rule In Indiana.
The appellees then further argue that
| under provisions SO mandatory there Is no
legislative discretion. but where it may
| not in all cases be possible to conform ex-
aatly with the rule or law, the Legislature
| is vested with no discretion beyond the ab-
solute necessity of the case. Quoting j GO
| Shipley, OF Maine, the appellees say:
| That power which legislative body is com
p elled TO exercise by such moral necessity can
not properly be considered as discretionary. IL,
however. 1t be so designated. it is a discretion
rant for the exercise OF this kind of discretion IL
It may be so called, beyond what Is required by
to be iSn the
an unlimited one IN practice. however
Constitution relating to this matter must become
in practice merely directory. And an apportion-
| ment must then be considered as constitutional,
although the county lines should be wholly dis
regarded and the number of inhabitants re-
very unequal. 1t is not intended 10
construction that would knowingly authorize
such results; hut II is believed that such is the
legitimate and practical tendency Of admitting
Of an absolute moral necessity.
( The brief contains several pages of prec-
| edents in support of this position in this
and other States, notably Wisconsin and
| Michigan, Judge Morse. who rendered the
opinion in Michigan, and Is now the Demo-
cratic candidate for Governor, Is quoted as
| follows:
| While 1t is true that the motive of an act need
not be inquired into 20 test its consttutionality,
believe that the time for plain speaking has
arrived In relation to the outrageous practices of
gerrymandering which have become so common,
| and have so long been INDUCED In without re-
buke that 1t threatens not only the peace of the
| people. but the permanency OF our free institu-
lions. The courts alone in this respect can save
| the rights OF the people. and give thcm a
fair count and equality in representa-
ton. 1t has been demonstrated that the
people themselves cannot right this
/ wrong. They may change the political majority
| I'm the Legislature, as they have often done. but
apportionment. in the interest of its party.
equal and politically vicious as the one that it
repeals. II permitted to continue in this
kind of business, the next Legislature TO appOr
ton Senators, II Its political compiexiO ion should
he different from the last, following in the foot
the nsurcs ABOUT again and give Its
| party twenty-ono Senators and the other
eleven. IL II time TO stop 1t. And the citizen
has the right TO appeal TO the court in defense
| Of his most sacred rights under the Con-
situation There Ia no higher privilege
night or equal suffrage. and thereby 10 an equal
representation In the making and administration
OF the laws or the land. Under State Con-
stitution the right or the eector Is fixed To him
equal representation is n right, we'll as priv
iege. OF which the Legislature cannotdcprive him.
| These wrongs have been committed for partisan
purposes. Their object and effect have been TO
deprive the majority of tho people of their will
In the administration OF the government The
greatest danger TO our free institutions lies to-
| day in this direction.
The second part of the brief ia devoted to