Brooks v. State ex rel. Singer
| Decision Date | 11 May 1904 |
| Docket Number | 20,307 |
| Citation | 70 N.E. 980,162 Ind. 568 |
| Parties | Brooks, Clerk, et al. v. State, ex rel. Singer |
| Court | Indiana Supreme Court |
From Ripley Circuit Court; Willard New, Judge.
Mandamus by the State of Indiana, on the relation of James Singer against Absalom J. Brooks and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
R. A Cregmile and W. C. Mitchell, for appellants.
A. G Smith, J. W. Kern, G. V. Menzies, T. P. Davis, S. M. Ralston, M. A. Ryan, Bernard Korbly and Lincoln Dixon, for appellee.
This suit was brought in the name of the State, on the relation of James Singer, who is described in the complaint as a resident of Ripley county, and a qualified voter thereof, against the clerk, sheriff, and auditor of Ripley county, for an alternative writ of mandate requiring each of these officers to show cause why he should not be compelled to perform the duties imposed upon him by law in regard to the election of senators and representatives to be held on Tuesday, November 8, 1904, under the act of February 25, 1897, fixing the number of senators and representatives to the General Assembly of the State of Indiana, and to apportion the same among the several counties of this State. Acts 1897, p. 65, § 6681 et seq. Burns 1901. The real purpose of the action was to obtain a decision of this court upon the question of the constitutionality of the apportionment act of 1903 (Acts 1903, p. 358). The appellants, who were the defendants below, waived the issuing and service of the alternative writ, and demurred to the complaint. Their demurrer was overruled, and, upon their failure to plead further, judgment was rendered on the demurrer in favor of the appellee. From that judgment the defendants below appeal, and the error assigned is the ruling on the demurrer.
The complaint alleges that the plaintiff is a resident, a citizen, and a voter of Ripley county, and that the three persons named as defendants are, respectively, the clerk of the circuit court, and the sheriff and auditor of said Ripley county; that by the act of the General Assembly of the State of Indiana approved February 25, 1897, it was provided that the General Assembly of said State should consist of fifty senators and one hundred representatives, and, among other things, that the county of Ripley should constitute a representative district; that an election for members of the General Assembly of said State will be held on Tuesday, November 8, 1904, and that under the said act one representative should be elected in the representative district composed of the said county of Ripley; that the relator made a demand on the defendant Absalom J. Brooks, clerk of the circuit court of said county of Ripley, more than twenty days before the said election that said clerk should certify to the sheriff of said Ripley county that one representative in the said representative district composed of said Ripley county is to be elected; that said relator also made a demand upon the defendant Henry Voss, sheriff of said county, that he, as such sheriff, should give fifteen days' notice of the election of such representative at said general election, by posting at the usual places of holding elections in his said county a copy of the certificates of said election so demanded by the relator to be issued by the clerk of said county when the same should be received by said sheriff, and by one publication thereof in a newspaper of general circulation in his said county, if any there be, and that the said sheriff should also deliver a copy of said certificate to the township trustee of each township within said county; that the said relator had made a demand upon the defendant Nicholas Volz, auditor of said county, that he should make out and cause to be delivered to the duly appointed inspectors of election for the several precincts of said county, at least ten days prior to the time of holding said general election, a suitable number of blank forms, poll-books, and election returns, with proper captions, forms of oaths, certificates, and tally papers, to be used by the election officers of said precincts at said election properly to register, certify, and return the votes cast for the election of said representative, but that each of said officers wholly refused and refuses to comply with such demand, claiming and asserting that the said act of February 25, 1897, expired by limitation, because enacted prior to the enumeration of the male inhabitants of the State of Indiana, over the age of twenty-one years, taken pursuant to law in the year 1901, and that the same was repealed by an act fixing the number of senators and representatives to the General Assembly of this State, and to apportion the same among the several counties of this State, approved March 9, 1903, and that said officers give out and threaten that they will proceed to perform their said duties according to said last-named act alone; that the said act of March 9, 1903, is in conflict with §§ 4 and 5 of article 4 of the Constitution of the State of Indiana, for the reasons that in the year 1901 an enumeration of the male inhabitants of said State, over the age of twenty-one years, was taken under the authority and by the direction of the General Assembly, as required by the Constitution (the enumeration referred to is then set out in the complaint, the total being 694,346); that it became the duty of the General Assembly at its session next following such enumeration, to wit, the sixty-third regular session, to fix the number of senators, not exceeding fifty, and representatives, not exceeding one hundred, and apportion them among the several counties according to the number of male inhabitants above twenty-one years of age, as shown by said enumeration, and that at said session the said General Assembly did attempt to discharge its duty under the Constitution by passing the said act of March 9, 1903; that in apportioning the senators and representatives upon the basis of the enumeration of 1901, each senatorial district should have contained 13,886 male inhabitants above the age of twenty-one years, as nearly as reasonably possible, and that each representative district should have contained 6,943 male inhabitants above the age of twenty-one years, as nearly as reasonably possible. (The apportionment made by the act of 1903 is next set out.) That by said act of March 9, 1903, forty-six counties are formed into twenty districts, to each of which one senator is apportioned; that ten of said districts, composed of twenty-eight counties, contained, by said enumeration of 1901, 159,767 male inhabitants above the age of twenty-one years, while the other ten of said districts, composed of eighteen counties, contained, by said enumeration, only 117,369 such inhabitants; that no other senatorial representation is given by said act to any of the counties contained in said first-mentioned districts, and that by such apportionment the senatorial representation of 42,398 male inhabitants above the age of twenty-one years of said districts, being three senators, with a fraction over of 740, is wrongfully denied to the counties contained in said ten districts, and is given to said counties contained in said second ten districts, whereby their representation, which should be but eight senators, is increased to ten, and the representation of the counties contained in the first-mentioned ten districts is reduced to ten, when of right it should be eleven.
The names of the counties composing said twenty senatorial districts are next set out, with the number of male inhabitants above twenty-one years of age in each district as shown by said enumeration, with the excess of such inhabitants in each of the first ten districts over each of those in the second-mentioned ten districts. The complaint then charges that by the act of March 9, 1903, the counties of Switzerland, Ohio, Dearborn, and Franklin, the number of whose male inhabitants over the age of twenty-one years, according to the said enumeration, was 15,652, being more than the senatorial unit, and which by reason thereof were entitled to have one senator apportioned to them, were denied such senator, and were united with the county of Union for the election of one senator, the district so constituted having an excess of 3,889 over the senatorial unit; that by the said act of March 9, 1903; the counties of Ohio, Dearborn, Franklin, and Union, whose male inhabitants over the age of twenty-one years, by said enumeration, were 14,345, being more than the senatorial unit, and which by reason thereof were entitled to have one senator apportioned to them, were denied such senator, and were united with the county of Switzerland for the election of one senator, such district having an excess of 3,829; that included in the second-mentioned districts are five districts, each of which is given a senator, although each of said districts lacks more than two thousand inhabitants of possessing the senatorial unit, while the counties of Switzerland, Ohio, Dearborn, and Franklin, which themselves possessed 1,766 more than the unit of senator, are denied a senator; that said five districts, and two other districts not heretofore named, are given senators by said act of March 9, 1903, while each of said districts lacks the senatorial unit as...
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