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

titled to a separate Representative. and it was
not within the power OF the General Assembly
to deprive It Of oi., SUCH IN Hspresen.a'lTHse e tb bnls
representative districts composed. respectively,
Of the counties of Clinton, Upton and Madison.
a ans S Of the Counties nj of Putnam. Ola and Mont.
gomery, cannot be sustained.
Each of the counties of Upton. Harrison and
and each is given q separate Representative.
They were not entitled 20 further consideration
or representation. The formation OF these dis
tricts was an attempt to do indirectly that which
could not be done directly. namely, form dis
tricts OF counties not contiguous. BY the same
process, If it were permissible. the county OF
Of vanderburg. and that, too. .notwith-
tween the two is fully represent,
not, in our opinion, be used for the purpose of
joining counties which are not otherwise con-
tiguous, There are found In TINS act many
sentation as fixed by the Constitution. especially
in the formation of representative districts; But
We deem IL unnecessary to extend this opinion
anime and compare the act now under consid
Grafton with other acts of the Geeral Assembly
a,y, rM ,e,.,. the S Sa4eo,es. into which Si''riS %s
have cheerfully done. Such examination
only serves to confirm O well-known historical
power in the state It endeavored to so district it
for Legislative purposes hs to retain that power.
and that too, very often In total disregard OF the
Constitution Of the State demanding equality in
ton is of no value when IL is plain that the
practice has been in open violation of the instru-
ment which the court Is called dpon to construe.
Our conclusion is that the act OF the General
Assembly passed on the 5th day of March. 1891,
Notwithstanding the Governors veto. pur lort-
ing to redistrict the state for legislative pur-
poses, is in conflict with the Constitution Of the
State, and for that reason 10 void. Nor do we
apprehend that from this conclusion the dis
aaf.on ndtAf in n
LEGISLATURE STANDS.
The office of Senator. as we'll as the office of
Representative, is not a statutory office, but an
office created by the Constitution Of the State. 1t
is true that the number is fixed by act of Gen.
eral Assembly. but this is also true OF
the circuit judges in the State. This
fact does not change the nature Of the
Office. and it is for this reason none the less a
that where one Is elected or appointed TO an Of
foe under an unconstitutional statute before II Is
adjudged to be so is an officer de faoto. lThroop
Public Officers, sec. 62S-637; Mecham's Public
Offices and Officers. Sec. 318; State VS.. Carroll,
80 Conn.,, 449; Brown VS.. O'Conneil. 36 Conn.,,
1872; Meher VS.. Storey County, 8 Nevada, 244;
McCombs. So Pa. st., 1885,; State VS.. Bloom, II
Wis. 52l; Kirker vs.. City of Cincinnati. 27 N. E.
The rule that the acts of an officer de facto
performed before custer are. as to the public, as
valid az the acts OF an officer de jure, is too
familiar to the profession 10 need the citation or
authority. The public is not to suffer because
those discharging the functions OF al officer may
have a defective title or no title at all. lease Va.
the State, 90 Ind, 46; Blackman VS.. the state,
IL Ind. $50; Bausner VS.. Mace, Is Ind, %;
Mobrey vs. the State. 80 Ind, 324.l
If, at the next ensuing election the State is
without q valid law creating senatorial and
representative districts under the enumeration
of 1889. the responsibility must rest with the
legislative and not with the judicial department
OF State government.
C OF 1879 ovERTHRowN.
The apportionment act OF 1879 requires sep
arate consideration, for the reason that its pro-
visions are, in many respects. quite different
from the act OF 1891. While it differs materially
from the latter in many respects. an examina-
ton will disclose the fact that 1t disregards, un
necessarily. the principle of equality in repre-.
sentation required by our Constitution. IL is
subject TO many OF the constitutional objections
urged against the act Of 1891. but as IL Ia not al
all likely there will ever be another effort TO en-
force IL, no useful purpose would be subserved
by setting them out In detail. 1t il sufficient To
say that, In our opinion. the act
as to the invalidity OF the act OF 1891. The COM
plant in this case proceeds upon the theory
that the appellee Is entitled to have Senators and
Representatives elected under the act OF 1879.
He must succeed upon this theory N he succeeds
at all. First National Bank vs.. Root. 107. Ind,
Pa; Western Union Telegraph Company vs.
Young. SO Ind. lis; c.. st. L. Il T.. Railroad
Company VS.. Bills. lo4 Ind. ISL
The demurrer filed by the appellants necessar-
lily calls In question his right 10 the relief sought
As the act of 1879 IL unconstitutional, the ap-
peilee WAS not entitled 10 the relief he sought In
this action. and for that reason the court erred,
iConrisaea ga Seventh fage.I