The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-10-14
DECLARED coNsrIrUTIoNAL.
Decision of the Court of Appeals In til
Apportionmont Cases.

DeoisiOn of the Court OF Appeals IN tho
Apportionmont Cases.
ALBANY, n. Y, Oct. lS.-The court of
appeals to-day handed down decisions
in the superintendent cases., three in
number. The court decides that the
apportionment law is constitutional,
The opinions are written by Judges
Peckham and Gray. Judges Earl,
O'Brien and Maynard concur, and An
drews dissents on one questionin which
Finch concurs. :,
Judge Peckham writes the principal
opinion in the three cases. 1t covers
forty-six pages Of typewriter copy.
He saws in ii, after reciting the chGrac-
ter OF the three cases.: "The rule which
has governed courts since the adoption
OF our constitutions, both federal and
state, in relation to the exercise OF the
power TO declare an enactment oil the
Legislative body unconstitutional, has
been plainly laid down in.many reported
cases and has been rigidly adhered to
by both the federal and state courts.
Before courts will deem it their duty to
declare an act OF the legislature void, as
in violation Of some provision OF the
constitution, a case must be presented
in which their can be nc rational doubt.
The incompatibllity of the Legislative
enactment with the constitution must
be manifest and unequivocal, and such
is not the case inthe apportionment act
in dispute"
In the main and decisive opinion by
Judge Peckham, these conclusions APP
peared: 49,,
at is objected that the act is invalid
because the senate districts do not con-
tain an equal number OF inhabitants as
nearly rs may be. This question OF in
equality contains. in my judgment, the
only debatable proposition arising in
these cases.
1--WE think that the 'courts have no
power in such case to review the exer-
else OF a discretion entrusted to the
legislature by the constitution, unless
it is plainly and grossly abused. The
expression as nearly as may be-. when
used in the constitution with reference
TO this subject, does not mean as nearly
as q Mathematical process can be fol-
lowed. 1t is a direction addressed to
the legislature in the way OF a general
statement OF the principles upon which
the apportionment shall be made.
ave are OF the opinion that the legis-
lature, by the alteration Of the senate
districts under the act Of 1892, has not
violated the legitimate and necessary
discretion entrusted to it by the legis-
lature.
"As to the assembly districts the bur-
den OF complaint rests upon the appor-
tionment offour or five members OF as.
sembly out OF l2S.
"The reason for the particular action
of the legislature upon this question
must be sought for in some considers
tions other than partisan, for ! think it
is shown these did not enter into the
question upon this point.
"The inference is fair that these
changes were absolutely necessary in
order to secure the passage OF
the bill. Other considerations might
be added to show that the legislature OF
1892 in the passage OF the under review
did not approach the danger line OF an
abuse OF legislative discretion"
Judge Andrews wrote a dissenting
opinion, holding the legislative appor.
tionment law to be unconstitutional
which was concured in by Judge Finch.
~ am of the opinion" writes Judge
Andrews, 'that the apportionment act
OF 1892 IS void for the eason that in
apportioning members of assembly
among the counties of the state, it vio-
lates the rules of the equality estab-
tablished by the constitution"
Judge Gray concurs in validity OF the
apportionment and writes a separate
opinion giving the grounds OF his con-
illusions.