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

Court Cannot Hold that other Branch
VIII Not Act Properly.

e. VIII Not Act Properly.
Judge Monks's dissenting opinion is as fol-
lows:
dissent from both the reasoning and the
conclusion reached in the prevailing opinion.
The apportionment act OF 1856 tested by the
principles established in the cases OF Parker
vs. State, 1S3 Ind. l7S. and Denney vs.. State.
court held the superintendent acts OF ISIS.
1891. 1898 and 1895 unconstitutional IL clearly
and without doubt unconstitutional and void
purpose. 1t confers no rights: il imposes
no duties; IL affords no protection, and is the
same as IL IL had never been passed. John
VS.. Daniel 5 Ind 3ls: Summer VS. Beeier.
so Ind. 81, Cobley's Const. Linz, ed. 80.
Black on Constitutional Law. 81. Sec. 3D.
IL is not the judgment OF a court that REM
ders statute unconstitutional. but the fact
that IL is in conflict with some provision OF
tne Constitution A statute therefore that is
repugnanf 20 any provision or the Constitu-
ton is void before as well as after IL Is 50
adjudged. The fact that no court has ever
passed upon the question does not render
Therefore the apportionment act OF 1885 Is
no more valid and binding than the appor-
tionment acts OF 1891, 1898 and 1895. which
have been, adjudged unconstitutional by this
court. This court has uniformly held that
when 1t clearly appears that a statute ID
repugnant to or in connict with any pro-
vision of the Constitution 1t Is the plain
duty OF the courts 20 declare IL null and
void; Campbell VS.. Dwtegins, s. Ind 41S.
400: Parker VS.. State, supra on D. Isl; Den
Indeed. 1t is not claimed in the prevailing
opinion that the superintendent act on lss5
is constitutional, but IL is not held invalid
for the sole reason given that IL Is the only
statute on that subject. and that IL held in
valid. the Governor may not call a special
session of the General Assembly. or IL he
does the General Assembly may not enact
constitutional apportionment law, and an
archy may follow.
In response to a suggestion OF Ike char
acter in Mcpherson VS.. Blacker, LAG u. s. !.
the court, by Chief Justice Fuller said:
the controversy is nc. Of judicial cosnisance
because ii is said that all questions con-
nected with the election OF presidential
court has no power to finally dispose OF
them and that its decision would be subject
TO review by political officers and agencies.
,ature in joint convention and the Governor.
or finally Congress. . The question Of the
validity of this act as presented TO US by
not decline to exercise our jurisdiction upon
the inadmissible suggestion that action
might. be taken by poli.ical agencies In dis
regard OF the judgment OF the highest
tribunal of the State as revised by our own.
This doctrine was approved by the supreme
Court of New Jersey In State VS.. Wrightson.
So N. ]. L. 126
WHERE THE PRESUMPTION LIES.
1t is the duty of each department of the
State government to act in the discharge
of all duties upon the presumption that the
other departments will properly perform all
duties incumbent upon them 1t is only
when the action OF the several departments
OF the State government is governed by this
rule that its perpetuity and safety are as
sured. Any other course tends TO bring
confusion and anarchy. This court there
fore should decide all questions properly pre-
scented upon the presumption that the ex-
ecutive and legislative departments OF the
State government will not neglect any duty
or fail TO perform any function imposed upon
them by the Constitution. There II much
less danger OF anarchy by this course than
for this court to declare an uncons ritutional
law valid or decline TO pass upon the con-
stitutionality Of its validity for the reason
that the other departments named might
fail or refuse to perform the duties imposed
by the organic law. The suggestion that
neither the legislative or executive depart
refuse to perform the duties imposed by the
Constitution as reason why this court
should not judge the apportionment act OF
1856 unconstitutional, IL clearly Is, or de-
cline TO pass upon that question is certainly
in the language of Chief Justice Fuller 'in-
admissible" and should not be considered by
the court: TO do so is an unwarranted re-
election on the coordinate branches OF the
State government. 4tc
In Parker VS.. State, decided IN December.
1892. before the meeting Of the General As
sembly in January. 1893. this court said: III
| at the next ensuing election the State Is
representative districts under the enumera-
tion of 1889. the responsibility must rest with
in the Legislature and MT the judicial de-
partment OF the State government"
This same argument was also considered
and answered in the apportionment cases
decided by the Supreme Courts of Michigan
In Giddings VS.. Blacker. 90 Mich. i. Morse.
G. j., said: I'VE do not care to go further,
since there is a remedy in the hands OF
the executive and Legislature. The conse-
quences Of this decision are not for US. II is
our duty to declare the law, to point out
the invasion of the Constitution and to for
In State vs. Cunningham, 81 Wis $40. Pin
ney J., said: mo difficulty. II is believed.
oa eear has f. felt its G
duty TO make, and our respect Tor the ex-
ecutive of the State, whose duty 1T is TO
ecuted' forbids any apprehension that he
will fail in the least in meeting the present
emergency. or to take such measures as in
his wisdom seem best to give full effect 10
the Constitution and the laws.
In the same case Lyon, j., said: Neither
is the Jurisdiction of the court affected or
| that this decision may leave the State with
| out a valid legislative apportionment law
and hence without any law for the election
| convene the present Legislature II he deems
| ir his duty to do so. and when so convened
there can be no doubt Of i,s power r. to enact
| In the Legal Tender. Cases. Il Wall. 457,
| Mr. Justice Strong, III delivering the opinion
| of the court. referred TO the situation OF
| the country when the acts were passed and
| the great business disarrangement, wide
| spread distress and rank injustice" that
would result IL said acts were held invalid
| but he added the consequences OF which
| we have spoken, serious as they are, must
| be accepted II there Is a clear incompattbility
between the Constitution and the legal ten
| der acts"
| The proposition that this court should hold
an unconstitutional law valid or refuse &c
| pass upon the question or It's Validity be-
| cause some other department or the gov
| ernment might fail or refuse TO perform
| the duties imposed upon IL by the organic
| law, Is dangerous and vicious doctrine. and
clearly against the great weight OF the au-
| thorities.
| Neither can I concur I'm the proposition
| that the people, having acted upon the ap-
portionment act OF 1885 by electlng three sue
| cessive General Assemblies under IL, that II
| its validity. The authorities cited IN sup
| port OF this doctrine have reference TO ac-
| tons to enforce private rights concerning
| property. and can have no Application IN
| case like the one before US. This court, In
| Denney VS.. State. - Ind. =. AZ n. r. r.,
| any estoppel here as In the case OF Vickery
| VS. Board. 1884, Ind, 553. TO which We are re-
| ferred. There the party bringing suit 20
| enjoin the levy of the taxes 10 pay for bonds
| issued on purchase OF toll road. had waited
| until he received the benefit or the bonds
| before asking the court TO declare unconsti-
| tutional the law under which they were is
| sued Here. while there may be some ques-
| ton OF private or personal benefft, yet the
| issue before the court is much broader
| The action concerns the people Of the State
| In their most enlarged and sacred relations
i@f ~ssf in md nd ~ n q