Democratic Press, Volume 2, Number 69, Decatur, Adams County, 6 February 1896 — Page 8

BOTH M VlHIi Supreme Court Renders its Decision !n the Apportionment Case* ACTS or 18D5 AND 1853 INVALID. Apportionment Made In 1835 Now the Only One In Force. HAS NEVER BEEN CHALLENGED. N< *l Will Be Voted For I'udvr Ila FrawMon* Aipionluu W rille* I {by ju'lr llowar.l, and Concurred In by .lu.lse* Monk*. Ilnrkuoy and Jordan. The latter I* Willing to M ik« a “Hard and Fa«t" Falla* <■> Control Fidurn Legislative Action. IxpuxaFolw, Jan. 31.—The supreme Court yesterday rernb rid a decision in what is known as the legislative apportionment trail. By y< sieniay's decision the acta of I*:*s and I**3 tire declared unconstitutional. and as the court in Decemlar, 1892, held the acts of 1891 trad 1879 void, the only law which has not been questioned is that paused by the legislature of 1885. uin r which act the next election will be held, unite* it la challenged and ruled upon adversely. Justice Howard wrr- the opinion in chief, « hich is as follows: William M. Denney, clerk, rt al, v*. The State of Indiana on the re cion of Feci E. Basler. From the Sullivan circuit court. Howard. J. This was an action brought by the appellee to enjoin the appcl’ants, as clerk of the circuit court, sheriff and auditor of Sullivan County, from procc ling in their several official capacities to hold the election for 1896 for the senators and representatives in the general assembly tinder or pursuant to the provisi >ns of the apportionment act of 1893; and fora writ of mandate to comp'd said officers to proceed to hold said ■ Irsm for senators and representatives under the apportionment act of 1893. The material allegations of the com plaint are: That the appellee's relator is a citizen, taxpayer ana voter of said I county, and appellants are the proper officers to give n- tices and furnish forms and ballots and tak other steps for the holding of the g< n nil elections in said county; that the general assembly of 1891, that being the proper time therefor, passed an apportionment act for the election of members of the general assembly, which act was afterward declared unconstitnti nal by the supremo court; that afterward the general ' assembly of 1893 passed an app rtion- , ment act, which is still in force, and is the only valid law on the subject; that in 1895 the general as.- mbly passed ' another apportionment act, which is unconstitutional; and. at the same time, by a second act, repealed the apportionment act of 1893, which repealing act is also unconstitutional and void; that by the act of 1893 said Sullivan county was entitl'd to one r pr— i.tative in the general ass-mbly, and, conjointly with , Vigo and Vermillion counti.«, was entitled to one additional r -pre-; ntative, which said provision was useful and beneficial to said relator: that by the pretended act of 1895 Sullivan county is entitled to but one r< pre--ntative in the general assembly, and the relator is thereby deprived of the rights, privileges and benefits of said act of 1893; that before bringing this action said relator made demand < f appellants that they proceed under and in a« cordanco with the apportionment act of 1893 in performing their duties in regard to the election of senators and representatives nt the gcmral election in November, 1896; but that appellants refused so to act, and asserted that they would proceed under said app rtionmeiit act of 1895; and that the appellants will so proceed. unless enjoined therefrom, and will, unless c mmand'si st, do by the court, fail, neglect and refuse to proceed under and in accordance with that act of 1893, to the greet and irreparable damage of appellee’s relator. It is further expressly alleged that the provisions of the act of I*9! “arc constitutional and valid enactments;" and that the act of 1895 “is unconstitutional, fraudulent, abortive, void, and of no validity or effect for any purpose whatever.” Prayer for Injunction. The prayer was that injunction and mandate might issue. There was a waiver by appellants of service of process, and of the issuing of an alternative writ of mandate; and thereupon they tendered their demurrer to the eomplaint, which was overruled. Appellants refusing to plead further, the court entered judgment against them upon the demurrer. By the terms of the decree, the appellant- were enjoined from proceeding for the election of senators and representatives nnder the apportionment act of 1895: and were commanded to exercise their official duties in relation to said election under the provisions of the act of 1893. The overruling of the demurrer to the complaint is the only error assigned on the appeal. Appellee asserting the invalidity of the apportionment act of 1893, and asserting the validity of the act of 1893; and asking for aii injunction against the enforcement of the former, with a mandate compelling an enforcement of the latter, it becomes neccs-aijr, in order to decide what, if any, relief appellee is entitled to. first, to determine the constitutionality of the act of 1895. If that is found to be a valid law, the case is at iw cud, for the appellee is not en-

titled to any relief. If. however, ilia m t of |8l«3 should bo f uud invalid, then it would UsxMna in** *»nry to dotermiiie t’m iw n»titutiomility or the act of 1893; for, uuloMitUe art of 1898 should Im- found <-oii*tltutioiud, the appellee would not ls< entitled to the writ of Biand iu favor of its rnforoentout, evil though the appellee might be ontnl -o io have mi injunction against the valor ement of the net of 1895. The firs' roti* m given for the demm rer is that the court ha* no jurisdiction ov ror of the subject matter of the action. Th" basis for thia contention i», that the making of an apportionment for tnetnbenihip in the aeneral assembly is an rvwii' of isditu.il |s»wer, which has !**n <*>mmltted by the peopl* to the wisdom of the legislative branch of the state government; that the courts may not, then fore, interfere with tho exercbo of this jwwvr by tho general assembly. This, no doubt, speaking in broad term*, is true; but only to the extent provided by tli« people in framing tho i ’institution. The court* ninnrt say how an apportionment shall l« made, nor even whether any apportionment shall be made. The province of a court, however, is to say what tho law is. If then a law is einictisl, and its validity is brought in question, in a tirotwr proceeding, and before a court of comp'Ci'tit jurisdb tion, the court must render judgment. That is the proper uud uici-ssury function of a court. An appTtioiinient law that violatt** the constitution must be held invalid, quite the same as any other. The questi- n is not what is the character or subject of the law, but whether it is ui couthct wita the constitution. In (Hlirr In recent years, the validity of apportionment acts has bt-eu before the courts of last resort in at least four states, j b* sides our own. In two of these cases, in Viiseonsin and Michigan, the courts h id the acts unconstitutional; in the other two cases, in New York and Illinois, tho acts were held constitutional; but in all four cas--*. as well as iu this state, the courts, without hesitati u, assumed jurisdiction of the subject matter of the controversy. See in particular the forcible argument of Elliott. J., in his concurring opinion iu Parker vs. State, here cited. In State vs. Canningham. supra.citing II ■ i i n vs. Moore, 18 U. S. 1, the power and duty of American courts to determine the constitutionality of all l.iM* is as« rle.l in this dear and vigor- j oris language: “By a course of judicial decisions, reaching fr. m the earliest his9>ry of American government to the present day without a dissenting voice,! it has been adjudged that c .urts of just“ ■ have the right, and an- in duty I to t«st every law by the coronas the fundamental and par-1 twos the land, govering all. . - power and the exercise there-. je judicial department, with us. * - i- ne pr '[s-r power under the constitu-! tion to declare the constitutionality of j a law; and every act of the legislature , contrary to the true intent and meaning of the constitution will be declared bvj the courts null and void, and of no effect whatever.” In so far. then, as an apportionment. law violates the provisions of the constituti"ii. it will, as ibaxne c;.~ ■ of any other act of the legislature, be declared j void. It need hardly be said, however, j that in so far as the constitution itself has made the apportionment of thestate > discretionary with the legislature, that discretion, as in any other case, will be j ■ s<Tupnlou.sly respected by the cours.. 1 Yet more, since the subject of apportionment is. in general, in charge of the j 1 legislative departim-nt of tin-govern-ment, wherever there is no positive in- i junction iu relation to the matter laid noon the general assembly by the constitution, there also the courts will re- 1 frain from substituting their discretion in j ' place of the discretion of the legislature. Where, however, the constitution has 1 spoken, and the voice of the legislature is heard in conflict with the voice of the ■ constitution, there the courts will inter-! sere, and will sustain the paramount law of the land against its violation by the legislature. The !■ tnaining reason given for the demurre r is. that the complaint does not stat- fa ts suffisient to constitute a cause of action against the appellants. Print i|N*i <>u«*«tion at laiur. The mail, question in the case, as made by the and as discussed . by i-onnsel. iu their briefs and in the oral argume- ts, arises under this head, j namely, whether, under the constitu- \ tion, any a]>portionmeut act could be passed at the time when the alleged apportionment law of 1895 was enacted. The appellee contends that, since the constitution has fixed a time, once in six years, when an enumeration of the voters of the state shall be taken, and an apportionment of senators and representatives made bylaw, there is thereby created a limitation upon the power of the legislature to make such apportionment at any other time. The appellants argue, on the contrary, that, since ,ne making of an apportionment is an exercise of political power, and hence committed to the legislat.. j department in the general grant of power to that department, therefore the ' legislature may exercise this function at; any time; and that the provisions of the | Constitution requiring the enactment of . an apportionment law at the beginning of each period of six years, were inserted in the fundamental law. so that such apixiruonment should be made at least once in six years, but were not intended as a prohibition upon the general assembly from making other apportionments as often as that body might deem best. This question, we think, notwithstanding the elaborate and able arg iments of connsei for nppellants, must be decided in favor of the contention of appellee. It is provided in section 1 of article t i»f the constitution that “the legislative authority of the state shall l>e vested in the" general assembly, which i hall consist of a senate and house of lepresentativee." If there were no particular provisions in the constitution in regard to the subjeet of legislative apportionment, there is little doubt that, under the foregoing full and unrestricted vesting of legislative power in the general assembly, that body might in its discretion, and at any time, enact laws for the apportionment of its members among the several counties or - -ther districts of the state; might, perhaps, p: vide that all the members of the legislature should be chosen by the people at It ;e.

, Hut MM-tion 4of the mme article provid-* that "the general rosoiubly shall, ’ 1,1 ill I S Ssloii lifter th- adoption t of thiv constitution, and every six years { theraiftor, cauao an enumeration to bo . i t uh- .if all th- male inhabitants over f tin- ng--of 21 yoara." Ami sivtion ft of said article contains the following provision: "The number > of S'mitor* and renr « utati vi s shall, nt ' the session next following each period of muking such enumeration, be fixed by , law, and np|«irtioned among the wvonil rounties according to the number of mall- inhabitauts above 21 yean of ago : iu vut’h.** ■•• munition IVrlmlii, ' Wo think the legitimate and necessary ‘ conclusion to be drawn from three two sect ion* is. that an enumeration of the i voter* shall bo taken once every six i yi urs; and that, upon such enumeration n« a Iswis, the apportionment of membora of tho legislature' shall be made nt the next ensuing aeaaion of the general assembly, and only then. In cum, then, there is in existence a , valid app rtionment law, and one paaseil within the proper enumeration period, it tuny be confidently affirmed that an attempt to make another ap-1 portiomiient, mid at u time further re i moved from the time of taxing the •’numeration, is a violation not only of the spirit, but of tho let car of the constitution, ull of whom’ provision* tire 1 mandatory, unless by their own ti-rms made directory, or simply perauwdve. Counsel for appi'llant* say that, even ’ if it be true that an apportionment law can l-e passed but once lor each enumer-1 ation |* nod, yet if no valid law has. in f.M-t. t-een enactid, the continuing duty to puss such a law at the earliest time 1 pra-'ticable, always rests upon the law- • making power, until such valid appor-! tionment is finally made. People vs. i Kice. snpra. Couns.l say, further, that the last enumeration was taken in 1 -*9; 1 that at the next session of the g. neral, assembly theivafter, in 189!. an aptwirtionm- nt law was passed; that this law was aujmigcd uuc- nstitutioi.nl by this . court. Parker vs. State, supra. That, ; thereafter, in P 93, the legislature pas- d ‘ another apportionment law; that this j appirtionmeut law of 1*33 was invalid i for the same reasons for whi- h the iwt | .f i- -i v,as hld invalid; that th . • lature of 18'35 found this invalid act of ! 1893 up n the statute book, declared it; unconstitutional and repeali-d it. and then jias-ed the act of 1895. now under consideration; that the act of I*:*3 being ! unconstitutioual, it was as if no appor- ’ tiomn >ut law was in existence, there-1 fore, the continuing duty of enacting a i valid apportionment law rested Upon the | l- gi.-lature of 1896; and hence tie act of | ; 1896 was passed at the proper time, und I is valid and constitutional. Whether the legislature of 1*95 had authority to enact an apportionment I law must depend, as we have alreaiiy I •een, upon the fact as to whether there was then in existence a valid apportion- ' ment law, pass-si within the current enumeration period. That legislature could not by any act of its own create the nectswity for the ena< tin-mt of another law on the subject, as by repealing the law already in existence. If the apfa>rii'-um<’*it act of l*:-3 were indeeda valid law, it could not be repealed by the legislature of 1895. For. in case of the validity of the act of 189.;. it w<>uld most certainly have been unlawful to j enact any other apportionment law un-1 til the next enumeration periid. ami the ’ legislature could not change this conui- ■ tion by an a.tempt to repeal such valid I app 'rtionineut to make room for another : law on the subject. Such further law on | the subj-H’t would have been premature, ■ and out of due time a* fixed by the con- j stituti mil mandate. The repealing a«M, I tlien-fore. wbicli wiif pissed in 1*95. as I preliminary to the enactment of the ap- j portionment law of that year, was itself j either a violation of the constitution or al* " a vain and useless act, being the repeal of an invalid law. Power* of the Legislature of IS9&, But if the legislature of 1895 could not repeal u valid apportionment law. pass-si in 1893, the question art* . whether the legislature of 1895 could in any case pass an apportionment law. It certainly had the power todo so if there were at that time no valid apportionment, if the act of 1893 were in fact an unconstitutional law. The ordinary and proper course to be taken to determine whether the acts of 1893 were unconstitutional or not, was, as in the other caws, to apply to the courts. These tribunal* were open f, < i the consideration of the validity of this, i as of any other act of the legislature. As it is the province of the legislature to enact laws, and of the executive to enforce them, so it is of the courts to determine their validity. This would have been the fitting course, rather than to have the legislature itself cry out against the good faith of its predecessor, | and to declare against the constitution- | ality of the very law under which it was’ ilself elected. In this case the indelicacy of the legislative criticism of a preceding legislature is the more marked when we re- , fleet that, as shown bv the files of this court in the case of Wishard vs. Ismhart, No. 17,385, appealed from the Marion circuit court, that court had already found the act of 1893 to be a valid and constitutional law. It would liave been more si-emly, as well as more erI fectire, to have pressed that case to a ' Inal hearing, rather than to have actecl | in defiance of the decision already rendered by tho cjrcnit ronrt. But, apart from any consideration of propriety, t.ie question recurs, could the legislature of 1895 assume to determine for itself the constitutionality of the act of 1*93 and on such assumption of responsibility proceed to pass another act of apportioi ment, leaving to the courts to pronounce finally upon the question as to which of the two acts was constii tutional? We have no doubt that the legislature of 1895 had this power. The members of that body took the oath taken by all i those who perform official duties, name- ' ly, that they would support the constitutum. If those legislators believed, ' under their oaths, that there was no valid apportionment law in existence, i basis! upon the last enumeration, it was • their solemn duty to pass such a law. > J Their enactment of such a law was, in ; itself, in effect, an appeal to the courts . to decide whether they were mistaken f or not, and to say which of the acts, if • either, was the valid and constitutional t law of the state. Dutien of Officials ' “Every department of the govern--3 ment.” says Judge Cooley, in his "Con|stitutioual Limitations,” “and every

official of ev-ry doparffinmt. may, at any time, when a duty i« t<> be performed, be rwpiind to |mi«» upon » question of constitutional construct .on." It mar bo ndmittwl, then, that, n« both the act of 1*93 and that of 1893 are befori’ th- court a* acts of tho legidatnro, in du- 1 form and duly autheiitie.iti*!. und the n ...laUry of loth is quiw-tiom-il, we must d- iormiw tho validity of each. If on such exitmimitio.i one net i* found valid and the oth- r invalid, thecas' is ended: *> also if b th nre found mvalid. If, however, loth nets should, in nil respects except ns to thdat-’- f enartmont, be found to comply with the c< ti'tituti'-ual requirement*, then it would follow, from what w-> have heretofore said, that the act of 1893, biting in itself a valid apportionment law. the l- gislaturo in 1893, or at any other time prior to the next enumeration, «>nld have no warrant und -r the constitution to-noct aiuith-r apportionment law. mill th- a- r of 1895 w-nld, t‘ir that re:i' 'ii nl-’lic, I*'void. While the a-t of 1898, being valid, would, during the enumeration |-<n-»l when it was ptsstsl and until the nessagv of a valid ; ai-portionmeut act after the ensuing enuinr.it ion. be the sole law upon the subjtvt -if a] portionnient. It therefore l»* .>m. * necessary, apart from any question as to the time of the making of either apportionment, tode- ! termini-the constitutionality of the act i of 189.'-. and also of the a - t - f 18(i3. By section 4 of article I of the constitution, as we have mm-.i, an enumeration > of the voi-rs of the state is to be taken ohm every six years. Tln> i usuing 5..: i n« sand«. of the arti-l-'. provided fit* appirtiou-1 ‘ ment. as follows; “S-c. 5. The number cf senators and rejir’-i nt.itiv-’* shall, at tl -■ ---;--;i n-xt j foil'wmg each period i f making such 1 enumeration, be fixed by law, and ap- | portioned among the s- vevnl counties, | aci’oriling to the male inhabitants above ' 21 year* of age in inch. "Sic. «. A eenafioria! er reyreeenta- : five distri-t, where more than one county shall constitute c district, shall . i-e cotnpneed of contiguous counties; and I nocounty, for s-i:;it’ rialapportioumeut, ■ shall ever l>e divided." Loral and I'roporllnnate Representation. It is clear from these sections that, in | providing for an apportionment of members of the general assembly, two main | objects were kept in view by the framers jof the constitution: one being local county representation; the other, pro- ’ poctionate representation of all the peoI pic. The counties, as governmental ' subdivisions of the state, and the inhabj itants, acconling to their number in , each county, were to be represented. Either of these objects, county repre- ; seutatii n. or pr-qsirtiouat-- popular representation, might be attained in per-1 I section were it not for the necessity of > also attending to the other object; but the design was that neither be neglected or sacrificed for the oth-T. To sK’ure the fullest possible local county representation, with the nearest prop.rtionate representation of the voters in each county, is th- approximate nuult to be reached from these two requirements of the constitution. The working out of this approximation is a practical problem to be left to the patriotism and good judgment of the legislature; and hence not reviewable by the courts, except bv gn-ss abuse of discretion, and provid'd only, that l*>th objects contemplated iu the constitution be kept in view in the law eiiactaj by the general assembly. Fesiple vs. Thompson, snpra. By section 3 of article 4 of the constitution it i* provided that senators shall j beelected for a term of four years, and representatives for a term of two years, from the day n-xt after their general election. Anil in section 3 of article 15 it is declared that whenever, either in the constitution or in any law tln-n-under, it is provided “that any j officer, other than a member of the general assembly, shall hold his office for any given term, the same shall be construed to in an that such officer shall hold his office for such term and until hi* suci’essor shall have been elected and qualiti-d." Construing these two provisions of the constitution together, it is apparent that the m- mbers of the general assem-1 bly remain in office only during the , term for which they were elected. Sen-1 atorscan, under no circumstances, hold ■ office after four years, nor representatives after two years, from the day next after their general election. Judge Howard then goes on to show that the principle of projiortionate repre- , sentation has prevailed since the forma- ' tion of the ordinance f r the government of the Northwest tirritory in 1787, , out of which this commonwealth was afterward farmed, and the same principle obtained on the formation of the state government in 1816 and was reit- i erated upm the adoption of the jires-1 i ent ci nstitution in 1851. ('4»iiM itutional Provision*. The constitution of this state provides for an absol' te rule of apportionment; not, us in some of our sister states, that i the apportionment shall be “as nearly , as may be,” or “as nearly a.* practicable,” according to the inhabitants of , each county, but that it shall be, sim-1 ply, “according to the number of nude | inhabitants above 21 years of age in tach.” Much, therefore, of what issaid by tho supreme courts of New York and Illinois, in People vs. Rice and People vs. Thompson, supra, as to the discretion of the legishitnre in making apportionments is inapplicable to the case be- ■ fore us. Our constitution requires that legislative apportionment shall be according to the number of inhabitants: and that requirement is quite as binding as the injunction that a district formed of two or more counties "shall be composed of contiguous counties,” or that "no county, for senatorial apportionment, . shall ever be divided.” One mandate of tho constitution must be respecteil ns i well ns another; and, as Webster said, ' if the mandate cannot be absolutely ( obeyed, it should be observed at least as I nearly as may be. Considering, then, the act of 1895 in the light of these principles, the main ■ objection urged against it is what are called the double districts, that is. the i grouping of two or more counties, i neither or none of which has a voting i population equal to the ratio for a semis tor ot a representative, and giving to the I district so formed more than one senator j or representative. The court will take notice of a census or other enumeration made under the • authority of the state, or of the United ■ ; States; also of the location, boundaries r find juxtaposition of tho several coun-

tiiw of the statu. State vs. CUnuingBv X 1 ™'t of iß9Bthi>«mntiMof Randoh'ih. Delaware and Mudison arc tfriiiHMMil inh> oik* district, v hich w jnvvii two M«n.itors. By the enumeration of 1889, under which th- appirtioninmit of 1895 uus inn.li’, there were in the county of Randolph 7,250 male inhabitants over th-age es 21 ywuw- in Ik-laware, 7,138; mid in Madison, 8.010, The ratio, or uvunigv ihuuNt <»f BU<‘h voting iiihabi« tunts in the state entitl' d to bv repr--.<>nt«*l bv one M'lintor in th-> general assembly via* 11.020. Nou- Os the COUlltit* in thia double district, tln-ref're. had a voting )»ipc!ntioii i*|um to tho ratio for a senator; and yet each of them is allowed to vote fur two senatora. 18-nl-tr R-praaaaUtloa t'nrou«»ll»<l--n»'-Juilgt' Howard then give* his attention to the scheme of throwing three counties into one senatorial or representative district nnd giving them two re|>n«vntativt«. The practice ia held to be unconstitutional becau.*-’ it tends to di*troy local representation nud would curtail the rights of tho minority should the principle be earned to its fullest deveb pment. It is. then son-. np|s.n'iit that in all the double district* forunsl by the act of 1895, alt hough any one of three counties so joined did not have a vot- : iug p ipulati’ ii equal to the ratio for n member in the gviivnil assembly: yet that miy two of such counties being adjacent and having together such sufficient population were quite as iuu<’h entitlea to their a-maror or representative as uny single oonnty with such p>pulati<>u would I*'. Th-' constitution protected them with such population from being ov-rwhelmt*! by the unfriendly population of another countv. > It may l-c urgixl that cases might arise when double districts would be i inivssary, in order to secure approproxi- j mate equality in pro]iortiouate representation. It fa certain, however, as we are satisflid. that other methods less ot> noxious to the requirement of the cun- i stitution can b.‘ r ’sorted to in snch ex- ‘ treme and exceptional cases should they [ arise. In case of counties having a I-** votI ing population than the ratio of repre- i s-’iitation, and also in case of fractions of population left after giving the I county the representation to which it is , itself entitled, great discri’tiou must, of course, be left to the legislature in , grouping such counties f<-r represeiita- , tion. But iu no case can a county hav- ; ing less than the ratio be so grouped with other counties as to have a voice! in the election of more than one memtar of the ge'—ral assembly whenever it is possible to avoid it. And iu disposing of such counties with population less than the ratio, and also iiuhsp sing of the fractions of excess of population over the ratio or rate s in other counties, as said by Chief Justice M >rse, in Ikoru vs. Blacker, supra. “There can be no legislative discretion uniter the constitution to give a county of less population than another a greater representation.” As in the apportionment for members of congress when the several counties have been given the representation to which they are severally entitled by reason of their full ratios; then the" largest excesses over such rati * should receive iirst considiration. These are salutary rules to lie applied in every case where it is practically ]iossible to do so. But, it may be said, when the legislature, in the exercise of its best judgment und discretion, has formed the several counties into single senatorial and representative districts, there may still remain large excesses of population over the ratios unrepresented. To this, it may be answered, as said in Barker vs. State, "When it is found that exact • equality can not be obtained, where the I integrity of the county is preserved, ap- I pri’ximation IM-comes a rule as binding I upon the general assembly as any other : rule fixed by the constitution.” It is further urged against the app rtionment law of 1895, that it violates sections 2. 3 and 7 of article 4 of the constitution by placing in districts having “holdover” senators certain counties which, under former apportioni ment, voted four years previously for senators; and should vote at the next election for successors to such senators; . but which, under this apportionment, I could not vote until two years later for senators; thus depriving the electors of such transferred counties from voting for senators oftener than once iu six years, whereas, they are entitled, under the constitution, to vote for senators every four years. Act* of 1K93 and 189.1 Vnoon«tltatlonal. The unconstitutionality of the nppor- ! tionment act of 1895 being, therefore, evident from the provisions of the constitution, and from the principles established by the courts, and particularly I by this court in the case of Parker vs. i the state, it remains, in order to deter- ! mine whether the apellant was entitled to the relief demanded of him, to enquire as to the constitutionality of the oct of 1893. The uneonstitutionality of this act is readily apparent, both from what wo i have said as to the act of 1895, and also i from the decision in the case of Parker , vs. State. In the first place there are two double representative districts. Neither Dubois, ! Martin, Orange nor Lawrence county bud a population equal to the ratio for a icparute representative; yet each of them, by being joined in one district, was given » voice in the clti tion of two i ri’pri si ntativ-’s. By simply applying the principles and arguments urged by ! counsel for appellee against the double ' districts formed by the act of 1895, we ’ could but make a like holding as to the ; uneonstitutionality of this double repre- ■ sentative district formed by the act of i , 1893. The district of Adams, Jay and ’ Blackford is even more objectionable, i 1 Neither Adams or Blackford was alone , entitled to a representative, though both i 1 together would have been entitled to i j one, while Jay alone was entitled to , a representative; yet nil three were ■ joined and given two representatives. i So, in the senatorial aiqsirtioiunent, j the county of Clark, which did not have i ! a voting population equal to the ratio i for one senator, was yet joined in one • district to Scott and Jennings, and in j another to Jefferson, and thus given a , voice in the election of two senators. ; I This act also, as does that of 1895, of- - fends against the principle that a county a of less population than another should r i not be given a greater representation, unless it should be absolutely necessary s to do so. The county of Shelby, with a a voting population of«, 545, being 1,085 1 over the ratio, and the county of Dears born, with a voting population being - j 872 over the ratio, are each given one

rßpreMmtative, and n! w . election of anoi lu r; while tU%£,£ of Randolph, 18 lawuro, Bonne Hnn’ington and Grant, Meh • gtiMHiT voting iH.puUti.in than .A* Hirlby or !>wntnr. uro given m repr< —ntiitivi. only, u °’ Other xiolation* of this raindnl* noted by Judge Howard. *** ! Mm-h of whnt wo have said as tn th. aamtmptioti of unlawful u.w. r n. .i legislature of 1*93 ia .somßy I. to the logialnture of 189'" * F«*riu<*r tfiurlahin |{r>(if» l . f j Tn nil the objwtion. thn« made tn ths eonstitntionnlity of the a Pi rt llltlw , nt net of 1893. couiih. 1 for appall but one reply. They gravely that the constitutionality nf th.. ;.r t 1893 hae bom> adjudicated, and tlioact declared constitutional. This contention is bnseil np,n th judgment of the Marion Uinmit ;;rt tho cimm. of Wixhant vs. Lenhart, which we have heretofore r< f. rr -i, «a,i the apis’iil from which judgment, No 17,885, won dismitweii in this <•<niton in .tion of tho appellant, N .vem!« r 2J 1894. The pun*>*" of that action to test tho constitutionality of the armor, tionment act of 1893, and, by tho jnd». ment of said circuit conrt, rei>d..r,d u]*m demurrer to the complaint, the w a«. in effect, held to boa valid law. At forth, st, mid wo sliould hesitate to give it that for.*.’ without spacial plm, that decision could I*, controlling only within the jurisiliction of the rout making it and between the parties to that suit. Indeed, it is by no means clear how it was intended by counsel that the ;udg. ment hero refernsl to should !»• trotted a* a former adjudication nf thi q : - :<,n» at issue in the case ut bar. In the fint place, the judgement has not been m t out ; in the complaint, nor has it been in any : way specially pleaded. Neither has it 1 been pleaded on apj* al, oven if hplea could le made on apjieal. Eckert v*. i Hinkley, 134 Ind. fil l. But even if such judgment were pb-nded, it would *>• m that th' r <*>nld i be no question of former adjudication entertained as counsel urge. “B fore ! the rule of fonniT adjudication .m bo | invoked, it must a.ppcir that the thing demand.*! was founded upon th ■ -.*me i cauae of action, that it was between ( the same parties, and found fur one of I them airainst the other in the Kime j quality.” It is enough to say on thia feature of ! the question that in the case iu th cir- ? ctrit court, Albert W. Wislutrd w. - the j party plaintiff; while in tho ci’-e at I sir ■ the plaintiff was the state of Indiana I on the ri'lation of Feed E. Basler. T.ie partiee plaintiff were not the same, and for this reason alone the rule of former adjudication cannot apply. While there may be s< one question of private or pereomu benefit, yet the issue before the court is much broader. The action ermoern* all the people of the state in th ir most enlarged and sacred relation of citirenship and gi.vernmeut, and the case cannot be tied up with the purely private rights of any one. While, then, all respect will be given to the judgment the circuit court in this, as in every other case; yet we cannot si-rionsly entertain the contention that snch adjnieation of a constituteoial question is of binding force in this court. More thiui this, no property right or contract between the parties being involved, it will not be considered that the rule of stare decisis requires that, in deciding so grave a matter as that of the constitutionality of an act of the legislature, we should be bound by even our own former deeisi'r* Let this decision be right, whether other decisions were right nr not. In State vs. Waist, at last term, ini volving the constitutionality of the fee I and salary act of 1891, this court did not hesitate to overrule its own dii'ision as I to the validity of the same law. « hen . satisfied that the decision first rendered was erroneous. Only the Law *»f IRMS Left. We are, therefore, of the opinion that both the apportionment act of 1*95 and also of 1893 are unconstitutional and void, and, consequently, that the appellee was not entitled to the relief demanded by him in his complaint, and which was awarded him by the decision of the trial conrt. This c 'urt in the case of Parker vs. State, while deciding that the apportionment acts of 1891 and 1879 were both invalid, yet expressly held that the constitutionality <>f tlie inaennediate act of I**s was not l>ofore the conrt for jurisdiction, and accordingly refrained from making any decision in regard to it. Neither has the constitutionality of the app' irtionment act of 1885 ls*‘n questioned in the case at liar. Consequently that act is the last, and p rnaps the only expression of the legislative will left npon t *"' ject of apportionment, and under which senators and representatives may be chosen at the general election of 1896, unless the governor should see fit to call a special session of the legislature to pass a new apportionment law. The judgment is reversed. With W* structiona to tlie circuit court to sustain the demurrer to the complaint, and tor further prix’eedings not inconsistent with this opinion. Judge Monks concurs. Chief Justice Hackney concur* ana calls attention to the serious predicament tlie state would be in should the act ot i 1885 also be set aside, as no preciniing i valid act could be found tinder which to elect a legislature. , . 1 Judge Jordan concurs and says he is prepared to declare a “hard and fiist rule” upon this question from which tlw 1 legislature can in no event depart. I Arrested For Embesslemen*. Boston, Jan. 81. —Harry M. Fowle, hitherto u valued and trusted clerk for the Shepard & Morse Lumber compaiij, was arrested yesterday and it J* *'*" ported the charges of forgery and ein--1 bezzlemont preferred against him" l1 * ' aggregate IL’iOJiOO, the figures given out ' last night being $47,613. Brutal Murder of a Negro. ' Little Rock, Jan. 31.—1 n Loe county ’ T. P. Williams, white, tried Jo foree , some information from Tom Edwards , an old and harmless negro. Edwaros , professed ignorance. Williams drew a pistol and killed tlie negro in the P r *? s ‘ . enco of the family as he prayed tor r mercy. _____ - I Well Known Artist Dead. ’ Pun.ADELPHiA, Jan. 81.—George CoC“‘ . ran Lambden, the well known arti* , ; died yesterday. Ho was tho eldest son . of tho lato James Reid Lambden, tho r distinguished portrait painter, and wi j born at Pittsburg in 1830.