Greenfield Evening Republican, Greenfield, Hancock County, 31 January 1896 — Page 4

Supreme Court Renders its Decision In the Apportionment Case.

ACTS OF 1895 AND 1893 INVALID.

Apportionment Made In 1885 Now the Only One In Force.

HAS NEVER BEEN CHALLENGED.

Next legislature Will Be Toted For Under Its Provisions—Opionion Written 11 by jmlge Howard, and Concnrred In by Judges Monks, Hackney and Jordan.

The tatter Is Willing to Make a "Hard and Fast" Kuling to Control Future Legislative Action.

INDIANAPOLIS, Jan. 31.—The supreme court yesterday rendered a decision in what is known as the legislative apportionment suit. By yesterday's decision the acts of 1895 and 1893 are declared unconstitutional, and as the court in December, 1892, held the acts of 1891 mid 1879 void, the only law which has not been questioned is that passed by the legislature of 1885, under which act the. next election will be held, unless it is challenged and ruled ujion adversely. Justice Howard wrote the opinion in chief, which is as follows: William M. Denney, clerk, et al. vs. The

State* of Indiana on the relation of Ferd E. Basler. From the Sullivan circuit court. Howard. J. This was an action brought by the appellee to enjoin the appellants, as clerk -of the circuit court, sheriff and auditor of Sullivan county, from proceeding in their several official capacities to hold the election for 1800 for the senators and representatives in the general assembly under or pursuaut to the provisions of the apportionment act of 1895 and for a writ of mandate to compel said officers to proceed to hold said election for senators and representatives under the apportionment act of 1893.

The material allegations of the complaint are: That the appellee's relator is a citizen, taxpayer and voter of said county, and appellants are the proper officers to give notices and furnish forms and ballots and take other steps for the holding of the general elections in said county that the general assemMy of 1891, that being the proper time therefor, passed an apportionment act ^oi-the election a,c.v

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«rai assenibly^^'^^o^^, Pxe sudeclared ui Loonsti"ji«|\' j.,} $• preme court that aftorwarcftlitl^nersu assembly of 1893 passed an apportionment act, which is still in force, and is the only valid law on the subject that in 1895 the general assembly passed another apportionment act, which is unconstitutional and, at the same time, by a second act, repealed the apportionment act of J.893, which repealing act is also unconstitutional and void that by the act of 1893 said Sullivan county was on titled to one representative in the ••general assembly, and, conjointly with Vigo and Vermillion counties, was entitled to one additional representative, which said provision was useful and beneficial to said relator that by the pretended act of 1895 Sullivan county is entitled to but one representative 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 of appellants that they proceed under and in accordance •with the apportionment act of 1893 in {performing their duties in regard to the "\election of senators and representatives j'lt the general election in November, 1800 but that appellants refused so to .act, and assorted that they would proceed under said apportionment act of 1895 and that the appellants will so proceed, unless enjoined therefrom' and will, unless commanded so to do by the court, fail, neglect and refuse to proceed under and in accordance with that act of 1893, to the great and irreparable damage of appellee's relator. It is further expressly alleged that the provisions of the act of 1893 "are 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 pray 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 •complaint, which was overruled. Appellants refusing to plead further, the court entered judgment against them •upon the demurrer. By the terms of jfche decree, the appellants were enjoined from proceeding for the election of ^.senators and representatives under 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 jeomplaint is the only error assigned on 4be appeal.

Appellee asserting the invalidity of Jhe apportionment act of 1895, and asjgerting the validity of the act of 1893 4Utd asking for an in junction against enforcement of the former, with a

feentitled

indate compelling an enforcement of latter, it becomes necessary, in ordrr decide what, if any, relief appellee to to, first, to determine the Constitutionality of the act of 1895. If "sthat is fonnd to be a valid law, the case at an end, for the appellee is not en-

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titled to any relief. If,'however, the act of 1895 should be found invalid, then it would become necessaiy to determine the constitutionality of the act of 1898 for, unless the act of 1893 should be found constitutional, the appellee would not be entitled to the writ of mandate in favor of its enforcement, even though the appellee might be entitled to have an injunction against the enforcement of the act of 1895.

The first reason given for the demurrer is that the court has no jurisdiction over or of the subject matter of the action.

The basis for this contention is, that the making of an apportionment for membership in the general assembly is an exercise of political power, which has been committed by the people to the wisdom of the legislative branch of the state government that the courts may not, therefore, interfere with the exercise of this power by the general assembly.

This, no doubt, speaking in broad terms, is true but only to the extent provided by the people in framing the constitution. The courts cannot say how an apportionment shall be made, nor even whether any apportionment shall be made. The province of a court, however, is to say what the law is. If then a law is enacted, and its validity is brought in question, in a proper proceeding, and before a court of competent jurisdiction, the court must render judgment. That is the proper and necessary function of a court.

An apportionment law that violates the constitution must be held invalid, quite the same as any other. The question is not what is the character or subject of the law, but whether it is in conflict with the constitution.

Decisions In Other States.

In recent years, the validity of apportionment acts has been before the courts of last resort in at least four states, besides our own. In two of these cases, in Wisconsin and Michigan, the courts held the acts unconstitutional in the other two cases, in New York and Illinois, the acts were held constitutional but in all four cases, as well as in this state, the courts, without hesitation, assumed jurisdiction of the subject matter of the controversy. See in particular the forcible argument of Elliot t, J., in his concurring opinion in Parker vs. State, here cited.

In State vs. Cunningham, supra,citing Houston vs. Moore, 18 U. S. 1, the power and duty of American courts to determine the constitutionality of all laws is asserted in this clear and vigorous language: "By a course of judicial decisions, reaching from the earliest history of American government to the present day without a dissenting voice, it has been adjudged that courts of justice have the right, and are in duty bound, to test every law by the constitution, as the fundamental and paramount law of the land, govering all derivative power and the exercise thereof. The judicial department, Math us, is the proper power under the constitution to declare the constitutionality of a law and every act of the legislature contrary to the true intent and meaning of the constitution will be declared by the courts null and void, and of no effect whatever."

In so far, then, as an apportionment law violates the provisions of the constitution, it will, as in the case of any other act of the legislature, be declared that il ue0l hardly be said, however, has vfn

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as

t'ie constitution itself

tfis'cT#1 ade the apportionment of the state l^vjretionary with the legislature, that discretion, as in any other case, will be scrupulously respected by the courts.

Yet more, since the subject of apportionment is, in general, in charge of the legislative department of the government, wherever there is no positive injunction in relation to the matter laid upon the general assembly by the constitution, there also the courts will refrain from substituting their discretion in place of the discretion of the legislature.

Where, however, the constitution has spoken, and the voice of the legislature is heard in conflict with the voice of the constitution, there the courts will interfere, and will sustain the paramount law of the land against its violation by the legislature.

The remaining reason given for the demurrer is, that the complaint does not state facts sufficient to constitute a cause of action against the appellants.

Principal Question at Issue. The main question in the case, as made by the pleadings, and as discussed by counsel, in their briefs and in the oral arguments, arises under this head, namely, whether, under the constitution, any apportionment 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 by law, there is thereby created a limitation upon the power of the legislature to make such apportiomnent at any other time.

The appellants argue, on the contrary, that, since the making of an apportionment is an exercise of political power, and hence committed to the legislate 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 nuch apportionment 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, liotwithstanding the elaborate and able arguments of counsel for appellants, must be decided in favor of the contention of appellee.

It is provided in section 1 of article 4 of the constitution that "the legislative authority of the state shall be vested in the general assembly, which shall consist of a senate and house of representatives.''

If there were no particular provisions in the constitution in regard to the subject of legislative apportionment, there is little doubt that, under the foregoing full aud 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 other districts of the state might, perhaps, provide that all the members of the legislature should be chosen by the people at large.

But section 4 orthe sanSe' article provides that "the general assembly shall, at the second session after the adoption of this constitution, and ev§ry six years thereafter, cause an enumeration to be made of all the male inhabitants over the age of 21 years."

And section 5 of said article contains the following provision: "The number of senators and representatives shall, at the session next following each period of making such enumeration, be fixed by law, and apportioned among the several counties according to the number of male inhabitants above 21 years of age in each."

Enumeration Periods.

We think the legitimate and necessary conclusion to be drawn from these two sections is, that an enumeration of the voters shall be taken once every six years and that, upon such enumeration as a basis, the apportionment of members of the legislature shall be made at the next ensuing session of the general assembly, and only then.

In case, then, there is in existence a valid apportionment law, and one passed within the proper enumeration period, it may be confidently affirmed that an attempt to make another apportionment, and at a time further removed from the time of taking the enumeration, is a violation not only of the spirit, but of the letter of the constitution, all of whose provisions are mandatory, unless by their own terms made directory, or simply permissive.

Counsel for appellants say that, even if it be true that an apportionment law can be passed but once for each enumeration period, yet if no valid law has, in fact, been enacted, the continuing duty to pass such a law at the earliest time practicable, always rests upon the lawmaking power, until such valid apportionment is finally made. People vs. Rice, supra. Counsel say, further, that the last enumeration was taken in 1889 that at the next session of the general assembly thereafter, in 1891, an apportionment- law was passed that this law was adjudged unconstitutional by this court. Parker vs. State, supra. That, thereafter, in 1893, the legislature passed another apportionment law that this apportionment law of 1893 was invalid for the same reasons for which the act of 1891 was held invalid that the legislature of 1895 found this invalid act of 1893 upon the statute hook, declared it unconstitutional and repealed it, and then passed the act of 1895, now under consideration that the act of 1893 being unconstitutional, it was as if no apportionment law was in existence, therefore, the continuing duty of enacting a valid apportionment law rested upon the legislature of 1895 and hence the act of 1895 was passed at the proper time, and is valid and constitutional.

Whether the legislature of 1895 had authority to enact an apportionment law must depend, as we have already seen, upon the fact as to whether there was then in existence a valid apportionment law, passed within the current enumeration period. That legislature could not by any act of its own create the necessity for the enactment of another law on the subject, as by reper' ing the law already in existence. If the apportionment act of 1893 were indeed a valid law, it could not be repealed by the legislature of 1895. For, in case of the validity of the act of 1893, it would most certainly have been unlawful to enact any other apportionment law until the next enumeration period, and the legislature could not change this condition by an attempt to repeal such valid apportionment to make room for another law on the subject. Such further law on the subject would have been premature, and out' of due time as fixed by the constitutional mandate. The repealing act, therefore, which was passed in 1895, as preliminary to the enactment of the apportionment law of that year, was itself either a violation of the constitution or also a vain and useless act, being the repeal of an invalid law.

Powers of the Legislature of 1805. But if the legislature of 1895 could not repeal a valid apportionment law, passed in 1893, the question arises whether the legislature of 1895 could in any ease pass an apportionment law. It certainly had the power to do 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 cases, to apply to the courts. These tribunals were open for the consideration of the validity of this, 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 constitutionality of the very law under which it was itself elected.

In this case the indelicacy of the legislative criticism of a- preceding legislature is the more marked when we reflect that, as shown by the files of this court in the case of Wisliard vs. Lenliart, 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 have been more seemly, as well as more ci'i'eetive, to have pressed that case to a .iinal hearing, rather than to have acted in defiance of the decision already rendered by the circuit court.

But, apart from any consideration of propriety, the question recurs, could the legislature of 1895 assume to determine for itself the constitutionality of the act of 1893 and on such assumption of responsibility proceed to pass another act of apportionment, leaving to the courts to pronounce finally upon "the question as to which of the two acts was constitutional?

We have 110 doubt that the legislature of 1895 had this power. The members of that body took the oath taken by all those who perforin official duties, namely, that they would support the constitution. If those legislators believed, under their oaths, that there was no valid apportionment law in existence, based upon the last enumeration, it was their solemn duty to pass such a law. Their enactment of such a law was, in itself, in effect, an appeal to the courts to decide whether they were mistaken or not, and to say which of the acts, if either, was the valid and constitutional law of the state.

Duties of Officials.'

"Every department of the government," says Judge Cooley, in his "Constitutional Limitations," "and every

official of every department, may, at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction."

It may be admitted, then, that, as both the act of 1895 and that of 1898 are before the court as acts of the legislature, In due form and duly authenticated, and the constitutionality of both is questioned, we must determine the validity of each. If on such examination one act is found valid and the other invalid, the case is ended so also if both are found invalid. If, however, both acts should, in all respects except as to the date of enactment, be found to comply with the constitutional requirements, then it would follow, from what we have heretofore said, tnat the act of 1893, being in itself a valid apportionment law, the legislature in 1895, or at any other time prior to the next enumeration, could have 110 warrant u|i,der the constitution to enact another apportionment law, and the act of 1895 would, for that reason alone, be void. While the act of 189.3, being valid, would, during the enumeration period when it was passed and until the passage of a valid apportionment act after the ensuing enumeration, be the sole law upon the subject of apportionment.

It therefore becomes necessary, apart from any question as to the time of the making of either apportionment, to determine the constitutionality of the act of 1895, and also of the act of 1893.

By section 4 of article 4 of the constitution, as we have seen, an enumeration of the voters of the state is to be taken once every six years.

The ensuing sections 5 and 6, of the same article, provided for apportionment, as follows: "Sec. 5. The number of senators and representatives shall, at the session next following each period of making such enumeration, be fixed by law, and apportioned among the several counties, according to the male inhabitants above 21 years of age in each. "Sec. 6. A senatorial or representative district, where more than one county shall constitute a district, shall be composed of contiguous counties and no county, for senatorial apportionment, shall ever be divided." Local and Proportionate 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 of the constitution one being local county representation the other, proportionate representation of all the people. The counties, as governmental subdivisions of the stale, and the inhabitants, according to their number in each county, were to be represented.

Either of these objects, county representation, or proportionate popular representation, might be attained in perfection were it not for the necessity of ... also attending to the other object but Board vs. Blacker, supra, the design was that neither be neglected or sacrificed for the other.

To secure the fullest possible local county representation, with the nearest proportionate representation of tl voters in each county, is the approximate result 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 t-lie legislature and hence not reviewable by the courts, except by gross abuse of discretion, and provided only, that both objects contemplated in the constitution be kept in view in the law enacted by the general assembly. People vs. Thompson, supra.

By section 3 of article 4 of the constitution it is provided that senators shall be elected for a term of four years, and representatives for a term of two years, from the day next after their general election. And in section 3 of article 15 it is declared that whenever, either in the constitution or in any law thereunder, it is provided "that any rule fixed by the constitution."

officer, other than a member of the general assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified."

Construing these two provisions of the constitution together, it is apparent that the members of the general assembly remain in office only during the term for which they were elected. Senators can, 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 011 to show that the principle of proportionate representation has prevailed since the formation of the ordinance for the government of the Northwest territory in 1787, out of which this commonwealth was afterward formed, and the same principle obtained 011 the formation of the state government in 1816 and was reiterated upon the adoption of the present constitution in 1851.

Constitutional Provisions.

The constitution of this state, provides for an absolute rule of apportionment not, as in some of our sister states, that lie apportionment shall be "as nearly as may be," or "as nearly as practicable." according to the inhabitants of each county but that it shall be, simply, "according to the number of male inhabitants above 21 years of age in each." Much, therefore, of what issaid by the supieme courts of New York and Illinois, in People vs. Rice and People *rs. Thomp.s. 11, supra, as to the discretion of the legislature in making apportionments is inapplicable to the case before us.

Our constitution requires that legislative apportionment snail 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 "110 county, for senatorial apportionment, shall ever be divided." One mandate of the constitution must be respected as well as another and, as Webster said, if the mandate cannot be absolutely obeyed, it should be observed at least as nearly as may be.

Considering, then, the act of 1895 in the light of these principles, the main objection urged against it is what arc cailed the double districts, that is, the grouping of two or more counties, neither or none of which has a voting population equal to the ratio for a senator or a representative, and giving to the district so formed more than one senator or representative.

The court will take notice of a census or other enumeration made under the

authority of the state, or *of the United over the ratio, and the county of DearStates also of the location, boundaries born, with a voting population beirg and juxtaposition of the several coun- 872 over the ratio, are each given on©

ties of the state. State vs. Cunningham, supra. By the act of 1895 the counties of Randolph, Delaware and Madison are grouped into one district, which is given two senators. By the enumeration of 1889, under which the apportionment of 1895 was made, there were in the county of Randolph 7,250 male inhabitants over the age of 21 years in Delaware, 7,138 and in Madison, 8,010. The ratio, or average number of such voting inhabitants in the state entitled to be represented by one senator in the general assembly was 11,020. None of the counties in this double district, therefore, had a voting population equal to the ratio for a senator and yet each of them is allowed to vote for two senators. Double Representation Unconstitutional.

Judge Howard then gives his attention to the scheme of throwing three counties into one senatorial or representative district and giving them two representatives. The practice is held to be unconstitutional because it tends to destroy local representation and would curtail the rights of the minority should the principle be carried to its fullest development.

It is, therefore, apparent that in all the double districts formed by the act of 1895, although any one of three counties so joined did not have a voting population equal to the ratio for a member in the general assembly yet that any two of such counties being adjacent and having together such sufficient population were quite as much entitled to their senator 01* representative as any single county with such population would be. The constitution protected them with such population from being overwhelmed by the unfriendly population of another county.

It may be urged that cases might arise when double districts would be necessary, in order to secure approproxiliiate equality in proportionate representation. It is certain, however, as we are satisfied, that other methods less obnoxious to the requirement of the constitution can be resorted to in such extreme and exceptional cases should they arise.

In case of counties having a less votiug population than the ratio of representation, and also in case of fractions of population left after giving the county the representation to which it is itself entitled, great discretion must, of course, be left to the legislature in grouping such counties for representation. But in 110 case can a county having less than the ratio be so grouped with other counties as to have a voice in the election of more than one member of the general assembly whenever it is possible to avoid it. And in disposing of such counties with population less than the ratio, and also in disposing of the fractions of excess of population over the ratio or ratios in other counties, as said by Chief Justice Morse, in

There can

be 110 legislative discretion under 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 ratios should receive first consideration. These are salutary rules to be applied in every case where it is practically possible to do so.

But, it may be said, when the legislature, in the exercise of its best judgment and 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 Parker vs. State, "When it is found that exact equality can not be obtained, where the integrity of the comity is preserved, approximation becomes a rule as binding upon the general assembly as any other

It is further urged against the apportionment law of "1895, that it violates sections 2, 3 aud 7 of article 4 of the constitution by placing in districts having "holdover" senators certain counties which, under former apportionment, voted four years previously for senators and should vote at the next election for successors to such senators but which, under this apportionment, could not vote until two years later for senators th is depriving the electors of such transferred counties from voting for senators oftener than once in six years, whereas, they are entitled, und.vr the constitution, to vote for senators every four years. Acts of 1S}):5 and 1S95 Unconstitutional.

The unconstitutionality of the apportionment act of 1895 being, therefore, evident from the provisions of the constitution, and from the principles established by the courts, and particularly by this court in the case of Parker vs. the state, i. :emains, in order to determine whether the apellant was entitled to the relie" demanded of him, to enquire as to '-he constitutionality of the act of 1893.

The unconstitutionality of this act is readily apparent, both from what we have said as to the act of 1895, and also 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 couiuy had a population equal 1o the ratio for a Separate re, resentative yet each of them, by being joined ill one district, was given a voice in the election of two representatives. By simply applying t-lie 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 unconstitutionality of this double representative district formed by the act of 1893. The district of Adams, Jay and Blackford is even more objectionable. Neither Adams or Blackford was alone entitled to n, representative, though both together would have been entitled to one, while Jay alone was entitled to a representative yet all three were joined and given two representatives.

So, in the senatorial apportionment, the county of Clark, which did not have a voting population equal to the ratio for one senator, was yet joined in one district to Scott and Jennings, and in another to Jefferson, and thus given a voice in the election of two senators.

This act also, as does that of 1895, offends against the principle that a county of less population than another should not be given a greater representation, unless it should be absolutely necessary to do so. The county of Shelby, with a voting population of 6,545, being 1,085

representative, and also a voice "in "the election of another while the counties of Randolph, Delaware, Boone, Wabash, Huntington and Grant, each with a greater voting population than either Shelby or Decatur, are given each one representative only.

Other violations of this principle are noted by Judge Howard. Much of what we have said as to the assumption of unlawful power by the legislature of 1895 is equally applicable to the legislature of 1893.

Former Decision Reversed. To all the objections thus made to the constitutionality of the apportionment act of 1893, counsel for appellee make but one reply. They gravely contend that the constitutionality of the act of 1893 has been adjudicated, and the act declared constitutional.

This contention is based upon the judgment of the Marion Circuit court in the case of Wishard vs. Lenhart, to which we have heretofore referred, and the appeal from which judgment, No. 17,385, was dismissed in this court on motion of the appellant, November 27, 1894. The purpose of that action was to test the constitutionality of the apportionment act of 1893, and, by the judgment of said circuit court, rendered upon demurrer to the complaint, the act was, in effect, held to be a valid law.

At furthest, and we should hesitate to give it that force without special plea, that decision could be controlling only within the jurisdiction of the court making it and between the parties to that suit.

Indeed, it is by no means clear how it was intended by counsel that the judgment here referred to should be treated as a former adjudication of the questions at issue in the case at bar. In the first place, the judgment has not been set out in the complaint, nor has it been in any way specially pleaded. Neither has it been pleaded 011 appeal, even if such plea could be made 011 appeal. Eckert vs. Hinkloy, 134 Ind. 614.

But even if such judgment were pleaded, it would seem that there could be 110 question of former adjudication entertained as counsel urge. "Before the rule of former adjudication can be invoked, it must appear that the thing demanded was founded upon the same cause of action, that it was between the same parties, and found for one of them against the other in the same quality."

It is enough to say on this feature of the question that in the case in the circuit court, Albert W. Wisliard was the party plaintiif while in the case at bar the plaintiff was the state of Indiana on the relation of Ferd ft. Easier. The parties plaintiif were not the same, and for this reason alone the rule of former adjudication cannot apply.

While there may be some question of private or personal benefit, yet- the issue before the court is much broader. The action concerns all the people of the state in their most enlarged and sacred relation ot' citizenship and government, 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 of the circuit court in this, as in every other case yet we cannot seriously entertain the contention that such adjuication of a constitutional question is of binding force in this court. More than 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 decisions. Let this decision be right, whether other decisions were right or not.

I11 State vs. Waist, at last term, involving the constitutionality of the fee and salary act of 1891, this court did not hesitate to overrule its own decision as to the validity of the same law, when satisfied that the decision first- rendered was erroneous.

Only the Law of 1885 Left. We are, therefore, of the opinion that both the apportionment act of 1895 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 whicli was awarded him by the decision of the trial court. This court in the case of Parker vs. State, while deciding that the apportionment acts of 1891 and 1879 were both invalid, yet expre? dy held that the constitutionality of the inaermediate act of 1885 was not before the court for jurisdiction, and accordingly refrained from making any decision in regard to it. Neither has the constitutionality of the apportionment act of 1885 been questioned in the case at bar. Consequently that act is t-lie •last, and perhaps the only expression of the legislative will left upon the subject oi apport ionment, 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 instructions to the circuit court to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

Judge Monks concurs. Chief Justice Hackney concurs and calls attention to the serious predicament the state wvuld be in should the act of 1885 also be set aside, as 110 preceding valid act could be found under which to elect a legislature.

Judge Jordan concurs and says ho is prepared to declare a "hard and fast rule" upon this question from which the legislature can in 110 event depart.

Arrested For Embezzlement. BOSTON, Jan. 31.—Harry M. Fowle, hitherto a valued and trusted clerk for the Shepard & Morse Lumber company, was arrested yesterday and it is expected the charges of forgery and embezzlement preferred against him will aggregate $50,000, the figures given out last night being $47,613.

Ilrutal Murder of a Negro. LITTLE ROCK, Jan. 81.—In Lee county T. P. Williams, white, tried to force some information from Tom Edwards an old and harmless negro. Edwards professed ignorance. Williams drew a pistol and killed the negro in the presence of the family as he prayed for mercy.

Well Known Artist Dead.

PHILADELPHIA, Jan.81.—GeorgeCooiiran Lambden, the well known artist, died yesterday. He was the eldest son of the late James Reid Lambden, the distinguished portrait pointer, and mu born at Pit tsburg in 1880.