Parker v. State ex rel.Powell

• Decision Date: 17 December 1892
• Citation: 32 N.E. 836,133 Ind. 178
• Parties: PARKER, Clerk, et al. v. STATE ex rel. POWELL.
• Court: Indiana Supreme Court

133 Ind. 178

32 N.E. 836

PARKER, Clerk, et al.

v. STATE ex rel.POWELL.¹

Supreme Court of Indiana.

Dec. 17, 1892.

Appeal from circuit court, Henry county.

Action by the state of Indiana, on the relation of Simon T. Powell, a legal voter, against Benjamin S. Parker, as clerk of the circuit court, William Reinwalt, as sheriff, and Richmond Wisehart, as auditor, of Henry county, to compel them by writ of mandamus to take the necessary steps to hold the election of 1892 for senators and representatives under the apportionment act of 1879, and to enjoin them from proceeding under the apportionment act of 1891. From a judgment for plaintiff, defendants appeal. Reversed.

J. H. Mellett and W. E. Niblack, for appellants. A. W. Wishard, M. E. Forkner, and Winter & Elam, for appellee.

Coffey, J.

This was an action by the state of Indiana, on the relation of Simon T. Powell, a legal voter of Henry county, against the appellants, Benjamin S. Parker, as clerk of the circuit court of that county, William Reinwalt, as sheriff, and Richmond Wisehart, as auditor, to compel them by writ of mandamus, as such officers, to take the necessary steps to hold the election of 1892 for senators and representatives under the act of the general assembly for the apportionment of senators and representatives approved March 8, 1879, and to enjoin them from proceeding under the act of the general assembly for the apportionment of senators and representatives passed, notwithstanding the governor's veto, March 5, 1891. It is alleged that the appellants, as such officers, are threatening and are about to issue and give the necessary notices and take the necessary steps to hold the election of November, 1892, for senators and representatives under the apportionment made by the latter act, claiming and asserting that the first-named act was repealed by the act of the general assembly of the state for the apportionment of senators and representatives approved March 6, 1885. It is alleged that the act of March 6, 1885, as well as the act of March 5, 1891, is void, being in conflict with the constitution of the state. The matters wherein each of these acts are supposed to be in conflict with the constitution are fully and minutely set forth in the complaint. As to the act of March 5, 1891, it is alleged that in the year 1889-the year prescribed by the constitution therefor-an enumeration of all the male inhabitants over the age of 21 years in the state was taken under the authority and by the direction of the general assembly, as required by the constitution, which enumeration showed the number of male inhabitants in each township and county, as well as the total number in the state, over 21 years of age. The complaint then sets out the enumeration by counties, showing the total number to be 551,048. It is alleged that it was provided by the act of March 5, 189, that the general assembly of the state should consist of 50 senators and 100 representatives, and that it became the duty of the then sitting general assembly, under the constitution of the state, to apportion the number of senators and representatives to the ensuing general assembly, based upon the enumeration of the year 1889, so that each senatorial district should contain 11,025 male inhabitants above the age of 21 years, as nearly as reasonably possible, and that each representative district should contain 5,510 male inhabitants above the age of 21 years, as nearly as reasonably possible. The complaint sets out the apportionment for senatorial and representative purposes as fixed by the act of March 5, 1891, together with the number of male inhabitants over the age of 21 years in each district, as shown by the enumeration of 1889. It is then alleged that by this act 43 counties are formed into 22 districts, to each of which one senator is apportioned. Eleven of these districts, composed of 23 counties, contain, by the enumeration of 1889, 148,496 male inhabitants over the age of 21 years, while the other 11 of said districts, composed of 20 counties, contain only 99,609 such inhabitants. That no other senatorial representation is given by the act to any of the counties contained in the first-mentioned 11 districts, and by such apportionment the senatorial representation of 27,276 male inhabitants over 21 years of age of said districts, being 2 senators, with a fraction over of 5,236, is wrongfully denied to the counties contained in said districts and given to the counties contained in the other 11, whereby their representation, which of right should be but 9 senators, is increased to 11, and the representation of the counties contained in the first-mentioned 11 districts is reduced to 11, when of right it should be 13. That the county of Brown, which, by the enumeration of 1889, contained only 2,332 male inhabitants over the age of 21 years, is placed in two senatorial districts, namely, one composed of the counties of Brown, Monroe, and Bartholomew, and one composed of the counties of Brown, Morgan, and Johnson; while the county of Clark, which, by the enumeration, contains only 7,304 male inhabitants over the age of 21 years, is also placed in two senatorial districts, namely, one composed of the counties of Clark, Scott, and Jennings, and one composed of the counties of Clark and Jefferson, whereby each of said counties of Brown and Clark is given senatorial representation greatly in excess of that to which they are entitled. It is further alleged that under the enumeration of 1889 Jay county was shown to have 5,823 male inhabitants over the age of 21 years, being 315 more than the representative unit, and that by the act of March 5, 1891, it was denied a representative, and was united with the counties of Adams and Blackford for the election of one joint representative, such district having an excess over the unit of representation of 2,007, and with said county of Adams for the election of one other joint representative, such district having an excess over the unit of representation of 5,077. That by the act of March 5, 1891, 61 counties are formed into 40 representative districts, to each of which one representative is apportioned. These districts, so far as composed of counties entitled to any representation therein, are made up of counties otherwise wholly unrepresented in the apportionment for representation, and counties having an excess over the unit of representation, which excess is otherwise unrepresented, and is alone represented in said districts. Twenty of said districts, composed of 31 counties, contain, as shown by the enumeration of 1889, 139,955 male inhabitants over the age of 21 years, who have no representation for representatives in the general assembly under this act, except the 20 representatives apportioned to said districts; while the other 20 of said districts, composed of 30 counties, contain, as shown by the enumeration, only 85,764 such inhabitants, otherwise unrepresented, by reason of which apportionment 29,755 male inhabitants over the age of 21 years in said first-mentioned districts, who are entitled to five representatives, with a fraction over of 2,205 of the representative unit, are entirely deprived of such representation, and four of such representatives are given, without right, to the second-mentioned districts, whereby their representation is increased to 20, when of right it should be only 15, and that of the first-mentioned districts is reduced to 20, when of right it should be 25. These several districts and the counties of which they are composed, together with the number of male inhabitants in each, as shown by the enumeration of 1889, are set out in detail. It is then alleged that included in the second-mentioned districts are nine counties, each of which is given a separate representative, although each of said counties lacks more than 1,000 of possessing the unit of representation under the enumeration of 1889, while Jay county, with 315 in excess of such unit, is denied separate representation. That five counties are each given a separate representative independent of the districts above mentioned, while each of said counties lacks the unit of representation as follows: Tipton, lacking 1,125; Harrison, 613; Putnam, 17; Ripley, 637; and Franklin, 819,-are each again represented in 4 of said mentioned 20 districts. Said Tipton county is in the district composed of the counties of Clinton, Tipton, and Madison; Harrison county in the district composed of the counties of Floyd, Harrison, and Crawford; Putnam county in the district composed of the counties of Putnam, Clay, and Montgomery; in which districts said counties respectively serve the purpose of making the other counties in said districts contiguous, which otherwise they would not be; and that said Ripley and Franklin counties are represented in the district composed of the counties of Ripley, Franklin, and Union. The complaint also contains allegations in relation to the act approved March 6, 1885, similar in character to those set out above; but, in view of the conclusion we have reached in this case, we deem it unnecessary to set them out in this opinion. Prayer for an alternative writ of mandamus requiring the appellants to show cause why they should not proceed to hold the election for senators and representatives at the election to be held on the 8th day of November, 1892, under the apportionment as fixed by the act of 1879, and that they be enjoined from proceeding under the act of 1891, or the act of 1885. Upon this complaint the court issued the alternative writ as prayed, to which writ the court overruled a demurrer interposed by the appellants, to which they excepted, and, failing and refusing to answer or plead further, a peremptory writ was ordered, and a decree entered enjoining the appellants from proceeding under either the act of 1885 or the act of 1891, above referred to.

The only causes of demurrer which need be considered in this opinion...