Kinne v. City of Syracuse

2 Abb. Ct. App. 534 | NY | 1866

James C. Smith, J.

It is conceded that, by the operation of § 9 of the act of April 17, 1858, the constitutionality of which is challenged by the defendant, a strip of land, about one mile wide and two miles long, containing two hundred and fifty inhabitants,, of whom fifty were voters, was transferred from the second to the third assembly district, in the county of Onondaga, as such districts were formed, by the board of supervisors of that county, in 1857. The question is, whether, by reason of such operation, that section is in violation of the injunction of the constitution, that the assembly districts, formed pursuant to its provisions, " shall remain^ unaltered until another enumeration.” Art. III. 8 5.

The section is claimed by the appellant to be valid, upon two grounds: 1. That the alteration of the assembly districts was not the principal or direct object of the section, but was merely incidental to the act of changing the boundary-line between the city of Syracuse and the town of De Witt; and, 2. That the constitutional provision referred to, is a prohibition upon the boards of supervisors only, and not a restriction upon the power of the legislature to alter the boundaries of towns and cities.

I am of opinion that neither of these grounds can be maintained.

First. The act altering the assembly districts is none the less repugnant to the constitution because it also changes the boundary line of the city.- The general power of the legislature to change the boundaries of cities and towns is subject to to the injunction that assembly districts shall not be altered. The injunction is expressed in broad and explicit terms, admitting of no exception or .evasion. Assembly districts shall “ remain unaltered.” That which the constitution says shall remain unaltered, cannot be lawfully altered, either directly or indirectly. Any other construction would annul the provision. Its prime object undoubtedly was to prevent the gerrymandering of assembly districts, from year to year, for par tizan or other mischievous purposes. A similar object led to the adoption of the provision in the preceding section, that the senate districts should remain unaltered until "the return of another enumeration. The object of each provision might be wholly defeated if the legislature were permitted to change the boundaries of cities, towns and counties, in such manner as to alter assembly and senatorial districts. If it becomes desirable to change a boundary line of a town or city, which is also a dividing line between assembly districts, the act adopted for the purpose should be so framed as to take effect at the next reorganization of assembly districts, or in some other mode consistent with the constitutional injunction under consideration.

Second. There is no merit in the position that the injunction is directed to boards of supervisors alone, and not to the legislature. -As has been said, it is in the broadest terms. It applies to all bodies having power to alter assembly districts. It directs that “ the apportionment and districts so to he made shall remain unaltered.” The' apportionment mentioned is to be the work of the legislature exclusively, and, in that respect, it is clear that the mandate is addressed to that body.

But there is another consideration which is decisive of this point. The only power conferred upon boards of supervisors, respecting assembly districts, is the power to form them, at the time fixed in the constitution, and to reorganize them at such time as shall be prescribed by the legislature at its first session after each decennial enumeration. That duty being performed, the authority of the board of supervisors over the subject is at an end till another enumeration. They have no power of alteration in the interim. That power resides in the legislature alone, and to that body, therefore, the injunction is directed.

The judgment should be affirmed.

All the judges concurred, except Hunt, J., who dissented, and Moegan, J., not voting.

Judgment affirmed, with costs.