The Indianapolis journal., 1892-11-18


questioD.s Suppose the assumption by
Judge Ayres, of the Marion Circuit Court,
OF the power to enJoin Robertson from
taking his seat had been carried out
Suppose the sheriff had attempted to exer-
else that writ in the very face and pres
ence of the Legislature OF the State. A
compromise interviewed whereby Robertson
agreed not to try to take bis seat. but ex-
cept for that would there not nave 9een
troubious ecenel Would not the House
have impeached Judge Ayress When the
Legislature - commissioned with certain
powers. the Legislature alone must exer-
cise them"
Judge Elliott asked the counsel If
the apportlonments of 1850 and
1885, are declared unconstitutional. what
would be the effect upon the appOrtlon-
ment of 1879 His reply was that the same
objections alleged against the apportion-
ments la question challenge that OF 1879
Judge Elliott then asked il that would end
all question of constitutionallty concern
ing apportionments. The point was not
answered. and Judge Niblack closed py
briefly touching upon the ellect OF tne az
portionment of 1879 in regard TO the hold
over Senators He held that TINS apportion.
ment could afford no relief from the present
situation He occupied forty-fve minutes
of the allotted time.
SENATOR TURPIG's ARGUMENT.
Senator Turpie was the next to address
the court. appearing for the appellants. He
first referred to the three sections of the
Constitution which relate to apportion-
ments. These contained two inhibitions.
he said. requiring districts to be integral
with counties. or when composed OF more
than one county TO be contiguous geo.
graphically. The operative phrase IN the
one section providing for the appOrtion-
ment was that requiring the apportion-
ment to be made among the several coun-
ties. This section, continued the Senator,
does not read. shall be apportioned ac-
cording to the population of the county,
but according to the number of male IN
babitants above Jwenty-one years of age
Thus our Constitution makes every county
an integral unit. There are many great
reasons" said the Senator. for this. The
county is older than the State. It is older
than our entire system of government 1t
is a word of strictly feudal origin. The
comes, or counts, in feudal times
wsSs ssSs fit social al. '0%Dsn0ns 9sa fSn she
Each of these cameto be assigned dis
trict for his own. which was called coun-
ty. and they became the chief supports of
the monarchy. or government. The whole
State of Indiana was once o county OF Nir-
ginia, and the county lines have been rec
ognized as the integral basis of representa-
tion.o
Senator Turpie adverted then to the
brief of the appellee. and said il sImmered
down to statement that such and such
representation was less than the mathe-
matical ratio or greater than the
ratio. There was no allegation. he
said, of the representative condition
of the counties as to the senatorial apDor-
tlonment separate from the Representative
apportionment. so that the theory of the
objection was wrong and could not be sup
ported. Compensation was the rule III the
apportionment, giving greater senatorial
representation where there was o fraction
unprovided with representation In the
lower house. Fractions. continued the
Senator. were inevitable.
TURPIE's CONSTITUTIONAL PRINCIPLES.
On the three principles of the Constitu-
tion. an exact mathematical equality of
representation was lmpracticable, because
no county had the exact number of
voters IN the ratio. These three princi-
Piles were the integrity of the counties,
contiguity and indIvisibility. Under these,
the question at the bottom of. the matter
was Can the Legislature, in it's discretion,
give comfy with less than the votes
equal representation with a county having
more than the votesP If 1t could do so III
one it could do Sd in any number of coun-
ties. Speaking of the apportionments in
question, he said they were undoubtedly
illegal. If the fractions were permanent.
But these changed with the changes of
population. He instanced Marion coun-
ty ana 10. so.,oI also Lake re-, and md, Porter
away, as shown by the votes
in these counties In the last election. He
reviewed the influences, subterraneous as
well as those of commerce, of society, of
calamity, which cause shiftings of popala-
tion. There was n better attested fact. he
said, than that these fractions were not
permanent and settled quantities. If the
voter In the fraction and the ratio could be
palpably distinguished. they would be
| found to cast their vote with equal power.
But they could not be distin gulshed, and
there was @ misrepresentation. though
not perfect representation. There
was, therefore, no disfranchisement.
imperfect representation. The Senator
then illustrated the point by the counties
Of White and Benton, which he represent
| ed in the Legislature forty years ago. He
was a citizen of White county. and quasi.
Representative of Benton The exact facts
| in such cases, he said, had become disguised
| in the changed accent. which. formerly on
the penult, was now on the ante-penulti-
mate. AS the legislative agent for the
county of White he was represent In the
Legislature for the county of Benton. If
the apporri0nments in question were void
the whole scheme of appointments must
be abolished.
The Senator said there was nothing in
minus or plus fractions. He asked who
should dispose of the fractions and how
IL should be done. If these questions were
thrown out. there would be left nothing in
the case of the plaintiffs emitting them to
be heard. The Constitution. he said. was
entirely silent s to m0Isiss
formed the Constitution had no
discussion of moieties. All In
the convention understood the manner of
providing represen tation for them. The
Legislature might disregard them entirely.
In the Constitution adopted might be found
the apportionment of 1851, which had the
inequalities inevitable to oil.
INEQUALITIES ADMITTED.
Where fractions are MINUS" continued
the Senator. "the senatorial apportionment
may make mp the deficit. Where plus the
senatorial representation may be less.
Here is the remedial compen nsation. A gain.
the Legislature may add together
the moieties and provide representation
for the fraction. There is" he saiu. moth
ing new in the principle. and nothing un-
fair. The Constitution ia silent as to who
shsll deal with these fractions. but IL gives
the Legislature discretion. whore there Is
no inhibition. It may be unfair" he said.
1t may be unjust, but 1t cannot be uncon-
stitutional. The plan of apportiOnment
makes every voter equal to any other in his
district. The scheme of apportionment
may be inequitable. but the Constitution OF
the States not only allows of this. but
creates the inequality. tits not question of
what our fathers who made the Constitu-
tion ought to have done. but what they
did,
He then went into q comparison OF the
Marion county legislative district with the
Iippecanoe county district, and with that
of Pulaski and White counties. Each voter
in Marion county votes TOR nine Represent
inc al .xxl t.