The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-23

On the contrary. II Is afirmatively shown
that nothing OF this kin exists in the case.
'Fiftn-That the cause was heard In the
court below in the usual course OF ~proccdure:
discussed by counsel in open court SO far as
the question involved: then taken under adj
visement by the court. and decided solely
upon due consideration OF the questions pre-
sented. mere u no suggestion IN the mo-
ton under consideration that the proceedings
in that court We're in any respect pro forma.
..Sixth-Thafs instead OF there being no
controversy between the plaintiff and the de-
fendants. as claimed I'm the motion under
consideration, there is an actual controversy
upon the facts stated In the complaint be-
tween the plaintiff and the defendants:
growing out of the unconrroverted
facts that the defendants In their official ca
p~acities,. in which alone, and not as an in
dividual. there are SUED. unless enjoincd as
prayfd in the complaint. Will take official
action to have an election to be held in No
vemDer. 1886. in Marion county. for the mem
bers OF the General Assembly. conducted In
the districts. and in other respects under the
which law, IL Is commended by the plaintiff,
abridges his right TO a representation secured
to him by the constitution Of this state in
ton. and therefore il void. 1t is not only
shown without any dispute that this contro-
versy exists between the plaintiff and the
defendants. but that the facts stated in the
complaint which show a threatened abridge-
ment OF his elective franchise. affect all the
other electors OF the State, and that the two
great political parties OF The State, through
their State central committees. have taken
dcllOD. one I'D nave the law OF 1872 eurOrce1.
and the other to have II adjudged unconsti-
tutional and void; while the Governor of the
State, being called upon at the instance OF
one State central committee TO call the Gen.
eral Assembly together in special session for
the purpose OF enacting a valid apportion-
ment law. declined TO do so for the reason.
among others, that he could not assume
that the act OF 1885 was unconstitutional until
Ii had been decided 70 be so BY the Supreme
Court: and that the plaintiff in this case has
Deen selected by the State central committee
or the latter party to bring before the courts
for dicision the question in which he person
ally, as well as the public generally. is In
Upon these facts we submit that It IL
utterly immaterial that the plaintiff was re-
quested by the defendant Fesler to Institute
the action as plaintiff. or that he has not
personally employed counsel. but permits
pointed by the State central Committee of the
party 10 which he belongs: or that there are
other county officers or persons interested in
this controversy adversely TO the plaintiff
who are not made parties defendant, which
are the only matters of fact stated In the
motion to dismiss the appeal and reverse
the Judgment below not disproved by the af-
fdavit filed in answer to the motion.
LINE OF ARGUMENT.
'Taere is no controversy between us and
our opponents that the judicial power can
only be exercised in this State when 1t is in
voked by the representation to IL in proper
form OF a case between real parties litigant.
showing the existence OF a question between
them proper for judicial determination
A"Our contention is that here. both as to the
form Of procedure adopted and as to the SUBJ
stance of the question involved, such a case
was presented in the court below, and is now
presented in this court. There is a plaintiff
VINO Is admitted to be a real person, and de-
PENDANTS. also admitted to be real persons.
There is a complaint filed by this plaintifr
against these defendants in a court whose
JURISDICTION embraces the question presented.
Ihat complaint states facts which, If true,
show the plaintiff to have a cause OF action
against the defendants in tie capacity In
which they are sued.
I'm these cases II is held that where the
question involved is one OF public right. I'm
such cases IL is not necessary that the plain
tin should have a special interest in the mat
all such cases. II he sues for a mandate. he
is a proper ~relator, and IL for an Injunction
merely. a proper plaintiff.
1T is no answer to say that all the people
OF the State, or Of his county. are equally in
terested in the question which he presents
for determination. He may be but one OF
thousands Of taxpayers aggrieved by the at
tempted exaction OF an illegal tax. or by the
unauthorized expenditure OF public moneys,
or but one OF all he voters OF an entire State
whose rights as voters are denied or SIM
paired by an unconstitutional law regulating
the elective franchise or apportioning rep
reservations in rhe General Assembly, but
Inc tact that many are aggrieved does not
deprive any one of the number of the right
TO appeal TO ,the courts to redress the wrong
1850 III OtiCA Cldltc II
same rule is established. IL has been de-
c5red in suits to determine the ~constitu-
tionality OF legislative apportionment acts.
and recognized by this court in cases of that
character These assertions are supported
by liberal citations.
THE suggestion made in the brief i'm SUD-
port OF the motion TO dismiss and reverse
the ca1se, on Page 10 thereof. that the plain
TN at best Is put a voter. and as such has
no right TO maintain such suit. even in the
absence OF cOllusiOn; he is not a real marty In
interest; he is not affected by the lnconsti-
a ars ma OF tns law, where property rights
citizen OF the Commonwealth. and has no
right to prosecute a suit wherein he only
claims to be damaged in his political rights
as a voter is shown by the authorities above
cited TO be unfounded. 1t IS a strange sue-
gestion. indeed. that the courts can orly pro-
tect property rights. that the rights of a
voter TO equal representation and to the ex-
ercise. without denial or abridgment. OF the
elective franchise. are beyond the protection
The plaintiff. having legal capacity to sue
upon the facts stated in the complaint, ana
these facts showing a cause of action in him
against the defendants in their oficisl ca
pacities. If the facts stated are true, IL cari-
not be pretended that the case is fictitious.
There is. as already stated. not only no con-
troversy in fact as to the truth of the facts
stated in the complaint, but. nasmuch as
such facts. excepting those only which relate
10 the personal capacity OF the plaintiff, are
all matters of public record. there is no room
for controversy as to their truth. nor as to
their being all of the facts which are ma
terial in this or any other court to the full
and fair determination of the questions In
volved- We irsist that upon such a showing
no court has ever sustained a motion such as
that now presented. On the contrary. this
court. in two instances. at least, has dis
tinctly refused to do so.
RULING IN THE PARKER CASE.
I'm Parker VS.. State. ex rel. Powell, 132
Ind. 419, a case was presented, in all re-
spects similar to the present case. for the
determination by this court of the ~constitu-
tionality of the apportionment acts of 1891
and 1879. and also of that of 1885, involved In
the present case. The plaintiff there had
brought suit In the county in which he re-
sided against the clerk, auditor and sheriff
OF the county for an injunction against off,
cial action by them under the acts of 1891
and 1885. and to compel them by mandate to
proceed under the act of 1879. The defend
ants. without waiting for the expiration of
the ten days allowed for appearing after
service OF process, Immediately appeared
and demurred TO the complaint. Their de-
murrer was overruied and judgment rem
dered for want OF an answer, and thereupon
they appealed to this court. the transcript
being filed with as little delay as possible.
The appellee filed his joiDder in error and the
case was submitted by agreement, with a
petition. in which both parties joined, for
the advancement of the case. The Attorney
general of the State. being invited by the
court 10 appear in the case on account OF