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

whenever IL pleases. The Constitution OF the
State of wisconsin. in its provisions for
enumeration and apportionment directs that.
at their first session after such enumera-
tion and also after each enumeration made
by the authority Of the United States, the
Legislature shall apportion and district
anew the members OF the Senate, and As
sembly, according TO the number of inhabi-
tanfs.' IL was held by the Supreme Court
Of that State, in Slauson VS.. The City of
Racine. Ii Wis, 39S. In our Constitution
alteration Of Assembly districts And what
ever limitation exists upon the power Of the
from the general scope and objects of the
provisions of the Constitution concerning
the apportionment of Senators and Repre-
Sentatives. But IL ma be said that these
furnish limitation, and that when the in
strument provides for an appOrtionment and
organization OF districts once In i've years.
this implies that IL shall not be done at any
other time. This would seem clear with re-
spect to a general apportionment, and, per-
haps. the same implication would extend to
any particular REORGANIZATION of Assembly
or Senate districts, by any law passed di-
rectly for that purpose.
Under our Constitution, an enumeration
is provided for every six, instead Of every
i've years; and the implication that an APP
portionment law can be passed only once
for each enumeration period, thus found
by the Supreme Court OF Wisconsin to be
necessarily drawn from the words of the
Constitution of that State. must also be
drawn from the like words of our own Con-
yides that an enumeration of the voters of
the State shall always be made as prelimi-
nary TO the enactment OF an apporfionment,
IL Is evident that the theory OF the trainers
of the Constitution was, that valid ap-
portionment can be made only after the
taking OF such enumeration, and that when
such valid apportionment is once made, IL
should stand until after the making of the
next enumeration. They did not. OF course.
contemplate the enactment OF an invalid ap-
portionment, one made in violation of
the letter and spirit OF the Constitution IL,
however, a valid apportionment were once
made, 1t could not be made over again:
Being valid apportionment TO change IL
before another enumeration of the voters
could but result in an invalid apportion-
ment. Hence 1t was provided that enumera-
ton and apportionment should go together,
the one to be the complement of the other.
When the enumeration should be taken,
and the consequent apportionment made,
the work wo4fd be complete, and would not,
therefore, be repeated, in whole or in part,
until the succeeding six year period should
come, when the dual work would again be
done.
But counsel for appellants say that, even
IL II be true that an appOrtionment law
can be passed but once for each enumera
ton period. yet if no valid law has, in fact,
been enacted, the continuing duty to pass
such a law at the earliest time practicable,
until such valid apportionment is finally
made. People VS.. Rice. supra. Counsel say
further that the last enumeration was TAX
the General n AS. Assembly Thereafter in 1891.
an apportionment law was passed; that
this law was adjudged unconstitutional by
this court. Parker VS.. State, supra. That
thereafter, in 1893. the Legislature passed
another apportionment law; that this APP
portionment law of 1893 was invalid for
the same reasons for which the act of 1891
was held invalid; that the Legislature of
1855 found this invalid act OF 1898 upon the
statute book, declared it unconstitutional
and repealed Ii, and then passed the act
OF 1895, now under consideration; that the
act Of 1893 being unconstitutional, IL was as
If no apportionment law was in existence.
therefore, the continuing duty of enact
ing a valid apportionment law rested upon
the Legislature of 1895. and hence the act
of 1895 was passed at proper time, and
is valid and constitutional.
1895 LEGISLATURE HAD POWER.
Whether the Legislature of 1895 had au-
thority to enact an apportionment law must
depend, as we have already seen, upon the
fact as to whether there was then in exist
ence a valid apportionment law passed
within the current enumeration period.
That Legislature could not by any act of
it's own create the necessity for the enact
ment of another law on the subject, as
by repeating the law already in existence.
II the apportionment act of 1893 were in
deed valid law it could not be repealed
by tie Legislature of 1885, For, in case of
the validity OF the act OF 1893, II would most
certainly have been unlawful to enact any
enumeration period, and the Legislature
could not change this condition by an at
tempt to repeal such valid superintendent
to make room for another law on the sub
ject Such further law on the subject would
have been premature and out OF due time
as fixed by the constitutional mandate. Inc
repeating act therefore which was passed
in 1895, as preliminary TO the enactment
OF the apportionment act OF that year, was
itself either a violation of the Constitution,
or else vain and useless act, being the
repeal of an invalid law. But If the Legis-
lature OF 1895 could not repeal valid APP
portionment act passed in 1888, the ques-
ton arises whether the Legislature of 1895
could in any case pass an apportionment
law? Il certainly had the power to do so
If there were at that time no valid appor-
tionment, II the act Of 1893 were In fact
an unconstitutional law.
The ordinary and proper course TO be
taken to determine whether the act OF
1893 were unconstitutional or not, was, as
In other cases. to apply TO the courts. These
tribunals were open for the consideration OF
the validity of this. as OF the other acts
of the Legislature. AS 1t is the province
of the Legislature to enact laws and OF
the executive to enforce them, so 1t Is of
the sourts to determine their validity. This
would have been the fitting course, rather
than to have the Legislature itself cry out
against the good faith OF Its predecessor,
and to declare against the constitutionality
OF tie very law under which 1t was itself
elected.
I'm this case the indelicacy of the legisla-
tive criticism of a preceding Legislature Is
shown by the files of this court In the case
of Wishard VS.. Lenhart, No. 172so. appealed
from the Marion Circuit Court, that court
had already found the act of 1893 TO be a
valid and constitutional law. 1t would have
been more seemly. as we'll as more effective,
to have passed that case 10 final hearing
rather than to have acted in defiance OF
the decision already rendered by the Cir
cult Court Some question having been
made as to whether we can thus take no.
tice of other records in this court, in con-
siderng a case at bar, we may here re-
mark that we have no doubt that this may
be done, whether the court make such in
gestion of counsel. See Washington. ETC.,
Railroad Company vs.. Occur D'Alene Rail-
way Company, decided by the Supreme
Court of the United States, Dec. 2, 1895. But.
apart from any consideration of propriety.
the question recurs. could the Legislature
of 1895 assume to determine for itself the
constitutionality of the act of 1898, and, on
such assumption of responsibility. proceed
to pass another act of apportionment, leav-
ing the courts TO pronounce finally upon
the question as 10 which Of the two laws
was constitutional? We have no doubt that
the LEGISLATURE of 1895 had this power. The
members of that body took the oath taken
namely, that they would support the Con-
stitution. II those legislators believed UNI
der their oaths that there was no valid APP
portionment law in existence based upon
the last enumeration. 1t was their solemn
duty to pass such law. Their enactment
of such law in itself. in effect. an
apeal to the courts to decide whether they
we're mistaken or rot. and to saw which of
the acts IL either. was the valid and con-
st.tutional law of the State.
Every department of the government,
says Judge Cooley. in his Constitutional