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

act Of 1885 arises. If the act Of 1901 and |
the act of 1879 are both unconstitutional,
the appellee was not entitled to the re-
lief sought aud the question of the valid !
ity Of the act OF 1885 is not involved in |
such way as to require . decision upon |
its constitutionality:"
Mr.. Justice Elliott, in q separate opin-
ion, uses the following language, which !
seems to us to be based upon sound rea-
son: "The REALTORS complaint rests en-
tirely upon the theory that the act of 1879
is valid, but il he is right in tho grounds
upon which he assails the subsequent
acts. that act is as bad as any Of the
others, hence he has no standing in court
as lie himself makes evident; and when
we have adjudged that he has no stand
ing in court we have decided all ques-
tons properly in the case except juris-
dictional ones, so that we cannot prop
erly or authoritivsly give judgment upon
the validity of subsequent legislative
enactmsnts.
1.-THE relator is involved in fatal di-
lena. If the acts Of 1885 and 1891 are
valid he can have no relief; if they are
void, so also is that Of 1879; so that,
whethe- the acts Of 1885 and 1891 are
valid or void he can have no relief and in
either event he must utterly fail. The
act Of 1879 being void according to the
relator. own theory,.he has, as he him
, self dem onstrates, no fulcrum capable of
supporting a lever for the overthrow of
subsequent legislative enactments; and
hence all that we can decide beyond jur-
isdictisnal questions without tranSgreSs-
ing settled principles is that by his own
averments his case is foundationle>>.
Such decision ehds the case and we cam
not with propriety consider other ques-
tons except jurisdictional ones, and GER
tainly not high and grave constitutional
questions. If the system which the re-
lator AYERS is in conflict with the consti-
tution is to be smittsn to it's death by
the courts it must be at the suit of one
who assails all the legislative acts found
ed on that system. for it cannot be done
at the suit Of party whs demands that
one of the acts resting on that system be
upheld and the others destroyed. The
relator is the actor and is bound to make
case rendering it imperatively neces-
| sary to decide the constitutional Ques-
| tons he assumes to present; and he
must succeed upon the strength of his
own case or fail, for he cannot succeed
upon the weakness Of his adversaries.
! The act of 1875 is, according to his own
theory, AS full Of evil as those he assaults
i 80 that if one goes down SO must all, and
with the fall Of the act of 1879 ends the
REALTORS case. It would be strange in
deed if ono Of the several acts resting
upon the same system should be upheld
and the others cast down; and stranger
still if that shout Il be done where the
one rescued from condemnation contains
more of evil than those condemned. One
who secures or demands a benefit under
an unconstitutional act is estopped tC
assert its invalidity."
Parker V. The State, 1873 Ind. 17S.
In the ease of Giddings v. the Score
tary of State, an action in mandamus t.
restrain the giving notice of election o
, senator's under the lapportionment act o
1891, and to compel such notice to b
given under the prior act Of 1855, MI
: Justice Grant of the Supreme Court o
. Michigan says: THE petition prays tina
q the respondent be directed to give motto
S of the election under the apportionmen
I act of 1885. The constitutionality of thi
: act is therefore directly involved in til
controversy unless it be held to be n
, moved from the question by the fact tina
;, the people have acquiesced in its validit
= by acting under it for three elections.
:, must be conceded that this act is atfecte
;. with the same constitutional affinity :
the act of 1891. 1t is unnecessary to d.
termine whether such infirmity exists
an equal or greater or less degree. 1t
y. sufficient to say that it is not in accOl
with the constitution and for the sam
i, reasons which apply to the act Of 1891.
is therefore insisted with great force h
the Attorney General that no electio
!. should be ordered under the former a
:. and he also urges in consequence that I
:, relief can be granted. 1t is also said
him that so far as he has examined 9th
:, apportionment acts they are all subje
to the same objection. Under this res
y ening it would follow that if the act
& 1901 is held to be void there is no RENE,
y except the executive of the State decid
III to call a special session of the legslatu
III Ia such case there would be no appt
p tionment law under which the peol
Oh might elect a legislature. While t
IL constitution requires the legislature
us rearrange the district at the next sessi
ct after each enumeration, yet we are of t
OF opinion that each apportionment act
1c- mains in force until it is supplanted by
ne subsequent valid act. 1t was my Opini
10 that the respondent should be directed
Ia give notice undet the act of 1885 in,
Up much as the people have acquiesced
no its validity by SO long acting under
m But yield my opinion to that Of /
IN brethren who are of the opinion that t
Ter notice should be given under the law
he 1881, the validity OF which Is not h,
IL brought in controversy unless the exc
ne tive shall call special session of tho l,
Fai islature;"
10 Giddings '. The Secretary OF Sta
30 90 Mich. 9.
We In the same case Mr.. Chief Just