Concurring Opinion.
Hackney, C. J.While giving my full concurrence to the conclusions of the principal opinion it is my purpose to add one or two thoughts to what my associate has well said.
This suit, in form and effect, disaffirmed the consti*541tutionality of the apportionment act of 1895 and affirmed the constitutionality of that of 1893. The decree of the lower court, by forbidding steps under the act of 1895 and commanding that such steps, towards the biennial election of this year, be taken under the act of 1893, held the law of 1895 to be void and that of 1893 to be valid. The question of the correctness of this holding of the trial court, thus involving both of said laws, is before this court.
The act of March 5, 1895, repealing that of 1893, and the other act of that date reapportioning the State, have been considered in the principal opinion, and properly, in my judgment, as one act, since, by the constitution it was not contemplated that the general assembly could, by repealing an apportionment act, deprive the people of the right to choose their representatives and could not supplant an apportionment act, properly enacted, excepting at the sexennial periods. The two acts mentioned were passed concurrently, and could have been separated only in the hope that if the second should not stand the first should have the effect to repeal the law of 1893 and require the next general assembly to be chosen under some prior law, or under some law which might be enacted by a special- session made necessary by the absence of any apportionment law. The only remaining alternative would be that the people should be without a law under which to choose the next general assembly, an alternative probably not contemplated when these acts were passed, and one which the framers of the constitution certainly never intended should arise. That it was intended to carry down the act of 1893 at all hazards is manifest, not only from the express repeal of that act, but also from the language of the preamble to the repealing act. It is declared therein that the act of 1893 is unconstitutional and *542was intended by the general assembly which passed it to be unfair, unequal, in violation of the constitution and in disregard of a decision of this court. While thus assuming the judicial function of declaring an act of the general assembly unconstitutional, and while assuming the effect of that declaration to carry down the law of 1893, it is, by the last paragraph of the preamble, expressly conceded and declared to be the province of the courts to pass upon the constitutionality of laws. The effect of this preamble is a question in this case. It voices the conclusion of its authors that the power to enact an apportionment law, out of the sexennial period, depends upon the non-existence of a constitutional law apportioning the State; hence, the express declaration that the law of 1893 was unconstitutional. There is but one other possible construction of the preamble, and that is that its authors desired simply to challenge the integrity of those who had preceded them in the high office of legislators, and who had taken an oath to support that constitution which is said, by this preamble, to have been wilfully violated. This latter construction is not essential to the principal object: the passage of a new apportionment act. The former construction was regarded as essential to that end, and stands in this case as the justification for reapportioning the State before the period contemplated by the constitution. As said in the principal opinion, and as practically conceded by the closing paragraph of the preamble, the declaration that the law of 1893 was void was beyond the authority of the general assembly, was the exercise of judicial power and is now without force. It is even more than this, it is a declaration that those who made it held their places as members of the general assembly alone by virtue of the very law declared by them to have been void and of no effect.
*543These considerations are pertinent, not only to a decision of the question of the power of the general assembly to exercise judicial functions, but they are of moment in looking to the consequences which may follow such exercise of power and the possible consequences of this proceeding. All tribunals of organized society accord to precedent respectful observance, and generally obedience, unless such precedent is palpably at variance with justice, morals or the fundamental law. Especially do the members of society owe this observance and obedience to the written laws. None rest under this obligation more fully than those who make and those who execute the laws. It is the precedent established by this court in the Parker case (133 Ind. 178), which is urged by the appellants, to overthrow the law of 1893, and by which, in a great measure, we are controlled in passing upon that and the act of 1895. No tribunal can maintain long the respect of society if it may wantonly, or even with indifference, reverse today its action of yesterday. This is true whether that tribunal is judicial or legislative. The same rule, which is certainly our guide, should be the guide of other co-ordinate departments of the government.
Finding the act of 1893 upon the statute books and bearing in mind that no valid act could be passed at that period in the absence of the conclusion that the act of 1893 was void, the Legislature assumed and declared that such act was void. If this may be done in any case it may be done in every case, and the legislature may be found repealing its enactments at each succeeding session. The spirit of the constitution forbids this with reference to apportionments, and tolerates it only in the event that such conclusion is unmistakably correct.
One of the consequences of the law of 1895 was to *544require judicial investigation and decision as to which, of two laws should be observed by the people; both could not stand; the first being valid there could be no authority for the second. Another consequence was that it supplanted a law no more objectionable, under the constitution, than itself. Looking beyond the mere partisan advantage to be gained by the enactment of either law, what shall become of the principle of local self-government and the prerogative of proportionate representation? It is a more than important question; it is, in view of the present situation, startling. There is, by the invalidity of the acts of 1893 and 1895, no apportionment law since that of 1885, which has not been found, upon judicial investigation, to have violated the constitution. The law of 1879, the last before the act of 1885, was held, in the Parker case, to be unconstitutional. When the acts of 1893 and 1895 fail, where shall the people look for the apportionment, a necessary prerequisite, upon which to elect the next general assembly? It may be said that the governor will convene the last chosen general assembly in special session for that purpose. While the enactments of merely de facto legislators are generally upheld for the peace and good order of society, it may be seriously questioned whether one chosen under a void law is a de facto officer continuously for the mere purpose of keeping the office filled. A merely de facto officer is not, usually, entitled to hold for a full term, in an office whose functions are in continuous operation, when a de jure officer is chosen during such term.
I)e facto officers get no power or authority from the acts they perform, but the principle which supports the acts of such officer is that the public, finding him in actual possession of the office and dealing with him, under circumstances of reputation and color which *545would lead men to suppose him a legal officer, such dealings are validated on the ground of public policy. But there are authorities, though we have no occasion to apply them in this illustration, to the effect that when the want of authority in such officer to perform the acts in question becomes notorious the reason for the de facto doctrine ceases. An essential feature of the doctrine would seem to be that it is considered only with reference to past acts and not as justifying further acts and the continued right to occupy the office where the duties of the office are not in continuous exercise, but at the close of a session cease forever, unless specially called into action before new officers convene in regular session again.
This would not only suggest the doubts arising to influence the governor in calling or declining to call together persons who had occupied, de facto, an office not in continuous operation, and one which, it has become notorious, they held without the sanction of law, but as suggesting also the possible right of the people to elect, at the next election, de jure senators to represent them instead of those chosen under a void law.
Another fact which might be influential upon the mind of the executive, as to his duty to call a special session of the general assembly, is the fact that at the regular session, while condemning the act of 1893 for its violation of the constitution, another law was enacted as grossly violating the same principles of that sacred instrument. If the special session should repeat the disregard of existing enactments and the decisions of the courts, no relief would come, and it would be no less anarchistic to deprive the people of a constitutional choice by affirmative legislation than by no legislation. But, I apprehend, the governor would be slow to call a special session when the act of *5461885 stands upon the statute books unchallenged, and when this court, in the Parker case, where the question was made, expressly declined to declare it unconstitutional, though the acts of 1879 and that of 1891 were both held void. I should probably say, however, that the governor, in discharging his duty, has the same power, subject to the same limitations, to regard existing apportionment laws as constitutional or unconstitutional that the general assembly had..
It is insisted, however, that by the constitution an apportionment law becomes, by the lapse of time, inoperative after six years, and that, therefore, all acts prior to 1891 have expired. There can be but little doubt that the command of the constitution is mandatory and exclusive in that it requires an apportionment at each six-year’s period, and forbids it at other times. It is no less clear, in my judgment, that, as maintained in the principal opinion, the duty enjoined is continuing and may be discharged subsequently, if not discharged as commanded. This conclusion renders another conclusion inevitable, and that is that the choice of the people is a right to be exercised upon the rule of apportionment existing at the time the neglected duty should have been performed. If this were not so there would never be a legislature following that which had neglected its duty to supply the basis for choosing the next. I cannot believe that the framers of the constitution contemplated the surrender by the people of the power to elect representatives to the general assembly, at the expiration of a sexennial period, in the event of a failure to enact a law or the enactment of an invalid law. If it had been intended to make the continuance of this power dependent upon legislative action, there was no reason for the mandatory provision of the constitution as to apportionment; the whole subject would have been *547left with the legislative department of the government. Nor can I believe it intended that, in the absence of renewed legislative apportionment, the reserved right to elect an assembly was to be exercised upon some basis to be determined by the masses.
Such a rule would be simply a substitute for a constitutional provision, and its enforcement, where party spirit becomes so intense as.it does with us, would be fraught with difficulties certainly never intended to be left. unguarded by constitutional restrictions.
The assembly of 1855 found no enumeration upon which to make an apportionment as then required, and, in the election of 1856 the assembly was chosen upon the prior apportionment. The assembly so chosen, at its session in 1857, without enumeration, apportioned the State, and without question and without further apportionment the assemblies following that session were elected, under that apportionment, until Governor Morton, in January, 1865, called the attention of the session, then sitting, to this long continued failure of duty. At no time in the history of the State has an assembly been chosen upon a ratio adopted by common consent further than where the Legislature has failed to adopt an apportionment, elections have been held under the last preceding apportionment without objection, thereby giving construction to the constitution in accordance with the view now suggested, namely, that the act of 1885 is the last apportionment which stands unquestioned, and is that upon which the next election must be held if that law remains unquestioned.
That an apportionment does not lapse by the expiration of the six-year’s period, in the absence of renewed valid apportionment, was, in effect, held in the Parker case, where, as I have said, this court declared the act *548of 1891 unconstitutional and passed back of the law of 1885, notwithstanding the rule that courts never pass upon constitutional questions when a case may be decided without doing so, and held unconstitutional the act of 1879, then standing through more than two periods of six years.
Whether that act shall continue unquestioned; whether the people will follow the custom in such cases and make their election under that law, or whether that custom will be abandoned and public officers will refuse to follow it and thereby defeat the constitutional object to convene an assembly in 1897 depends upon the wisdom and patriotism of the people. I cannot believe that the governor would assume to declare the act of 1885 unconstitutional, to abandon the custom of the people construing the constitution in like cases, and then having done so, recall the last chosen assembly, with doubts as to its further authority, for the enactment of a new law. If the act of 1885 should, in proper proceedings, be declared invalid, and no preceding valid act of apportionment should be found, the maintenance of the legislative branch of the State government would hang upon the doubtful proposition that the governor could convene in special session, from the members last chosen, a de facto general assembly.
That such frightful consequences are possible from the character of the legislation now under consideration would seem to demand serious reflection, and such patriotic submission to the welfare of the government as would subordinate mere partisan advantage.
Piled January 30, 1896.