The Indianapolis journal., 1892-11-18
ARGUING FOR THE MONSTER
Judge Nlblack and Senator Turpie
Heard by the Supreme Court.
They Evolve the Theory that Not the People
but the Counties Are Rsprese nted in the
Legislsturs-Judge Mcbride Ill

When the five judges of the Supreme
Court were seated yesterday morning.
and the time for the oral argument in the
gerrymander litigation had arrived. Judge
Niblack, attorney for the intervenor. Chan
der. addressed the court and asked for the
wishes of the court as TO the allotment of
the mum Der of speeches and the time. He
said Judge Mellette. attorney for the
appellants. had agreed to waive his
right to speak first. in favor
of himself. The court. speaking through
ChIef-justice Mcbride, said the judges had
agreed that two and one half hours should
be allowed to each side. 1t was arranged
that Judge Niblack should speak first. Sem
ator Turpie, of counsel for the appellants.
TO follow, then the counsel for appellees
should have two and one half hours and
the appellants should close the case. With
this understanding Judge NIblack began
his argument The only auditors besides
the counsel and the reporters were Gov
ernOr-elect Matthews and one or two attor-
neys not connected with the case. The
attendance increased later. but was at no
time large.
LOCAL AUTONOMY TO FINE POINT.
case seemed to him to be brought upon q
misapprehension. or at least the influences
back of it were upon o misappreh ension of
the Constitution of Wisconsin and Michi-
gan. where similar cases had been decided.
The Constitution of Wisconsin. he said,
has number of details, while that of In
diana has not. That of Michigan has also
some restrictions which the In
diana Constitution has not. In the
cases In which the apportionments
were overthrown there was
violation of some express limitation. In
Michigan the Constitution provides that the
app0rtiOnment must be as equal as possl-
BILE. and that moieties must be represented.
IL was admitted, continued Judge Niblack,
that an exactly equal apportionment Is I'M
practicable, and In point of fact there
never was an equal division. The Constl-
tuition of New York provided that the ap-
portIonment must be as nearly equal as
may be. The Constitution of Indiana had
but one express limitation. and that was
that no county should be divided for sena-
torial representation. The implied hmita-
tiOn was IN effect to extend il to the coun-
ties for all purposes. All apportionments,
therefore, were to be made among counties,
not upon the masses of the people. The
people were represented only as citizens or
inhabitants OF counties. The Constitution
required that these counties forming one
district should be contiguous.
Judge Niblack then spent sometime IN
showing that the same principle of repre-
sentation exists in the United States. as IL
Iustrated In the United States Senate,
where each State, with total disregard of
population. has two representatives. The
State Constitution of New York, he said,
followed the same policy In dividing the
State into senatorial districts, than which
no more unequal State epportionment was
ever made. he instanced Great Britain.
which, IN forming it's parliamentary dis
to the number of people in them.
Appointments, he thus argued,
were purely q conventional matter. But
he said If the apDortlonment was to have
regard to numbers. then the Legislature
and it alone had discretion In the matter.
under the division of the State into the
three separate powers of government, the
executive, the legislative and judicial. He
illustrated the inability of one department.
ernor TO pardon some notorious desperate
criminal Who, he asked. could undo
what the executive had donef 1t was one
of those wrongs, he declared, for which
there was no remedy.
Taking up the subject of inequalities
be demanded to know II, since mathemat-
ical equality was impossible. what per
centum of inequality was admissible for
What rnle could be prescribed, he asked.
Should il be 10 per cent, or 25 per cent. or
81 Der cent? The decisions in Wisconsin
pIetely IN the dark. but if the court could
take jurisdiction upon the basis OF in
equality. then some rule must be pre-
scribed.
Judge Mcbride here interrupted by ask
ing. Suppose no attempt had been made
TO give each district as nearly equal repre-
sentation as possible. would that still be
out of the jurisdiction of the courtf"
DENYING THE COURTS JURISDICTION.
Judge Niblack parried by countering
with the question. upon what principle
can the court Judge of the Inequality If
it take jurisdiction OF the question. it will
be required to say how much too great is
the inequality. All judges of our courts" /"
he continued, ARE elected by parties. The
candidates are expected to participate In
complaint against the present apportiou-
ments are made on party basis. IL Is
matter of party advantage. seized by
the party in power. which has always had
TINS advantage. admit, It Is useq 20 an N
extent sometimes that is brutal. But 1t
has been treated as party spoiis. and the
pfinolple has gone too far, so that the con-
science of the people has been aroused"
Judge Olds here asked for the counsePs
Interpretation of the spirit and intention
OF the Constitution.
tits one thingn said the speaker, Ito
violate the spirit of the Constitution and
another tie letter. The courts may make
mistake. and where then Is the remedyf
am glad the conscience OF the people has
been aroused as to the nature of such
apporticnments. but it is matter for the
people and not the courts TO settle. In
1875 / was in Washington and called upon
Senator Morton. He referred to the ap-
portlonment OF 1872. and said: You think
In Indiana that apportonment is rather
rough. don't your Well il Is rough.
put political usage has sanctioned
this advantage This is political
power" resumed Judge Nlblack. which
parties yield by degrees. but they can be
made to yield. There were naturally some
extreme things done during the period
Oh revolution war and reconstruction. but
the disposition now Is TO systematze
things. TO smooth things. Parties ought to
De Kept within limits. and all reforms look
ing 10 the mitigation of evils must come
py incnlcating manly politics." Inc
speaker then cited the eivil-service law or
the country as a step toward this accom-
phshment Speaking OF the province OF
conrts IN such matters, he said:
during the exciting times in 1857.
when the question of who had been elected
fresioent was In controversy. a conference
or thirty lawyers was called in Washing
ton: Being from Indiana and close friend
OF eir: hendricks, was one of those pres
ent. lt was given oat that Mr.. Tilden de-
sired the matter 10 De referred TO the courts
One oil those present was Jere Black, who
Whatever else might be said of HIM. was q
great lawyer. lie took the floor and said
has it come TO this. that the courts of the
country shall determine W ho is elected Presi.
dent OF the United Statesf Such a course
would make Thomas Jefferson turn in his
grave The idea is monstrous. l have