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


OFT J. in his concurring opinion in Parker
viii not be decided IN SIS the party demand-
ing their decision makes 1t evident that ne
has has . right to require the court 70 deci o,,
VS.. State ex rel Stout, 1S7 Ind, 552. In
Laughlin VS.. the President. ETC.. Ind. at D.
21S. 1t is said: Nor ought the process OF IN
junction be applied but with the utmost
caution. II is the strong arm of the court.
and TO render its operation benign and use
erection. and only upon necessity" In no
case can injunctive relief be awarded ex-
cept to protect some right of the complain
ant Edwards ct al VS.: Hayer ;s Ad Ia s.
Ind. 39S: Sutherland. ct al, vs. I-agro, etc,
10 Ind, 1872; MCGOWAN. ct al, VS.. Whiteside:
81 Ind, 20 The appellee's complaint instead
Of showing that he has a right TO invoke
the power of this court to strike down the
last existing appcrtionment law. shows the
direct contrary. That he has the right TO
invoke the power of this court if indeed it
possess that power to knock out the Key
stone of the arch that upholds the fair faO-
ric OF the State government Is self-evidently
untrue. AS already observed, the Constitu-
ton, as originally adopted, provided that
the previous apportionment law should con-
tinue for the first and second LEGISLATIVE
elections thereafter. This discloses the in
tention clearly enough that there should
never be time when there should De no
apportionment law under which legislative
elections might De held. Both the first and
second legislatures elected thereafter faiied
to obey the mandate of the new Constitution
to pass an apportionment law. But the
third Legislature was elected by the people
without question under the old apoortion-
ment law which was. by the literal words
of the Constitution, only to last Tor the n ,n
new Constitution. the old law having been
framed before the new Constitution, ana was
not framed on the lines prescribed therein
for apportionment acts. That third Legisia-
ture was that of 1857, and ii passed the nrst
arportionment act under the new Constitu-
ton. and. though that instrument COM
manded that body to pass one every SIX
years, yet it failed to pass another for ten
years thereafter, the next one being that
of 1867. And we note that the Governor also
failed to convene the Legislature In extra
session IL that was his duty for the purpose
of passing an apportionment law on the oc-
casion of each one of the legislative fall
ureS above mentioned.
And the Legislature has failed on four
other occasions to perform this duty, name
ly in 1879. 1891. 1893 and in 1895, by passing
unconstitutional and void acts. In view OF
these historical facts ii does not look as II
the idea of such failures of duty on the part
of the executive and legislative departments
Of the government were altogether unthink-
able.
1t is again urged that If we may not re-
spOnd to the demand of the appellee 10 IN
vestigate the unconstitutionality of the act
of 1885. because 1t is the only one in exist
ence there is no remedy against unconsti-
tutional apportionment acts. Not by any
means. We do not mean to depart in the
least degree from the rigid rule laid down
In Parker VS.. State supra, and Denney VS..
State, supra, but on the contrary We re-
affirm them in their broadcast terms. When
the next apportionment act Is passed We
will be free to inquire into it's constitution
alty, because the act of 1885 will stand un-
til valid law takes its pace. This is the
theory upon which the Constitution is built.
MUST PREVENT CHAOS.
While the trainers of that sacred instru-
rnent and the voters who adopted it were
all still living they construed it to mean
that the existing apportionment law. wheth-
err good or bad, in or out of date, must con-
tinue in force until a new one is enacted to
take its pace, and that the government
shall not be brought to an untimely end
because OF the failure Of the Legislature to
perform the duty enjoined upon 1T by the
Constitution. Suppose the third legislative
election under the new Constitution was
about to take place, and that some one.
fonder Of curiosities and OF tinkering with
a loaded gun than of the safety of himself
and others, had brought suit to enjoin the
holding of that election. on the ground that
there was no apportionment law, the Legis-
lature having failed to enact one,. and the
one provided in the Constitution having ex-
pired by the express terms of the Constitu-
ton; the courts, and especially this court,
wherein there sat those who had helped to
make the new Constitution would have ans
wered such demand by saying that it was
should be no law in existence authorizing
legislative elections. than that the Creator
designed mat in Him man should live, move
and have his being without breath.
The just fame of it's authors would be
greatly married IL il was contemplated by
them, that by the failure Of any officer or
body of officers under that Constitution TO
discharge the trust reposed in them by the
people. and perform the duty enjoined by
its PROVISIONS. time might come when we
would have no law in existence authoriz-
| ing legislati tive elections, and the people
have no security against approaching an
archy, chaos and revolution than a mere
| trust in good luck, or the good will Of any
man or set of men.
If these great men made such a rope OF
sand out OF the Constitution their fame has
been undeserved. But the contrary is true
They never intended the people should have
no other security against anarchy and rev.
olution than good luck
Our conclusion is that as the act of 1886
is the cnly i..v that has not been repealed
or adjrdgei unconstitutional under which
an eco ton Of members Of the Legislature
can be held in November, 1896. the appellee
has no Tishtyto invoke the powers Of the
courts to declare it unconstitutional. And
that, therefore. the complaint did not state
facts sufficient to constitute cause of ac-
| ton. and tbs 1.-THE Superior Court erred in
overcaling TIE demurrer thereto.
The Judgment is reversed, with instruc-
| tons to sustain the demurrer to the COM
plant.