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


ulatfon or 6.3S2. being So over the ratio.
are each given one Representative, and also
a voice In the election OF another. while the
counties OF Randolph Delaware. Boone
wabash, Huntington and Grant, each with
a greater voting population than either
shelby or Decatur. are given each one Rep
A graver violation Of this principle is
found In the case of the counties OF Harri-
son, Ripley, Franklin. Sullivan. Putnam
and Upton. each having a voting population
less than the ratio. but each OF which is
given Representative. being all that they
could be entitled to; yet each OF these coun-
ties is also given a voice I'm the election of
an additional Representative. The district
consisting of Ripley, Franklin and Union,
IS the most objectionable OF this class for
the district already fully represented, has
only 1916 voters, and could not, therefore,
by It's own slight population uphold the
lature OF 1893, as also of the Legislature of
1875, against the commands of the Constitu-
tion Is the more reprenensible from the fact
tnat the decision Of this court, in Parker VS..
state, had then been made; and many of
the violations of the Constitution made in
Dotn those acts are shown TO be such In
have said as to the assumption OF unlawful
power by the Legislature Of 1895 is equally
applicable to the Legislature of 1893
To all the objections thus made TO the
constitutionalry of the apportionment act
OF 1893, counsel for appellee make but one
reply. They gravely contend that the con-
adjudicated. and the act declared unconsti-
tutional- This contention is based upon the
Judgment of the Marion Circuit Court, in
the case or WiShard VS. Lenhart, to which
We have heretofore referred, and the appeal
from which Judgment. No 1885, was dis
missed in this court; on motion of the APP
section was to test the constitu:ionality of
the apportionment act of 1893; and. by the
Judgment of said Circuit Court. rendered
was in effect, held to be valid law. At
furthest. and We should hesitate to give 1t
that force without special plea, that de-
jurisdiction of the court making 1t and be-
tween the parties to that suit. The binding
force of such a decision, as said In Chicago
Law Jour-. S63, quoting from Judge Cooley.
goes only to this extent, namely: "A de-
cision once made in a particular controver-
sy. by the highest court empowered to pass
the litigation and their privies;' and again,
the doctrine Of stare decisis, however, is
only applicable in it's full force within the
territorial Jurisdiction of the court making
the decision
AS TO wISHARDS SUIT.
Indeed, 1t is by no means clear how 1t
was intended by counsel that the judgment
here referred to should be treated as a
former adjudication of the questions at
issue in the case at bar IN the first place.
the judgment has not been set out in the
complaint, nor has it been in any way
specially pleaded. Neither has ii been
pleaded on appeal, even if such plea could
be made on appeal. Eckert VS.. Binkley,
134 Ind, GA. But even IL sucn judgment
we're pleaded, 1t would seem that theN
could be no question of former adjudication
entertained as counsel urge. Before the
rule Of former adjudication can be invoked,
1t must appear that the thing demanded
was founded upon the same cause of action,
that it was between the same parties, and
found for one of them against the other
in the same. quality. The parties must not
suing in the same right. Kits VS.. Will
son, lao Ind, 604. See the learned work of
Judge Van Fleet on Former Adjudication.
Chap. IL, and generally. 1t Is enough on
this feature of the question that in the
case In the Circuit Court, Albert w. WISH
ard was the party plaintiff, while in the
case at bar the plaintiff was the State OF
Indiana on the relation Of Ferd Z. Basler.
The parties plaintiff were not the same.
and for this reason alone the rule Of former
adjudication cannot apply. See Glenn VS..
State. 46 Ind, 1868; Maple VS.. Beech. 43 Ind,
I'm the former Of these cases, it was held
that a judgment in an action brought by
Margaret Clore against William Glenn could
not be considered a former adjudica-
ton OF the issue in an action brought in
relation of Margaret Clore against William
Glenn, although the facts were precisely the
same in both cases. In the two cases now
that Albert w. Wishard, the plaintiff in
the former action. is not a party, nor even
a relator. in the case at bar.
Neither do we think there Is any estop-
pei here as in the case of Vickery vs. the
Board Q34 Ind. 55D, to which we are re-
ferred. There the party bringing suit to
sued on purchase of toll road had waited
until he received the benefit Of the bonds
before asking the court to declare uncon-
stitutional the law under which they were
ms ha
question OF private or personal benefit, yet
the issue before the court is much broader.
The action concerns all the people of the
State in their most enlarged and sacred
relations of citizenship and government,
and the case cannot be tied up with the
purely private rights of any one. 1t is true
that an action to test the cOnstitutionality
of the law. If brought at all, should have
been pressed to a final determination in
the first place, and before the election Of
the present Legislature, which is but a
de facto body, in case the law of 1893, under
which ii was chosen, is invalid. Yet the peo-
pie of the State, in their sovereign capacity.
cannot, for such reasons, be estopped from
asking for a determination of the validity
of a law under which ii is now proposed
that they shall elect their next Legislature.
When the people of the State appear at this
bar with such an issue there can be no Dues
ton of estoppel The inquiry is one reach
ing to the foundations of government.
While, then, all respect will be given to
the judgment of the Circuit Court in this,
as in every other case, yet we cannot seri-
ousy entertain the contention that such
adjudication Of constitutional question is
of binding force in this court. More than
this, no property right or contract between
the parties being involved, it will not be
considered that the rule of stare decisis
requires that in deciding so grave a matter
as that OF the constitutiona,ity of an act
Of the Legislature we should be bound by
even our own former decisions. In such
case, as forcibly said by Chief Justice
Bleckley in Ellison VS.. Georgia Railroad
Company (S7 Ga, 69D, the maxim for a
supreme court, Supreme in the majesty of
duty, as well as in the majesty of power
is not stare decisis but fiat instica.' Let
this decision be right, whether other deci-
sions were right or not. In State VS.. Walsh.
at last term, involving the constitutionaity
OF the fee and salary act of 1891. this court
did not hesitate to Overrule it's own de-
cision as to the validity of the same law i'm
State VS.. Boice GAO Ind, 500, when satisfied
that the decision first rendered was erron-
eous. See, further, Robinson VS.. Schenck
QO2 Ind, 300; also the exhaustive discussion
of this subject in State VS.. Aiken Is. c..
20 L. II. A, 345) and authorities there cited.
I'VE are therefore OF opinion that both
the apoortionment act of 1895 and also that
consequently that the appellee was not en-
titled 10 the relief demanded by him in his
con plant, and which was awarded him by
the decision OF the trial court. This court,
in the case of Parker VS.. State, while decid-
ing that the apportionment acts Of 1891
held that the constitutionality Of the inter-
mediate act of 1895 was not before the
court for adjudication and accordingly re-
Trained fro IN making any decision in regard
to 1t. Neither has the constitutionality of
the apportionment act of 1885 been ques-
that act is the last, and perhaps the only.
expression of the legislative will lef. upon