Parker v. State ex rel. Powell

• Decision Date: 17 December 1892
• Docket Number: 16,731
• Citation: 32 N.E. 836,133 Ind. 178
• Parties: Parker et al. v. The State, ex rel. Powell
• Court: Indiana Supreme Court

32 N.E. 836

133 Ind. 178

Parker et al. v. The State, ex rel. Powell

No. 16,731

Supreme Court of Indiana

December 17, 1892

Reported at: 133 Ind. 178 at 212.

From the Henry Circuit Court.

Judgment reversed, with directions to sustain the demurrer of the appellants to the alternative writ of mandate.

J. H Mellett and A. G. Smith, Attorney General, for appellants.

A. W Wishard, M. E. Forkner, F. Winter and J. B. Elam, for appellee.

Coffey, J. Elliott, J. Olds, J.

OPINION

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 Rinewalt, 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 8, 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representatives, under the apportionment made by the latter act, claiming and asserting that the first named act was repealed by the act of the General Assembly of the State for the apportionment of senators and representatives, approved March 6, 1885.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 twenty-one 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 twenty-one 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, 1891, that the General Assembly of the State should consist of fifty senators and one hundred 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 11,020 male inhabitants above the age of twenty-one years, as nearly as reasonably possible, and that each representative district should contain 5,510 male inhabitants above the age of twenty-one 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 twenty-one years in each district, as shown by the enumeration of 1889.

It is then alleged that, by this act, forty-three counties are formed into twenty-two districts, to each of which one senator is apportioned. Eleven of these districts, composed of twenty-three counties, contain, by the enumeration of 1889, 148,496 male inhabitants over the age of twenty-one years, while the other eleven of said districts, composed of twenty 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 eleven districts; and by such apportionment, the senatorial representation of 27,276 male inhabitants over twenty-one years of age, of said districts, being two senators, with a fraction over 5,236, is wrongfully denied to the counties contained in said districts and given to the counties contained in the other eleven, whereby their representation, which of right should be but nine senators, is increased to eleven, and the representation of the counties contained in the first mentioned eleven districts is reduced to eleven, when, of right, it should be thirteen; that the county of Brown, which, by the enumeration of 1889, contained only 2,332 male inhabitants over the age of twenty-one 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 twenty-one 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 twenty-one 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, sixty-one counties are formed into forty 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 representatives; and counties having an excess over the unit of representation, which excess is otherwise unrepresented, and is alone represented in said district. Twenty of said districts, composed of thirty-one counties, contain, as shown by the enumeration of 1889, 139,955 male inhabitants over the age of twenty-one years, who have no representation for representatives in the General Assembly under this act, except the twenty representatives apportioned to said districts; while the other twenty of said districts, composed of thirty counties, contained, 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 twenty-one 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 twenty, when, of right, it should be only fifteen, and that of the first mentioned districts is reduced to twenty, when, of right, it should be twenty-five.

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 four of said mentioned twenty districts; said Tipton county, 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...