The Indianapolis journal., 1892-11-19

county oaD be divided for senatorial pur-
poses" MIR. Winter then said 1t would sc
firss seem that this would allow counties
TO be divided for Representative districts,
but. on reading the debates in the constltu-
tIonal convention, this presumption. he
said, was not supported. lie gave some
time In ex planning that this wording was
the result of efforts TO give every county
q Representative, and If more than one TO
divide itself into one or more districts.
The idea of splitting a county. be said. was
not entertained In the convention. Hence
mathematical accuracy Is not possible.
Butt he asked, what rule shall we then
adopt The rule of the other side, not to
try 20 approximate TO mathematical accu-
racy and equality. OF the rule permitting
the Constitution to be departed from only
so far as necessary to avoid the obstacle in
the wayf The Legislature must not be al
lowed 10 depart from the path and never
to return to 1t. 1t may go out of the con-
stitutIonal path TO get around the obstacle.
but IL must come back"
Judge Olds here interrupted byI asking
what rule should be followed in returning
30 the path.
APPROxIMATING EQUALITY.
Mr.. Winter said he was just reaching
that point. He quoted, in illustration of
his argument, the provision in the national
Constitution that represeD Dtation and taxa
tion must be apportioned according TO pop
ulatIon. He quoted also an extract from
one of the speeches of Daniel Webster. in
which that great constitutional LAWYER de-
clared that that which cannot be done ex-
RctIy must be done as nearly exactly as
possible. The approximation then became
the rule and took the place of the rule
IL takes on the binding force of
1I .Thu.1 5u,o Continued 'n Mr.. Winter pps; do we
have high authority for holding that the
right of apportionment was not gwen the
Legislature as matter-of discretion. but
under the limitation of an Intelligent and
definite rule. and one no more TO be de-
parted from than any other rule. That
rule is not the pleasure of the Legislature.
but is that of necessity, requiring approx
imati on to the Constitution as nearly as
can be. This rule necessarily results from
the rule in the Constitution"
The point made by Senator TurpIe. as to
county autonomy was next discussed.
This principle, as advanced by the learned
Senator" saId Mr.. Winter. has foun-
dation in the del bates in the constitutional
convention. The proposition TO give each
county representation without regard to
its population was voted down no less
than four times. Then 1t was proposed. by
way of compromlse. TO give each
county hsvlng two-thirds of the
unit of representation representa-
The same fate met the proposition giving
each county with three-fourths the unit.
And yet Owen county, under the appor-
tionment of 1877, was given Repre-
thirds the unit of representation.
Other counties. with from two
thirds to tbree-fourths the unit. were
similarly favored" The counsel then spoke
In an entertaining way of the sturdy stand
taken by that sterling patriot Judge Pet
tit. Democrat and a member of the'con-
ventinn, in refusing to vote for any
scheme in which he could not see equality
of representation. He declared he would
vote for 10 basis of apportionment that did
MOI compel the Legislature to provide q
fair apportionment. He wanted. he ssid.
not fields. nor fences, nor hedges repre-
sented. but men. and he voted 10 on the
proportion TO give each county a Repre-
sentative regardless of population. But
the gentlemen on the other side of this
case, said Mr.. Winter. wanted to turn the
Legislature loose at Its discretion. He
concluded by challenging comparison for
unfairness with any apportIonment law In
any State or at any time.
SMITHS GREAT HARDSHIP
Attorney general Smith was allowed
eleven minutes TO reply, this being all the
time left to the credit of his side of the case.
He argued that If the laws of 1891 and 1855
were unconstitu tionsl. the law OF 1879. hav-
ing the same objections, was also unconsti-
tutional. and that therefore the relator
was not entitled to any relief. The de-
cision of the lower court must then be re-
yersed. That is. If the law of 1891 is founa
invalid. so must be that of 1885 and of 1879.
and yet the court. according TO the able
Attorney-general, must turn an ethical
somersault and refuse the relief which it
has found 10 due the relatcr.
The counsel for the appellees filed q brief
giving an analysis. by A. G. Harris of all
the apportioDment laws from the territor-
ial days uD Co 1891 The Attorney general
was given ten days in which to have his
brief printed for submission to the court,
givin also an anaIy sis of preceding gerry
manders The court Cook the case under
sdyisement and adjourned. Mr. Winter
and Judge Forkner received many con-
gratulations upon their able and exhaus-
tive arguments.