The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-05-16


shown by the affidavits and record we should
feel compelled to sustain the motion, as the
and ought to be regarded as a contempt OF
court. Noover VS.. Hanna, Blackf., 4S;
Brewinton vs. Lowe, Ind. H; Hotchkiss
GO Ind Ind @ Smith VS. Bank 81
T. s, Wheat, 81 Lord VS.. yeazie, s How.
=. s.. z5l; State VS.. Bergeman & Napton.
County Bank, New II. L. r A. sl5)
Counter affidavits have been filed by the
parties and counsel in opposition to the
have occurred in this court tending to over
come the charge. But We deem the merits
OF the controversy of so much Importance
conflict raised by the affidavits and will pass
the question OF dismissal without decision.
The brief on behalf of the appellants makes
much consideration-namey, it is therein
contended with much apparent earnsstness
that the act of 1885 was accepted by the
people and acted upon without question. and
three General Assemblies were elected under
1t before any further legislation upon the
subject was attempted and before any ques-
ton or It's constitutionality was raised,
and no attempt was ever Iiade or suggested
to test its validity or constitutionality in the
courts. The law having been accepted and
by the people, go we insist that it is now too
late TO raise the question as TO its validity
upon the grounds stated in the complaint.
Thls convention is not without weight OF
merit. especially as this is an attempt TO
invoke the equity powers of the court by
Injunction. Equity aids the vigilant nos
those who slumber on their rights.
The principle thus used as a practical rule
controlling and restricting the award of re-
Hefs Is designed to promote diligence on the
part OF suitors to discourage laches by max
ing 1t a bar to relief and TO prevent the en-
forcement of stale demands of all kinds,
wholly independent of any statutory periods
OF limitation 1t is invoked Tor this purpose
in suits for Injunction. suits to obtain rem
edy against fraud, and in all classes OF
cases, except perhaps those brought to en-
A court of equity which is never ac-
tive in relief against conscience or public
convenience. has always refused its aid 10
stale demands where the party has slept
upon his rights and acquiesced for a great
length of time: Nothing can cal forth this
soT into aety but good
Ed. Jur. ed, 31S, 49, Brashear vs. City Of
Madison, 142 Ind. 6S5: Ruhmsey VS.. The
People. 10 n. Y, 41)
In addition to the fact that the appellee
does not point out any other apportionment
act than that of 1885, or claim that any such
exists under which an election may be held
we may observe that he agrees with the con-
tention or the amici curiae that all legisla-
tive apportionment acts previous to that OF
1879, under the present Constitution, including
the apportionment act under which that
Constitution required the first and second
legislative elections to be held, were re-
alton exclusively of the white male inhab-
itants of the State. Sec. 2. Art. 3, Const
1915. r. S. 1S4S. p. A. Const of 1851, 3, A. g.
A Ac Of s Aess q 9p e and Isl g Is s
4I9S; supp. Enumeration Act Of 1877. Acts Of
1877, R; s. 1881. 1879; r. S. 1894, ss7Ol
March IA, 1881, the sections of the Consti-
tuition above referred to were so amended as
to require such enumerations and apportion-
inhabitants of the State over the age of
twenty-oDe years, both white and colored
Or. $: 1894, 80, 100 and 1Ol; r. S. 1881, 80, 100
All the appcrtionment acts, therefore.
which preceded that of 1879. being based ex-
clusively on the white male Inhabitants of
and leaving out all colored males of that
age. are wholly inconsistent with the re-
quirements Of the Constitution since its
colored as we'll as white males over twenty
one years of age to be represented in the
apportionmsnt for legislative purposes.
1t Is settled law in this and other States
that constitutional amendment inconsist-
ent with previous constitutional provisions
and legislative enactments operates to re-
islative enactments Griebel VS.. State ex
rel. Neisor, III Ind, 800. and authorities
there cited; Pierce VS.. Delamater. 1 Com
stock, IL; Potter's Dwarris Statutes liz:
Sedgwick Statutory Law, 107.
ACTS PRIOR TO 1879.
The learned counsel for appellee not only
frankly concede. but earnestly insist, that
all apportionment acts prior to that of 1879
have been repealed by the aforementioned
constitutional amendment. and that the
only act not SO repealed or declared by this
court to be unconstitutional is that of 1885.
So that 1t is undeniable that all legislative
apportionment acts previous to that of 1879
have been effectively repealed. All appor-
tionment acts subsequent to that of 1885, as
well as the act of 1879, have been adjudged
unconstitutional by this court. Parker VS..
State, 133 Ind, us. supra; Denney VS.. State,
supra, 2. AZ y. T. Rep, 929.) There sew
eral reasons why the act of 1885 has not
been repealed.
/. There has been no constitutional
amendment. either State or federal, adopted
since its enactment inconsistent with its
acts of 1891, 1898 and 1895. assuming to SUI
persede IL, having proven unconstitutional,
the repeal in each one of these acts falls
to the ground by the settled adjudication of
this court because 1t appears from the sew
eral repeating clauses that ii was only in
tended to repeal the former apportionment
was to take the place of the former acts
upon the subject. Oenney VS.. State, supra
State ex rel. Blend ct al, 12l Ind, ia. and
that 1t Is justly held In Denney vs.. State,
supra, that the Legislature may not wan
tonly sweep away all means of electinS an
Thus we are confronted with the prelim-
mary question to be determined before we
enter upon the investigation of the alleged
unconstitutionalty of the apportionment
act of 1886. And this question is, can the
appellee have any right to invoke the pow
er of this court to dissolve the State gov
eminent? Can any citizen OF this State
have the right to invoke the power of the
judiciary by injunction to put end to the
government that protects his life, his lib
erty and his property? The proposition the
appellee presents, stripped of all subter-
fuges, is that unless the Governor shall con-
vene the Legislature in extra session there
shall be no more elections of Legislatures
in this State under our Constitution. But
suppose we respond to the demand of the
appellee, and, having entered the field of
investigation. find the act of 1885 defective
and strike 1t down and start the people OF
this State on a voyage that may lead them
into the troubled sea OF anarchy; and sup
pose even that the Governor shall forego
his resolution not to call an extra session
OF the Legislature. and should actually con-
vene 1t and it should refuse to act, or, con-
senting, should pass another act as bad as
the one passesd in 1885, and which this court
should be compelled to declare unconstitu-
tional? The government Of the State would
be at an end. AS was said in Denney VS.
state, supra, the people, In the Constitution,
have provided that all officers except men,
bers of the Legislature shall hold their re-
spective- offices during the term for which
are elected and qualified. We may notice i'm
passing that such provision points unerrng-
ly TO the design OF the trainers of the Con-
stitution that the functions of government,
executive and administrative. should not
come to an end for want of persons author
lied to perform them. But as to members
of the General Assembly, for important and
obvious reasons, different rule was pro-
official career and authority ends with the
end of the term for which he is elected,
whether his successor is elected or not.
Therefore. If there is no law in force for