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

members OF the General Assembly, under
the Constitution, shall be according to the
apportonment last made by the General As
sembly before the adoption or this Consti-
tuition
SOME LAW NECESSARY.
reference to the apportionment so con-
frmed will show that it was not constructed
in accordance with the provisions OF the SUI
preme law itself; and yet 1t is confirmed and
adopted for the simple and all-sufhcient
reason that some law was necessary under
which Legislature might be chosen. Even
a defective law would be upheld rather than
that there should be no law for the election
OF General Assembly.
The Constitution of the United States It
self would compel the recognition of such
law for the election OF a Legislature as
valid. at least until another could be enacted
to take its place. In Article f. Section A.
Of the federal Constitution, 1t is provided
that The United States shall guarantee 70
OF government" And 1t is impossible Tor
us to conceive of republican form OF gov
eminent without the election by the people
bly,
The principle which required that the last
apportionment law under our old Constltu-
also that the law Of 1885 should be held valid,
Notwithstanding any constitutional delect
which might exist in either, is not essenilaiiy
different from the principle in accordance
with which invalid proceedings In the gov
eminent of municipalities are legalized py
acts OF the Legislature-aamely, that the ne
OF the municipality, in the one case, and IN
the State, in the other, should be preserved.
The State cannot die; and neither this court
nor any other tribunal Is aut rietdca 10 Go
In like manner. in a constitutional mon-
archy, 1T is not admitted that any interval OF
time exists between the death of one ruler
and the accession of another. The cry OF the
herald is the voice of the law: The King IS
dead; long live the king" SO here, also,
when great President was stricken down
by the hand OF an assassin, there was heard,
in the voice of one destined to be his sue
cessor, that sublime and inspiring declare
ton, 1.-THE government at Washington still
lives 1t will not be admitted, either in the
Nation or in the State, that the government
or any OF its coordinate branches shall ever
cease to exist. The machinery set in motion
by the people for the creation of the Legis-
lature, the executive and the courts. is. so to
say, living organism. and can never cease
TO act. Least of all should the judiciary, the
guardian of the Constitution. aid in destroy
ing the government, which has its very being
in the Constitution.
DANGEROUS CONSEQUENCES.
The learned counsel for the appellee do NOT
deny that these consequences would follow
the overthrow OF the act OF 1885, in case of
failure Of the Governor TO convene the Legis-
lature in time to pass new apportionment
act previous TO the approaching November
election, or, in case Of his converting that
body, it should fail TO pass valid appor-
tionment act. But some OF them insist that
the idea that the executive or Legislature
either will fail to do their duty is unthink-
able. We presume counsel mean by this
word that 1t is impossible 30 grasp the idea
With our thoughts that the Governor will or
might fail TO convene the Legislature in
time. or that the Legislature might fail to
pass valid apportionment law in time for
the election in November next. We find no
difficulty whatever in grasping the idea.
The like has happened before. Both the
fore failed in duty as to apportionment laws
in a marked and startling manner, as We
shall see further on. But if We are bound to
presume that the Governor and the Legisla-
ture Will perform the duty resting on each
in case the act of 1885 is void and out of date,
then there is no cause Tor interference by a
court OF equity by the strong arm OF in
junction.
The court being bound not to think the un-
thinkable idea that these departments will
interference by court of equity. There
must be such necessity no right to such
relief can be demanded. See the authorities
10 Am. and Eng. Encyc. Law, 779-7S2, and au-
thorities there cited in notes, and especially
Note i, beginning on page 779. Others of ap-
pellanrs learned counsel urge that musi
enter the field Of investigation of the uncon-
stitutionality of the act regardless OF conse-
quences. That is, as We interpret their con-
tention, We are bound TO go forward. even
though we dash the people over the precipice
into the bottomless pit OF anarchy and let the
consequences take care OF themselves. Such
a doctrine is utterly inadmissable. Ii is an
established principle of equity Jurisprudence
that If there is "a probability that more
wrong will be done than prevented by the in
mr. nyrOd. fnv y,nf ha TOD
GO Am. and Eng. Encyc. Law, 7Ss, and au-
thorities cited.)
1t is matter of current history and COM
mon notoriety, as also appears by the record
that the persons who have finally consented
to lend this suit their sanction and support
saw clearly the perilous sea into which !,
was likely to lead the ship of state, and en-
tered their solemn and patriotic protests
and yielded only such consent on a formal
refusal of the. executive of the State, to a
visiting committee. requesting him to call ar
extra session Of the Legislature to pass ar
apportionment act. What right can the ap-
pellee have TO invoke the power of this cour,
by injunction to do what he cannot do d.
rectly-namely. to coerce the Governor 10 ex-
ercise discretionary power vested in him.
One department of the government cannot
coerce another TO exercise a mere discretion.
ary- power. QHovey, Gov. vs.. State ex rel
Schuck. 127 Ind, 5SS) He has already re-
fused to act This suit, therefore, means tc
Governor.
The preliminary question confronting US i.
very different, indeed, from that presented in
either OF the cases OF Parker VS. State OF
Denney VS.. State: supra. In each of these
cases the plaintiff in his complaint showed
that the officers were threatening to proceed
under an invalid law and refusing to proceed
under valid law. Any citizen has right
to demand that public officers shall desist
from proceeding under an invalid law and
proceed under a valid law, IL there is such q
valid law, TO hold elections. But that is
very different thing from a demand that nc
election shall be held at all, and that tIls
wheels or government shall stop. Both OF
the apportionment cases above referred tc
proceeded upon the idea and in fact LEFT
standing an apportionment act under which
elections might be held in case the other de-
partments of the government failed 10 suppl,
better one.
This court. in Denney VS.. State supra. in
the principal opinion, by Howard, j.. said
This court in the case of Parker vs. State
- expressly held that the constitution
fore the court for adjudication, and. accord.
ingly, refrained from making any decision in
regard to it, Neither has the constitutional.
ity of the apportionment act Of 1885 beer
that act is the last. and, perhaps, the only
expression OF the legislative will left upor
the subject OF apportionment. and under
which Senators and Representatives may be
chosen at the general election OF 1885, unless
the Governor snail see fit to call specia
session of the Legislature TO pass a new APP.
portionment law" And, in the concurrins
opinion OF Hackney, c. j., IL was said 1.-The
act of 1889 stands upon the statute book .un-
continue unquestioned, whether the people
will follow the custom In such cases anc
make their election under that law, OF
whether that custom will be abandoned. anc
public officers will refuse to follow il and
thereby defeat the constitutional object to
convene assembly in 1897 depends upor
the wisdom and patriotism of the people .