The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-04-11
THE ENDED
Judge Brown Takes AppOrtion-
ment Case Under Amusement.
Mr.. Ferd Winters Contention Against
the Neutrality-suspicious. Smiths
Speech in Its Behalf.

Judge Brown devoted all day yesterday to
the argument in the apportionment suit.
The case was concluded last night and the
court announced that it would decide the
merits of the argument at its leisure. There
were a number Of important points to be
looked up, he said, and he did not want TO
hurry through the work. 1t is expected
that the decision will not be made public
for a week or ten days. Ferd Winter
made the closing speech for the plaintiff.
He took up the case yesterday morning
and concluded his argument at noon. At
the outset he contended that the court had
jurisdiction of the defendants, and citing a
number Of outside cases, held that all were
affected alike. AS to the question of previ-
Gus adjudication he admitted that the plain
tiff did not contend that the decision in the
Parker case was binding on the Supreme
Court. The character of the case had
brought about the adjudication in the Su-
preme Court, but the inferior court could
not ignore the decision because there had
been a re-enactment' of the law in contro-
versy. He thought that the court could
readily understand the obligatory nature
of the rules of decision in the case of
Parker VS.. The State.
At some length the attorney discussed the
bearing of political questions upon the pres
ent controversy. He clearly showed just
how these same questions had been dis
torted by the counsel on the other side.
The tariff was not one Of the issues in the
case, yet 1t would be argued by the oppos-
ing counsel that when the tariff law was
attacked it was thrown out of the court
because it was a political question. But
notwithstanding the contention. he said, the
United States Supreme Court took up the
tariff law and decided its validity. He also
referred to the attack on the rules of the
House of Representatives by Speaker Reed
as another political case that had come
under the jurisdiction of the court. The
Baxter law, although a campaign issue,
was passed upon by the Supreme Court.
Mr.. Winter lamented the fact that Mr.. c.
w. Smith had wasted valuable time on the
question of discretion, for only one court
in the United States had held the conten-
ton that apportionment was a discretion
airy measure of a political nature. He be-
lieved that such a decision had been rem
dered in a Virginia court, but he had been
unable to find All argument or citation in
support of the decision. Mr.. Smith had
said much about the question being one of
discretionary power, but Mr.. Winter pro-
duced numerous authorities which he was
sure would disprove the assertion. This
question had been disposed of long years
ago and the statement could be cor
roborated by an examination of cases cited
in the Maine, Massachusetts and Ohio au-
thorities. a specific case brought to the
notice of the Supreme Court of Nebraska
was a precedent. There the court had
promptly decided the question to be a
judicial and not a political one. Although
the Nebraska court found relief for the
plaintiff without passing upon the constitu-
tionality of the law, it decided that had an
other law not furnished relief the appor-
tionment must have been found unconsti-
tutional by the court.
Mr.. Winter resented the intimation of
Mr.. Smith that partisan bias might infu-
ence the courts. He did not believe that
the bar would stoop to such a thing. and he
pledged his sincere belief in the honest
motives that he felt would control the de-
cision of the present Supreme Court. He
thought the last one had been actuated by
honest motives. The courts of Indiana, he
said, were institutions. They are not in
dividuals. Before the close of his argu-
ment Mr.. Winter took up the discussion Of
the Wisconsin, Michigan and New York
cases. He cited several instances in the
records where appointments in these
States had been taken up by the courts and
disposed OF. One particular case in Wis
as TO politics, had decided the question to
be judicial and not political. In Michigan
a similar case could be found. He closed
with an urgent appeal TO the court TO
strike down an Infamous and unjust law
that necessitated an unfair representation
in the Legislature.
ATTORNEY GENERALS SPEECH.
Mr.. Winters was followed by Attorney
general Smith, who closed the argument.
He held that the case of Parker VS.. The
State, decided by the Supreme Court in 133
Ind. is not decisive of the question in
volved In this litigation. Then, in sub
stance. he set up the following contention:
The Supreme Court, in passing upon the
constitutionality of the law of 1891, went
outside Of the record to render it's de-
cision- 1t was not necessary in the de-
cision of that case to decide that either
Of the apDOrtioment laws named in the
decision W1Te unconstitutional. The de-
clsloh 81 the court that the laws of 1891,
1888 and 1879 were unconstitutional was
overly gratuitous, unnecessary to the de-
The question involved IN the case Of Par
ker VS.. The State, when presented to the
supreme Court, was: rs the plaintiff en-
titled TO the relief demanded in its com
Elaint?' The Circuit Court fof Henry
county had decided the question upon the
demurrer TO the complaint, holding that
1t contained facts sufficient TO constitute
a cause OF action. The defendants elected
to stand by the demurrer and refused 10
rendered a Judgment upon the demurrer
TO the complaint, III WHICH IL nelQ mat the
laws of 1891 and 1855 were unconstitutional
and that the law of 1879 was constitutional
SO the Attorney-general held. The court
directed that the officers be required to
give notice OF election under the provisions
of the law Of 1919. The case was appealed
to the Supreme Court on the single uues-
ton that the complaint did not state facts
sufficient TO constitute action and that the
demurrer TO the complaint should have
been sustained. The Supreme Court first
met the question presented by the demurrer
and held that it should have been sustained
by the Circuit Court because the COM
plant did not state a cause for action.
For this reason the case was dismissed.
This left the Judgment of the lower court
in the same condition that ii would have
been had the court in the first instance
have sustained the demurrer. The re-
mainder OF the Attorney-generaiS argu-
ment is summarized as follows:
The Supreme Court vested it's judgment
in reversing the case upon the single prop
osition that the plaintiff was not entitled
to the. relief demanded, namely: that the
law OF 1891 was unconstitutional and the
law of 1879 was constitutional; for the rea-
son that the same objection with refer
ence 10 inequalities existed in both stat
verSal OF the case for the court 10 de-
clare either of these statutes unconstitu-
tional, and therefore the decision which
was written out declaring the law uncon-
stitutiOnal was wholly unnecessary.
The question OF appOrtioninS States for
representative purposes belongs to the no.
ltical power of the Legislature, and is by
sembly without limitation, except that such
limitation be found in the Constitution it,
self. The court cannot apportion the State
for legislative PURPOSES, nor can IL direct