The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-12-18

@oe 80 % bIta hCto VI tatH @O1Ar tHot ~ 40
Its bounden duty, IN all proper cases. TO pass
upon the validity of the acts OF the Cen
s wSen A rs eonsiy r ana tho to caea,1,s,, them N y sso
State. Thus, as early as the case OF Rice vs.. The
State, z Ind. 334. Justice Perkins said: There
are some propositions that may be regarded, We
think, at this date, rs being settled. Among
them are these: That the Constitution of the
state relative TO the acts Of the Legislature -
the paramount or supreme law. That when the
two conflict the acts OF the Legislature must
yield as utterly void; that it is the duty OF the
courts. In every ease arising before them for de-
cision. TO decide and declare the law governing
the case. The duty OF courts to give construc-
ton TO laws and 10 declare void, or disregard De-
canse not laws. those legislative acts in conflict
the other duty Of declaring what the law Is" To
the same effect Is Campbell ct al. va Dwiggins,
Treas, ETC., 50 Ind. 473. and Cooley's Const.
Lin. 45.
1t is conceded. however. by the appellants. as
we understand them, that there might arise q
case IN which the courts would have Jur1sdiclon
10 declare a law apportiOning the state Tor legis.
latlve purposes void. as where the General As
seinbly should form districts OF counties not con-
ugnoas; II the courts have Jnrisdlction 70 ae-
lafes one provision of the Constitution, we are
unable to perceive why they have not such Juris-
The Constitution forbids the formation OF sena-
torlal or representative districts of counties not
contiguous. Ii 10 conceded that an act which
for that reason, and that the courts
would have Jurisdiction, in . proper case TO ad-
judicate the matter. IL the General Assembly
should district the State In sucn a manner az To
apportion TO the south half ninety Representa-
tiyes and to the north half ten only, no one
would doubt that this would be as plain . viola
srlcts OF counties not contiguous. What good
reason can be given for holding that the courts
ing such Jurisdiction in the otheri 1t win not
do to say that the courts have no Jurisdiction In
the latter case, because the General Assembly
has a discretion in the matter of districting the
state. Tor IL C8QQOt be successfully maintained
that the incumbents of any department OF the
government have a discretion to disIe-
think If the courts have ~jurisdic,
ton In the one case they also have
il in the other. We do not mean by this TO be
understood as holding that the courts have the
power 70 Interfere In any matter conided 10 the
discretion OF either the legislative or executive
departments OF the government. No court In
the Union has maintained more vigorously than
this the independence OF the three several de-
partments OF the State government Estate ex
rel. Hoyey vs.. Noble ct al, 11S Ind. $50; .Hoyey.
Governor, VS.. State ex rel. shuck. i27 Ind, $751;
But il safe to say that where the acts OF either
OF the three departments 10 In violation of the
within the discretion confded to that0iepart-
ment. That the General Assembly has some
discretion in the matter of districting the State
and there can be as little doubt that
where 1t acts within this disere-
ton the courts have no power to
ti0n, that the several acts Of the General Assem-
bly, OF which COMPLAINT is made in this action are
within the discretion confded to the legislative
department OF the state, that will be the end of
this Investigation, for We have no power, mnch
less the inclination, to INTERFERE with such discre-
ton, nor are we able to perceive how such cases
Hovey Va. the State, 127 Ind. $50, can affect the
question now under consideration. Ii this were q
case In which the appellees sought to compel the
particular manner, or even to act at all in any
manner whatever, then this line Of authorities
would be applicable. and by reason of the indie
pendence Of the several departments of the State
government, we would hold, without hesitation,
that we had no Jurisdiction over the matter. The
courts have no power to district the State Tor
legislative purposes. That duty belongs to an
other department. The most the courts can do
Is, In q proper case, to pass upon the validity of
is found to be in conflict with the Constitution of
the state, declare il invalid. leaving the Legisla-
the constitution. This is quite a diff,
ferent thing, we think, from undertaking to con-
troll Legislative action or discretion. Our opin-
ion Is that the question presented by the rec
ord In this case Is judicial. and not political.
the case of People ex rel. Carter VS.. Rice. Score
tary Of State. and others. recently decided by
rse GSar In 81 A AaRsa Ia VI J lou 9sa'e oct 81 - Ss' i is5a.
y. 324, was an action brought to test the con-
stitutionality of an act of the General Assembly
of that State dividing It into districts for sena-
torial and representative purposes. The court
assumes that the questions presented were Judi
clal and not political. and proceeded TO adjudi-
ootO hloh thO oAA0i VI a INV
The conclusion at which We have arrived In
this case Is in accord with all the authority to
which our attention has been called. except the
case of Wise VS.. Virginia, 20 Vir., $50, in which
the validity OF an act OF the General Assembly
OF that State, creating districts for RepPesenta-
tives In Congress-, was called III question. All
that was said by the learned judge who wrote
the opinion in that case at all pertinent to the
question involved in this case, was that: 1.-THE
laying on and -, defining nHny,, Of the congressional ess,s,nsi
and discretionary power of the Legis-
lature for which they are amenable
This would be literally true in the absence of
some constitutional provision requiring the dis
tricts TO be formed in some particular manner.
The opinion cites no authority to the rule thus
announced. nor does the Judge who delivered it
give any argument in its support; but, il it Is
to be construed as holding that all apportion-
ment acts are but the exercise of q political or
discretionary power, it Is in conflict with the
great weight Of authority, and cannot be fol-
lowed.
CONSTITUTIONAL QUESTION.
We approach the other questions in the case
with much reluctance, and with q full sense of
their gravity. Courts always approach ques-
tons involving the validity Of statutes reluct-
antly. and out of this reluctance have grown two
well known rules: First. that the court viii
never decide a question involving the constitu-
tionality OF a statute il the merits OF the case In
which it Is involved can be determined without
such decision. and. second. the court will never
declare O statute uncOnstitutfOna where there
is any doubt upon the subject. To doubt the
validity OF a statute Is to resolve In favor OF lite
cOnstitnti0nality. warren VS.. Britton, "a Ind,
IL; Campbell vs.. Dwiggins, 80 Ind, 473; Hays
VS.. Tippy. 81 Ind, 1921
The chief object of this suit Is to secure q de-
cision upon the question OF the constitutionality
of the several acts of the General Assembly re-
ferred to in the complaint The question is pre-
sentcd In the same manner as the question was
presented in the case Of Giddings VS.. Blacker,
supra, and in the case of People ex rel. Carter
VS.. Rice, Secretary of State. supra The case of
Giddings VS.. Blacker was an action TO enjoin the
Secretary of State of the State of Michigan from
taking the necessary steps to hold an election for
State Senators under an apportionment act APP
proved in the year 1891, upon the ground that
such act was unconstitutional. and to
compel him. by mandamus. 10 proceed under
an app0rti0nment act approved In the year 1885.
The case of People ex rel. Carter We. Rice was an
action to enjoin the proper officers Of the State
OF New York from proceeding to the election OF
senators and Representatives, under an appor-
tionment act approved In the year 1892, upon
the ground that such apportionment act was I'M
constitutional, and TO compel them, by manda-
mus, to proceed TO such election under an appor-
tionment act approved In the year 1873. In
each of these cases 1t seems not TO have been
doubted that the question of the validity OF these
several acts was presented In such q
form as to require a decision upon
that point. So. in this case We
are unable to perceive how the merits
of the controversy are TO be determined without
u decision upon the question of validity OF the
apportiopment law OF this State passed in the
year 1891. Should we reach the conclusion that
this act IL not unconstitutional. IL Will not DC
necessary to pass upon the validity OF the other
acts; but should we decide IL invalid, then. IN
determining whether the appellee was entitled 70
to pass upon the validity of the act OF 1879, and,
II that Is found valid. the question or the consti-
nationality of the act Of 1855 arises. III the act
of 1891 and the act OF 1879 are both unconsti-
ntfnnnl Tho annalaA va nnf anffflaH