Parker v. State ex rel. Powell | Cases | Westlaw

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and representatives under the apportionment made by the latter act, claiming and asserting that the first-named act was repealed by the act of the general assembly of the state for the apportionment of senators and representatives approved March 6, 1885.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. *837 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, *838 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 are two, namely: First, that the court has no jurisdiction of the subject-matter of the action; second, that the facts stated in the alternative writ of mandamus, and the complaint filed in the cause, are not sufficient to constitute a cause of action. It is not claimed that the circuit court has no jurisdiction to issue writs of mandamus and to grant injunctions in all proper cases, nor is it claimed that this suit was not properly brought by the state on the relation of Powell against the appellants, but the contention is that the suit involves a political question, over which the courts have no jurisdiction. If this contention can be sustained, that is the end of the controversy, for this court will not attempt an adjudication in a matter over which it has no jurisdiction. A political question is one over which the courts decline to take cognizance, in view of the line of demarkation between the judicial branch of the government on the one hand and the executive and legislative branches on the other. Amer. & Eng. Enc. Law, tit. “Political Questions.” Such questions most generally arise when there is an attempt made to prevent the incumbents of either the legislative or executive department of the government from the performance of some act which such incumbent claims the right to perform by virtue of his office, or to compel him to perform some act which he declines or refuses to perform. Many illustrations of the rules by which such questions are governed are to be found in the adjudicated cases, among which are the cases of Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 Wall. 50; and Marbury v. Madison, 1 Cranch, 137, cited by the appellants. In the latter case, John Adams, as president of the United States, in the last days of his administration, appointed Marbury to an office, and caused his commission to be made out, signed, sealed, and authenticated by the secretary of state, but the same had not been delivered when the administration expired. The new secretary, upon taking his office, refused to deliver the commission. Marbury thereupon applied to the supreme court of the United States for a mandamus to compel such delivery, and in argument it was contended on behalf of the defendant that the question presented was a political matter, for the sole determination of the president and his secretary, and in no sense a judicial question. It was declared by Chief Justice Marshall, in an elaborate opinion covering the whole ground, that the case presented a judicial, and not a political, question. The case of Mississippi v. Johnson, supra, was an effort on behalf of the state of Mississippi to enjoin Andrew Johnson, as president of the United States, and his officers and agents, appointed for the purpose, and especially E. O. C. Ord, assigned as military commander of the district of which that state constituted a part, from executing or in any manner carrying out two acts of congress, known as the “Reconstruction Acts,” upon the ground that such acts were unconstitutional. It was held that the bill tendered for that purpose presented a political question only, of which the court declined to assume jurisdiction; but the chief justice, in the course of the opinion delivered by him in the case, took occasion to remark that “the congress is the legislative department of the government; the president the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, the subject of its cognizance.” The case of Georgia v. Stanton, supra, was an action on behalf of that state to enjoin Stanton, as secretary of war, Grant, as general of the army, and Pope, major general, assigned to the third military district, consisting of the state of Georgia and other states, from carrying into effect the same acts of congress involved in the case of Mississippi v. Johnson. It was again held that the bill presented a political question only, of which the courts could not assume jurisdiction. But in cases like the one now under consideration, where there is no effort to control in any manner the action of either of the other departments of the government, and where it is sought simply to determine the validity of an act of the legislative department, the decided weight of authority is, we think, to the effect that the question presented is not political, but judicial, and that the courts have jurisdiction. This question has been so fully discussed and decided by the supreme court of Wisconsin in the recent case of State v. Cunningham, reported in 53 N. W. Rep. 35; in the case of State v. Cunningham, 51 N. W. Rep. 735; and in the case of Giddings v. Blacker, 52 N. W. Rep. 944, (decided by the supreme court of Michigan,)–that it would seem unnecessary to review it. It was determined in these several cases, which were all actions calling in question the validity of apportionment acts, that the question presented was a judicial question, of which the courts had jurisdiction, and such acts were adjudged by the court to be invalid by reason of being in conflict with the constitutions under which the legislature attempted to apportion the state for legislative purposes. In holding that the court had jurisdiction, the courts did nothing more than follow a long line of *839 precedents to their logical results, as shown by the authorities cited in support of their opinions. It has always been held by this court that it is its bounden duty, in all proper cases, to pass upon the validity of the acts of the general assembly, and to declare them void when in conflict with the constitution of the state. Thus, as early as the case of Rice v. State, 7 Ind. 334, Justice Perkins said: “There are some propositions that may be regarded, we think, at this date, as being settled. Among them are these: That the constitution of the state, relative to the acts of the legislature, is the paramount or supreme law. That, when the two conflict, the acts of the legislature must yield as utterly void. That it is the duty of the courts, in every case arising before them for decision, to decide and declare the law governing the case. The duty of the courts to give construction to laws and to declare void or disregard, because not laws, those legislative acts in conflict with the constitution, grows, of necessity, out of the other duty of declaring what the law is.” To the same effect are Campbell v. Dwiggins, 83 Ind. 473, and Cooley, Const. Lim. 45.

It is conceded, however, by the appellants, as we understand them, that there might arise a case in which the courts would have jurisdiction to declare a law apportioning the state for legislative purposes void, as, where the general assembly should form districts of counties not contiguous. If the courts have jurisdiction to declare an apportionment act void because it violates one provision of the constitution, we are unable to perceive why they have not such jurisdiction where it violates some other provision. The constitution forbids the formation of senatorial or representative districts of counties not contiguous. It is conceded that an act which violates this provision would be declared void for that reason, and that the courts would have jurisdiction, in a proper case, to adjudicate the matter. If the general assembly should district the state in such a manner as to apportion to the south half 90 representatives and to the north half 10 only, no one would doubt that this would be as plain a violation of the constitution as where it forms districts of counties not contiguous. What good reason can be given for holding that the courts may take jurisdiction in the one case and denying such jurisdiction in the other? It will not do to say that the courts have no jurisdiction in the latter case because the general assembly has a discretion in the matter of districting the state, for it cannot be successfully maintained that the incumbents of any department of the government have a discretion to disregard the constitution of the state. We think if the courts have jurisdiction in the one case they also have it in the other. We do not mean by this to be understood as holding that the courts have the power to interfere in any matter confided to the discretion of either the legislative or executive departments of the government. No court in the Union has maintained more vigorously than this the independence of the three several departments of the state government. State v. Noble, 118 Ind. 350, 21 N. E. Rep. 244; Hovey v. State, 127 Ind. 588, 27 N. E. Rep. 175. But it is safe to say that, where the act of either of the three departments is in violation of the constitution of the state, such act is not within the discretion confided to that department. That the general assembly has some discretion in the matter of districting the state for legislative purposes there can be no doubt, and there can be as little doubt that, where it acts within this discretion, the courts have no power to interfere. If it should be found, upon examination, that the several acts of the general assembly of which complaint is made in this action are within the discretion confided to the legislative department of the state, that will be the end of this investigation; for we have no power, much less the inclination, to interfere with such discretion. Nor are we able to perceive how such cases as that of Smith v. Myers, 109 Ind. 1, 9 N. E. Rep. 692, and Hovey v. State, 127 Ind. 588, 27 N. E. Rep. 175, can affect the question now under consideration. If this were a case in which the appellee sought to compel the general assembly to district the state in a particular manner, or even to act at all in any manner whatever, then this line of authorities would be applicable, and by reason of the independence of the several departments of the state government we would hold without hesitation that we had no jurisdiction over the matter. The courts have no power to district the state for legislative purposes. That duty belongs to another department. The most the courts can do is, in a proper case, to pass upon the validity of a law enacted for that purpose, and, if such law is found to be in conflict with the constitution of the state, declare it invalid, leaving the legislature free to enact one that does conform to the constitution. This is quite a different thing, we think, from undertaking to control legislative action or discretion. Our opinion is that the question presented by the record in this case is judicial, and not political. The case of People v. Rice, recently decided by the court of appeals of the state of New York, reported 31 N. E. Rep. 921, was an action brought to test the constitutionality of an act of the general assembly of that state dividing it into districts for senatorial and representative purposes. The court assumed that the questions presented were judicial, and not political, and proceeded to adjudicate upon the validity of the law. The conclusion at which we have arrived in this case is in accord with all the authority to which our attention has been called, except the case of Wise v. Bigger, 79 Va. 269, in which the validity of an act of the general assembly of that state, creating districts for representatives in congress, was called in question. All that was said by the learned judge who wrote the opinion in that case at all pertinent to the question involved in this case was that “the laying off and defining of the congressional districts is the exercise of a political and discretionary power of the legislature, for which they are amenable to the people, whose representatives they *840 are.” This would be literally true in the absence of some constitutional provision requiring the districts to be formed in some particular manner. The opinion cites no authority to the rule thus announced, nor does the judge who delivered it give any argument in its support; but, if it is to be construed as holding that all apportionment acts are but the exercise of a political or discretionary power, it is in conflict with the great weight of authority, and cannot be followed.

We approach the other questions in the case with much reluctance, and with a full sense of their gravity. Courts always approach questions involving the validity of statutes reluctantly, and out of this reluctance have grown two well-known rules: First, that the court will never decide a question involving the constitutionality of a statute if the merits of the case in which it is involved can be determined without such decision; and, second, the court will never declare a statute unconstitutional where there is any doubt upon the subject. To doubt the validity of a statute is to resolve in favor of its constitutionality. Warren v. Britton, 84 Ind. 14; Campbell v. Dwiggins, 83 Ind. 473; Hays v. Tippy, 91 Ind. 102. The chief object of this suit is to secure a decision upon the question of the constitutionality of the several acts of the general assembly referred to in the complaint. The question is presented in the same manner as the question was presented in the case of Giddings v. Blacker, supra, and in the case of People v. Rice, supra. The case of Giddings v. Blacker was an action to enjoin the secretary of state of the state of Michigan from taking the necessary steps to hold an election for state senators under an apportionment act approved in the year 1891, upon the ground that such act was unconstitutional, and to compel him by mandamus to proceed under an apportionment act approved in the year 1885. The case of People v. Rice was an action to enjoin the proper officers of the state of New York from proceeding to the election of senators and representatives under an apportionment act approved in the year 1892, upon the ground that such apportionment act was unconstitutional, and to compel them by mandamus to proceed to such election under an apportionment act approved in the year 1879. In each of these cases it seems not to have been doubted that the question of the validity of these several acts was presented in such a form as to require a decision upon that point. So in this case we are unable to perceive how the merits of the controversy are to be determined without a decision upon the question of the validity of the apportionment law of this state passed in the year 1891. Should we reach the conclusion that this act is not unconstitutional, it will not be necessary to pass upon the validity of the other acts; but should we decide it invalid, then, in determining whether the appellee was entitled to the relief demanded, it would become necessary to pass upon the validity of the act of 1879; and, if that is found valid, the question of the constitutionality of the act of 1885 arises. If the act of 1891 and the act of 1879 are both unconstitutional, the appellee was not entitled to the relief sought, and the question of the validity of the act of 1885 is not involved in such a way as to require a decision upon the question of its constitutionality. Assuming, therefore, that the question is presented in such a manner as to require a decision, we proceed to an examination into the several provisions of what is known as the “Apportionment Act of 1891,” and to a comparison of such provisions with the sections of our state constitution with which it is claimed they conflict. Before such comparison can be had it is necessary to set out and analyze the provisions of the constitution upon the subject of apportioning the state for legislative purposes.

Section 2, art. 4, provides that the senate shall not exceed 50, nor the house of representatives 100, members, and that 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 of the same article provides that the general assembly shall, at its second session after the adoption of the constitution, and every six years thereafter, cause an enumeration to be made of all the male inhabitants over the age of 21 years. Section 5 provides that the number of senators and representatives shall, at the session next following each period of making such enumeration, be fixed by law, and apportioned among the several counties according to the number of male inhabitants above 21 years of age in each, provided that the first and second elections of members of the general assembly under the constitution shall be according to the apportionment last made by the general assembly before the adoption of this constitution. Section 6 provides that “a senatorial or representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for senatorial apportionment, shall ever be divided.” We think it was the intention of the constitutional convention to secure to the electors of the state, by the provision above referred to, 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, in our opinion, to make an apportionment in disregard of the enumeration provided for by the constitution. The enumeration required is not of the citizens generally, but of the inhabitants authorized to vote; and, unless the general assembly is to be governed by the enumeration, when made, in the matter of districting the state for legislative purposes, the enumeration is a useless ceremony, and an unnecessary expense. The purpose in requiring the enumeration is to fix the number of voters in each county at the time the apportionment is made, in order that the legislature may form districts so as to secure to each voter, as nearly as may be, an equal voice with every other voter in the state in the selection of senators and representatives. The cardinal principle of free representative government, that the electors shall have equal *841 weight in exercising the right of suffrage, is recognized and secured. Representation according to the population is the rule fixed by these several provisions of our constitution, and the general assembly has no more discretion, in our opinion, to disregard this rule, than it has to disregard any other plain provision found in that instrument. The enumeration at the short periods of six years was intended to secure a readjustment and correction of the inequalities that might arise from the growth and shifting of the population within that period. In argument it seems to be agreed that it was the intention to provide that in making an apportionment among the several counties for legislative purposes the integrity of the counties, when possible, should be preserved. This, we think, is true, and when that is done it is plain that exact equality cannot be secured. But because exact equality is not possible the general assembly is not excused from making such an apportionment as will approximate that equality required by the organic law of the state. A question somewhat similar to the one now under discussion arose in the congress of the United States in the year 1832, relative to the construction to be placed upon section 2, art. 1, of the constitution of the United States, which provides that “representatives and direct taxes shall be apportioned among the several states which may be included within this Union according to their respective numbers,” etc. The committee to whom was referred the question as to what the constitutional method of apportioning unassigned representatives as between the states having fractions of population less than a full ratio was of the unanimous opinion that the loss of members arising from the residuary numbers should be made by assigning as many additional members as are necessary for that purpose to the states having the largest fractional remainders. Upon that occasion Mr. Webster said: “The constitution, therefore, must be understood, not as enjoining an absolute relative equality, because that would be demanding an impossibility, but as requiring congress to make an apportionment of representatives among the several states according to their respective numbers, as nearly as may be. That which cannot be done perfectly must be done in a manner as near perfection as can be. If exactness cannot, from the nature of things, be attained, then the nearest practicable approach to exactness ought to be made. Congress is not absolved from all rule merely because the rule of perfect justice cannot be applied. In such a case, approximation becomes a rule. It takes the place of the other rule, which would be preferable, but which is found inapplicable, and becomes itself an obligation of binding force. The nearest approximation to exact truth or exact right, when that exact truth or exact right cannot be reached, prevails in other cases, not as matter of discretion, but as an intelligible and definite rule, dictated by justice, and conforming to the common sense of mankind; a rule of no less binding force in cases to which it is applicable, and no more to be departed from, than any other rule.” The rule recommended by this committee was subsequently adopted by congress, so that representatives are now apportioned among the several states of the Union under it as a fixed and binding obligation. The rule here announced is, we think, the true one. When it is found that exact equality cannot be attained, where the integrity of the counties is preserved, approximation becomes a rule as binding upon the general assembly as any other rule fixed by the constitution. It is said, however, that as to the fractions of the representative unit the constitution is silent, and that, therefore, the general assembly has a discretion to provide for the representation of such fractions, or to leave them unrepresented. That is true in a limited sense only. The constitution requires that the state shall be reapportioned every six years according to the male inhabitants over the age of 21 years in each county. It contemplates the formation of districts, each embracing, as nearly as possible, an equal number of the electors of the state. But the rule requiring an approximation to equality forbids the formation of districts containing large fractions unrepresented, where it is possible to avoid it, while other districts are largely overrepresented. That the general assembly has much discretion in the disposition of the fractions of the unit of representation cannot be doubted, but it is not a discretion beyond control. In so far as the constitution secures equality in representation, it is not silent as to the disposition of fractions, and the legislature must dispose of them with a view of securing that end; otherwise an apportionment could be made which would give to one portion of the state nearly double the representation given to other portions. Constitutional provisions are seldom, if ever, to be construed as merely directory. It may be that a general assembly could make a valid apportionment when none existed at a time different from that fixed in the constitution, for the reason, as held in the case of People v. Rice, supra, that there is a continuing obligation resting upon it to do so; but, however this may be, we have no doubt that our constitutional provisions relating to the manner of making an apportionment of the state for legislative purposes are mandatory. Cooley, Const. Lim. (6th Ed.) 93.

With these constitutional rules constantly in mind, we proceed to test the act of the legislature under immediate consideration by them, with a view of determining its constitutionality. It is alleged in the complaint, and admitted to be true by the demurrer, that under the apportionment for legislative purposes as fixed by this act 43 counties of the state 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, composed of 20 counties, contain only 99,609 such inhabitants. It is thus shown that in a voting population of 248,105 there is a difference in favor of 11 districts as against the other 11 named *842 of 48,887. We must take notice of the geography of the state, as well as of the enumeration of 1889, taken pursuant to law; and with such notice we doubt whether any one can be found so bold as to maintain that this apportionment approximates equality, or that equality cannot be much more nearly attained. It further appears that the counties of Brown and Clark are each contained in two separate senatorial districts. Brown county is in the senatorial district composed of the counties of Brown, Monroe, and Bartholomew. It is also in the senatorial district composed of the counties of Brown, Morgan, and Johnson. Clark county is in the senatorial district composed of the counties of Clark, Scott, and Jennings. It is also in the senatorial district composed of the counties of Clark and Jefferson. The number of male inhabitants over the age of 21 years in Brown county, as shown by the enumeration of 1889, is only 2,332, while the number of such inhabitants in Clark county, as shown by the same enumeration, is only 7,304. The senatorial unit or number required to entitle a district to one senator, under this law, is 11,020. Brown county, under the apportionment as fixed by this law, with a voting population of 8,688 less than the senatorial unit, votes for two senators; while Clark county, with a voting population of 3,716 less than the unit, does the same thing. Many other counties in the state, with four times the voting population contained in Brown county, vote for one only. In our opinion, under the constitutional provisions above referred to, requiring equality in representation, no scheme for senatorial districts could be devised in which a county with a population no larger than contained in Brown county could legally be entitled to vote for two senators. When a county of that size has been assigned to a senatorial district, and given a voice in the election of one senator, it ceases, in our opinion, to be a factor in any legitimate scheme of apportionment for senatorial purposes. At the time our constitution was formed the convention had before it the history of the famous apportioning law of Massachusetts, passed on the 11th day of February, 1812, from which the word “gerrymander” originated. It is fair to presume that they had learned of the evils resulting from such a law, and that “the death and burial of this monster in the year 1814 was celebrated throughout the country in prose and verse.”

By the provisions of our constitution prohibiting the division of counties in the formation of senatorial districts, and requiring equality in representation, it is plain, we think, that the convention intended to put it beyond the power of the general assembly to form districts upon the principle contained in the Massachusetts law. The two senatorial districts of which Brown county forms a part are constructed upon the same principle as the apportionment law above mentioned, with the single exception that the integrity of counties is preserved. If Brown county, with its small population, may be included in two senatorial districts, it may be included in four, and thus given a voice in the selection of four senators. The same is true of Clark county. With a large number of other counties in the state, containing much larger population, restricted to a vote for one senator only, this cannot be said to be equality. The counties of Brown and Clark are entitled to an equal voice in the selection of senators, considering their population, with other counties in the state, and no more. So much of the act as gives to each of these two counties a voice in two separate senatorial districts is, in our opinion, in plain violation of the provisions of our constitution. Under this law, the unit for a representative is 5,510. Jay county, as shown by the enumeration of 1889, has 5,823 male inhabitants over the age of 21 years. It is denied a separate representative. As we have seen, it is agreed in argument that the constitutional provisions above set out were intended to secure the integrity of the counties. Jay county, having more than the representative unit, was, we think, entitled to a separate representative, and it was not within the power of the general assembly to deprive it of such representative. This would seem too plain for argument. The three representative districts composed respectively of the counties of Clinton, Tipton, and Madison, the counties of Floyd, Harrison, and Crawford, and of the counties of Putnam, Clay, and Montgomery, cannot be sustained. Each of the counties of Tipton, Harrison, and Putnam has less than the unit of representation, and each is given a separate representative. They were not entitled to further consideration or representation. The formation of these districts was an attempt to do indirectly that which could not be done directly, namely, form districts of counties not contiguous. By the same process, if it were permissible, the county of Marion can be made contiguous to the county of Vanderburgh, and that, too, notwithstanding every county intervening between the two is fully represented. Counties fully represented cannot, in our opinion, be used for the purpose of joining counties which are not otherwise contiguous. There are found in this act many other violations of the rule of equality in representation as fixed by the constitution, especially in the formation of representative districts, but we deem it unnecessary to extend this opinion by setting them out. We have been asked to examine and compare the act now under consideration with other acts of the general assembly dividing the state into districts for legislative purposes, which we have cheerfully done. Such examination only serves to confirm a well-known historical fact; that is, that as each party succeeded to power in the state it endeavored to so district it for legislative purposes as to retain that power, and that, too, very often in total disregard of the constitution of the state, demanding equality in representation. The rule of practical construction is of no value when it is plain that the practice has been in open violation of the instrument which the court is called upon to construe.

*843 Our conclusion is that the act of the general assembly passed on the 5th day of March, 1891, notwithstanding the governor's veto, purporting to redistrict the state for legislative purposes, is in conflict with the constitution of the state, and for that reason is void. Nor do we apprehend that from this conclusion the disastrous consequences predicated in argument will follow. The office of senator, as well as the office of representative, is not a statutory office, but an office created by the constitution of the state. It is true that the number is fixed by act of general assembly, but this is also true of the circuit judges in the state. This fact does not change the nature of the office, and it is, for this reason, none the less a constitutional office. It seems to be well settled that, where one is elected or appointed to an office under an unconstitutional statute, before it is adjudged to be so, he is an officer de facto. Throop, Pub. Off. §§ 628-637; Mechem, Pub. Off. § 318; State v. Carroll, 38 Conn 449; Brown v. O'Connell, 36 Conn. 432; Meagher v. Storey Co., 5 Nev. 244; Ex parte Strang, 21 Ohio St. 610; Com. v. McCombs, 56 Pa. St. 346; State v. Bloom, 17 Wis. 521; Kirker v. City of Cincinnati, (Ohio Sup.) 27 N. E. Rep. 898. The rule that the acts of an officer de facto, performed before ouster, are, as to the public, as valid as the acts of an officer de jure, is too familiar to the profession to need the citation of authority. The public is not to suffer because those discharging the functions of an officer may have a defective title, or no title at all. Case v. State, 69 Ind. 46; Blackman v. State, 12 Ind. 556; Bansmer v. Mace, 18 Ind. 27; Mowbray v. State, 88 Ind. 324. If at the next ensuing election the state is without a valid law creating senatorial and representative districts under the enumeration of 1889, the responsibility must rest with the legislative, and not with the judicial, department of state government. The apportionment act of 1879 requires separate consideration, for the reason that its provisions are, in many respects, quite different from the act of 1891. While it differs materially from the latter in many respects, an examination will disclose the fact that it disregards, unnecessarily, the principle of equality in representation required by our constitution. It is subject to many of the constitutional objections urged against the act of 1891, but, as it is not at all likely there will ever be another effort to enforce it, no useful purpose would be subserved by setting them out in detail. It is sufficient to say that, in our opinion, the act of 1879 is void for the same reason given as to the invalidity of the act of 1891. The complaint in this case proceeds upon the theory that the appellee is entitled to have senators and representatives elected under the act of 1879. He must succeed upon this theory, if he succeeds at all. Bank v. Root, 107 Ind. 224, 8 N. E. Rep. 105; Telegraph Co. v. Young, 93 Ind. 118; Railroad Co. v. Bills, 104 Ind. 13, 3 N. E. Rep. 611. The demurrer filed by the appellants necessarily calls in question his right to the relief sought. As the act of 1879 is unconstitutional, the appellee was not entitled to the relief he sought in this action, and for that reason the court erred, we think, in overruling the demurrer filed by the appellants. This being true, the apportionment law of 1885 is not in question in such a manner as to require a decision as to whether it is valid or invalid. The court being able to decide the case upon its merits without a consideration of the act of 1885, the rule that the courts will not consider a question of the constitutionality of the statute except when it is necessary to a decision of the cause under consideration applies in this case with all its force. The apportionment law of 1885, under which the intervener, Chandler, was elected as a member of the state senate, not being involved in this suit, he has no personal interest in this controversy. The adjudication in this case can in no wise affect his right to hold the office to which he was elected. For the error of the court in overruling the demurrer of the appellants to the alternative writ of mandate, the judgment of the Henry circuit court must be reversed. Judgment reversed, with directions to the circuit court to sustain the demurrer of the appellants to the alternative writ of mandate.

In much of the reasoning of the principal opinion I unreservedly concur, and to many of the propositions unqualifiedly assent, but from so much of the opinion as proceeds upon the theory that questions as to the construction of the constitutional provisions relative to the apportionment of the state for legislative purposes, and as to the validity of the act of 1891, are properly before us, I am compelled to dissent. It is proper to say at the outset that I neither affirm nor deny the correctness of the construction placed upon the constitution, nor do I either affirm or deny the validity of the conclusion that the act of 1891 violates th provisions of that instrument. I simply affirm that long-settled principles forbid us from giving judgment upon such questions. It is my purpose to state and develop, as briefly as the nature of the questions which I conceive are properly before us will permit, the reasons which control my judgment, using only such authorities as are near at hand, and not attempting to elaborate the propositions I state by extended argument or illustration.

1. The relator's complaint rests entirely upon the theory that the act of 1879 is valid; but, if he is right in the grounds upon which he assails the subsequent acts, that act is as bad as any of the others; hence he has no standing in court, as he himself makes evident; and when we have adjudged that he has no standing in court, we have decided all questions properly in the case, except jurisdictional ones, so that we cannot properly or authoritatively give judgment upon the validity of subsequent legislative enactments. The relator is involved in a fatal dilemma. If the acts of 1885 and 1891 are valid, he can have no relief; if they are void, so, also, is that of 1879; so that, whether the acts of 1885 and 1891 are valid or void, he can have no relief, and in either event he must utterly fail. The act of 1879 being void, *844 according to the relator's own theory, he has, as he himself demonstrates, no fulcrum capable of supporting a lever for the overthrow of subsequent legislative enactments, and hence all that we can decide beyond jurisdictional questions. without transgressing settled principles, is that, by his own averments, his case is foundationless. Such a decision ends the case, and we cannot with propriety consider other questions, except jurisdictional ones, and certainly not high and grave constitutional questions. If the system which the relator avers is in conflict with the constitution is to be smitten to its death by the courts, it must be at the suit of one who assails all the legislative acts founded on that system, for it cannot be done at the suit of a party who demands that one of the acts resting on that system be upheld and the others destroyed. The relator is the actor, and is bound to make a case rendering it imperatively necessary to decide the constitutional questions he assumes to present, and he must succeed upon the strength of his own case or fail, for he cannot succeed upon the weakness of his adversary's. The act of 1879 is, according to his own theory, as full of evil as those he assaults, so that, if one goes down, so must all; and with the fall of the act of 1879 ends the relator's case. It would be strange, indeed, if one of several acts resting upon the same system should be upheld and the others cast down; and stranger still if that should be done where the one rescued from condemnation contains more of evil than those condemned. One who secures or demands a benefit under an unconstitutional act is estopped to assert its invalidity. Daniels v. Tearney, 102 U. S. 415. See, also, authorities collected in Elliott, Roads & S. note 2, p. 422. “Like reason doth make like law,” and the reason of the cases referred to warrants the conclusion that the relator cannot be heard to deny the validity of the acts of 1885 and 1891, while demanding relief upon an earlier act, subject to the same objections as the acts he seeks to have overthrown. It cannot be necessary to decide upon the validity of any of the acts, since all that is proper to do is to accept the relator's own theory, and to do this is to end the pending case.

2. Courts will not send against public officers the extraordinary writ of injunction or of mandamus unless the complainant makes it appear that the writ will be effective in the particular case in which it is demanded. A writ issued in a case where it cannot be effective goes forth without power, and comes back unobeyed. Courts do not require parties to do fruitless acts, and they will not themselves do what they will not require of parties. A writ that will be unavailing will not be issued, since to issue it would be an idle ceremony. Smith v. Myers, 109 Ind. 1, 6, 9 N. E. Rep. 692. I fully concur in the conclusion contained in the very able opinion of my Brother Coffey, that the relator is not entitled to the writ of mandamus, because he himself adopts a theory which affirms that the legislative enactment on which he rests his complaint is void; but I think that when the conclusion that he is not entitled to the writ is reached it follows, as an inevitable sequence, that questions involved in the contention that the acts of 1885 and 1891 are void cannot be considered or decided, inasmuch as the decision of such questions is not necessary to a final disposition of the case.

3. If the relator has a right to a decision upon the constitutionality of the act of 1891, and if that act be adjudged void, then it is necessary to determine what one of the apportionment acts enacted since the adoption of the present constitution is valid; but, the relator having placed his asserted right of action solely upon the act of 1879, and having, by his own theory, shown that act to be void, he has no right to demand that the court point out what act is valid, or declare under what act legislative elections shall be held. The relator cannot successfully give a protean character to his complaint, and assert that, if it is not good because founded on the act of 1879, it may nevertheless be good upon the ground that somewhere (where he does not say) in the long series of apportionment acts there is to be found an act authorizing an effective legislative election. A complainant must construct his pleading on a definite theory, and on that theory it must state a cause of action, or it will be incurably bad. The complaint in this case is, as we all agree, bad upon the theory that the relator has a right to a writ coercing the election officers to proceed under the act of 1879, so that it is self-destructive; and when this is adjudged there is no necessity for considering questions affecting the validity of the acts of 1885 or 1891. If, however, it be conceded that it is necessary to decide such questions, and to adjudge either of those acts void, then it is indispensably necessary to designate a valid law, either in the statute or the constitution, under which legislators can be chosen; for it is inconceivable that no law exists providing for legislative elections. If the hypothesis involved in the provisional concession be granted to be correct, and the court assumes to enter the field covering the acts of 1885 and 1891, it must, as a matter of judicial knowledge, take notice of all the statutes upon the subject, and fix upon a valid one, if any such can be found, or else declare that no such act exists, and travel back to the apportionment made by our present constitution, for it can hardly be possible that the court can enter the field containing the acts of 1885 and 1891, strike down the latter act, and yet not determine under which law the legislators can be elected. As well send men out upon an unknown sea without a compass as to adjudge the act of 1891 void, and yet not adjudge what law is valid; for without the designation of a valid act the electors and their officers would be entirely without guidance, and utterly at a loss to know under what law to proceed. It cannot be reasonably expected that the electors or their officers can find such a law where the search of the highest court of the state proves unavailing. But the concessions which require *845 the hypothesis indicated, and lead to the consequences suggested, cannot, as I am convinced, be made, for the relator, having singled out as the sole support of his case one act of the legislature, has not the semblance of right to require the court to hunt for some other act, and pronounce it valid. There is neither principle nor precedent that will authorize, much less justify, us in entering the field in which lie the acts of 1885 and 1891. It is evident that when it is adjudged, as it certainly must be, that the relator's own theory gives the death blow to his asserted right of action, a final disposition of the case is made, and hence we cannot, without a direct violation of the well-known rule outlined in my fourth proposition, consider any of the questions made upon the acts of 1885 or 1891.

4. The inexorable rule is that constitutional questions will never be decided unless their decision is indispensably necessary to a final disposition of the case actually before the court. The general doctrine outlined in the proposition stated is asserted in the principal opinion, but the course of my discussion requires its restatement, although, as to the existence of the general principle, there is substantial harmony of opinion. I am, however, forced to the conclusion that the principle has not been given its necessary effect or just application. The principle is deeply rooted in the law, and has stood unchallenged by denial and unshadowed by doubt since the first authoritative declaration by the supreme court of the United States of the power and duty of the judiciary to give judgment upon the constitutionality of legislative enactments. Cooley, Const. Lim. (6th Ed.) 196. This principle as firmly fetters the action of the courts as does the constitution the action of the legislature. The principle is one which, for obvious reasons that have been often given, is to be implicitly obeyed; and to obey it in this case it is absolutely necessary to decline to consider questions involving the validity of the acts of 1885 and 1891, as well as questions respecting the construction of the provisions of the constitution governing the subject of the apportionment of the state for legislative purposes. An incidental rule necessarily involved in this principle, and clearly resulting from it, is this: Constitutional questions will not be decided unless the party demanding their decision makes it evident that he has a right to require the court to decide them. To me it seems very clear that the relator has shown no such right. He falls far short, indeed, of showing such a right, for he has shown that there is no necessity for deciding the constitutional questions he professes to present, and shown, too, that his own standing is such that those questions cannot be considered without violating fundamental principles.

5. The decision of the question involved in the contention that the court has no power to give judgment upon an act making an apportionment for legislative purposes is essential, inasmuch as the decision of that general question determines the right of the court to assume jurisdiction. The court must meet and decide the general question stated, for if it has no right to assume jurisdiction it can do nothing more than direct a dismissal of the suit, for it is established and elementary law that where there is no jurisdiction of the general subject there can be no effective judgment beyond a mere direction to the trial court to dismiss the proceeding. Robertson v. State, 109 Ind. 79, 10 N. E. Rep. 582, 643.

6. The court has power to give judgment upon the constitutionality of an apportionment act when the question of its constitutionality is necessary to a decision of the case at its bar, and the question is presented by a party in a position to present it, and who does so present it as to make it the duty of the court to decide it. The power to adjudge invalid such legislative acts as violate the provisions of the constitution is an element of sovereignty, and is vested in the judiciary. It would be the surrender of a high constitutional power, that neither principle nor precedent will justify or excuse, to decline to give judgment upon the validity of an apportionment act, when properly presented, and necessary to a decision of a case brought to the bar of the court. Such a surrender would involve a breach of duty so flagrant that the most stinging rebuke would fall far short of an adequate condemnation of a court that would so grossly violate the trust imposed upon it by the constitution. In a government of distributed powers, such as ours is, the power to adjudge acts void that conflict with the constitution must necessarily reside elsewhere than in the lawmaking department; otherwise all governmental power would be unified and solidified in that department, and it would be the uncontrolled and absolute master and arbiter in all governmental affairs. If there be no such power in the judiciary, the constitutions of the nation and state are in their widest scope and minutest details mere mockeries. But the power does reside in the judiciary, and it was placed there in the strongest terms by men who knew the science of government in all its parts; and there it will remain as long as free government endures. One of the first things a student of our system of government learns is that it is a system of checks and balances. One of the principal checks upon legislative power is the authority of the courts to enforce obedience to the mandates of the constitution by adjudging void enactments which conflict with its provisions. History proves and experience demonstrates the necessity of such a check, for without it the legislative department arrogates to itself every substantial governmental function and power that it can grasp. Reckoned as the lives of nations are reckoned, it is but a short time since Edmund Burke, in his splendid eulogy on the English governmental system, declared that there were three constitutional departments, forming, as he said, “the triple cord which no man can break; the solemn, sworn, constitutional, frank pledge of this nation; the firm guaranties of each others' being and each others' rights; the joint and several *846 securities, each in its place and order.” When Edmund Burke spoke of the system existing at the time he wrote he was right, but his forecast of the future was wrong, for man has broken the “triple cord,” and the England of our day has only one department of government. Parliament is supreme, and elsewhere there is not a spark of real power. The officers of the kingdom, from the wearer of the crown down to the tipstaff, are mere servants and departments of parliament. The change wrought by legislative usurpation and encroachment justifies the statement of Mr. Bagehot that “a legislative chamber is greedy and covetous. It acquires as much, it concedes as little, as possible. The passions of its members are its rulers; the lawmaking faculty, the most comprehensive of the imperial faculties, is its instrument. It will take the administration if it can take it.” Eng. Const. (Amer. Ed.) 95. The great men who framed our constitutional system knew and provided against the dangers of legislative usurpation of power, and the wisest among them united in devising checks upon it. The declarations of Madison and Washington are strong and clear, and no reader of history can misunderstand their meaning, or doubt their purpose. Jefferson thus expressed his conviction: “An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but one in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one should transcend their legal limits without being effectually checked and restrained by others.” “To preserve these checks,” said a greater thinker than Jefferson, “must be as necessary as to institute them.” Washington's Farewell Address.

The assertion of the power of the judiciary in the principal opinion is not, as I believe, too strong, for I do not doubt the power or the duty of the court to preserve these checks by standing immovably against legislative encroachment; nor do I doubt that the duty is as clear where apportionment acts are involved as in cases concerning other acts. To me it seems that the duty is, if possible, higher and sterner in such cases than in any others, for, if unconstitutional apportionment acts are conceded to be beyond the domain of the judiciary, then the legislative power is absolutely unlimited and unfettered, and a legislative body would be at full and unrestrained liberty to enact measures perpetuating its own existence and augmenting its own power. Constitutional limitations are imposed to prevent unrestrained legislative action, and are intended to guard against legislative usurpation. They operate upon all subjects of legislation except subjects of which the legislative department is expressly or by clear implication given exclusive control. Questions of a judicial nature are in a very few instances made exclusively legislative by the constitution, and as such instances the judiciary cannot interfere with the legislative decision; but there is not the remotest suggestion in that instrument that the validity of an apportionment act is a question for the decision of the legislature; on the contrary, the whole force of that instrument is directed against the assumption by the legislature of authority over such question. An apportionment act, which violates the provisions of the constitution, can no more become a law than can an unconstitutional act upon any other subject; nor has it any peculiar virtue or sanctity that lifts it above the power of the judiciary. The constitution is the touchstone for all legislative enactments, no matter what subject they may embrace or what object they may be intended to attain. An act that fails when brought to this universal touchstone must be condemned, whether it be an act providing for the election of legislators or an act providing for the election of petty township officers. The constitution makes no discrimination between classes of general legislative enactments, and until the people, in the mode they have themselves prescribed, change their constitution, no earthly power can make such a discrimination, and place some general enactments within the domain of the judiciary and take others out of it. In affirming, as I do, quite as fully and strongly as is done in the principal opinion, the power and duty of the court to entertain jurisdiction of questions affecting the validity of apportionment acts, when duly presented and absolutely necessary to a decision of the particular case, I do not by any means concede that such questions can be considered where they are not properly presented by a party having a right to present them; nor do I by even the remotest implication concede that such questions can be considered in a case that can be disposed of upon other grounds; for it is one theory to affirm that general jurisdiction exists, and quite another and radically different thing to affirm that, because jurisdiction of the general subject exists, specific constitutional questions can be decided. I concur in the conclusion that the judgment below must be reversed, but, as I have endeavored to show, the grounds upon which my opinion rests are in some respects different from those of the court.

I concur in the principal opinion in this case. In my opinion, it properly and legitimately expresses an opinion on the question of the constitutionality of the two acts of the legislature, viz., the acts of 1879 and 1891. To decide the case it is absolutely necessary to determine the constitutionality of these acts, or at least one of them. While it is true the appellee must fail whether the acts are valid and constitutional or unconstitutional and void, yet to dispose of the case the court must determine whether these acts are valid or void; and, being compelled to determine the question as to their validity, the court should in all fairness express an opinion disclosing upon what theory the opinion rests,–whether upon the grounds that the acts, or either one or both of them, are valid or void.