The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-03-26
PETITION TO ADVANCE
WILL PROBABLY BE MADE IN AP-
PORTIONMENT CASE TODAY.
The Appellants File Their Brief and
Show Why the 1885 Law
Should stand.

The appellants brief in the case of Brayton
VS.. Fesler ct al. was fled in the Supreme
Court yesterday. This Is the apportionment
case which was filed IN this county by the
Republicans to set aside the act Of 1885. Ir
the lower court the demurrer Of the defend
ants was overruled and an appeal was taken
on that ruling without further pleading. On
account Of the general points involved hav-
ing been so fully covered in the former
apportionment cases, which have been be-
fore the Supreme Court, the brief Is very
short. The delay in filing 1t was due to the
fact that r. O.. Hawkins has been out of the
city. He fled it Immediately after his return
The brief cites the decisions in the Denny
and Parker cases, and then enters into the
discussion Of the points which are especially
applicable to the circumstances surround
ing the law OF 1886. The first question raised
is the right Of the people to question the
validity of the law at this late day. 1t is ar
gued that the law was acquiesced In by the
people and three elections were held under
1t without raising he question Of its consti-
tutionality, and that it is now too late to
raise the point.
1t is further argued that in the Parker case
Judge Elliott, in his separate opinion, held
that when the Supreme Court declares one
apportionment law unconstitutional it Is it's
duty to point out a constitutional law, If one
exists. and may become operative. This
opinion was not concurred in by the other
judges, who refused to pass on or consider
the law of 1885. In the last clause of the
opinion in the Denny case it Is stated that
the act OF 1885 was not passed upon in the
Parker case and was not questioned in the
Denny case, and that 1t is probably the only
law under which an election can now be
held. Constituting the opinion of Judge Ell
lott and this clause together, 1t is argued
in the brief that the last clause of the Denny
decision practically does what Judge Elliott
contended was the duty of the court, i. e..
points out a constitutional law under which
ar election may be held.
These are the only legal points of a tech
nical nature considered in the brief outside
of those raised in the former apportionment
cases. 1t is further argued, however. that
inasmuch as the next Legislature must pass
a new apportionment law and that only one
election can be held under the law of 1886,
claimed that the law. of 1885 is much more
fair and equitable for the people than the
law of 1872, which is the next preceding ap-
portionment law Which has not been found to
be Unconstitutional and for that reason
the election should be held under it in pref
1t IL expected that the brief Of the APP
pellee will be filed to-day and that a motion
for advancement on the docket will be made.
The Supreme Court has heretofore advanced
all such cases when asked TO do so, and the
attorneys do not anticipate a refusal in
will be advanced and set for oral argument
at an early date. thus making 1t possible for
a decision to be handed down within the next
thirty or forty days.