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

he argued that the Supreme Court should
hesitate in overthrowing the only existing
Law he denied that he aud his associates
admitted the law OF 1885, TO be unconstitu-
tsonal. bur failed to Introduce any facts
SHOWING II TO be valid and Just Our po-
sifion. said he. "is that tie law Of 1875 is
the only one under which the people OF the
State can meet and elect representative 70
the General Assembly. They seek the power
of this court 10 restrain the people Of the
State from exercising their constitutional
privilege The question II: Under what cir
cumstances will the court put forth the arm
has the power. ft viii exercise that power.
The United States Supreme Court has held
except under strong and imperious necessity.
The question is whether there is a Necessity
for iniunctive Interference? In the Parker
case and I'm the Denny case. the prayer was
first for an injunction preventing the county
officers from acting under invalid laws. and
20 compel the officers TO hold the election
under Invalid laws. Now they come In and
ask this court to entoin officers from holding
elections under any laws. They have frankly
admitted that this is the only law. My
friend has said that there is no law. j say
that there Is q judicial expression made in
the Parker case: that there = a law"
Getting down to the conditions that would
exist in the event the law Of lSS were de-
clared unconstitutional. Mr. Kern said that
there was a meeting Of a committee held to
determine whether the law OF 1885 should be
assailed. and that IL was then determined TO
appeal to the Governor and ask for the cali
Ing OF a special session of the Legislature.
The record shows" continued Mr.. Kern.
that IN the exercise OF his discretionary
power the Governor declared that ne would
not cali the Assembly together. Yet they
stand before this court and say. You must
not look beyond. You must look at this
record. Mr.. Kern then read extracts from
the Governors letter, quoting portions where
people TO hold an election under the existing
law. He carefully avoided. however, any ref
erence to that portion of the Governors let
ter where he said that he would avoid an
ticipating that the court would hold the law
OF 1856 unconstitutional. Said Mr.. Kern: MY
i dnsn or say con Uf course 3Sn c the Go@rt viii Mn do loo his his
duty. OF course the Legislature will do It's
duty. II Is ,unthinkable that they shall fail
the Governors duty is? He, in his discre-
ton. may convene the Legislature- what
does not think il his duty. They say the
court must do its duty. Certainly. The duty
OF TIE court Is to exercise its discretion as TO
whether IL shall grant this extraordinary
writ. You sit as a court OF chancery to de-
termlne whether there is a cause for the
granting OF this writ. Is there any great
benefit 10 accrue to appellee? VIII Mr..
Rrayton suffer any great inconvenience
VIII the people suffer? Mr.. Harris made an
tanned In listening to i, IN a burst OF elo-
uuence he said that all the people OF the
about and saw twenty-five or thirty students
from his law school who. had come 10 listen
10 his argument. And then he talked about
voter from that region. The people of this
State voted under that law when it was
passed, the judges of this court voted under
n. my learned friends voted under IL. and no
protest was raised. Can it be said. nov. ten
years later. that there will be much distress
and disaster If this writ IS not granted?
'"The judiciary and chief executive hold Of
flee until tt,eir successors are elected and
qualified. The legislature. by constitutional
limitations. expires the day after the election.
In order for the legislature to be perpetual.
there must be no election. Shall il be said
that the right Of the peoDle 20 vote shall
Gcnon0 unOn the 40fi00G of one mani 'On-
you reply. the Governor will do his duty
What Is his duty? To exercise his discretion.
He has declared that he will not exercise
that discretion. This court will take cogni-
zance Of that fact and look forward TO the
emersencv. and that ! sneedv determinatinn
should he made of the questions involved.
Courts have been confronted With similar
cases before. In the Parker case " was
urged that that case should be DISPOSED of
before the election. that the people might
know under what law they were to vote.
triotism said: This case shall not be de-
termined until after tho election There was
rust shut your eyes to the pitfalls ahead
There has never been a time when a judge
h hsve nG bee lp0T im aneagi hnf fo ! a aar CITIZEN II w ~f aud
a standing in court when the right of the
people to vote was attacked Lawyers in
court can talk about what the Governors
duty nav he. and yet the question is an oper
one and debated every day. / aoprehend
that u Is his duty to exercise his discretion
according To his own conscience and iudg-
ment. After al. il is a matter of opinion
and judgment You saw t1s LEGISLATURE will
DO its duty. Perhaps. Il; brought forth that
law yon gentlemen defended a few Jaws
ago. and which this court held to be unfair
and unconstitutional. The Governor may
doubt what the legislature will do. and that
IS a matter for which he is answerable to
his own conscience.
"Our attitude is not IN the wav of a con-
fession of any thing alleged by the appellee.
hut that il was the dutv OF the court. when
he comes here asking for an Injunction that
win deprive the people of the right to vote.
and asking for the overthrow of all law. that
the court should deny his prayer"
REPUBLICAN BRIEF