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Howard, et al. v. McDiarmid.

[DECEMBER

Pulaski and White; twelfth district, of Prairie and Arkan

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Here we have an apportionment of the counties into senatorial and representative districts.

The concluding portion of the section declares that, "the senators and representatives shall be apportioned among the several senatorial and representative districts as follows, to wit: Tenth district, two senators and six representatives; twelfth district, one senator and four representatives."

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Here we have an apportionment of the number of senators and representatives to the different districts.

The 8th section, of article 5 of the Constitution, then declares that "there shall be no apportionment, other than that made in this Constitution, until after the enumeration to be made in the year one thousand eight hundred and seventyfive."

Here we have a declaration that the apportionment made by section 2, of article 15, shall remain as it now is until after the year 1875.

The inquiry now arises, does the act, entitled "An act to be entitled an act to change the boundary lines of Prairie and Monroe counties, and for other purposes," change any one of the senatorial or representative districts, or the basis of representation or apportionment therein?

The Constitution declares that the tenth district shall be composed of the counties of White and Pulaski, and that the district shall have two senators and six representatives.

The counsel for the respondent urge that these provisions of the Constitution evidence an intention on the part of the framers of the Constitution, and the people who adopted it, to prevent the transfer of electors, by change of county lines, from one senatorial and representative district to another. We do not assent to any such interpretation of the Constitution.

Section 12, of article 50, declares that "no county now established by law shall ever be reduced, by the establishment of any new county or counties, to less than six hundred square miles."

TERM, 1870.]

Howard, et al. v. McDiarmid.

The rule of construction is, that the Legislature may pass all such laws as to them may seem just, so long as they do not trench on the other departments of government, or the Constitution of the State. The inhibition in the section just quoted is, that counties shall not be reduced below six hundred square miles. This does not prevent the Legislature from adding territory to another county, so long as it does not reduce a county below the number of square miles mentioned in the Constitution.

This general proposition is conceded by counsel for respondents, but they insist that, while it is true the Legislature may change the boundaries of counties, it cannot change the boundary of a senatorial or representative district.

We concede that the Legislature had no power to attach a portion of Prairie county to the tenth district for the sole purpose of allowing the electors of the twelfth district to vote in the tenth, without a change of county boundary. This would be a mere change of voters. But, in this instance, the county line is changed and the citizens are, by operation of law, moved from one county to the other for all purposes, as fully as though they had abandoned their former homes and moved voluntarily within the county of Pulaski. They then as much become electors of the tenth district as they were of the twelfth.

The boundary line of the tenth district is fixed by the boundary lines of White and Pulaski counties, and not by what was the boundary of those counties at the adoption of the Constitution. To say that the electors of Prairie county may be transferred, by a change of county boundary, into Pulaski county, for the purpose of suing and being sued, for the purpose of voting for all State and county officers and members of Congress, and that they cannot vote for senators and representatives to be elected to represent the county in which they live and are interested, but that they must vote for men to represent them in the Legislature that do not live in their

Howard, et al. v. McDiarmid.

[DECEMBER

counties, is a proposition that, when once stated, shows the fallacy of the reasoning.

The tenth senatorial district is yet composed of the counties of White and Pulaski, and no other. The officers of Prairie county have no jurisdiction over a single foot of the territory added to Pulaski county. In making the apportionment the framers of the Constitution evidently intended that the boundary lines of the different counties, and not the boundary lines of the different townships of a county, should constitute the boundary lines of the senatorial and representative districts. The inhibition in the Constitution, in relation to apportionment, was to prevent the Legislature from changing the counties in the district-that is, from taking one county out of a district and placing another therein. If the Legislature should put White county into some other district, and Prairie into the tenth district, this would be such a change of apportionment of the district as the Constitution inhibits; or if the Legislature attempted to say that the tenth district should have one senator and four representatives, instead of two senators and six representatives, as now fixed by the Constitution, this would be such a change in the apportionment as the provision was intended to inhibit.

These things being true, the clerk of the county court ought to have returned the abstract of votes cast in these townships, as votes cast in Pulaski county, instead of votes cast in the county of Prairie, in the twelfth senatorial district. Whether the electors of those townships had a right to vote in Pulaski county for senators and representatives to represent the tenth district, was a question that the law does not authorize a county clerk to decide. Ilis duty is simply ministerial, and it was for him to certify the returns, and let the proper tribunal pass on the question of legality or illegality.

It is urged that mandamus is not the proper remedy, if the party can obtain justice by any other proceeding, and the case of "The People v. The Supervisors of Greene, 12 Barb. 222, is cited as an authority in point, in which case the writ was re

TERM, 1870.]

Howard, et al. v. McDiarmid.

fused on the ground that it would be "inappropriate and ineffectual." There is no analogy between that case and the one now before the court. In the case cited the mandamus was prayed for the purpose of convening a board of supervisors to meet and re-count certain votes, and the court refused the mandamus on the ground that the board was functus officio, and if convened, would have no legal authority to do the act prayed by the petitioner.

The county clerk is not functus officio, and, being a "public officer," can be compelled to perform any duty which, by law, he is required to do, if the person asking it shows any legal right to have it done.

Other authorities have been cited to show that the sending of the abstracts forward, as prayed by the petitioners, would not establish them in their rights; and from this it is urged that the remedy is not efficacious, but on the contrary fruitless, and for this reason ought to be dismissed.

It appears to us counsel for respondent have mistaken the object of this proceeding. Its object is not to determine that the petitioners are entitled to seats in the House of Representatives, but to compel the county clerk to send such abstracts of the election to the secretary of State, as will enable him to put the persons names on the list to be made out by him, and furnished to the different houses, as appear to be elected by the returns properly certified to his office.

The amended petition sets up that the returns certified to the secretary of State are not returns responsive to the prayer of the petitioners. The prayer is that McDiarmid be compelled to send an abstract of the votes cast in the township of Eagle and in the first and third wards of the city of Little Rock, of the election held by the judges appointed by the board of registration, and an abstract of all other returns or pretended returns of said election presented to him, or on file in his office.

In order to have complied with this prayer of the original

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petition, and that of the amended or supplemental petition, he must have sent to the secretary of State an abstsact, "on a separate sheet of paper," showing the number of votes each candidate received in the townships of Gray, Maumelle, Owen, Fourche, Big Rock, Campbell, Union, Badgett, Eastman, Clear Lake, Richwoods, Ashley, Prairie, Caroline, Peyatte, Plant, Cypress, Bayou Meto, Mineral, Eagle and of the first, second, third and fourth wards of the city of Little Rock. An abstract had been sent to the secretary of State, it is true, showing a portion of the returns required by the abstract asked by the petitioners, but as to the township of Eagle, and the first and third wards of the city of Little Rock, it showed the votes cast at an illegal, instead of the legal poll. As to the townships of Prairie, Richwoods, Clear Lake and Caroline, the abstract sent to the secretary of State showed that the votes of those townships belonged to the twelfth, instead of the tenth district.

The response does not show the sending forward of the abstract asked by the petitioners, and which we think they are entitled to upon the showing made to the court.

The demurrer is overruled, and the writ prayed for will be awarded, unless the clerk can make a response that is responsive to the prayer of the petition.

[The demurrer to the petition being overruled, and the respondent having filed an amended response, the court delivered the following opinion thereon.]

MCCLURE, J.

The response admits the appointment of the judges of elec tion, as alleged by the petitioners, save as to the township of Eastman, and denies that the judges, so appointed by the board of registration, were legal judges, on the ground that a list of the judges, so appointed as aforesaid, was not filed in his office until three o'clock, P. M., on Saturday preceding the election. It is a sufficient answer to this to say, that the law does not

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