The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-05-16
JUDGE JORDAN's VIEW.
COncCrs In the Conclusion, but
Reaches 1t by n Different Course.

Judge Jordan's opinion is as follows:
/ concur in the result reached i'm this ap-
peal, but. not in all the reasoning OF the
opinion OF Judge McCabe. 1t may be con-
ceded that the apportionment act of 1856
is repiete with the evils that were con-
derlned by this court under the decisions
IN the cases OF Parker VS.. The State, 133
Ind. 178. and Denney VS.. The State at this
term. l am Of the opinion, however, that
the appellee who seemingly brought this
acton in the lower court in behalf of him.
self and other electors of the State, has
not timely Exercised the right to assail the
validity OF the statute in controversy, and
for that reason, al least, his case Is devoid
or equity, and under the circumstances he
is not in condition to demand that the
traordinary writ of injunction to prevent
the appellants who are public officers from
doing the acts of which he complains. The
statute in dispute ran through an entire
sexennial period. during which time 1t was
acQuiesced in by the people and its validity
was not challenged in any court, and under
its provisions three successive General As
semb.ies were elected by the voters of this
State. 1t is true that during the time this
statute was in active operation ii was cr.ti-
cised and denounced by the public press
made TO assail III in court during the run
ming OF the sexennial period. and thereby
secure a judicial determination of its valid
ity. 1t is familiar maxim that equity aids
the vigilant and not those who sleep upon
their rights. 1t promotes diligence in a
ing his request for the relief which he
might have obtained had he applied there
for in due season. 1 fail to recognize any
thing, under the circumstances in the case at
bar. which will SHE'D the appellee from the
force and effect of the salutary rule to
which we have referred. As stated hereto
fore the great body of the States electors
seems to have accepted this statute, and
biennially for the period of six years ex-
ercised the right to elect Representatives
and Senators Hereunder; and now after the
e.apse of this period and a. time when 1t
Is conceded by his counsel that there re-
mains no other law under which the next
General Assembly can be elected. the APP
pe,lee invokes the judiciary TO inquire into
the constitutionality of the act in question
and grant the extraordinary relief de-
manded, regardless OF the consequences that
may follow.
1t Is manifest. think. that under the
status occupied by the appellee and the
circumstances or the case IN general, this
cannot be done without violating the funda-
parent that any special beneficial result will
enure to the appellee IL the statute In ques-
upon the other hand injurious ones might
result TO the pubic. hence under such Cir
cumstances II Is evident that equitable rules
requested by the appellee. II is true as
contended by the eminent and learned coun-
sci for the latter, as a general proposition.
that courts have nothing to do with the
sions: yet under the state OF facts In this
cause the question OF the probable results
that the public may sustain II a decision
should be adverse TO the statute in dispute.
becomes a potent factor in deciding whether
the relief sought by the action should be
granted. Again. it may be said that IL under
c.snes to convene the present General. As
sembly in extra session to enact an appor-
tionment law and thereby the electors are
is memSers Of the i House Of Re ee
dives and eucceGoorS to the Senators who
were elected In isaz II cannot. In reason. be