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

Ex-Judge Elliott Compelled to Cut
His Argument Short.

His Argument Short.
Ex-Judge Elliott said in opening his ar
gument: THE basis of the proposition on
my part of the argument shall be this.
The command is that each enumeration
shall be followed by one apportionment and
no more and that the apportionment shall
be made at the next session following the
making of the enumeration. This is my
principal proposition. A mandatory pro-
vision commands that a thing be done,
and in any instance where a statute is
passed in defiance of that command 1T is
void. / cannot agree that the subject of
making an enumeration and enacting an
apportionment law is within the scope
of ordinary legislation. cannot
agree that the portions of the
Constitution i'm controversy are merely
definitions of the legislative power. This
section relates to the General Assembly of
the State Of Indiana. 1t gives it life,
power. being and form. All the power, all
the substance of power. all right to Or
ganization that it possesses is due to these
sections of Article T. of the Constitution
They define the power of the General AS
sembly upon this subject of enumeration
and apportionment. They are limitations
in the highest and strongest sense of the
they are commands. mandates from the
people in convention assembled. They
command the Legislature at the session
next following the enumeration to pass an
apportionment law, and any apportionment
law passed in defiance of the limitation is
absolutely and totally void, unless there
are some interfering incidents which post
pone legislative action. 1t is to be re-
marked that these sections, /, 2. 3. and g.
of Article 4, refer TO one subject There
Is unified subject. There is one single,
inseparable subject; namely. apportion-
There is no possibility of severance. and
the argument of the learned gentleman will
not stand. He says some of the provisions
may be regarded as mandatory and some
as directory. There is an unbroken unity
You cannot wrench any one of these pro-
intended to be mandatory-they are man
datory. or there Is no power in the English
language. Not one word can be stricken
from these sections without a plain vio-
lation of the law. Can your Honors strike
out the word next? Can you strike out
any word? Where is there any power to
make more than one enumeration or more
than one apportionment? If that power
exists, whence is it-where does ii come
from? Certainly not from the Constitu-
ton. The power must come from the in
strument II 1t comes from anything
Judge Elliott recited the facts leading to
the adoption of the Constitution, He said
when the convention was called it carefully
considered and weighed every word writ
ten. 1t had before 1t the example of other
States would 1t be wise." he asked, for
the Legislature to insert every word that
some might wish there for the purpose or
elucidating meanings that ought to be
and statute books would become enormous
ly and unnecessarily large. Courts must
use judgment and the construction must
be placed upon the written words that COM
mon sense would dictate.
1.-The Legislature OF Indiana" he resumed.
"is not the people. 1t Is the representative
the of e an ns
IL the provisions of the Constitution are
directory, why was it the people of Indiana
Constitution the word Whte% If 'r the p sne
visions were directory and not mandatory
why strike out the word 'white?" Judge
Elliott touched upon the conditions of ar
fairs that existed when the act of 1895 was
passed. Like Senator Turpie, he considered
when the Legislature OF 1893 convened IL had
ment act TO I'LL the VOID created by the
decision OF the Supreme Court holding that
of 1891 unconstitutional. They did what
they were obliged to do. They did their
duty" When the Legislature of 1895 con-
vened IL found a valid, living apportionmenc
act extant and had no right to declare that
act unconstitutional 1t had no right to
repeal the act in force and pass another.
he held. An apportionment law once passed
must stand until the constitutional limit
has been reached for taking an enumera-
ton, when another law must be passed,
and not before. He went into the history
OF the Wishard case and held the record
was in the hands OF the court and 1t must
take cognizance OF the fact a judgment
had been rendered by the lower court and
that the judgment of the lower court was
the binding decision until an appeal was
prosecuted TO final adjudication. From
that judgment an appeal was taken to this
court. Why was IL dismissed? A decision
OF the Circuit Court In this city, unless re-
versed by the Supreme Court. fixed the
status of the great question. The Legis-
lature OF 1895 acquiesced in that dismissal
They undertook to repeal. and did repeal
Why did they repeal that law IL IL was
void? Shall we attribute 10 the grave and
reverend seignors the folly of repeating
a law already void? When that Legislature
came together there was law on the stat
ute books OF our State. The law va.ic
and there was no room for another. As
well attempt TO force brick or stone into