The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-01-31


act. properly enacted. excepting at the sex
ennial periods. The two acts mentioned
were passed concnrrentiy. and could have
been separated only I'm the hope that IL
the second should not stand the first should
have the effect TO repeal the law OF ls93
and require the next General Assembly to
be chosen under some prior law, or under
some law which might be enacted by a
special session made necessary by the alb
remaining alternative would be that the
people should be without law under
which TO choose the next General Assem-
Oily. an alternative probably not contem-
plated when these acts were passed. and
one which the trainers Of the Constitution
certainly never intended should arise
That II was intended 10 carry down the act
OF 1888 at all hazards is manifest not only
from the express repeal OF that act. but
also from the language of the preamble to
the repeating act. 1t is declared therein
that the act OF 1888 is unconstitutional and
was intended by the General Assembly
which passed IL 10 be unfair. unequal. in
violation of the Constitution and in dis
regard OF a decision OF this court While
thus assuming the judicial function OF de-
claring an act OF the General Assembly
unconstitutional, and while assuming the
effect of that declaration TO carry down the
law of 1ssS IL is, by the last paragraph
or the preamble, expressly conceded and
declared to be the province OF the courts
TO pass upon the constitutionality Of laws
The effect OF this preamble is the question
in this case II voices the conclusion of it's
authors that the power to enact APP
portionment law, out of the sexennal
period. depends upon the nonexistence OF
State: hence. the express declaration that
the law Of 1898 was unconstitutional. There
the preamble and that is that hat its ss authors
desired simply to challenge the integrity
of those who had preceded them in the
taken an oath to support that Constitution
which is said. by this preamble, TO have
been willfully violated. This latter con-
struction is not essential TO the principal
a
ment act. The former Construction was re-
garded as essential to that end. and stands
portioning the State before the period con-
templated by the Constitution. AS said in
the principal opinion. and as practically
preamble. the declaration that the law OF
1888 was void was beyond the authority OF
the General Assembly. was the exercise OF
1t is even more than this; IL is declara-
ton that those who made IL neld their
biy alone by Virtue of the very law de-
clared by them to have been void and OF
no effect
These considerations are pertinent not
only to a decision of the question OF the
power of the General Assembly TO exer-
else judicial functions, but they are OF mo-
may follow such exercise of power and the
possible consequences of this proceeding
All tribunals of organized society accord
to precedent respectful observance and
generally obedience. unless such precedent
is palpably at variance with justice NOR
ais or the fundamental law. Especially do
the members of the society owe this OBJ
servance and obedience TO the written laws.
None rest under this obligation more fully
than those who make and those who exc
lished by this court in the Parker case
O33 Ind, y, which is urged by the appel
iants to overthrow the law OF ls'S "a ana co 1y
trolled in passing upon that and the act
of 1895. No tribunal can maintain long the
respect of society III IL may wantonly or
even with indifference. reverse to-day its
action of yesterday. This is true. whether
that tribunal is judicial or legislative. The
should be the guide of other co-ordinate
departments of the government. FINDING
the act of 1893 upon the statute books, and
passed at that period. in t..e absence of the
conclusion that the act OF 1893 was void, IL
was assumed and declared that such act
was void II this may be done in any case
IL may be done in every case, and the Leg
islature may be found repeating its en-
actments at each succeeding session. Inc
reference to appointments and tolerates
it only in the event that such conclu-
sion is Enthusiastically correct
DE FACTO LEGISLATORS.
Zone Of the consequences Of the law or
1895 was to require judicial investigation
and decision as to which Of two laws should
be observed by the people. Both could not
no authority for the second. Another conse-
quence was that it supplanted a law no
more Objectionable, under the Constitution.
than itself. Looking beyond the mere par
tisan advantage to be gained by the enact
ment Of either law. what shall become Of
the principal of local self-government and
the prerogative OF proportionate repre-
sentation? 1t Is a more than important
question. 1t is. in view of the present
Situation, startling There is. by the in
validity OF the acts OF 1923 and 1880, no ap-
portionment law since that OF 1870 which
CATION to have violated the Constitution.
The law Of 1873. the last before the act
Of 1885, was held In the Parker case TO De
unconstitutional. When the acts OF 1875 and
1896 fail where shall the people look for
the apportionment, a necessary prerequl-
site. upon which to elect the next GenerA
ernor will convene the last chosen General
Assembly in special session for that pur-
pose. While the enactments OF mercy or, de
the peace and good order or society, IL
may be seriously questioned whether one
chosen under yoa law Is sre oe e,,r raoso
of keeping the Office filled. merely de
facto officer is not usually entitled TO hoio
for the full term In an office whose func-
tions are in continuous operation, when q
de lure ofncer Is chosen during such term.
'De facto officers get no power or an-
the principle which supports the acts OF
such Officers is that the public, finding him
In actual possession OF the Office and deal
ing with him. under circumstances OF repu-
tation and color which would lead men
to suppose they were legal officers. such deal
ings are validated on the ground or public
policy. But there are authorities, though
we have no occasion 10 apply them In this
illustration. TO the effect that when the
want OF authority in such officer to perform
the acts in question becomes notorious the
reason for the de facto doctrine ceases An
essential feature of the doctrine would seem
to be that IL Is considered only with refer
ence to past acts and not as tustifying
further acts and the continued right 10
occupy the Office where the duties OF the
office are not in continuous exercise. but at
the close OF a session cease forever unless
specially called into action before new ON
GERS convene in regular session again
This would not only suggest the doubts
arising 10 influence the Governor in CALI
ing or declining to call together persons
who had occupied, de facto, an office not in
continuous operation. and one which, "
has become notorious. they held without the
sanction OF law but az suggesting also
the possible right Of the people 10 elect,
at the next election. de jure. Senators 10
represent them instead OF those chosen un-
der void law.
Another fact which might be infiuen-
tial upon the mind OF the executive as TO
his duty to call a special session Of the
General Assembly. is the fact that at the
regular session, while condemning the act
Of 1893 for its violation OF the Constitu-
ton another law was enacted as grossly
violating the same principles OF the sacred
Instrument IL the special session should
repeat the disregard OF existing enactments
and the decisions OF the. courts no relief