The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-23
. NEW POINT RAISED
ARGUMENT YESTERDAY IN THE APP
P0RTIONMENT CASE.
The Enumeration OF "Whites" nder
the OBSERVATION-DISCLOSURES and
Special Session.


the Supreme Court in the apportionment
suit. cnief Justice Hackney and Justices
Monks, Howard and McCabe listened to the
too i'll TO sit through the argument, al
though he came here yesterday morning for
that purpose. BY agreement of counsel it
was decided to proceed. but considerable re-
greet was expressed that Justice Jordan
could not be present. Alembert w. Brayton.
appellee, was represented by Ferdinand
Winter. Addison C. Harris and ex-Judge
Mark X. F0rkner. of New Castle. For the
of Marion county, r. O.. Hawkins, A. G.
Smith and John w. Kern appeared. A num-
Der of students from the Indiana Law
School were present, and members of the
local bar were seen i'm the court room. 1T
seems a foregone conclusion that the SUI
preme Court will declare the apportionment
law of 1SS5-the last on the statute books
unconstitutional. as 1t has already done by
implication in the Parker case, and that
Governor Matthews will be compelled to re-
cede from his expressed determination not
to call a special session of the Legislature
for the purpose of passing a new apportion-
ment law.
@oD OAAN ySctNludt llC DOlAik was
made that all appointments enacted prior
to 1885 were unconstitutional, inasmuch as
they were made under the original provision
of the Constitution which required enumera-
ton of all white male inhabitants above
the age of twenty-one years to be made,
and that appointments Of legislative and
senatorial districts should be made upon the
basis of population shown by such enumera-
finnS In 1890 tbiS nroy;c;on of The Co,c*i4,,-
ton was changed, so thai the word white"
was eliminated in accordance with the four
tenth and fifteenth amendments of the
federal Constitution. All subsequent appor-
tionment laws, with the exception of that
of 1885, have been declared unconstitutional.
and those prior to the amendment of 1880
became void, 1t Is claimed, upon the adop-
ton of the amendment Of the State Consti-
tuition.
nor Matthews will be compelled to call the
Legislature together for the purpose of en-
acting a new apportionment law, If that Of
1875 is declared unconstitutional, or cali upon
himself the i'll will Of the legal voters of the
State for failing to provide means for the
passage. Of a law under which the election
can be, held next fall, John w. Kern made
a desperate attempt to convince the court
that it had no jurisdiction; or, admitting
that 1t had jurisdiction, he argued that it
would be extremely disastrous IL that juris-
diction was exercised, as. in the light of the
Governors expressed intentions, the State
would be left without a Legislature. and
with no means of securing the election of
successors to the body, whose terms will
expire by constitutional limitation the day
low the coming elections. As a last
alternative, Mr.. Kern asked, by implication,
that the decision of the court be withheld
until after the election next fall. so that
the election might be held under the uncon-
Stltuti0nal law Of 1885.
THE RECORD REVIEWED.
The ra,D~J x,-I1~ - -.
the present aportionment suit was filed
originally in the Superior Court of this
county in March last. Alembert w. Brayton
began an action against James w. Fesler,
clerk, and other officers of this county,, ask
ing that they be restrained from proceed
ing to hold an election next fall for the Sc
lection of Senators and Representatives un-
der the law of 1885, alleging that law to be
unconstitutional upon several grounds. In
the first place. it was alleged. under thai
law Marion county was given but two SEN
atofs, although entitled to three, and was
put into a joint district with Shelby and
Hancock counties, which were thus given
more representation than they were entitled
to under the Constitution. Marion county
was also deprived of one Representative, as
1t was given but five, although entitled to
six. The complaint says that Boone, Clinton
and Montgomery counties were placed in a
joint district with two Senators, an arrange
ment which the Supreme Court has declared
equally unconstitutional instances are men
toned. The Superior Court held the law
TO be unconstitutional, and executed the re-
Straining writ. An appeal was at once taken.
The case was rapidly advanced, and was
set down for oral argument yesterday.
When the We're finished the case
was taken under advisement, and, while no
intimation was made by the court as to
When the finding would be handed down.
attorneys for the appellee, Alembert w.
Brayton, confidently expect a decision with
In two weeks.
The ex-Attorney-general opened the argu-
ment in support of the law of 1886. HI adj
mttted that law to be the last under which
an election could be held next fall. and pic
tired the disaster that would follow If it
were held unconstitutional. HI predicted
that the State would be in a condition of
could compel the Governor to call an extra
session of the Legislature. The Governor
could not dictate TO the court and the court
I'd like to ask you. Mr.. Smith," said NJ.
=. Forkner, now you can take it for
granted that the Governor will not do
Mr.. Smith said that such a question was
a breach OF decorum. He declared that If
the General Assembly were called in special
would pass a fair apportionment law. as
the apportionment law of 1895 was one of
the worst ever enacted, and he asked why
such an Assembly should be called back
to try its hand again. He said that the
whole suit was partisan, and that appel
lee mad no property interests involved. The
appellee. ne said. had no more interest i'm
the case than GOO. 600 other voters in the
State. W submit that the court has no
Jurisdiction sad he, in conclusion, and
you must reverse the decision OF the court
below AT no point did Smith seek to
defend the constitutionality Of the law.
MIR. HARRIS'S ARGUMENT.
Addison c. Harris began the argument
for The overthrow of the law Of 1885 at Ills
O'Clock. He prefaced his argument by say
ing that he would not turn aside from
his argument as originally planned because
of the anarchy, ruin and disaster which the
ex-Attorney-general fancied he saw hang
ing over his head. In presenting the case
Mr.. Harris said. IN part: This is a case
which affects the State at large, independ-
ent of the accident of who are the nominal
parties of record"
The points in Mr.. Harris's argument are
set forth as follows:
In State VS.. Cunningham (1 ~. w, 73D
Ii Is declared That in an action like this the
people are regarded as the real parties.
and Ii Is not necessary that the plaintiff
have any financial interest in the result:
that in a public case the parties will not
the case If the public welfare requires its
prosecutions; that the case, where the public
welfare Is involved, is independent of the
accident as TO who is the plaintiff, and
that the question on which the exercise OF
jurisdiction must turn is whether the sub
statum publicae pertinent-one affecting the
sovereignty of the State. it's franchises or
prerogatives- (92 Ind, 1873; 81 ". s., 354:
SO Ind, 12.)