Fesler v. Brayton

• Decision Date: 15 May 1896
• Docket Number: 17,894
• Parties: Fesler, Clerk, et al. v. Brayton
• Court: Indiana Supreme Court

44 N.E. 37

145 Ind. 71

Fesler, Clerk, et al. v. Brayton

No. 17,894

Supreme Court of Indiana

May 15, 1896

From the Marion Superior Court.

Reversed.

Hawkins & Smith, for appellants.

M. E Forkner, A. C. Harris, and Miller, Winter & Elam, for appellee.

McCabe J. Jordan, J. Monks, J.

OPINION

McCabe, J.

The appellee sued the appellants in the superior court, to enjoin them from proceeding to hold the election in November for members of the next general assembly, under the provisions of the apportionment act, approved March 6, 1885. It was alleged that the appellants, being the clerk of the circuit court the auditor, and the sheriff of Marion county, Indiana, were threatening to give notice and proceed to an election under said act, which act, it was alleged, is unconstitutional for the same reasons that the apportionment acts of 1879, 1891, 1893, and 1895 were adjudged by this court to be unconstitutional in Parker v. State, 133 Ind. 178, 32 N.E. 836, and in Denny v. State, ex rel., 144 Ind. 503, 42 N.E. 929.

The superior court overruled a demurrer to the complaint for want of sufficient facts, and the defendants declining to plead over and standing upon their demurrer, the court rendered judgment perpetually enjoining said officers from proceeding to hold said election under and pursuant to said act.

The ruling upon the demurrer is the only error assigned.

A motion to dismiss the appeal is made by Alonzo G. Smith, Charles A. Korbly and John W. Kern as amici curiae, and on behalf of certain other parties, who are not parties to the action, and who, it is alleged, would be injuriously affected by the litigation.

In support of this motion is filed an affidavit of Sterling R. Holt, to prove the charge made in the motion that "the controversy is not real, that all the parties thereto are agreed in principle and purpose concerning the same, and that said action, from its inception, has been and is collusive and the result of collusion between the parties thereto, all of whom are desirous of obtaining from this court an affirmance of the judgment appealed from, there being no adverse interest represented."

If these facts were conceded, or clearly shown by the affidavits and record, we should feel compelled to sustain the motion, as the law is well settled that such a litigation may and ought to be regarded as a con tempt of court. Hoover v. Hanna, 3 Blackf. 48; Brewington v. Lowe, 1 Ind. 21; Hotchkiss v. Jones, 4 Ind. 260; Smith v. Railroad Co., 29 Ind. 546; Osborn v. Bank of U. S., 9. Wheat 737; Lord v. Veazie, 49 U.S. 251, 8 HOW 251, 12 L.Ed. 1067; State, ex rel., v. Napton (Mont.), 10 Mont. 369, 25 P. 1045; Haley v. Eureka Co. Bank (Nev.), 12 L. R. A. 815.

Counter affidavits have been filed by the parties and counsel in opposition to the charge of collusion. Other circumstances have occurred in this court tending to overcome the charge. But we deem the merits of the controversy of so much importance to the people that we do not pass upon the conflict raised by the affidavits, and will pass the question of dismissal without decision. The brief, on behalf of the appellants, makes a point for reversal which is entitled to much consideration, namely, it is therein contended, with much apparent earnestness, that "the act of 1885 was accepted by the people, and acted upon without question, and three successive general assemblies were elected under it before any further legislation upon the subject was attempted, and before any question of its constitutionality was raised, and * * * no attempt was ever made or suggested to test its validity or constitutionality in the courts. The law having been accepted and acted upon, as it has been without question by the people, * * * we insist that it is now too late to raise the question as to its validity upon the grounds stated in the complaint."

This contention is not without weight or merit, especially as this is an attempt to invoke the equity powers of the court by injunction. "Equity aids the vigilant, not those who slumber on their rights. * * * The principle thus used as a practical rule, controlling and restricting the award of reliefs, is designed to promote diligence on the part of suitors, to discourage laches by making it a bar to relief, and to prevent the enforcement of stale demands of all kinds, wholly independent of any statutory periods of limitation. It is invoked for this purpose in suits for injunction, suits to obtain remedy against fraud, and in all classes of cases, except, perhaps, those brought to enforce a trust against an express trustee. * * * A court of equity which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence." 1 Pomeroy Eq. Jur. (1 ed.), sections 418, 419; Brashear v. City of Madison, 142 Ind. 685, 36 N.E. 252; Jones v. Cullen, 142 Ind. 335, 40 N.E. 124; Rumsey v. People, 19 N.Y. 41.

In addition to the fact that the appellee does not point out any other apportionment act than that of 1885, or claim that any such exists, under which an election may be held, we may observe that he agrees with the contention of the amici curiae, that all legislative apportionment acts previous to that of 1879, under the present constitution, including the apportionment act under which that constitution required the first and second legislative elections to be held, were required to be, and were, based on an enumeration exclusively of the white male inhabitants of the State. Section 2, Art. 3, Const. 1816, R. S. 1843, p. 44; Const. of 1851, sections 3, 4, 5, Art. 4, R. S. 1852, pp. 48 and 49; Enumeration Act of 1865, Acts of 1865, p. 41, R. S. 1881, sections 4780, 4798; Supp. Enumeration Act of 1877, Acts of 1877, R. S. 1881, section 4799 (R. S. 1894, section 6370).

By the amendment to the constitution of March 14, 1881, the sections of the constitution above referred to, were so amended as to require such enumerations and apportionments to be based on the number of male inhabitants of the State, over the age of twenty-one years, both white and colored. R. S. 1894, sections 99, 100, and 101 (R. S. 1881, sections 99, 100, and 101).

All the apportionment acts, therefore, which preceded that of 1879, being based exclusively on the white male inhabitants of the State above the age of twenty-one years, and leaving out all colored males of that age, are wholly inconsistent with the requirements of the constitution since its amendment above mentioned, requiring all colored, as well as white, males, over twenty-one years of age, to be represented in the apportionment for legislative purposes.

It is settled law, in this and other states, that a constitutional amendment, inconsistent with previous constitutional provisions and legislative enactments, operates to repeal such constitutional provisions and legislative enactments. Griebel v. State, ex rel., 111 Ind. 369, 12 N.E. 700, and authorities there cited; Pierce v. Delamater, 1 Comstock, 17; Potters Dwarris Statutes, 113; Sedg. Statutory Law, 107.

The learned counsel for appellee not only frankly concede, but earnestly insist, that all apportionment acts prior to that of 1879 have been repealed by the above mentioned constitutional amendment, and that the only act not so repealed or declared by this court to be unconstitutional, is that of 1885. So that it is undeniable that all legislative apportionment acts, previous to that of 1879, have been effectively repealed. All apportionment acts, subsequent to that of 1885, as well as the act of 1879, have been adjudged unconstitutional by this court. Parker v. State, supra; Denney v. State, supra. There are several reasons why the act of 1885 has not been repealed.

1. There has been no constitutional amendment, either State or federal, adopted since its enactment inconsistent with its provisions.

2. The several apportionment acts of 1891, 1893, and 1895, assuming to supersede it, having proven unconstitutional, the repeal in each one of these acts, falls to the ground by the settled adjudication of this court, because it appears, from the several repealing clauses, that it was only intended to repeal the former apportionment acts upon the supposition that the new act was to take the place of the former acts upon the subject. Denney v. State, supra; State, ex rel., v. Blend, 121 Ind. 514, 23 N.E. 511, and cases there cited. And a third reason is that it is justly held, in Denney v. State, supra, that the legislature may not wantonly sweep away all means of electing another legislature.

Thus we are confronted with the preliminary question, to be determined before we enter upon the investigation of the alleged unconstitutionality of the apportionment act of 1885. And that question is, can the appellee have any right to invoke the power of this court to dissolve the State government? Can any citizen of this State have the right to invoke the power of the judiciary by injunction to put an end to the government that protects his life, his liberty, and his property?

The proposition the appellee presents, stripped of all subterfuges, is that unless the Governor shall convene the legislature in extra session, there shall be no more elections of legislatures in this State under our constitution. But suppose we respond to the demand of the appellee, and, having entered the field of investigation, find the act of 1885 defective, and strike it down, and start the people of this State on a voyage that may lead them into the troubled sea of anarchy; and suppose, even, that the Governor shall forego his resolution...