30 Barb. 349 | N.Y. Sup. Ct. | 1859
Lead Opinion
This is a case agreed upon by the parties, for the purpose of presenting for adjudication the question of the constitutionality of the 9 th section of the act passed by the legislature on the 17th of April, 1858. This act, by its title, purported to be “ An act to amend the act, to revise the charter of the city of Syracuse.” The facts necessary to be stated, in order to present this question, are, that in 1857 the board of supervisors of the county of Onondaga, pursuant to the act passed in April of that year, requiring the formation of assembly districts, duly met and divided the county of Onondaga into three assembly districts. By this division the city of Syracuse formed a part of the second, and the town of Dewitt a part of the third, assembly district; that town never having been at any time within the second district.
The plaintiff in this suit, at the time of the passage of the act, resided, and still resides, within the territory thus set off, and owned real estate therein, subject to taxation. The authorities of Syracuse, subsequent to the passage of the act of 1858, caused a tax to be assessed upon his property within this district; issued a warrant for its collection, and levied upon and sold some property of the plaintiff to satisfy the tax. The ground assumed by them is that the law, by which ibis territory was attempted to be set off to another town and assembly district,- was unconstitutional and void, and that consequently the territory still remained a part of the city of Syracuse, and liable to contribution toward its public burdens ; and that is the precise point presented in this case. The defendant claims that the 9th section of the act in question is in direct conflict with section 5 of the third article of the constitution. This section, after providing that members of assembly shall be apportioned among the several counties of the state as nearly as may be according to the number of-their respective inhabitants, directs that the supervisors of
It may be remarked, preliminarily, that it is not claimed that there is any specific power given, in the constitution, to the legislature to create, or change, the boundaries of cities or towns within this state. But it is claimed that the authority necessarily results from the grant to, and investiture of, the senate and assembly with all legislative power. The power being plenary, no restrictions can be imposed upon its exercise save such as are in terms specified in the constitution, or are necessarily implied therefrom. The power to create towns, or to change their boundaries, is not only legislative in its character, but has been frequently exercised by the legislature; and, irrespective of any provision which would control or circumscribe it, must rest in the discretion of the legislature as to the "time and manner of its exercise. All this may be readily conceded ; but being so, the question recurs, is not this power, thus claimed and assumed, controlled and restricted in its exercise by a precise constitutional provision, which the action attempted in this case contravenes ?
The counsel for the plaintiff, in his very learned and ingenious argument, insists that the act in question is not in conflict with the injunction of the constitution that assembly districts, when organized pursuant to its provisions, “shall remain unaltered until another enumeration,” and'bases the argument, substantially, upon two propositions : 1st. That
I. In support of the first proposition, it is claimed that the act does not, in its terms, purport to alter an assembly district, and that the purpose of the legislature, as indicated by the title of the act, being to exercise an acknowledged legislative power, it cannot be pronounced void, on the ground that another intent in fact existed, and that it incidentally and indirectly accomplishes an object that could not, without a breach of the constitution, be directly effected. In answer to this suggestion, it might not perhaps be impertinent to remark, that it is sometimes quite unsafe to assume the intent of the law-makers, either from the object apparently avowed, and seemingly patent on the face of the statute, or the language in which they have clothed their enactments. But it seems to me quite clear that if a particular thing is forbidden, in the constitution, and therefore, placed beyond the legitimate pale of legislation, the legislature has no more power to override and nullify the provision, although they accomplish it incidentally by attempting to use in a given way another conceded power, than they have to reach the same end by a specific act avowedly for the very purpose itself. If the doctrine contended for is to prevail, then there is no protection to any constitutional provision in its integrity, and all restriction upon the legislative power is practically annulled. If the consequences—the necessary results—of an act are to alter an assembly district, then the constitutional prohibition is as fairly and as indispensably applicable to it as if in terms and by express language it altered the district, and was enacted with that plain and avowed object.
What was the object intended to be effected by the mode provided in the constitution for the formation of assembly districts ? It was, among other things, to secure as nearly as might be, an equality of representation, as between the several districts into which a county might be divided. This is provided for, in terms, in the section of the constitution in question, by the injunction upon the supervisors, that they shall so divide the districts that they shall contain “as nearly as may be an equal number of inhabitants.” And in the division and apportionment made by the supervisors of Onondaga county, in this case, it will be seen that they conformed to this injunction with a very remarkable approach to that enjoined equality. Thus, Onondaga county was divided into three assembly districts, the first containing a population of 24,184, the second 23,851, and the third 24,710.
But the effect of this act, to the extent that it reached, was to impair that equality, and it did so by taking away from the population of the smallest of the districts 250 inhabitants, and annexing them to the district that already had a preponderance of population over either of the others. Thus it trenched upon the representative equality which it
There were doubtless, also, political reasons which entered into the consideration of the framers of the constitution, when' the section we are considering was adopted. It was important to provide for such a construction of the districts that not only the population, jper se, should be fairly represented, but the political preferences of those residing in the separate districts should have an opportunity to be expressed. In arriving at such a result, the supervisors would naturally, and very properly, group together in a district such a number of towns as would secure to them the election of such candidates as would represent the prevailing and preponderating Sentiment of the district; and this being done, this division was to have a degree of permanency attached to it by remaining for a series of years unaltered. But it is easy to see that if this arrangement is to be subject to legislative interference, the whole object and purpose of the division may be entirely circumvented. The political balance of a county might thus tie wholly destroyed, and in the foresight or apprehension of a closely contested election, and when a few electors, taken from a strong district where they can easily be spared, and
II. The second consideration urged by the counsel for the plaintiffs to uphold this act is, that the prohibition against the alteration of assembly districts, when once fixed, until the period arrives for another designation, is a prohibition upon the boards of supervisors, and not a restriction of the legislative power to alter the boundaries of towns. If this be so, then it results that the constitutional inhibition is utterly worthless. If it was deemed so important to preserve these districts in their integrity when once formed, that a shield was thrown around them in the organic law, for the very purpose of their protection, and this can be nullified by a simple legislative act, then the paper upon which the section was written might as well have been saved, for the clause is worth less than the rags of which that paper was composed. The section contains no language which points to the board of supervisors as the body on whom the .restraint was to act, but it manifestly was intended to cover the whole ground, and prevent as well legislative as any other kind of interference. It will be seen that it preserves not only the districts, but the “apportionment,” from alteration; and this was a subject exclusively of legislative cognizance, and the same clause which prevents the legislative authority from tampering with the one, equally places the other beyond their jurisdiction. The counsel for the plaintiff very frankly concedes that a law purporting to form or alter an assembly district would be clearly unconstitutional, because that power is reposed exclusively in the local legislatures of the several counties. I have endeavored to show, that what the legislative power could not by a direct act of legislation accomplish, cannot be effected by an indirect and incidental exertion of that power, even upon a subject confessedly within its general and acknowledged pow
But if mistaken in the result to which the discussion thus far has led me, there is another ground which is equally fatal -to the plaintiff. Granting that the act is so far valid as that it legally transfers the territory in question from the city of Syracuse, and incorporates it with the town of Dewitt for all other purposes, I think it must be conceded that so far as relates to the election of a member of assembly, the voters residing in the district are, for the time being at least, disfranchised. Where could the inhabitants exercise the privilege of voting ? Hot in Syracuse, for they are no longer residents of the city; and not in Dewitt, for when that assembly district was formed, this territory was within no election district in that town. The right secured to them by the 1st section of the 2d article of the constitution would thus be violated, and the deprivation or suspension of the right of a voter otherwise competent, by such an act would be, in my judgment, the alteration of an assembly district, within the spirit and meaning of the constitution. This difficulty could in no way be remedied but by a provision in the act itself, securing the right of the inhabitants to vote in the election district from which they had been taken, until the next decennial enumeration. Such a provision was incorporated into the act organizing the county of Schuyler, and was one among the other considerations which was relied upon to secure that act from judicial condemnation. The absence of any such
Upon this point we have two' well considered authorities in a neighboring state, which cover the whole ground, and are, to my mind, conclusive. I may premise by remarking, that under the constitution of Massachusetts, the power to create and to change the boundaries of towns is derived not from any specific grant on that subject, but from the general power of the legislature to pass all useful and wholesome laws. Their scheme of government also contemplates and provides for an equal representation of the people by a distribution of representatives among the towns, according to the number of taxable inhabitants, at fixed periods of ten years. In the year 1851, the opinion of the judges of the supreme court of Massachusetts was asked by the legislature upon the question of their power to alter the boundary lines of counties and towns. In reply, the judges announced their unanimous opinion to be, that the legislature had that power, but that in exercising it, by annexing a part of one town to another, or by erecting a new town from one or more existing towns, it was necessary to reserve and secure to the inhabitants residing in such portion or portions, a right to vote in the election of representatives with the town or towns from which such portions were taken, until the expiration of the next preceding apportionment of representatives. (See opinion of the Judges, 6 Cush. 578.) In another opinion, to be found at page 575 of the same volume, upon a very similar question, it is remarked by the judges, that the constitution declares that the number of representatives for each city, town and representative district, shall remain fixed and unalterable for the period of ten years. “ That which the constitution declares unalterable,” say-they, “ cannot be changed by law.”
The case of Warren v. Mayor &c. of Charlestown (2 Gray, 84 and onwards) is a still more decisive adjudication upon the same point. An act of the legislature had undertaken to transfer the town of Charlestown to the city of Bos
The counsel for the plaintiff, pressed by this difficulty, puts forth the proposition, in one of his points, that if the legislature had expressly provided in the act that the territory added to Dewitt should remain a part of the second assembly district of Qnondaga county, and of the district to which it was attached at the time the act was passed, no constitutional objection could have arisen. And he adds, that if an express provision would have avoided the constitutional objection, the provision may be implied, in order to sustain the statute; or the remedy may be supplied by future legislation. In answer to this, I say that no case ever has carried, or, in my judgment, ever will carry the doctrine of implication, as applied to a legislative act, to such a length as to incorporate into a statute an entire provision—no vestige, nor shadow, nor intimation of which is to be found there. And to the latter branch of the proposition I reply, ip the words of Ch. J. Shaw in fi^e
I will not farther pursue this discussion, nor allude to other considerations which were presented, and forcibly argued, by the counsel for the defendant. Upon the points already passed in review, my conviction is clear that the section of the act of April, 1858, which we have been considering, is a manifest violation of that provision of the constitution which secured the permanency of the assembly districts; and that the action of the defendant in assessing and levying the tax upon the property of the plaintiff, within the territory thus attempted to be set off from the city of Syracuse, was only the exercise on its part of an authority it rightfully possessed.
I ought to add, however, that the case of Rumsey v. The People, (19 N. Y. Rep. 41,) which was cited and commented upon by the plaintiff’s counsel, is no authority upon the controlling propositions involved in this case. It presented many other questions, and the clause of the constitution which is considered vital and decisive here, is not even alluded to in that case. The reasoning of Judge Strong, however convincing and satisfactory it may be, is not to be taken as the opinion of the court; since, when we come to scrutinize the' decision as finally made, it will be perceived that the real ground on which the act, the validity of which was in question there, was sustained, was that the existence of Schuyler county had for years been recognized by all departments of the government except the judicial. Successive sessions of the legislature had been organized and had acted upon the assumption of its constitutional existence, and it had entered into the whole structure and organization of the government. These acts, in the language of the judges who really made the decision, removed the subject from that region of doubt within
With regard to this point, the court of appeals, in the case of Rumsey v. The People, go no farther in their decision than to say-—if indeed they say thus much—that “ it seems” the legislature have the constitutional power to create a new county by the insertion of such a provision in the act. The case itself, so far as it can he deemed to decide any thing upon this point, would appear by implication to he an authority sustaining the view I have taken of the consequences of the failure of the act in question to provide a mode by which the electors in the exscinded territory could exercise the privilege of voting in any assembly election district, and thus, by this omission, for an indefinite period, practically disfranchising them.
Judgment in conformity with the stipulation- in the case must be given for the defendant. '
Mullin, J., concurred.
Pratt, J., took no part in the decision.
Dissenting Opinion
The parties have agreed to a case and statement of facts, and have submitted the controversy between them to the decision of the court without action, as provided for by the code of procedure. The plaintiff is assessed and taxed by the pommon council of the city of Syracuse, as a resident of the pity, in respect to real property within the hounds of the city as heretofore incorporated, hut which was detached from the city and annexed to the
1. In construing acts of legislative bodies, they must be presumed to have intended only that which is apparent upon the face of the laws enacted by them. Their motives and intents cannot be questioned. If the apparent and well expressed purpose of the act of the legislature is within the legislative power, the validity of the act cannot be drawn in question upon the suggestion that an ulterior object and purpose, not within the scope of the power conferred upon the legislature, was contemplated. In other words, the act having a direct and proper application within the proper exercise of the legislative power, it will not be assumed that the legislature have fraudulently exercised their power and attempted to do that by indirect and circuitous action which they could not do directly. (Supervisors of Niagara v. People, 7 Hill, 505,511. People v. Draper, 15 N Y. Rep. 532, 545.)
2. All legislative power is vested in the senate and assembly of the state, and unless its exercise is restrained by express words of the constitution, or by necessary implication, those' bodies are the sole judges of the fitness and propriety of legislative action in a given case; and their acts cannot be questioned or reviewed. (Const, art. 3, § 1. People v. Draper, supra. Arnold v. Rees, 18 N. Y. Rep. 57, 67.)
3. The incorporation of cities and villages, the erection and division of towns and counties, and the alteration of their boundaries, are legislative acts, and within the grant of power to the legislature. Plenary power is vested in the legislature to create, amend or divide, to define or alter the boundaries
4. There is no restriction or limitation, in terms, in the constitution, upon the power of the legislature to alter the boundaries of the political bodies which it may create from time to time, as the public good may seem to require.
5. The restriction by implication, which is urged to avoid the law, rests upon the provisions of section five of article three of the constitution. Provision is first made, by that section, for dividing the several counties in the state into assembly districts, on the first Tuesday of January next after the adoption of the constitution; the clause expressly prohibiting the division of a town in the formation of the assembly districts. The section_then directs the legislature, at its first session after the return of any enumeration of the inhabitants of the state, to reaj>portion the members of assembly among the several counties of the state, and requires the boards of supervisors in such counties as shall be entitled to more than one member to assemble at such time as the legislature making the apportionment shall prescribe, and divide such counties into assembly districts in the manner before prescribed. And then follows the clause upon which stress is here laid : “ And the apportionment and districts so to be made shall remain unaltered until another enumeration shall be taken under the provisions of” section four of the same article. The legisla^ ture is prohibited from reapportioning members of assembly among the counties, except at the decennial periods mentioned, and the boards of supervisors are placed under a similar disability in regard to dividing the counties into assembly districts. This is the extent of the prohibitory clause, applying
I am of the opinion that the act setting off a part of the city of Syracuse and annexing it to Dewitt was constitutional, and that judgment should be given for the plaintiff.
Judgment for the defendant.
Pratt, Bacon, W. F. Allen, and Mullin, Justices.]
