The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-04-10
Strong Legal Opinion on the
Question
Of the IlIegality of the Recent
Legislature.
The Constitution Requires the Redis-
tricting of the State Every Five
Years and it was Not Redis-
tricted in 1895.

constitutional questions for many years,
the Populist legislature of 1897 was an
Illegally constituted body and it is
question for the courts to decide wheth-
er or not every act of general legisla-
ton that was passed by it is valid
Major Wilson contends that it was
simply a de facto legislature and not
one authorized by the constitution to
pass laws of general legislation. He
bases his conclusions on the failure of
the Republican legislature of 1895 to
perform the duty-laid down by
constitutional mandate-of making a
reapportionment of the state for legis-
IatlNe purposes, asserting that the APP
p0rtionment act of 1891 under which the
members of the last legislature were
elected last fall is imperative, from the
fact Of its non-representative charac-
ter.
While he says the people can not be
held responsible for the legislation that
has been passed, it Is question for the
islature can pass laws of general leg
islation.
Major Wilson in a carefully prepared
paper on the subject, says:
when the legislature was chosen in
1894 and assembled in 1895 it was cloth
ed with every element of authority and
power required for the government of
the state. Upon the legislature deVOIV-
ed the duty, under constitutional man
date, to apportion the state every five
years for legislative purposes. This
duty naQ Deen performed every fV6
years from 1866 down to and including
1891, so when the legislature met in
January, 1885, an appOrtiOnment was re-
Quired to be made upon the census of
the preceding year. This was the man
date of the constitution of Kansas, which
is the supreme and paramount law. In
the execution of it's letter Quoting Cool
ey on constitutional law, certain acts
are to be done-certain acquisitions are
to be observed before a change can be
effected. But to what purpose are these
acts required, or those acquisitions en-
Joined, if the legislature or any depart
ment can dispense with them? To do so
would be to violate the instrument
which they are sworn to support, and
every principle of public law, and sound
constitutional policy, requires the courts
to pronounce against that which is not
shown to have been made in accordance
with the rules prescribed by the fun
damental law
Subject to the same principles and
Limitation the Legislature of 1894 was
chosen by the people 10 do in all things
what the constitution required to be
done. The language is without reser-
walton or exceptions. Article 10, Sec
ton 2, of the constitution of the state
of Kansas reads:
q" Tt shall be the duty of the first leg
islature to make an apportionment
based upon the census ordered by the
last legislative assembly of the terri
tory, and a new apportionment shall be
made in the year 1866, and every five
years Thereafter, based upon the census
Of the preceding year
THE legislature has no discretion
here. If it fails to do its constitutional
duty in its regular session, then it may
discharge that duty a any other ses-
sion within its constitutional term of
two years, and it was the constitutional
duty of the governor to convene the
same body in extraordinary session to
perform the duty so required; for the
legislature exercises only a delegated
authority, and no one will deny that it
must bend to the instrument from
which it receives its power to act
A constitution says Judge Cooley,
lis not to be made to mean one thing at
one time and another at some subse-
quent time, when the circumstances
may have so changed as perhaps to
make a different rule in the case seem
desirable.
TT cannot be said that this APP
portionment section is obscure, intricate
or doubtful. The sense of it's language
is simple and plain. The trainers of
the constitution, said Chief Justice Mar
shall, and the people who adopted it,
must be understood to have employed
words in their natural sense, and to
have understood what they meant
''If directions are given respecting the
times or modes of proceeding in which
a power should be exercised, there is at
least a strong presumption that the
people designed it should be exercised
in that time and mode only. Cooley
Com. Linn. ct al authorities)
In this connection quote from the
the construction of constitutions:
g In constituting so important an in
Strument as a constitution, especially
those parts which affect the vital prin-
ciples of republican government, the
elective franchise, or the manner of
exercising it, we are not on the one
hand to indulge in ingenious Specula-
lions which may lead us wide from the
true sense and spirit of the instrument,
nor, on the other, to apply to it such
narrow and constrained views as may
exclude the real object and intent of
those who framed tive are to suppose
that the authors of such an instrument
had a thorough knowledge of the force
and extent of the word they employed;
that they had a beneficial end and pur-
pose in view, and that more especially
in any apparent restriction upon the
mode of exercising the right of suffrage
there were some existing or anticipated
evils which it was their purpose to
avoid.
''The supreme courts of different
states have, within recent years, de-
cided certain appOrtionment acts void
void because they, in some cases,
were not made as the constitution re-
quired they should be; in other cases
where they violated the privilege and
power of representative government.
But in none of these cases was the
question presented of the effect upon
legislation by an assembly continuing
upon a representation that has ceased
to exist upon the appOrtionment that
was made, and upon which it then pre-
sumed to act as a legislative body, but
which, under the constitution, should,
and would, have been changed, had the
proper legislature done it's duty, and
which, by such change, upon the then
existing conditions, would have changed
the representation almost throughout
the entire state.
The constitution of Kansas adopts
the principle of representation accord
ing to citizen population, except it may
be with counties whose autonomy must
be preserved, each of which the c0nsti-
tuition declares shall have one represen-
tatiVe.
TT is the cardinal principle of free
representative government that every
elector shall have equal weight in ex-
ercising the suffrage