The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-01-31

committed by the people to the wisdom of
tns legislative branch Of the State govern
nlent; that the courts may not therefore
interiors with the exercise Of this power
By the General Assembly. This. no doubt.
speaking In broad terms. is true; but only
framing the copsttnt io The ,ee courpp cam
not say how an apportionment shall be
made, nor even whether any apportionment
however. IS 10 say what the law is. III
then q law is enacted, and it's validity is
brought In question. in a proper proceeding.
ana before court OF competent jurisdic-
ton, the court must render Judgment That
- the proper and necessary function of a
The sole standard by which the validity
or a law Is to be tested Is the fundamental
law or the land The Constitution is the
supreme law. TO be respected alike by legis-
ators and by courts. The people, through
their Constitution, having thus set up the
courts as the tribunal to pronounce upon
the validity of all laws. and having made
the Constitution itself the standard by
which such laws shall be tested, the courts
must determine whether any given law is
IN conflict with the Constitution or not.
Ihey have no choice in the matter. but
must pronounce judgment. And IL can
make no difference what the law may be.
Constitution must be held invalid. quite
the same as any other. The question is
not, what Is the character or subject of
the me law, but whether II Is in conflict with
the Constitution.
In recent years the validity of apportion-
ment acts has been before the courts of
last resort in at least four States besides
our own In two of these cases, in Wis
consin and Michigan, the courts held the
acts unconstitutianal: in the other two
cases, in New York and Illinois, the acts
were held constitutional; but in all four
cases, as well as in this State. the courts
the subject matter of the controversy
state VS.. Cunningham, 81 Wis no Q5 l..
x. A; 56l , and SO Wis. 90 Ga l.. r. A. 1862
6oard or supervisors VS.. Blacker, go Mich
S5s q6 l.. r. A. 1927 Giddings vs. Blacker,
- Mich i ZIG 1. r: A, 1927 People VS.. Rice.
lss ~ T., 47s &c L. r. A, 1861 Parker VS..
W. Thompson. 155 Illinois, 451. See in par
tlcuiar the forcible argument OF Elliott j..
N his concurring opinion in Parker VS.
In State VS.. Cunningham, supra, citing
Houston VS.. Moore, IS u. 8. !. the power
and duty OF American courts to determine
the consttutionality of all laws is asserted
In this clear and vigorous language: BY
course OF judicial decisions, reaching
from the earliest history OF American gov
eminent to the present day without a dis
senfing voice. 1t has been adjudged that
courts Of justice have the right and are
IA duty pound. to test every law by the
Constitution, as the fundamental and par
amount law OF the land. governing all deriv-
alive power and the exercise thereof. The
poWer nnder fba w,tn us Is Ia tine d proper
the consfitutionality OF a law; and every
act OF the Legislature contrary TO the true
intent and meaning OF the Constitution will
Of no effect whatever
In so far, then, as an apportionment
law violates the provisions of the Constitu-
ton. it will, as in the case of any other act
or the Legislature, be declared void. 1t
need hardly be said however that In so
far as the Constitution itself has made
the superintendent of the State discretion
airy with the Legislature, that discretion,
as In an other case. will be scrupulously
respected by the courts. Yet more, since
the subject Of apportionment is, in general.
In charge OF the legislative department of
the government. wherever there is no posi-
tive injunction in relation to this matter
laid before the General Assembly by the
Constitution. there also the courts will re-
frain from substituting their discretion In
place or the discretion OF the Legislature
COURTS HAVE JURISDICTION.
where. however. the Constitution has
spoken. and the voice OF the Legislature
Is heard In conflict with the voice of the
Constitution, there the courts will interfere
and will sustain the paramount law of the
land against it's violation by the Legis-
lature. And to determine whether. in any
given case. the Constitution has been vio-
lated by an act of the General Assembly.
the courts will always take Jurisdiction,
whether the act be one for legislative APP
portlonment or for any other purpose.
The remaining reason given for the de-
murrer Is that the complaint does not
state facts sufficient to constitute a cause
OF action against appellants. The main
question In the case, as made by the plead
ings. and as discussed by counsel in their
briefs and In the oral argument, arises
under this head, namely. whether. under
the Constitution, any apportionment act
could be passed at the time when the al
legged apportionment law of 1895 was en-
acted The appellee contends that since
the Constitution has fixed a time once i'm
six years, when an enumeration Of the
voters OF the State shall be taken, and an
apportionment of Senators and Represen-
tafives made by law. there Is thereby Gre
ated limitation upon the power of the Leg
any other time. The appellants argue, on
the contrary, that, since the making of
an superintendent is an exercise of political
power, and hence committee to the legis-
lative department in the general grant of
power to that department., therefore the
Legislature may exercise this function at
any time; and that the provisions of the
Constitution requiring the enactment of an
apportionment law at the beginning of
each period or six years were inserted in
the fundamental law so that such appor-
comment should be made at least once in
six years, but were not intended as prohi-
bition upon the General Assembly from
making other appointments as often as
that body might deem best. This question,
We think, Notwithstanding the elaborate
and able arguments of counsel for appel
Iants, must De decided In favor OF the
contention OF appellee.
1T is provided I'm Section l. Article 4. of
the Constitution, that The legislative au-
thority OF the State shall be vested I'm the
General Assembly. which shall consist of
q Senate and 6 House of Representatives
II there were no particular provisions in
the Constitution in regard to the subject
Of legislative apportionment, there is little
doubt that. under the foregoing full and
unrestricted vesting OF legislative power in
the General Assembly, that body might. in
Its discretion. and at any time. enact laws
for the apportionment of its members
among the several counties or other dis
trfcts of the State. might, perhaps. pro-
vide that all the members OF the Legisla-
ture should be chosen by the people at
large. But Section 4, of the same article.
provides that The General Assembly shall
at its second session after the adoption of
this Constitution. and every six years
made of all the male inhabitants over the
age of twenty-one years And Section s.
OF said article. contains the following pro-
vision: The number of Senators and Rep-
rcscntatives shall, at the session next fol-
lowing each period of making such enum-
Grafton. be fixed by law. and apportioned
among the several counties. according to
tWenty-one years OF age in each.
We think the legitimate and necessary
conclusion to be drawn from these two
sections Is that enumeration of the
voters shall be taken once every six years:
and that, upon such enumeration as a
basis the apportionnent of members of
the Legislature shall be made at the next
ensuing session of the General Assembly
and only then.
s'Otherwise. and as said by this court in
Parker VS.. State, supra, unless the Cen
eral Assembly Is to be governed by the
enumeration. when made, in the matter of
districting the State for legislative pur-
poses. the enumeration Is a useless cere-
mony. and an unnecessary expense. The