The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-12-19
THE eERRYMANDER UNCONSTITUTIONAL

LII dhhhtMAnDbh
The decision of the Supreme Court ia
the gerrymander case is a substantial
victory for fair appointments. 1t not
only places the stamp Of judicial con-
demnation on the gerrymander of 1891,
but it asserts the true constitutional
principle of appointments, which, if
any apportionment act violate, it is un-
constitutional.
The decision effectually. and it is to
be hoped finally, disposes of some points
which have been made by the defenders
of gerrymanders in this and other
States. The first is that of jurisdiction.
Ii has been contended that the passing
of an apportionment act was a political
function, entirely within the discretion
of the Legislature. and that courts had
no right or power to pass judgment on
no jurisdiction of the subject-matter.
This point has been disposed of in some
of the recent decisions in other States,
and is disposed of In the decision just
rendered in such a way as to leave no
further room for contention. The rea-
soning of the court is clear and strong.
and the conclusion is irresistible
that the courts have the same
right to pass upon the constitutions
ality of an apportionment act. in a
case properly before them, as they nave
to pass on any other act of the Legis-
4 latrvo The orrf mill not fforforo
with any act clearly within the discre-
ton of the Legislature, but when an
act is clearly v~iolative of the Constitu-
ton they will so declare. The question
of the constitutionality of an apportion-
ment act is "a judicial, not a political
one, and the courts will o hesitate to
take jurisdiction of it when properly
brought before them. This principle
has never been as strongly and clearly
asserted as in the decision just rem
dered, and it may now be regarded as
settled.
Another question. which was a side is
sue in this case, was as to whether a
Legislature elected under a void appor-
tionment act was itself void and it's acts
invalid. This point was vehementiy
asserted by the defenders of the gerry
mander. They insisted hat if the
court should set aside the gerrymander
it would thereby wipe out of existence
the Legislature elected under it, and
that no act passed by a Legislature so
elected would be valid. They declared
that such a decision would introduce
chaos. The court ~disposes Of this point
in few words, taking the view asserted
by the Journal. that the Offices of Sena-
tor and Representative are not statu-
tory but constitutional offices, and that
members of a Legislature elected under
an unconstitutional appOrtiOnment are
officers de facto, and their acts as valid
as if the law under which they were
elected was not unconstitutional.
The main question involved in the
case was the constitutionality of the
apporti0nment act of 1891. The court
presents this phase of the case very
clearly, and, without incumbering Its
decision with too much detail or too
many instances, it demonstrates con-
clusively that the act of 1891 plainly
violates those provisions of the Consti-
tuition which prohibit the division of
counties in the formation of senatorial
districts and which require equality in
representation. The gross injustice of
the gerrymander and the manifest pur-
pose of its trainers to ignore and over
ride the provisions of the Constitution
in regard to appointments have no.
where been more lucidly and fOrcibly
set forth than they are in the brief but
cogent argument of the court on this
point. Its conclusion is that "the act
of the General Assembly passed on the
9Th day of March, 1891, Notwithstanding
the Governors veto. purporting to re-
district the State for legislative pur-
poses, is in conflict with the Constitu-
tion of the State, and for that reason is
void"
The court, however, reverses the de-
cision of the court below on the techni-
cal ground that that decision recognized
the validity of the apportionment act of
1879, whereas the Supreme Court holds
that void for the same reasons that APP
ply to the act of 1891. In this respect
the Supreme Court gets nearer the root
of the matter than the lower court did,
for whereas the latter by implication
affirmed the validity of the act of 1879,
the Supreme Court puts the knife in
deeper and cuts that act up by the roots
also. The act of 1885 was not passed
upon because it was not necessary to do
so, but it is plain that the court regard
ed this act unconstitutional for the same
reasons that the others were. While
holding all these acts invalid, the Su-
preme Court reverses the decision of the
lower court because the latter granted
the prayer of the relator for a remedy
under the act of 1879. and as that act
was unconstitutional he was not entitled
to the relief he sought, and the lower
court erred in granting 1t. On this tech
nical point the decision of the lower
court is reversed. while its view as to
the constitutionality of the oct of 1891 is
affirmed.
Whether the decision has any .polit-
ical effect or not its moral effect will be-
strongly in favor of tair apportion-