Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-09-25
(C0niinued From Page ~

"
the act IF 1885. but H. We shall presently
show the conditions If legislation in this
State are such a. ~ preclude as from
going as fer a. the Supreme Court of
Michigan.
In . prior ease the same court held the
act apportioning representatives in 1891
void-the &C, Of 1885 also void, and upon
an examination of the act of 1881 tho
same was held to be valin and ordered
the notice of election given under that |
act.
Board of Supervisors v. Blacker, 81
Mich. 638
In the ease Of The People v. Thompson,
an action involving the constitutiOnality |
of an act making an apportionment of
proved June 18th, 1893, and to compel tn e
issuance Of notices Of election under the
act of 1882, Mr.. Justice
Carter of the Supreme Court of Illinois
says: Council for the appellants say
that the only question involved is the
constitutionality Of the apportionment
act of 1893, while counsel for appellee in
sist that the validity 9. h act Of 1882 is
equally involved. As the relator seeks
relief under the act of 1882 on the as
sumption that it is still in force as valid
and constitutional act, it seems clear that
if the act of 1893 be found invalid, the act
of 1882 must be subjected to the same
constitutional test, and if it also be found
invalid judgment must go against the
rel ator to the same extent as if the act of
1898 should be found to be valid. Indeed
q plausible argument is made by counsel
for appellee on the theory that it clearly
appears that both acts are subject to the
same vice and that this court should
proceed no further, but affirm the iudg
ment on the ground that if one act be
void both are, and that even if relator
should succeed in having the act of 1898
set aside he must still fail in his suit to
establish the legal existence Of the al
legged nineteenth district formed by the
act of 1882; that the court can be called
upon to determine the constitutionality
of a statute only when such determine
ton is necessary in the decision of a
cause, and that it is unnecessary in this
case because whether the relator sue
ceeds or fails in his attack on the act of
1898 he must lose his case-both acts il
either should fall going down together
| before the same onset. This view was
taken by Mr.. Justice Elliott of the SIT
preme Court of Indiana in a separate
but a majority Of the court held that the
constitutiOnality of the appor ionmen,
acts there brought in question was fairly
presented for decision. Parker V. The
State, 1873 Ind. l7s. While we recognize
the well settled and long established rul.
that courts will not go out of their way
to pass upon the constitntionality OF
statute assaulted, but will decide the cas-,
on other grounds when other ground!
exist and the cause can be properly de
termined without considering whethe
the act be valid or invalid, we are of tn,
opinion that tho question Of the validit,
of the superintendent act of 1893 is no
only fairly presented, but is necessaril,
involved in the decision Of the case, an(
that if that act is found to be invalid tn
question whether or not the act of 1882 i
1
then arise"
The People v. Thompson, l55 III. 400.
In the above case. after an exhaustive
discussion of the constitutional question
involved the court determined that tn
act of 1893 was constitutional.
The following additional cases ma,
also be consulted as throwing some ligh
upon the question::
People v. Rice, l35 n. y. 473;
Baird v. The Supervisors, JAP n.
l 527:
j State V. Campbell. IS Oh. ST 435;
Prouty V. Slower ii Kan. 235;
} Opinion OF the Justices, Is Me. 45S.
We come now to consideration OF III
alleged inequalities in the apportionmel
, acts of 1891 and 1899. and in this come,
ton we deem it advisable to say that it
. unnecessary to express any opinion vi
( on the suggested question as to whethe
our legislature has the power or author
ity under the constitutional provision
; cited to determine the population fror
the number of votes east at AN electio
based upon 80 called established ratio {
n votes 10 population ana u use. the sam
as the lasls CT representation in maxim
. apportio1,ina nts.
BY The census taken under the act ,
Congress Of the United States in 1880, II
r. entire population of the State was A., 7G
d Under the act OF 1891, 5000 Of the popul
ton as Sh0Wn by the census of 1890,
approx iillatsly the unit OF senatorial re
It res.ntatiou and 1909 is approximate
d