The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-12-18

the General Assembly is 20 be governed by the
tricting the State for legislative purposes.
the enumeration is a useless ceremony. and an
unnecessary expense. The purpose In requiring
the enumeration Is to fix the number OF voters IN
each county. at the time the apportionment Is
made, In order that the Legislature may form
districts so as 10 secure TO each voter, as nearly
as may be, an equal voice with every other voter
In the State in the selection OF Senators and Rep-
resentatives. The cardinal principle OF free rep
resentatlve government that the electors shall
have equal weight in exercising the right OF
suffrage Is recognized and secured. Representa-
ton according TO the population is the rule fixed
by these several provisions OF our Consultation,
aud the General Assembly has 10 more dis
erection, In our opinion, TO disregard this rule
than It has to disregard any other plain provision
found In that Instrument. The enumeration
at the short period sof six years was intended to
secure a reimbursement and correction of the in
CAPABILITIES that might arise from the growth and
shifting OF the population within that period.
In argument 1t seems TO be agreed that it was
the intention TO provide that In making an aP
islative purposes that the integrity of the coun-
ties. when possible. should be preserved. This.
we think, Is true. and when that is done 1t Is
plain that exact equality cannot be secured.
But because exact equality Is not possible. the
General Assembly is not excused from making
mate that eqnality required by the or
ganic law OF the State. A question some
what similar to the one now under dis,
States In the year 1882, relative TO the construc-
ton to be placed upon Section 2, Article l, of the
Consultation Cons of the United states; which pro.
shall be apportioned among the several States
which may be included within the Union. &C
cording TO their respective numbers. etc." The
committee to whom was referred the question
as To what the constitutional method OF appor-
tioning unassigned representatives as between
the States having fractions Of populations less
than a full ratio was OF the unanimous opinion
that the loss or members arising from the resid-
uary numbers, should be made by assigning as
many additional members as are necessary for
that purpose 70 the States having the largest
fractional remainders. Upon that occasion Mr..
must be understood, not as e~njoining an abso-
Lutte relative equality, because that would be de-
handing an impossibii1ty, but as requiring Con-
gress TO make an appOrtionment of represents
tives among the several States according to
their respective numbers as nearly as may be.
d dons ~n IN 0an mann es a as p psars01 Ser nsst oe
as can be. II exactness cannot, from
the nature of things. be attained,
then the nearest practicable approach to
exactness ought to be made. Congress is not
absoived from ali rule merely because the rule
q case, approximation becomes q rule; il takes
the place OF the other rule, which would be
preferable, but which is found inapplicable, and
becomes itself an obligation OF binding force.
The nearest approximation to exact truth or OK
act right when that exact truth or exact right can
not be reached. prevails In other cases. not as
matter Of discretion, but as an Ineligible and
definite rule. dictated by justice and conforming
70 the common sense OF mankind; a rule OF no
less binding torce In cases to which it Is ap-
PASoolS o1a W 70 aCPoA ~ "a
any other rule"
The rule recommended by this committee was
subsequently adopted by Congress. SO that Rep
resentattyes are now apportioned among the sew
eral States of the Union under IL as q fixed and
binding obligation. The rule here announced
is, We think, the true one. When 1t Is found that
exact equality cannot be attained, where the in
tegrity Of the counties Is preserved, apprOxima-
ton becomes . rule as binding upon the General
ton. 1t il said, however, that as TO the fractions OF
the representative unit the Constitution
IL silent, and that, therefore. the General Assem-
bly, has q discretion TO provide for the repre-
sentati0n OF such fractions or TO leave them I'M
represented. ihat 10 true IN q limited sense only.
The Constitution requires that the state shall De
reapp0rtiOned every six years according to the
male Inhabitants over the age OF twentyOne
years In eaci county. 1t c~onIemplates tho for
nation of districts. each embracing as nearly as
possible an equal number OF the electors of the
State. But the rule requiring an approximation
to equality fOrbids the formation OF districts con-
tanning large fractions unrepresented where is
possible to avoid 1t, while other districts are
largely 0ver-represented.
ton in the disposition OF the fractions OF tho
unit of representation cannot be doubted. but 1t
Is not q discretion beyond control. In 80 far as
the Constitution secures equality in representa-
ton, 1t Is not silent as to the disposition OF frac-
tons, and the Legislature must dispose OF them
with a view or securing that end, otherwise an
app0rtiOnment could be made which would give
to one portion OF the State nearly double the rep
resentation given 10 other portions. Constitu-
tional provisions are seldom. II ever, to be con-
strued as merely directory. 1t may be that
q General Assembly could make q valid
time different from that Axed in the CONSTITUTION.
for the reason, as held in the case OF People ex
rel. Carter vs.. Rice, supra, that there Is a con-
however this may be. we have no doubt that our
constitutional provisions relating TO the manner
Of making an apportionment Of the State for leg
1slative purposes are mandatory. lCooleys
COnst. Lim.( 10Th Ed $751;
LAST INFAMY OvERTHRowN.
With these constitutional rules constantly in
mind, we proceed to test the act of the Legis-
lature under immediate consideration, by them,
with a view of determining its constiturionality.
1t is alleged In the complaint, and admitted
to be true by the demurrer, that under the
superintendent for Legislative purposes. as liked
by this act, forty three counties OF the State
are formed into twenty-five districts, TO each or
which one Senator Is apportioned. Eleven of
these districts composed or twenty three coun-
ties, contain Dy the enumeration OF 1889, l4S,-
496 male inhabitants over the age OF twenty-one
years, while the other eleven composed of
twenty COMMITTEES contain only 80, 1909 such in
ulation OF 24s, los there is a difference in favor
of eleven districts as against the other eleven
named of 4s.ss7. We must take
a as'0s we'll as Of the enumeration Of
1899, taken pursuant to law, and with such
so bold as to maintain that this appOrtionment
approximates equality or that equality cannot
De much more nearly attained. Ii further ap-
pc&I2 tU0t tuo VI DTOWu Il
each contained IL two separate senatorial dis
tricts. Brown county Is in the senatorial district
com posed of the counties OF Brown, Monroe and
Bartholomew. 1t Is also In the SEN
atorial district composed of the countieS OF
Brown, Morgan and Johnson. Clark county
is in the senatorial district composed of the
counties of Clark, SCOTT and Jennings. 1t is also in
the senatorial district composed of the counties
of Clark and Jefferson. The number OF male in
habitants over the age of twenty-one years in
Brown county, as shown by the enumeration of
1889. is only 2,S32, while the number OF such In
enumeration, IL only 1904 The senate
rial unit or number required 10 entitlc q district
TO enc senator under this law Is IL, 020. Brown
county under the apportiOnment as fixed by this
law, with a voting population OF e,6SS less than
the senatorial unit. votes for two senator's, while
Clark county. with a voting population Of 3,7l6
less than the unit, does the same thing. Many
other counties IN the State with four times the
voting population contained IN Brown coun-
ty vote for one only. In our opinion,
referred to. requiring equality In representation,
no scheme for senatorial districts could be de-
vised In which q county with a population no
larger than contained in Brown county could le-
gally be entitled 10 vote for two Senators. When
q county of that size has been assigned to a sena-
one Senator 1t ceases, In our opinion, to he a
factor in any legitimate scheme OF apportion-
ment for senatorial. purposes. At the
time our Constitution was formed the
convention had before it the his
tory of the famous apportionment law of
Massachusetts,. passed on the 18th day of Feb
ruary, 1912. from which the word "'gerryman-
der originated. IL IL fair TO presume that they
had learned OF the evils resulting from such a
law. and that the death and burial of this mon
the country In prose aud verse.
nv the provisions of our Constitution prOhib-