The Indianapolis journal., 1896-01-31
AS TO SEXENNIAL PERIOD
LEGIsLATrRE MUST APPoRTfov
ONLY ONCE IN SIX YEARS.
fion OF Counties an Invalid Feat
ure Of the Last Act.

The Supreme Court yesterday handed
down its opinion deciding what is commonly
known as the apportionment suit In the
court the case is known as William l. Dem
ny and others against the State OF indiana
on the relation of Fred K. Basler The
court holds that neither the law OF 1895 nor
the law OF 1893 is constitutional. In De-
ccmber, 1892, the court held that the ap-
portionment law OF 1891 was unconstitu-
t.onal and also included in this opinion the
law of 1879. In its opinion the court holds
that where one apportionment Law is held
invalid the law preceding which has NOT
been questioned and decided by the court
becomes effective again. This revives the
law Of 1855. which was passed by Demo-
cratic Legislature the enumeration %
the spring OF 1883.
The main opinion was written by Judge
Howard, with Judges Monks and McCabe
concurring Judge Hackney wrote a con-
curing opinion. and Judge Jordan gave q
very short opinion. in which he concurs In
part. but makes q few exceptions.
This law is subject to the same ques-
tions of constitutionality as the laws OF
1895 and 1898. In two cases the districts ara
so formed as to make the law void. In the
case of Clinton, Boone and Montgomery
counties, where the three form one dis
trict and are entitled to two Senators. the
result is to form what the court terms q
double district. In another case counties
not contiguous are made by throwing
in an extra county when the district al
ready had sufficient votes. Morgan, john
son and Brown counties, an enumera-
ton OF 1886. are made into a senatorial
district, and then Monroe and Bartholomew
counties are sought TO be made into dis
trict with a vote os s.ss4. but TO do this Z
is necessary TO cross Brown county. and
so il is included in both counties. The
court holds that this is not within the
spirit of the Constitution
The opinion of Judge Howard follows in
full:
| State of Indiana on the relation of Ferd Il.
| Basler. From the Sullivan Circuit Court.
Howard, j.. This was an action brought
| by the appellee to enJoin the appellants,
as clerk or the Circuit Court, sheriff and
auditor of Sullivan county from proceeding
in their several official capacities 10 hold
| Representatives in the General Assembly
under or pursuant to the provisions OF the
| apDortionment act OF 1886. and for a writ
OF mandate TO compel said officers TO pro-
| ceed to hold said election for Senators and
| Representatives under the apportionment
| act of 1888.
| ''The material allegations OF the COM
| plaint are that the appellees relator Is
| citizen, taxpayer and voter OF said county,
| give notices and furnish forms and bai.ols
| and take other steps for the holding or
| general elections in said county: that the
| General Assembly OF 1871, that being the
| proper time therefor. passed an apportioa-
ment act for the election OF members q
| the General Assembly, which act was after
ward declared unconstitutional by the
| Supreme Court; that afterward the General
Assembly OF 1888 passed an apportionmeht
act. which is still in force and Is the only
| General Assembly passed another apportion-
ment act, which is unconstitutional, and.
| at the same time, by second act, repealed
| the apportionment act of 1S93 which repeal
| ing act is also unconstitutional and void.
that by the act of 1899 said Sullivan county
entitled TO one Representative in the
! General Assembly, and, cojointly with Vigo
4 and Vermllion counties entitled 10
one additional Representative, which said
provision was userul and beneficial 10 sald
| relator; that by the pretended act of 1895
Sullivan county is entitled 30 but one Rep
resentative in the General Assembly, and
the re.ator Is thereby deprived OF the rights.
| privileges and benefits OF said act OF 1885,
| that before bringing this action said relator
made demand OF appellants that they pro-
| ceed under and in accordance with the ap-
portionment act of 1893 in performance or
| their duties in. regard TO the election or
Elections R s g. Su at
| appellants refused so TO act and asserled
| that they would proceed under said appor-
|
will so proceed unless enjoined therefrom.
| and will, unless commanded so 10 do by
the court fail. neglect and refuse TO pro-
ceed under and i'm accordance with that act
| OF 1S93 TO the great and irreparable damage
| OF appellees relator. Ii Is further expressly
alleged that the provisions OF the act or
| 1893 are constitutional and valid enact
ments and that the act OF 1896 lis unconsti-
tutional. fraudulent, abortive void and OF
no validity or effect for any purpose what
."rhe prayer was that injunction ana
mandate might issue. There was a waiver
by appellants of service OF process and OF
the issuing OF alternative writ Of man
date, and thereupon they rendered their
| demurrer TO the complaint. which was over
ruled. Appellants refusing TO plead further.
| the court entered judgment against them
| upon the demurrer BY the terms OF the de-
| cree the appellants were enjoined from pro-
| ceeding for the election OF Senators ana
! Representatives under the apporiionment
| act of 1895. and were commanded TO exer-
I else their official duties I'm relation 10 said
| election under the provisions OF the act OF
| 1893 The overruling OF the demurrer TO the
| complaint is the only error assigned on the
AS TO THE ACT OF s5.
Appellee asserting the invaidity Of tho
apportionment act of 1895. and asserting tho
validity of the act of 1896. and asking for
| an injunction against the enforcement OF
the former. with a mandate compelling an
| enforcement OF the latter. IL becomes ncces-
sary, in order to decide what. IL any. re-
| lief appellee is entitled TO. first 10 deter
| mine the constitutionality OF the act of
| 1896 II that Is found 10 be valid law.
| the case Is at an end. for the appellee
| is not entitled to any relief. III. however.
| the act OF 1895 should be found invalid.
| then IL would become necessary TO deter
| mine the constitutionality OF the act of
1893: for unless the act OF 1895 should be
| found constitutional the appellee would not
be entitled to the writ of mandate In favor
| of it's enforcement, even though he might
| be entitled TO have an injunction against
| the enforcement OF the act Of 1896.
THE first reason given for the demurrer
| Is, that the court has no Jurisdiction over
or OF the subject matter OF the action
| The basis for this contention is that the
| making OF apportionment for membfr-