The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-12-12

Constitution IL is not doing its duties. but
because the provision Is mandatory 1t is
not necessarily restrictive a conse-
quence. The power OF the legislators over
this subject is unlimited. Therefore, to say
that the provision OF the Constitution
exercise that power and at the same time
takes away that power Is illogical. Were this
provision not in the Constitution the Leg
elapse before making an apportionment.
But while the Constitution confers the pow
er of making appointments at certain
periods IL does not take away the power
OF making appointments at other times.
The question is, is this provision manda-
tory or simply directory in it's terms?
1siators as 10 the substance OF legislation
there is implied or expressed limitation,
the power, and that power is not limited
IN expressed terms, there Is no limitation.
That which directs the legislature to APP
essence OF what they are 10 do. That
which says the Legislature, in making the
apportionment, shall do it in such and such
way does go 10 the essence OF the SUBJ
1ect. There Is a limitation The Legisla-
ture IS then commanded to do this thing,
but 10 do II in certain way. We are
sometimes told this Is discretionary mat
ter. The Legislature has no discretion
wnen IL comes TO the subject OF apportion-
Ing the legislators among the counties of
me state according 10 the male inhab-
itants thereof That is mandatory. The
provisions OF the Constitution on that ques-
that power, and shall the courts say it
does not exist? They will not interfere
with the Legislature unless the Legislature
clearly. palpabiy and beyond doubt crosses
the line"
Mr.: Bynum said the courts viii not by
irmphcsation give to the provisions OF the
drawn from the direct words. Words and
implications" said he, cannot stand to-
or they will go down a together the o'e' S'a"u'
The claim Is that the act of 1895 con-
NETS is.: not with the provisions of the Con-
stitution. but conflicts with an implication
that may be drawn from that Constitution.
~ Is only where there Is conflict between
the act OF the Legislature and the ex-
courts are permitted to hold them invalid
not because ii conflicts with the mere
Implications 1t is only where there is d.
rect collision between the acts of the Leg
isiature with the expressed provisions of
the constitution that courts will hold them
Mr.. Bynum read a decision from ,rxen-
tieth Ohio to the effect that the act must
directly conflict with the words OF the Con-
s snd ih before II could be held invalid.
not admissible. what tribune" he re-
sumed. could declare that an act which
In no wise subverts the Constitution is re-
pugnant to it's provisions? The Implication
that arises from this construction must be
an implication that grows out OF the words
OF the Constitution itself. There is no con-
fict between the words OF the Constitution
and the provisions of this act of 1896 In
order to sustain the contention of appellee,
you have got to go further and say that the
trainers of the Constitution intended there
should be no legislation, but the Constitu-
ton does not say that. 1t gives unre-
stricted power to the legislature. The act
comes in conflict with the Implication and
not the words OF the Constitution. SO long
as there occurs to the minds of this court
no idea that some other motive may have
governed the Legislature in putting this act
into effect, there viii not arise such an i'm
plicatfon- In adopting this Constitution did
the people tie their own hands? This power
IS not power conferred by legislation 1t
Was 1t because they were afraid to trust
themselves with this power or was IL be-
cause they wanted to compel the Legisa-
ture To exercise this power at reasonable
times this provision was made? The Con-
'stitution nxes the day on which general
ton but this Is not an exercise OF the leg
islative power If the Constitution did not
TX the day il would be incumbent upon the
Legislature TO fix the day on which the gen.
no one will hold the Legislature could lass
an act fixing the day for the elections be-
cause that would be in direct conflict with
the Constitution There would be two days
in conflict, the statutory and the consitut-
tional. and one or the other would down.
Where the Constitution fixes the qualfca-
lions of voters, the Legislature cannot fix
those qualifications We contend that the
rect collision between the expressed words
Of the Constitution and the act Of the Leg
Islature. the courts should decline to in
declare an act OF the Legislature and the
Constitution were in direct conflict when
It was necessary to draw that conclusion
OPINIONS OF HENDRICKS AND WILL
JAMS.
1T have admitted the Legislature should
obey the mandatory provision requiring APP
portionments shall be made every six years.
but the question is-whether IL has the au-
thority to legislate at any other time? Gov
ernor Hendricks, in his message to the
Legislature In 1875, used this language,
recommending a reapportionment and call
Ing attention to the inequalities of the act
OF 1877: Tie question is not free from con-
stitutional doubt in my mind, but should
you be satisfied that the law may be MAIN
tained, then the reasons In its favor are
conclusive. In other words. IL the Legis-
lature believed IT could act. it should act
And 1t did act. Later. Governor williams
said: Many will say this is not the year
for the apportionment. While the Consti-
tuition makes IL obligatory every six years.
IL does not say IL shall not be done at any
other time / know il is usual to con
slider the legal ability of an authority in
giving weight to opinions uttered. but Gov
ernor williams had long experience and
knew the condition of the public mind on
this question. A committee of five was APP
pointed TO consider that question. The mi
nority reported against the Legislature TAX
ing any steps at that time. The majority
OF the votes In the house were cast for a
resolution declaring the Legislature had
the right TO pass bill at that time. The
minority report voted down and the
majority report adopted. The passage OF
the act was prevented by the resignation of
thrty-nine members OF the minority. and
the constitutional majority necessary TO
the passage of the bill could not be OBJ
tanned. In 1874 the question was again
raised in the House OF Representatives, and
this legislature. / think. probably the
superior, certainly the equal OF any Leg
islafure that ever assembled I'm the State
OF Indiana for legal talent and ability.
The question was submitted to the judi
fslature had power to apportion the State
at that time. Two reports were made, one
by the majority and another by the minor
fty Mr. Davis. of Floyd. one of the ablest
lawyers that entered the legislative halls
OF the State. reported for the majority
adopted. II held. in substance, that the
constitutional provision directing appor-
tonments should be made every six years
did not make IL impossible to make them
more frequently, and a bill was drawn and
passed by constitutional majority In
favor OF that report were such able law
yers as Samuel II. TAYLOR. Davis OF Floyd,
THE construction for which contend
while strictly within the rules OF constitu-
fional Interpretation. Is OF such transcen-
dent Importance in this to demand
favorable consideration upon higher prin-
ciDles. While II Is true that the people
own hands as well as the hands of their
agents. courts should hesitate long and Sc
riousiy before extending. bv inference. even
in the strongest cases. limitations upon
their legislative sovereignty. where that ex-
tension will deprive them of an opportunity