The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-11-19
Clear Argument and Good Law Laid
Down in the Gerrymander Case.
Judge FOrkner and Mr.. Ferd Winter Argue
Against the Legislative Monstrosity
Before the Supreme Court
Points by Judge Niblack and Senator
Turpie Taken Up and Demolished.
Pleading for the Equality Demanded BY the
Consiitution-Green Smiths Big Talk
Compressed Into Eleven Minutes.

morning. with all the members present
Judge Mcbride seemingly having recovered
from his prostrating indisposition of the
day before.
Senator Turpie resumed his argument in
the gerrymander litigation. He first dwelt
upon what constitutes legislative discre-
ton. this quantity being that which. he had
insisted, belonged absolutely 70 the
Legislature in it's apportonment acts
This discretionary power, he said, was an
attribute of each department of the State
government. Defining 1t. he said, it WAS
the exercise of power without rule or with
out responsibility to other departments.
Applying this to the disposition
of the suffrsgans fractions in coun-
ties, he said this disposition, as well
as the grouping of counties was purely dis
cretionary with the Legislature. with one
limitation of contiguity. He then read
opinions from the Court of Appeals of Now
York. and the United States Supreme
Court, in support of his opinion.
Taking mp again the impossibility of an
exact mathematical ratio, he said that
compromise and Cancellation must be ex-
ercised in devising an apportionment And
the moment compromise entered the msth-
ematical ratio disappeared. How can q
court of equity how can a mist prius court"
he demanded. which deals with questions
of fact, enter into an investigation of APP
portionments and take cognizance OF the
commercial influences, the local rivalries,
political jealOusIes. etc., which 60 to de.
termine gerrymanderW
Judge Elliott asked of the speaker if this
subject had been discussed in the constitu-
m "a
that there was no discussion on the So biect
of the disposition of mOieties and group
lngs. There was some on the subject of
providing fixed ratio. He then pr decided
to quote from Kansas and Maine decisions.
TO show that legislative discretion was
recognized rs an entity, as thing in be-
ing. The trainers of our Constitution pre-
scribed what should be done. not the
method of doing it, except as to the
requirement of contIguIty. This require
ment he again declared. prevented gerry
manders In Indiana, bat the Constitution
OF Maine allowed of gerrymandering. The
Maine decision quoted acknowledged that
this power might be abused, but the rem
edy lay with the people to correct the evil.
Other authorities were quoted to support
the discretionary theory. In the Wiscon-
Bin and Michigan cases. the Senator said,
there was clear violation of an express
limitation in the Constitution. and it was
this jurisdictional ground that leo to the
decisions In those States.
Senator Turpie concluded his argument
with the point that the relator had been
Rnilty of inexousable laches or negligence.
He could have begun his suit. he said, any
time after June 10. 1891, but he delayed un-
til the incipiency of political campaign.
He was too late. To ask for the repeal of
laches- There never was fairer appor-
tionment Law, the Senator declared, than
that of 1891.
JUDGE FoRKNER's ARGUMENT.
Ex-Judge Mark E. Forkner. of New Castle,
was the first to speak for the other side As
much as ne had desired the d. decision, he said.
before the late general election, q desire
shared, as he believes, by a large portion of
the people of Indiana, Ihe desired to con-
graduate the court and the country that
the court could approach the question free
from all political trammeling, and
whatever the decision. it would
be taken and accepted as the
not been brought somewhat sooner. but If
there was time when the suit could have
been brought much sooner. he would like
the distinguished Senator to point it out
Thiseuit. said Judge Forkner, was brought
by the relatOr, in order to force . decision
upon the one primary question. as to
whether the apportionment law of 1891 was
valid or invalid. according to the terms of
the Constitution. There could be no Ques-
tion. he said, of laches. He desired to
free the primary question from all minor
questions, and it the law of 1891 should be
found Invalid. then to let the court give
consideration to the laws of 1856 and 1879.
If the court should find the act of 1891
valid, he said. the decision of the lower
court must be reversed IN toto. If 1t be
found invalid. and the same be found of
the laws of 1885 and 1879, the injnnctive
order of the lower court must be affirmed.
and the mandatory reversed.
The advocate took up the question of
the results of such litigation. These, he
said. could never be looked to to determine
the merits of the question 1t does not lie in
the Legislature to pass an illegal law. or to
enact right upon an original wrong. The
question must be determined according to
the letter and spirit of the Constitution
The position of the relator IN this case, he
said. included ito proportions: First.
that the court has jurisdiction to deter
mine What ministerial officer shall do in
the discharge of his duties under
the apportionment law, and, second,
that the law of 1891 is o violation of the
Constitution. Judge Nlblack In has argu-
ment, said Judge Forkner. commended for
four propositions. The first was that the
reIator has no right to bring the suit But
the plaintiffs counsel contended that when
a law of any kind materially affected
citizen In his indivi dual capacity he had a
right as an individual to institute q suit.
Whenever his rights were affected in q
public capacity he had right to
enlist the name of the State. Judge
Niblack's further points were that (2) the
apportIonment 10 left to the discretion of
the Legislature, and not renewable; t3l the
appeal TO the ballot is the proper relief; "a
or relief may be had through O constitu-
tional amendment or q constitutional con-
ventiOn.
QUESTION OF JURISDICTION.
Taking up the second point. the speaker
admitted the equality of the three branches
of the government each supreme in its
own powers. The Legislatures discretion
could not be invaded. The Legisla-
ture might pass laws and no.
body say nay in advance, but the
people had reserved the power in their
courts to review the action of the Legis-
lature. Does the LEGISLATURE" asked the
counsel, invest itself with any greater
fereDt from another7 Certainly not. What
Is there In apportionmenI laws that render
them more sacred than law concerning
PROPERTY If there is not. according TO
the Constitution, the courts have q
right to speak. and that 10 jurisdic ton"
This was true, held the speaker. whether
the Constitution gave untrammeled discre-
tion To the Legislature or not. If 1t were
determined that there was discretionary
power, 1t was still within the jurisdiction
OF the court 10 determine whether the DIS
erection had limit or not.
Taking uD Judge Niblack's assertion that
the appeal was to the bailot-box, Judge
Forkner said this was like tying man,
hand and foot. and telling him. Help thy
SELF" The old-esta blisbed rule that courts
would not interfere, did not apply