162 Ind. 568 | Ind. | 1904
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 ho 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
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 representativo 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
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 Eranklin, 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, Eranklin, 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 Eranklin, 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 9j 1903, while each of said districts lacks the sena
The complaint then; in general terms, charges that in many other respects and instances the act of 1903 fails and omits to apportion the senators and representatives in the manner required by the Constitution. It .is alleged that, by reason of these .violations of the Constitution by and through the act of March 9, 1903, the constitutional rights of the relator as a citizen and an elector are impaired, abridged, and violated. The complaint concludes with a prayer for an alternative writ of mandate requiring the defendants, the clerk, sheriff, and auditor, to show cause why they should not be compelled by the order of the court to make the certificates, give the notices, and perform the-other duties enjoined upon them in connection with the general election of November 8, 1904, agreeably to the provisions of the act of 1897, and not under the act of 1903.
The previous decisions of this court in similar cases have firmly settled many of the questions arising in this case, and it will not be necessary to enter upon an extended discussion of the principles by which we must be guided in determining.the present controversy.
The rules of the Constitution (article 4) which regulate the apportionment of representation are these: “Section 2. The senate shall not exceed fifty, nor the house of representatives one hundred members; and they shall be chosen by the electors of the respective counties or districts into which the State may, from time to time, be divided.” “Section 4. The General Assembly shall, at its second session after the adoption of this Constitution, and every six years thereafter, cause an enumeration to be made of all the male inhabitants over the age of twenty-one years. Section 5. The number of senators and representatives shall, at the session next following each period of making such enumeration, be fixed bv law, and apportioned among the sev
It has been said by this court that it was the intention of the Constitutional Convention to secure to the electors of the State, by section six, supra, an equal voice, as nearly as possible, in the selection of those who should make the laws by which they were to be governed. The General Assembly has no discretion to make an apportionment in disregard of the enumeration provided for by the Constitution. The districting of the State for the apportionment of senators and representatives must proceed upon the basis of the enumeration of the male inhabitants over the age of twenty-one years, and it should be so adjusted as to secure to each voter of the State, as nearly as practicable, an equal voice with every other voter in the State in the choice of senators and representatives. The provisions of the Constitution on this subject are of the highest importance, and they are mandatory upon the legislature. While it is true that exact equality among the voters of the State can not be secured, it can be approximated, and the Constitution requires that it shall be approximated in every instance as nearly as practicable. The formation of districts containing large fractions unrepresented, where it is possible to avoid it, and the over-representation of other districts, are forbidden by the rule which requires an approximation to equality in the representation of the districts. The General Assembly has much discretion in the disposition of the fractions of the unit of representation, but that discretion must be exercised within the limitations of the Constitution. If it is abused, and the validity of an apportionment act is brought into dispute, the question becomes a judicial one and the courts have the right to do
We entertain no doubt of the right of the relator to maintain this action. Every male inhabitant of the State, over the age of twenty-one years a.t the time the last preceding eunmeration of such inhabitants was taken, has a direct interest in the constitutional apportionment of senators and representatives throughout the State, and if, by an apportionment act, his rights in this respect are denied or impaired, he may obtain redress by proper action in the courts. It is not requisite to his right to sue that the wrong complained of should exist in his own senatorial or representative district. Over representation in other districts, or the denial of fair representation, is just as injurious to the political rights of any portion of the male inhabitants over twenty-one years of age, aggrieved thereby, as if these inequalities were found in their own district. Hamilton v. State, ex rel., 3 Ind. 452; Board, etc., v. State, ex rel., 86 Ind. 8; Parker v. State, ex rel., supra; Denney v. State, ex rel., supra; State v. Sovereign, 17 Neb. 173, 22 N. W. 353; State v. Brown, 38 Ohio St. 344; State, ex rel., v. Tanzey, 49 Ohio St. 656, 32 N. E. 750; Landis v. Walls, 160 Ind. 216.
It is perfectly clear that it was not necessary to make defendants to the action any other persons than the clerk,
The first general inquiry in this case is whether the General Assembly, by the act of March 9, 1903, did apportion the number of senators and representatives among the several counties according to the number of male inhabitants above twenty-one years of age in each, as shown by the enumeration taken in 1901. In the very nature of things, some inequalities were unavoidable, but are there others which might and should have been avoided? Are any of these deviations from the unit of representation so ‘pronounced as to give to one or more districts a larger representation than they are entitled to have under the Constitution, or to deprive others of the full number of senators and representatives authorized by the number of male inhabitants above the age of twenty-one years within their bounds ? The duty of the General Assembly, in making the apportionment, is plainly stated in the Constitution. Exact equality of representation according to the enumeration of all the inhabitants entitled to be represented is admitted to be unattainable. But this difficulty cannot excuse Íor render lawful an apportionment which widely and unnecessarily departs from the constitutional principles upon which every such distribution of senators and representatives should rest. An apportionment which gives, and is a] intended to give, to one political pa^ty or another a decided III and unfair advantage in the election of members of the |j General Assembly, where such disparity can be avoided, must for that reason be condemned. In the consideration of such statutes, the courts can regard with no favor a law which designedly disfranchises any portion of the male inhabitants of the State over the age of twenty-one years, or deprives them of that fair proportion of representation which the Constitution declares they shall have.
The number of male inhabitants of the counties of
It also appears that the county of Wayne was given a senator, although it lacked 2,599 inhabitants of the senatorial unit, and that the county of Union, which was contiguous to it, was attached to the counties of Switzerland, Ohio, Dearborn, and Franklin, which already contained more* than the unit.
Again, while the five counties of Switzerland, Ohio, Dearborn, Franklin, and Union, with 17,775 male inhabitants over the age of twenty-one years, are given one senator by the act of March 9, 1903, the counties of Lagrange and Uoble with only 10,787 such inhabitants have one senator; Eush, Fayette, and Shelby counties, with 17,111 such inhabitants, have one senator, and Lake county, with.11,162 such inhabitants, has one also; Miami and Howard counties, with 16,009 such inhabitants, have but one senator, and Wayne county, with only 11,287 such inhabitants, has one; Jefferson, Jennings, and Eipley counties, with 15,831 such inhabitants, have one senator, and the county of Tippecanoe, with but 11,762 such inhabitants, also has one senator; Montgomery and Parke counties, with 15,829 such inhabitants, have one senator, and Lawrence and Monroe counties, with but 11,6.81 such inhabitants, also have one senator.
The court did not err in overruling the demurrer to the complaint, and its judgment is affirmed.