, 1908-05-13
NEW LAW
SUSTAINED
AFToRTIoNMENT ACT OF LAST
LEGISLATURE APPROVED BY
STATE SUPREME COURT.
All Three Members Of States Highest
Tribunal Join in Sustaining De-
murrer TO Petition of Senators Viii
liams and SuIlivan-PIaintiffs Not
Entitled to Relief.

lloTHH5, all lHTee Juu6So d6iSCih6,
says the Cheyenne Tribune. The de-
cision was written by Justice Scott
and concurred in by Justice Beard,
Chief Justice Potter writing a separ-
ate and c%oncurring opinion.
The suit was in the form of a man
damus to compel the secretary of state
in making the call for the election of
members of the legislature this fall to
make the call based upon the appor-
tionment fixed by the constitution, the
apportionment acts of 1907 and pre-
vious years being attacked as being
unfair and not in accord with the con-
stitutional requirements. 1t was
brought by Patrick Sullivan of Natrona
county and John T. Williams of Con
verse county, who alleged that the
apportionment law as it now stands
Injuries them by d%epriying them OF
their proper share as citizens of repre-
sentation in the legislature.
Demurrer Sustained.
Attorney General Mullen demurred
on the ground that the complaint was
insufficient to maintain a cause of &C
ton, and the decision sustains this
demurrer, although the merits of the
case were fully argued in the argu-
ments on the demurrer, as we'll as
considered in the two opinions.
The court holds, in effect, that the
plaintiffs are not entitled to relief in
the manner sought, for the reason that
to grant the writ demanded would be
in violation of no less than three pro-
visions of the constitution.
Not Corrected by Mandamus.
Judge Scott in his opinion says:
They (the plaintiffs) are not in a po-
sition to invoke the extraordinary
powers of this court when the effect
of the issuance of the writ would be
~violative of either the fundamental Or
statutory law of the state. no matter
how much they may deem themselves
injured or how inequitable or unjust
the apportionment act of which they
complain may be. The wrongs alleged
cannot be corrected by mandamus in
their case as made in the petition
without disregarding express constitu-
tional provisions and rights which
have matured Hereunder, the disre-
garding of which by this court would
in any event be as violative of consti-
tutional provisions as the legislative
enactments of which they complain"
Judge Potter's Summary.
Both opinions are lengthy and can,
not be quoted at length, the following
conclusion of Justice Potter effective
ly summing up the reasons for the
courts opinion. He says: upon any
view Of the case at bar, should the
writ demanded by the REALTORS be
granted, not only would there be caus.
ed irextricable confusion, but there
would C an inevitable deviation
from the permanent provisions OF the
constitution concerning the formation
of the legislature and representation
herein, and in my opinion, therefore,
the only safe and reasonable course is
to deny the writ on the ground that
the REALTORS have not shown them
selves entitled to it."
What 1t Would Lead To.
ihc opiuiou vi JuotiCe EOtttr HILL
tions the confusion that would fol-
low the granting of the writ.
One instance of this confusion
would be when it came to Weston
county. Weston county is not men
toned in the constitution at all, and
ton should be the basis of the call,
Weston would be entitled to no sena-
tor at all, and Il would devolve upon
somebody to depose the presenL hold
over senator from that county.
Constitutional Provisions.
Another provision of the constitu-
ton which would be violated by such
a writ is the clause requiring that
newly elected and holdover senators
shall be about equal in number. There
are now in the various counties four
teen holdover senators, hi under the
apportlonment in the constitution only
four could be elected this year.
A third provision Of the constitu-
ton fixes the proportion of members
in the house and senate. With the
large number of holdover senators,
and with the new counties added since
the constitution was adopted, the next
legislature would be a long ways from
the constitutional proportion.
One Law Repeats Other.
The opinion of Justice Scott is de-
voted largely to the stress placed up
on the absolute proportions fixed by
the apportionment law Of 1901 in the
brief of the plaintiffs.
This phase of the case is also taken
up by the opinion of Justice Potter,
who discusses it along the lines of the
attorney generals brief. Both opin-
ions come to the conclusion that the
law of 1901 was in no way binding or
of force after the passage of a later
arportionment measure.
Preparing Apportionment Law.
In addition to deciding the question
of the m%andamus, the court goes into
the various phases of the manner OF
preparing apportionment laws, the
opinions containing much matter
which should prove valuable to future
legislatures having to wrestie with the
apportionment problem.
Anything In the bookbindfng and rul