Board of Commissioners of County of Marion v. Jewett

• Decision Date: 08 December 1915
• Docket Number: 22,884
• Citation: 110 N.E. 553,184 Ind. 63
• Parties: Board of Commissioners of the County of Marion v. Jewett
• Court: Indiana Supreme Court

110 N.E. 553

184 Ind. 63

Board of Commissioners of the County of Marion v. Jewett

No. 22,884

Supreme Court of Indiana

December 8, 1915

From Marion Circuit Court (25,266); Louis B. Ewbank, Judge.

Action by Charles W. Jewett against the Board of Commissioners of the County of Marion. From a judgment for plaintiff, the defendant appeals.

Reversed.

Henry Warrum, E. B. Raub, Ryan, Ruckelshaus & Ryan and Walter Myers, for appellant.

Leander J. Monks, John F. Robbins, William P. Kappes, Charles O Roemler and Merrill Moores, for appellee.

OPINION

Cox, J.

The Constitution of the State provides as follows in reference to the legislative department of the State: "The general assembly shall, at its second session after the adoption of this Constitution, and every six years thereafter, cause an enumeration to be made of all male inhabitants over the age of twenty-one years." Constitution, Art. 4, § 4. And following this there is 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 twenty-one years of age in each." Constitution, Art. 4, § 5.

In obedience to the mandate of the Constitution just set out the General Assembly has provided by law for such enumeration to be taken by township trustees. Acts 1865 p. 41, § 4781 R. S. 1881, § 7132 Burns 1914. Under that law an enumeration was made in 1913 and upon it and pursuant to the duty enjoined by the constitutional provision last above set out the General Assembly at its regular session in 1915 fixed the number or representatives in the General Assembly at one hundred and apportioned them among the several counties of the State. Acts 1915 p. 656. In this apportionment certain counties were given two representatives each, others three each, one four and Marion County ten. It was then provided in § 3 of the act as follows: "Every county having three (3) or more full representatives under the provisions of this act shall be divided into representative districts equal to the number of representatives to be elected from such county. The boards of county commissioners of such counties shall on or before June 1, 1915, divide their respective counties into representative districts, giving to each district, as nearly as may be, an equal number of electors. The territory included in any district shall be contiguous. For the purpose of determining the number of electors, the boards shall cause an enumeration of electors in their counties or they may use the enumeration made by the township trustees if the same shall be adequate to determine the number of electors for each district. If the board of county commissioners of any county shall fail or refuse to divide such county on or before June 1, 1915, into representative districts, the representatives from such county shall be elected by the whole county. Any county divided into representative districts under the provisions of this act, shall not be changed during the time this act shall be in force. The boards of county commissioners are authorized to incur any expenditures in connection with the taking of the enumeration of electors which shall be paid without an appropriation by the county council." Acts 1915 p. 656.

In a complaint filed May 28, 1915, and amended on May 29, and a supplemental complaint filed June 1, 1915, appellee sued as a taxpayer and voter, for himself and all other taxpayers and voters perpetually to enjoin and restrain the Board of County Commissioners of Marion County, James Kervan, James Kitley and James G. Hayes as commissioners constituting the board and William T. Patten, auditor of the county, from adopting any order or ordinance dividing the county into districts for the election or nomination of the ten representatives apportioned to it, under and in accordance with § 3, supra. Appellants demurred to the complaint for want of facts sufficient to constitute a cause of action. From a ruling adverse to them on the demurrer and a judgment against them on their refusal to plead further appellants have brought this appeal.

The essential theory of appellee's complaint is that any order or ordinance which appellant board of commissioners might make or promulgate in dividing the county into ten districts and apportioning the ten representatives assigned to it would be void and ineffective for the reason that apportioning representatives to the counties and creating districts for the election of representatives is a legislative function and as such can not be delegated, and, therefore, it is claimed, § 3, supra, is unconstitutional and void; and that such order or ordinance would be void and ineffective to bind any one for the further reason that both it and § 3, supra, which assumes to authorize it would deprive appellee, as a voter of Marion County, of a right and privilege, which is claimed as a constitutional one, to vote for ten representatives; and that such order or ordinance would be void and ineffective for the further reason that the legislative authority sought to be conferred is itself unconstitutional and void because, it is claimed, it is local and special legislation of a character forbidden by the Constitution; and finally that the enumeration of 1913, being by townships, is shown to be inadequate to provide a basis for division of the county into districts and that the board had not and could not in the time remaining take the alternative enumeration of the county contemplated by § 3, supra.

A question of jurisdiction of the subject-matter of appellee's action at once arises against the consideration of the questions involved in appellee's complaint. If the circuit court had not jurisdiction of the general subject-matter of the action that fact could be raised at any stage of the proceedings and in fact must be taken cognizance of by this court whether formally raised or not if apparent on the face of the record. If in such case the lower court was without power to entertain the action and decide the questions involved this court is equally without power to review the correctness of its decision of such questions. Jurisdiction of the general subject-matter can not be waived and can not be conferred by the parties. Smith v. Myers (1887), 109 Ind. 1, 9 N.E. 692, 58 Am. Rep. 375; McCoy v. Able (1892), 131 Ind. 417, 30 N.E. 528, 31 N.E. 453; Chicago, etc., R. Co. v. Town of Salem (1904), 162 Ind. 428, 70 N.E. 530; Steinmetz v. G. H. Hammond Co. (1906), 167 Ind. 153, 78 N.E. 628; Jay v. O'Donnell (1912), 178 Ind. 282, 302, 98 N.E. 349, Ann. Cas. 1915 C 325, and cases cited; State, ex rel. v. Van Beek (1893), 87 Iowa 569, 54 N.W. 525, 43 Am. St. 397, 19 L. R. A. 622; Ewbank's Manual (2d. ed.) § 289 and cases cited; 7 R. C. L. 1042, § 75. That the making of a legislative apportionment is a legislative function and the exercise of political power, but that its validity when made is a matter of judicial cognizance when steps are taken to elect under the completed apportionment is definitely settled in this State. Parker v. State, ex rel. (...