State ex rel. Hulskamp v. McCormack
| Decision Date | 02 November 1916 |
| Docket Number | 23,160 |
| Citation | 113 N.E. 1001,185 Ind. 302 |
| Parties | State of Indiana, ex rel. Hulskamp v. McCormack |
| Court | Indiana Supreme Court |
From Marion Superior Court (102,191); Clarence E. Weir, Special Judge.
Action by the State of Indiana, on the relation of Calley B Hulskamp, against Charles K. McCormack and others. From a judgment for defendants, the relator appeals.
Affirmed.
W Masson, for appellant.
Charles K. McCormack, Robert C. Brenneman, Edwin Steers and Jackson L. Lance, for appellees.
This appeal presents a later phase of the contentions raised in Marion county by the legislative apportionment act of 1915 (Acts 1915 p. 656, § 3), which contentions were first presented to this court in Board, etc. v. Jewett (1915), 184 Ind. 63, 110 N.E. 553.
The transcript in this appeal shows a mass of somewhat confused proceedings in the lower court involving the validity and the construction of § 3 of the act of 1915, supra, and the regularity and validity of the acts of the board of commissioners in attempting to act under the statute. But the case as it comes to us rests on a complaint by appellant relator based on the theory that the section in question is constitutional and valid, and that the board of commissioners regularly acted according to its provisions, and divided Marion county into ten representative districts, the number apportioned to it. The action was one for mandamus to compel the placing of names of candidates for representatives in the General Assembly from Marion county on the ballots and voting machines to be voted for by districts in accordance with the alleged apportionment by the board.
Appellees demurred to this complaint on the ground that it did not state facts sufficient to state a cause of action. The memorandum made a part of the demurrer asserted numerous constitutional objections to § 3, supra, and numerous irregularities in the proceedings of the board itself in making the apportionment of the county into districts and entering it of record. The demurrer was sustained, and that ruling is assigned as error.
We are not obliged to pass on the constitutional questions raised and discussed, for the case may be decided without doing so. The rule is settled in such cases that this court will not decide constitutional questions. In re Mertes' Estate (1914), 181 Ind. 478, 104 N.E. 753, and cases there cited.
The fact that the complaint involves the extraordinary remedy of mandamus and that this remedy is not awarded except to secure or enforce a clear legal right must not be lost sight of.
It appears from the averments of relator's complaint that, in making the division of Marion county into ten representative districts, the board of commissioners "enumerated the electors of said county from the records of the registration of electors of said county had in October, 1914." Even if § 3, supra, should be deemed in all respects a valid enactment and one under which the purpose of dividing the county into districts could be carried out, this averment shows that the board did not make the division of the county in accordance with the authority intended to be bestowed by the section, and their order promulgating the apportionment of the ten representatives of the county is therefore void; for § 3, su...
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