234 A.D. 139 | N.Y. App. Div. | 1931
Lead Opinion
The application to the Special Term was for a mandamus order directing the Secretary of State to perform the duties imposed upon him by statute in respect to the election
The concurrent resolution was not presented to the Governor. The mandamus order was sought on the ground that this resolution, without the Governor’s approval, was a valid compliance with article 1, section 4, of the Federal Constitution, which provides: “ Control of congressional elections. 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The respondent contends that compliance can only be had by act of the law-making power of the State. Thus the determining question in the case is whether the delegation of power, for the purpose stated, is to the Senate and Assembly alone or to the law-making power. We shall discuss this question by considering the case, first, in respect to the laws of the State; and, second, in respect to the Federal Constitution.
Our State Constitution contains no provision in respect to redistricting for the election of Representatives in Congress. It does make definite provisions for redistricting for election of members of the State Legislature. (Art. 3, §§ 4, 5.) The Legislature has in a long series of statutes provided for redistricting the State for election of Representatives. As occasion arose a separate act or bill has been passed and approved by the Governor.
The State Constitution, article 3, section 1, provides: “The legislative power of this State shall be vested in the Senate and Assembly.” The Governor of the State is no part of the Senate and Assembly. He takes no part in the original framing of a bill or resolution. He has no seat in either house and no right to debate therein. But he has a veto power (Const, art. 4, § 9) as follows: “Every bill which shall have passed the Senate and Assembly shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it.” This section further provides that, if after veto the bill is passed by a two-thirds vote of each house, “ it shall become a law notwithstanding the objections of the Governor.” Thus the Senate and Assembly may enact a valid law despite the
In the State Constitution the “ Legislature ” is authorized to do many things which cannot be accomplished save by the functioning of the full law-making power. Among other things the Legislature is given power to alter Senatorial and Assembly districts. (State Const, art. 3, §§ 4, 5.) This has uniformly been accomplished by statute, by act of the full legislative power, never by “ concurrent resolution.” (See Matter of Reynolds, 202 N. Y. 430.) In like manner, until this year, this State has been redistricted for congressional elections by statute, the bill therefor having been presented to the Governor after it was passed by both houses. There can be no doubt then that, in the State Constitution, in the courts and in legislative acts, this State has used the word “ Legislature ” as meaning legislative, or law-making, power. As to the State, this seems conclusive. (Davis v. Ohio, 241 U. S. 565, 567.)
We turn then to the Federal Constitution, article 1, section 4 (supra), and to the Federal courts, where we find a like construction. It is true there are a number of provisions in the Federal Constitution which delegate to the State Legislature duties which do not involve law making. Article 1, section 3, prior to the Seventeenth Amendment, provided that Senators should be chosen in each State by the Legislature thereof. Choosing Senators by the Legislature required no apportionment or districting; it required no action by the law-making power. We shall refer to this later.
Until recently this has been the construction of this section of the Federal Constitution by the States generally; elections have been conducted in compliance with statutes enacted under this construction and the validity of those elections has not been questioned. In the States redistricting for State elections has uniformly been accomplished by statute. Such general construction should have great weight, unless in violation of the plain mandates of the Constitution. (Gardner v. Ginther, 232 App. Div. 296, 301, and cases cited.) We find no plain mandate of the Constitution which has been violated by the practice which has been followed by the Federal Government and by the States for many years. The elaborate and able arguments, supported by plentiful authorities, in this case, indicate that the meaning of this section is not entirely plain to all. If petitioners’ contention is correct, some seven score years of erroneous practice passed before this alleged plain meaning was discovered.
We find Support for our position in Davis v. Ohio (241 U. S. 565).
We have not overlooked the argument that, since article 1, section 4, of the Federal Constitution uses the same language in respect to elections for Senators and Representatives and since the election of Federal Senators is conceded, formerly, to have been by the votes of the members of the two houses only, the redistricting must be made by the two houses only; that is, the word “ Legislature ” must have the same meaning in one case as in the other. We cannot consent. The distinction is stated in Hawke v. Smith (supra). Also there are the other sections in article 1 of the Federal Constitution. Section 3, subdivision 1, before the Seventeenth Amendment was adopted, provided that Senators shall be chosen by the Legislature. In the choosing of Senators then, the members of the Legislature were required in some form to vote. The majority of the votes determined the successful candidate. A Governor was not a member of a State Senate or Assembly. He had not a right to vote. Neither could he defeat the choice of the majority by a veto. It could not have been intended that a Governor, a member of one party, could defeat by veto the election of a candidate of another party, which had a majority, but not a two-thirds majority, in the two houses. Evidently no action by the law-making body as such was intended. Section 2, subdivision 1, provides that Representatives be chosen “ by the people of the several States.” Subdivision 3 of this section provides for the enumeration of the voters in each State for the apportionment of members to each State. Then (Section 4) follows the delegation of power to prescribe the “ times, places and manner ” of holding elections. This is a power quite different from the power to choose a Senator. This delegated power to prescribe regulations is also a mandate. It involves a redistricting of the State. This is to be made by a State in the manner prescribed by the laws thereof, not by votes of the individual members. It is an act of the law-making power.
The ultimate regulation of the “ times, places and manner ” of holding elections for Representatives is in the Federal Congress. The Federal Constitution has delegated this power to regulate to the State Legislatures, but has reserved in Congress the power to
We conclude that article 1, section 4, of the Federal Constitution delegates to the State Legislature authority to take such action as is customary and necessary under the law of the State to make effective its mandate; whether such delegation of authority is to the Senate and Assembly solely or to the legislative power depends upon the purpose stated; that, where the action involves the law-making power, that power is to be exercised; prescribing in each State the times, places and manner of holding elections for Representatives involves the law-making power of the State; the law-making power in this State is the Legislature (Senate and Assembly) and the Governor; the delegation of authority in this case was to the lawmaking power.
Believing that we are right in this conclusion, we do not find it necessary to consider the many other points urged in the briefs.
The order should be affirmed as a matter of law and not in the exercise of discretion.
All concur; Hill, J., with an opinion in which all concur.
Concurrence Opinion
(concurring). The government of the Union is supreme within its sphere of action. (M’Culloch v. State of Maryland, 4 Wheat, 316, 405.) First in importance within that sphere is the selection of the persons who are to perform governmental duties. The untrammeled right to select rulers and officials is the primary prerequisite of every free people and nation. No State in the Union holds a suzerainty as to the selection of National legislators or other officials. Such powers as any State or its officials may exercise have been delegated by the Constitution or .by the Congress under the Constitution. The Constitution speaks with greater definiteness as to this than as to other matters of less relative importance. “ The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (Art. 1, § 2.) The provision as to the Senate, prior to the Seventeenth Amendment, was equally definite, “ The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.” (Art. 1, § 3.) After definitely fixing the qualifications of electors
This delegated power may be taken away at any time, for “ the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. ” The Federal act of 1911 (37 U. S. Stat. at Large, 13, chap. 5) by its terms was limited to the apportionment following the thirteenth census. The apportionment here involved is the one following the fifteenth census. The Federal act of 1929 (46 U. S. Stat. at Large, 21, chap. 28) contains no regulations as to redistricting. There being no Federal statute which applies, the Legislature, as a law-making body, has full authority under the power delegated to it by section 4 of article 1 of the Federal Constitution to prescribe regulations in respect of “ The Times, Places and Manner of holding Elections for * * * Representatives.” This includes redistricting. The law which the Legislature enacts will continue in full force until such time as “ Congress may * * * by Law ” modify it, or “ by Law ” make new regulations.
Each provision of the Election Law of this State which applies to the election of Representatives in Congress has been passed under the authority delegated to the Legislature as a law-making body by this provision of the Federal Constitution. Section 298 of the Election Law fixes the time and place “ of holding Elections for * * * Representatives.” The Governor participated in the enactment of that section. If redistricting, which also has to do with the “ Places and Manner of holding Elections for * * * Representatives ” is to be accomplished by concurrent resolution, then with equal force may it be argued that the above section of the Election Law should have been promulgated by means of a concurrent resolution. Likewise each provision of the Election Law, the Primary Election Law and the Corrupt Practices Act which pertains to the selection of Representatives in Congress should have been the subject of concurrent resolution, for the only power of the law-making body of this State in respect of the election of
It is argued that “ Legislature,” as used in this section, is conceded to have the meaning contended for by the appellants, in so far as it applies to the election of Senators. If this were a fact, it would be a persuasive argument. Chief Justice Marshall, construing the meaning to be given “ commerce ” in the constitutional provision (U. S. Const, art. 1, § 8, subd. 3) as to the power of Congress “ To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes,” said: “ If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it.” (Gibbons v. Ogden, 9 Wheat. 1, 194.) But I fail to see any foundation for the argument. Article 1, section 3, provides that Senators be “ chosen by the Legislature,” thus describing collectively the persons who should vote, while in article 1, section 4, “ Legislature ” is used both as to Senators and Representatives as defining a lawmaking body that should prescribe regulations concerning “ The Times, Places and Manner of ” their election. And, if the “ lawmaking ” Legislature (Art. 1, § 4) failed in any or all particulars to prescribe regulations by law as to the “ Times, Places and Manner ” of holding elections for Senators, then the “ voting ” Legislature (Art. 1, § 3) might adopt rules for their own orderly conduct and guidance as voters.
There has been a practical construction of this section, not only each time that the several States have been redistricted for decades, but also each time that the law-making power in a State has enacted a provision of the Election Law which applies in whole or in part to the “ Times, Places and Manner of holding Elections for * * * Representatives.” If a doubt existed as to the meaning of the provision, a practice so long settled and established should be followed. (Pocket Veto Case, 279 U. S. 655, 688.)
I concur for affirmance.
Order affirmed.