The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-12-12
SENATOR TURPIE's ARGUMENT.
His Response to the Points Made by
Mr.. Bynum.

Following Mr.. Bynum, the opening argu-
ment for the appellee was made by Sena-
tor Turpie. 1.-The contention OF the appel
liant is" he began, that there is no juris-
diction of the subject matter. We think
this court has Jurisdiction and that the
Circuit Court of Sullivan county had origi-
nal jurisdiction to determine IL the act OF
1895 was consistent with the Constitution.
Who is to determine the question Of uncon-
stitutionality? Certainly this tribunal. The
decision OF this court upon the constitu-
tionality of an act becomes the law of the
land the permanent law of the land. 1t is
objected on the part of the appellant that
the bill is brought for dual relief. an in
junction upon one limb and a mandate upon
is carefully modelled after the complaint in
the case of Parker vs. Powell. 1t is said, if
1t please your Honors, that this suit is pre-
maturely brought; that 1t seeks to control
the action of certain election officers at an
election to be held in 1SS6-months hence.
So it does. But the fact that the election
is remote is not what we count upon. 1t is
just as competent for the court to make
a decision now as next November. If the re-
lator had to abide his time until the cleo
late to get the decision of the court upon
the questions involved. Where public off,
GERS act under the law and declare their
intentions of doing SO. the party need not
wait until they have acted before taking
steps to secure relief. These are but in
cidental questions. The great question is
whether the Legislature could lawfully ap-
portion the State at any period other than
f,lto ba frna of
making an enumeration; whether the desig-
nation of the time is a command absolute
or whether it merely permits an apportion-
ment. The time when thing may be law
fully done, when such time is designated
when public interests are concerned or pub
lie rights effected. Such is the universal
procedure. Could municipal or town
election be held upon any other day than
that appointed for 1t in the statute? Take
the sessions of courts, where times are pre-
scribed for beginning and ending term
could court enter judgment upon any
day not within that period? If il did so,
what would be the consequence? In other
words what would be its value? Elections
held on other days than those prescribed
would be held illegal. These restrictions of
time. where public rights are effected. are
mandatory In their effect. May ii please
the idea that any time will do; it is founded
upon the rule some time must be fixed,
that some time or period in which the act
may be done must be fixed, and when Ii is
fixed, it cannot be done at any other time
1t is to prevent clandestine elections and
1t Is to prevent secret session of courts,
like the Star Chamber and Council OF Ten.
When this rule is enforced no body of men
will ever attempt to holu an election and no
body OF men will attempt TO legislate upon
different topics except when they are au-
thorized to legislate, and at no other time
Senator Turpie cited quite a number of
authorities which he held bore out this
line OF reasoning.
AN ARBITRARY TIME.
1.-The Constitution of Indiana is it's Magma
Charta," he continued. Its measure of
power, not only for the people it governs,
but the governors in every department Of
the State government When a time is
fixed for the enactments of law and they
are passed outside of that time, what be-
comes of the legislation? Such an act is
not law. 1t is only the act OF a town
meeting 1t is only the expression of an
opinion not even binding upon those who
made II. If this be the case respecting
statutory provisions of general interest,
how much more must such mandates be
tanned in the Constitution and are part
of the fundamental law of the State"
Inc sections or the Constitu,ion In contro,
by encouragement Smith at Senator
Turpie's request
NOW, the question at pa is, Wnetner
the provisions OF the Constitution are
mandatory directory They start out
with the proposition that the provisions
OF this Constitution are not mandatory.
unless the language itself makes them
directory. We hold, as the basis of our
proposition. that the provisions are manda-
tory unless otherwise expressed in their
own words. / grant you this question
might have been made the subject of legis-
lation. The Constitution might have pro-
vided. ancient constitutions did, that
the Legislature might. from time to time,
is not subject of general legislation. The
constitution made il the subject OF
special grant of power-first as 10 the time
when IL might be done-at the session fol-
lowing each period of enumeration: sec
ond, the manner in which IL might be done
Every six years the enumeration was to
occur. Sextennial periods were essential
both as 10 enumeration and apportionment.
The first section Is condensed; very much
condensed. IL reads. lat the session next
following the period making the enumera-
ton, the General Assembly shall fix the
number Of Senator'S and Representatives
The fixing OF the number is one OF those
powers. They have been so long accus-
toned TO the maximum number they hold
TO IT, Suppose the Legislature had tried
10 fix the number at twenty-five Senators
and fifty Representatives? They might as
well have gone TO work TO diminish the
number In 1895. III the clause I'm relation
TO fixing the number OF members Is manda-
tory, certainly the other part OF the article
Is mandatory. They are parts OF the same
clause. The learned and worthy counsel
for the other side has referred TO the
act OF 1875 as II I had said something
different then from what Is being said
here. That Is twenty years ago. At that
time being member OF the House from
the county OF Marion. l voted for the bill
at the recommendation OF the Governor
and one OF the most excellent attorneys
OF that day. That fact does not act as