The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-10-14
Dissenting Opinion by Two Republicans Who
Hold the Act Invalid and Point Out an
Outrageous Piece Of Gerrymander.
Senator Hill Still Boss of the Democratic
Machine in the Empire State
Ex-Secretary Blaine Spends q Quiet Day at
Whitelaw Reid's Country Home. and
Dimes with Carter, Clarkson and Others.
A oERRYmANpER: SUSTAINED.


DIE ex rel. Pond, Appellant, against the
Board of Supervisors of Monroe County,
and the People ex rel. Horn. Appellant, VS..
the Board of Supervisors of Oneida County.
better known as the apportlonment test
cases. the Court Of Appeals to-day reversed
the order in both cases. and motions for q
mandamus were granted with costs In all
courts. These were cases in which the
court was asked to issue orders tor writs of
mandamus. compelling the boards of su-
pervisors of Monroe and Oneida counties to
redistriot the Assembly districts in those
counties IN compliance with the apportion-
mont law passed by the last Legislature.
The order of tho lower court was affirmed
with costs in all courts In the case of the
People ex rel. George E. Carter, of Utica,
Appellant, against Frank Rice, Secretary of
State. In this case the court was asked to
grant On injunction order restraining the
Secretary of State f:om recognizing the
new app0rtionment Law or sending out no.
tIces of election of members of Assem- bly, to
county clerks. except under the apportion-
msnt law of 1879. the lower court having
refused to grant such an order.
The main opinion upholding the law is
written by Judge Peokham. Justice Gray
also writes an opinion upholding the law.
Judge Andrews wrote q dissenting opinion.
which was concurred in by Judge Finch.
The court is unanimous upon all the ques-
tions involved except those discussed in
Judge Andrewss opinion. The judges prsc-
tically agroe on all questions touching the
constitutlonality of the apportionmsnt law
except on tho question OF the discretion
used by the Legislature in apportloning
the remaining members of the Assembly
among the counties having the fractional
ratios. The vote of the Court of Appeals
sustaining the apportiOnment is practically
5 to 2, the five being Democratic judges
Earl, Peckham, Gray, O'Brien and May
nard. Judge Andrews filed a separated
opinion.
PECKHAM's DECISION.
In Judge Peokham's decision. which is
the main and decisive one, these conclu-
sions appear:
First-It lie contended on the part Of those who
allege the invalidity of tbs law of 1892 that it
was passed in violation OF that provision of the
Constitution which directs the alteration to be
made by the Legislature at the FIRST session aft
er the return OF every enumeration" The act
WAS, In truth, passed at an extraordinary session
OF the Legislature called by the Governor and
after the return of the enumeration OF S92. The
point is made that an extraordinary session is
not such a session OF the Legislature as is con-
tempated by the Constitution. To my mind the
objection is wholly without force. There Is no
claim that session Of the Legislature referred
to In that instrument Is the first session of q
Legislature which itself first convenes after the
return OF the apportionment. The Constitu ton
does not say so and fail in fndng any reason in
principle or in the nature OF the subject which
calls for such construction. sueh construction
twists and distOrts the ordinary and plain mean-
ing of the language actually employed.
second-The act IL alleged TO violate the Con-
stitutiOn because based on an enumeration taken
the duty OF the Legislature in 1885 to direct an
enumeration OF the inhabitants OF the state In
that year. and If it had discharged that duty it
would have been tho duty of the Legislature at
the first session after the return of that enumer
alton to proceed TO apportion the districts. The
OF directing an enumeration which was cast cast
upon 1t by the Constitution. Each succeeding
LEGISLATURE, up to 1892, also omitted to perform
tutional mandate had been violated. And this
duty continued and was cast upon each succeed
ing legislature until the constitutional obliga-
ton was fulfilled. We are Of opinion that the
objection made has no color of validity.
Thrd-A third objection is raised to the valid
fty OF the act. 1t is stated that as 10 the Senate
districts IL Is not based on an equal number of
Inhabitants, excluding persons OF color not
taxed"
The Judge here reviews the amendments
to the United States and State constitu-
tlons regarding the complete enfranchise-
ments of colored citizens. and holds that
the provision regarding al enumeration on
which Senate district apportionments
shall be based against the colored man has
been abrogated by these amendments and
says:
We are OF the opinion that the objection to the
validity of the acs of 1892. based on the failure
to exclude persons of color not taxed cannot
prevail.
Fourth-It is finally objected that the act is In
valid because the Senate districts do not con-
tain an equal number of Inhabitants as nearly as
may be. This question OF inequality contains,
In my Judgment, the only debatable proposition
arising In these cases. We think that thA courts
have no power in such case to review the exer-
else OF discretion intrusted 10 the Legislature
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 mathematical process can be fol-
lowed. It Is a direction addressed to the Legis-
lature In the way or general statement OF the
principle upon which the spportionment shall
be made. We are of the opinion that the Legis-
lature by the alteration OF the Senate districts
under the act OF 1892, has not violated the egit-
innate and necessary discretion intrusted TO il
AS to the Assembly districts, the burden of
complaint rests on the apportionment OF four or
five members of Assembly out OF l2S.
The reason for the particular action OF the Leg
islature on this question must be sought for in
some considerations other than partisan. for I
think Ii Ia shown these did not enter into the
question this point. The Inferenceis is fair th at
these changes were absolutely necessary in or
der to secure the passage of tho bill. Other con-
siderations might be added to show that the Leg
islature OF 1892, in the passage OF the act under
review, did not approach the danger line OF an
| abuse of legislative discretion.
When the question of what law Is
in force in this State. IL the law OF 1892 is not
! the situation becomes most alarming. IL the
act of S92 is void. the act OF Is also plainly
void and no election or members OF Assembly
should be tolerated under IL. This might
| reegate the people TO the act of 1865 and thus
| we might have an attempt at an election Tor
| members OF Assembly under an act more than n
quarter of a century old and legislative repre-
sentation of the people of that time. This would
| be travesty on the law and upon all ideas OF
| equality. proprlety and justice. We are COM
| PEELED to the conclusion that this act OF S92
successfully withstands all assaults upon IL and
| is q valid and effective law.
THE DISSENTING OPINION.
Judge Andrews's dissenting opinion holds
the legislative apportionment law to be
unconstitutional. which was concurred in
! bv Judge Finch. Judge Andrews says:
I am of the opinion that the apportionment
act OF 1892 Is vod for the reason that In appor
tioning members of the Assembly among the
! counties OF the State il violates the rule OF
equality established by the Constitution.
The departure from the constitutional method in
the act of 1892 il substantial. and its validity
| having been challenged in the courts IL cannot
| be upheld without esta blishing dangerous pre-
cedent for the future. The claim that the Legis
I lature. In making an apportionment. may take
Into consideration the growth of population. has
ment is to DO based upon the existing popula
| ton, ascertained by the preceding enumera
| ton. The decennial enumeration and appor