Matter of Sherrill v. . O'Brien

Matter of Sherrill of case. N. T. Statement Sherrill, William L. In the Matter of the of Application et for a Writ Mandamus al., of Appellants, against John F. O’Brien, of State, Secretary Respondent.

In the Matter of the of Walter Application Pendleton, a Writ F. of Mandamus

Appellant, against John of State, Secretary Respondent. O’Brien, Payne George In the Matter of the E. et al., Application for a Writ of Mandamus F. Appellants, against John State, Secretary Respondent. O’Brien, Legislative Apportionment—Jurisdiction Supreme 1. Court. Supreme express jurisdiction Court has to determine whether or not an act of conflict with the limitations fixed Constitution, and, exist, if such conflict is found to declare the act (Const. 1894, Ill, void: art. § Appeals. While the Constitution does not 3. Review Court expressly upon jurisdiction Appeals confer the Court of to review an act apportionment, -power that court has general such virtue of its jurisdiction Appellate to review actual determinations of the Division. VI, 9; (Const, 190,191.) Upon art. Code appeal Civ. Pro. such an § §§ questions reviewable are: (1) legislature has mandatory provision Whether violated a of the Constitution. (3) apportionment, Whether an act in those matters toas which under necessarily legislature Constitution there is vested in the some discre- tion, transcends all reasonable exercise palpably of discretion and violates plain spirit intent of the disregard pur- Constitution in of its and the express pose for which its limitations were enacted. Legislature. Although an act 3. Powers Limitations of the people is the of the speaking voice through repre- their sentatives, authority representatives apportion- in relation to an delegated authority wholly dependent ment is a upon derived from and Constitution; power general no vested in the to change modify the number of its members or the from they elected; provisions Constitution constitute the full author- ity legislature; an examination of the Constitutions of the State first, adopted 1777, last, adopted 1894, from the together proceedings constitutional convention of shows an inten- gradual withdrawal from legislature tional power of discretionary adding power and a continued of limitations its in the matter of discretion, apportionment, only so that the minimum pre- necessary to give serve and other lines and to reasonable consideration to the provisions legislature. other is left to the v. O’Brien.

Statement of case. [Vol. Legislative 4. Limit of The limit of discre- Discretion. in the tion division of the state into senatorial districts is to make as close approximation to an equality in the number of reasonably inhabitants as is (Const, Ill, possible. art. § Apportionment 5. of Second Senatorial District Invalid. of joinder formation the second senatorial district the of Richmond Queens counties violates the Although by Constitution. the uniiorm and consistent action of the various constitutional conventions Richmond county exception provision is an to the constitutional that senatorial dis- tricts must contiguous territory, joinder be formed from county the of said Queens county of to constitute the second senatorial vio- district population lates the Queens county Constitution because the of under the being census of far apportioning 1905 in excess of the senators ratio requires Queens county separate should constitute a senatorial district. Apportionment 6. of Thirteenth Senatorial District Invalid. borough The thirteenth senatorial in district laid out of Manhattan city provision of New York violates the constitutional that senatorial compact practicable. districts shall be as form Apportionment Wholly 7. violation of con- Act Invalid. provisions in stitutional the formation of the second thirteenth sena- Apportionment (L. 1908, 431) torial districts so affects the entire Act ch. wholly toas render it unconstitutional and void. Apportion- Validity Legislature, Acts 8. of Elected under Apportionment Notwithstanding invalidity of Act the ment Act. people general at the de elected last election is a facto body respects body in all and its acts are valid. As de each house facto has, Constitution, only power under the not the exclusive but the exclusive judge any title of of its to a seat therein. right to members Who- legally receives as elected member and either house its entitled ever seat, house; thereby jure a de member so becomes that each mem- thereof, particular long so as the house to which he has been ber elected him, jitre officer, only is not but a not oust a de de entitled to does facto office, of his his privileges and emoluments title can- thereto except any challenged the house before tribunal itself. Act Must Be under Next Election Held New under 9. Con- Apportionment pass the courts While cannot on 1894. stitutional present legislature, they member can control the title of officers the conduct of next election that of administrative action present pass apportionment place. legislature should a new If the takes compliance general at with the the next election which act will under house are be held the new statute. of either elected members discharge duty then the must be legislature fails to election If the with the of the Constitution of in accordance held 890, O’Brien, App. v. Div. reversed. 114 Sherrill Matter of Pendleton, 890, O’Brien, App. v. 114 Div. reversed. Matter of 890, O’Brien, App. Payne 114 Div. reversed. Matter of 28, 3, 1907.) 1907; April Argued decided January .O’Brieh. (cid:127) Statement, of case. N. Y.

Appeal an from each the above-entitled proceedings Court Division of the Supreme order Appellate 1906, entered 12, third September department, judicial a motion for a Term affirmed order denying Special of state of mandamus secretary writ directing peremptory to transmit clerk of each county, election notices York, of New board elections city he and that section Election Law, as provided by senators and in said election notices number of embrace for at the election to to be voted members assembly to be 6, and allowed voted held on November required contained for under the apportionment contained this and not state, according Laws of 1906. 431 chapter from orders of the same date in each of An appeal was this court on above-entitled proceedings argued Sep- and the were dismissed 1st, October 28, 1906, appeals tember Sherrill v. 186 Y. O'Brien, N. 1906. (Matter of thereafter Division and relators applied Appellate nunc order tunc each of obtained modification pro read so as to That order from appealed proceedings is affirmed and the writ refused on a be and question hereby as and from order so amended each case of law only,” taken has been court. a new appeal of 1906 Laws chapter By into the state senate districts and also fifty-one divided pro- the number of elected in each assemblymen vided act enumeration of Prior passage county. had taken of the state the inhabitants provided by 1894. a statement following the Constitution said act the name provided by the senatorial from which each and the formed, or counties the county therein aliens : inhabitants, excluding number 1.No. District 75,634

Suffolk---- 61,541 . Nassau...

137.175 Statement of case. 188. [Vol. District No. 2.

Queens......................... 179,746 Richmond..................... 66,441 -- 246,187 Districts 3Nos. to 10. Kings.......................... ‘1,178,782 to a population district............ Average 147,347 Districts Nos. 11 to 22.

New 1,800,292 York.................... to'a district.............. Average population 150,024 (cid:127) District 23. No.

Westchester.................... 202,650 202,650 24. District No.

Orange...................... 101,644 41,240 Rockland......................1 -- 142,884 District 25. No. 41,268 Columbia..................... Dutchess....................... 77,864 13,083 Putnam....................... --132,215 District No. Greene.......... 30,317

Ulster.......................... 83,302 --113,619 District No. 27. 46,013

Delaware..................... Sullivan........................ 33,592 36,253 Chenango.................... (cid:127) n 115,858 ' 28. District No. 163,983 163,983

Albany................;..... 29. District No. 118,732

Rensselaer..................... 118,732 30. District No.

W 45,560 asliington.................... 31,161.

Essex........................ 45,618

Clinton......................

122.339 O’Brieh. N. Y. Rep.] Statement case.

District 31.Mo. 60,543

Saratoga....................... 64,817 ..... Schenectady............. 125,360 District 32.Mo. 31,107

Warren....................

Fulton 40,656 ...................... 4,729

Hamilton...................... Montgomery.............. n ...... 46,650

123,142 District Mo. 33. 51,040

Herkimer.................... 47,664

Otsego........................ 24,936 Schoharie...................... 123,640 34. District Mo. 84,866 Lawrence...................

St. 42,930 Franklin ..................... 127,796 35. District No. 74,680 ......................

Jefferson 26,016 Lewis......................... 100,696 36. District Mo. 131,393 131,393

Oneida....................... District Mo. 68,847

Oswego....................... 39,052 Madison........'............... 107,899 38.Mo. District 169,732 169,732

Onondaga...................... 39.Mo. District 28,912

Cortland....................... 69,981

Broome........................ 26,596

Tioga.......................... Matter oe Sherrill Í90

Statement case. 188. [Yol. No. District 40.

Chemung...................... 50,584 Schuyler....................... 14,921 Tompkins..................... 33,350 98,855 District No. 41.

Cayuga........................ 63,018 Seneca......................... 24,751 Yates.......................... 19,086 106,855 District No. 42. Wayne......................... 47,022 Ontario................(cid:127)........ 50,695

97,717 District No. 43.

Steuben....................... 80,638 Allegany...................... 42,224

122,862 District No. 44. 34,282

Genesee........................ Wyoming...................... 30,775 ..................... 34,943 Livingston 100,000 No. Districts Monroe....................... 225,609 '225,609 to a district... Average population 112,804 District No. 47. ....................... 77,250

Niagara Orleans..................... 30,078 107,328 Districts and 50. Nos.

Erie........................... 438,577 a district . .. Average population 146,192 District No. 51.

Chautauqua................... 91,923 63,399 .'.................. Cattaraugus 155,322 v. O’Brien. Matter 190Y-] case. Statement Kep.J T.N. York of Mew is a diagram

The following street from of Manhattan Thirty-third the island showing senate districts: its division into including southerly, oe Sherrill Points of counsel. [Yol. Further facts will be found in the opinion. Lamb

Eugene Richards, Allaire Jr., William Shorft for Walter Pendleton, Counties united in a senate appellant. district must be of 3, 4; N. Y. art. contiguous. (Const, § ex rel. Carter v. v. 135 Y. People Rice, ; N. 473 Car People 198 Ill. lock, v. 155 Ill. The 150; People Thompson, 451.) Queens counties of Richmond (Bent contiguous. v. Gaenzer, Misc. 17 570; v. Groesbeck, Rep. Houghtaling 51 N. Y. 673; Matter 52 N. Y. Ward, Halston Co. 397; v. 89 Va. v. 5 396; Josh B. Campbell, Josh, C. 465; [N. S.] v. U. C. & R. Co., 43 N. J. L. Ackers v. 112; McCullough Co., 48 N. J. South v. Impt. 187; Eq. Wittingham, Orange 58 N. J. L. 655 v. 59 ; 321; State N. H. v. Downs, Peverelly Rep. 70; 8 Park. Cr. v. O. People, Yard B. 42 Assn., N. J. The court below was in error as 306.) to the effect of Eq. construction on status of practical Richmond county. v. Groesbeck, 51 N. Y. H. (Houghtaling 672; S. & P. Co.v. 89 396; Va. 92 Mich. Campbell, Supervisors v. Blacker, 638; v. ; 55 N. 50 Albertson, Allen, Y. v. 42 Y. People People N. 404; McPherson v. U. Fairbank v. U.S., Blacker, 1; 146 S. 308; Martin v. Hunter, 328; 181 U. S. 1 Wheat. v. U. S. 15 Dickson, Pet. State v. 56 141; N. J. L. Wrightson, 208.) The inequality so attempted re-apportionment gross ap as to constitute abuse of discretion. ex rel. (People Carter v. 135 Rice, N. Y. 473; Baird Bd. Suprs., N. Y. 95.)

Eton R. Brown for William L. et Sherrill al., appellants. The Division has Appellate sustaining apportionment overlooked the manifest intention of the framers of the Con new stitution to and stricter rules for the adopt apportion ment ; of senate districts to substitute rules for dis cretion. of N. Y. art. 3, Debates of Conv. (Const, 4; Const. § of 1894, vol. The 5, Court has p. 708.) Supreme express to review an act. of Y. power N. art. (Copst. ex rel. Carter v. 3, 4; 135 N. Y. People Rice, The 484.) § O'Brien. . Sherrill Points of counsel. N. Y. in the numerical apportion exactness

example approximate ment convention proof of 1894 constitutional rules of the convention as to intention meaning of Const. future (Record should apportionments. govern vol. 1894, 5, provisions Conv. p. in letter and violated spirit have been grossly art. 3, 4.) of N. Y. (Const, present apportionment. § reason

The “ with Richmond county by difficulty alleged ” has no substance It clause is subterfuge. contiguous cannot avail to substantial (Const, inequality. produce limitations senate N. Y. art. representation 4.)§ than three have no from counties more senators appli having Queens cation either in and Richmond word or principle on Rew York. of Committee Greater parts (Report vol. 4, vol. Address to ;708 People, Apportionment, p. * * * The rule that counties 1251, sub. 9, p. p. 1253.) two which from their location included either of bemay shall most be so as to make said districts districts, nearly placed has been number of inhabitants, aliens,” equal excluding as made. violated (Const, repeatedly apportionment Y. art. ex v. 135 N. Y. Rice, of N. rel. Carter 3, 4; People § has 484.) The violated requirement (Const, of as to of senate districts. compactness N. Y. art. 3, 4.)§

Edward Monroe for B. Robert Grier Whitney George et is void on E. al., Payne appellants. Queens its account of violation of rights county. of N. Y. art. 1 on Const. 3j 4; 407; Story Cooley’s (Const, § v. S., Lim. 603-606 Fairbank U. 181 U. S. ; Const. [7th ed.] 42 The constitutional Allen, v. N. Y. 283; 378.) People has violated been repeatedly requirement compactness art. of N. Y. (Const, 3, 4.) flagrant gerrymanders. § and Merton E. Julius M. James G. Graham Mayer, The constitutional Lewis apportionment. requirements N. with. v. 148 Y. (Smith 187; have Suprs., complied 155 Ill. v. 198 451; Carlock, v. People Thompson, People 13

194 O’Brien, [April. v.

Points of counsel. 188. [Vol. Ill. The constitutional as to 150.) pro\rision equality number of inhabitants is not violated 431 of the by chapter Laws of (I. & L. R. S. R. Co. v. 3 Otto, Horst, 300; E. M. S. v.Co. 14 Blatchf. Park, 414; v. Beardsley Littell, 14 Smith, Blatchf. v. 105; Reed 42 Col. v. 251; Prouty 11 Kans. Storm, 261; v. 198 Ill. People Carlock, 150; Peopl ev. 155 Ill. v. Thompson, 451; 92 Mich. Giddings Blacker, 1; Houghton v. 92 County Mich. v. Blacker, 638; People 20 Y. Broome, N. The constitutional Supp. 470.) provision as to is not violated. compactness v. 155 (People Thompson, Ill. 451; Matter 142 Y. 523 Baird, N. v. ; Gailter, People Ill. 149 The constitutional that the district 39.) provision shall at all times consist of has been contiguous territory observed. ex rel. Williams v. 55 N. Y. (People 378; Dayton, ex rel. v. 78 N. Y. People Joyce 403; Brundage, Houghton v. 92 Mich. Blacker, Unless statute is County unconstitutional it is the court beyond any doubt, duty declare constitutional. v. 133 State, Ind. (Parker 178; 48 Ohio St. State v. ex rel. 435; Kemm Campbell, People v. ler 119 N. Y. Durston, 169 ex rel. v. ; Carter People 135 Y. ;473 Rose v. 52 Rice, Goddard, Barb. Ford 533; N. v. 90 Hun, 481; McGrath v. Cummings, Grout, App. Div. ex rel. 315; Sinkler Y. People 1; N. Terry, N. Y. & L. B. Matter I. 148 N. Co., Y. 551.) S. Jackson, William P. Decker Attorney-General {George for If the attacked respondent. counsel), apportionment is not accord with the of the there requirements are no should deter this hold court from consequences since the elected invalid, legislators, ing year remain officers. v. 19 Y. would N. (People Rumsey, defacto 92 v. Mich. Blacker, 638; v. 41; County Houghton Giddings 92 81 1; Mich. State Wis. Blacker, Cunningham, and declare the If this court should conclude apportionment - it would still be of 1906 for unconstitutional, competent make and its to do another, so power duty legislature until continue ex rel. Carter v. would performed. (People oe Sherrill Court, per Opinion J. Ecp.] N Y. Chase, this court to rests An upon 135 N. Y. 473.) obligation Rice, art. of Y.N. (Const, the merits controversy. pass 3, 5.)§ Act The of the so-called Apportionment validity its that some of is and it is claimed provisions

of 1906 assailed, senatorial of the state into division relating other constitutional pro- provision, contrary express dis- an use thereof constitute such arbitrary alleged visions invalid and void. as to be power wholly cretionary power the relator’s review the involved court to questions claim should be first considered.

In United States authority general power of the Federal and of"the State udicial governments j department acts to determine constitutional validity legislative is not now involved in a to and controversy pending applicable section It is also by question. expressly provided open that an of 1894 of article 3 of our State Constitution appor- or other Shall be tionment body subject by Legislature at the suit of citizen, to review Court, Supreme any .the as the under such reasonable may pre-ill regulations Legislature" a cause court before which scribe; pending any an shall thereto over precedence apportionment give involving if said in ses- causes and court be not all other proceedings, the same.” it shall convene sion disposition promptly and it was intended to new, is This constitutional provision further claim that set at rest and does the state for an act purposes legislative reapportioning passing from far is so exercising political, distinguished reviewed the courts. that its action cannot be power, of this state to review an Court Supreme jurisdiction or other now body express, apportionment to review such act but jurisdiction to this court. The Constitution juris- not by given expressly is the to review the orders from of this court appealed diction determina- the court to review actual of jurisdiction general of the Supreme the Division Court of tions made by Appellate Opinion Court, per [Yol. orders finally determining special (Constitution, proceedings art. 6, sec. Code Civ. ; Pro. sec. and the 190) jurisdiction the of court limited the of review of law. questions 6, art. sec. Code (Constitution, 9; Civ. Pro. sec. sub. 191, The determination of of law involved in the every question is within the this of appeals court. jurisdiction In tlie ex opinion rel. Carter Judge People Andrews V. Rice N. Y. 473, (135 521), referring jurisdiction court determining constitutionality Appor tionment Act of 1892 he said: (Laws I chap. 397) presented shall not undertake to show that the is of question That it is a cannot judicial cognizance. judicial question under the authorities denied. legislature courts are alike bound to and if the obey Constitution, the fundamental law transgresses oversteps the barriers of the it is a legislation part liberties that people shall have judicial department and exercise the itself power Constitution protecting against courts to set aside infringement. power an unconstitutional has been quite recently asserted and exercised courts of Wisconsin and Michi ex rel. v. (State Paymer 51 N. W. gan. Cunningham, Rep. 1133; Blacker, 52 id. Giddings 944; Supervisors of ” v. Blacker, Houghton County Secretary State, id. 951.) taken from language quoted Although dissenting of the court by Judge does opinion, opinion Peckham court review an act deny power apportion- it think ment, :“We that the but courts have says 501) (page case to review the no such exercise of a discretion power unless it is legislature- entrusted * * * abused. We do not intimate grossly plainly case the action of the that in no could be reviewed the courts. Cases where easily imagined so would be violation action of of the Con- body gross had that it could be seen been lost stitution entirely an intentional its of and commands both in disregard sight had and in the in.” letter spirit indulged 197 Sherrill v. O’Brien. Matter oe Chase, Court, per J. Opinion of if. Y. Gray in the same in his And concurring opinion Judge “ if of funda- But

case says: any provision 510) (page intended, to secure the state mental law of the equal repre- , has its citizens in the of department sentation legislative -it is then the act properly duty violated question, it unconstitu- of declare power department judicial has The duty void. therefore, pro- tional and, judiciary acts null which contrary nounce legislative of the state.” tenor manifest was of this court considered again jurisdiction v. Board Baird Matter Super Application of of of N. Y. (138 visors County Kings 95), of into division of assembly involved the Kings 1892, said .Laws chapter provided that the division that had been made was held and this court and the division, other court, a constitutional among “ of division duty said: proper discharge things, considerable discretion formation the board implies The discretion exercised must an the various districts. out of the fair circumstances and a discretion honest arising exercise the case and reasonably' affecting power division.” of equal of 1894 the case of Smith the Constitution Matter

Since Lawrence N. Y. St. Co. (148 v. Board Supervisors, 187) it was said that- Each case court, before has been and the courts can facts, on its decided peculiar must be times to enforce Constitution in its at all relied upon letter spirit.” to determine whether not' have

The courts jurisdiction with the is conflict limitations an act of apportionment and if such found to conflict fixed by & the act void. (American Ency. to declare exist, English 485 and It vol. 2, appears, ed.], page cited.) of Law cases [2nd can review action the courts therefore, to this the state and on court appeal reapportioning should be entertained. jurisdiction a,s on the to be question determined Where appeal oi? Sherrill

Opinion Court, per [Yol. to whether the has obeyed provision mandatory is, of the in which case a law Constitution, of presented question for the determination of this court.

2. "Where the Constitution is in by some discretion vested this court cannot the motives of into legislature inquire and for a .such discretion legislators exercising voting of and cannot plan into particular inquire the relative merits of several to choose from which plans the exercise of sound and requires discre- judgment judicial tion. if the But of an under the exer- legislature assumption of cise discretion does a is a mere of thing assumption and arbitrary which, view of the power, of the provisions a reasonable beyond controversy, gross and violation deliberate of the intent of the Constitu- plain tion a and of its and the for which disregard spirit purpose limitations are included act is therein, such not the express of a exercise discretion but reckless that discre- disregard tion which is intended the Constitution. an Such exercise is not arbitrary It is power by authority People. when and it is claimed that an assumption, act is thus in violation of the Constitution a of law is question presented determination this court.

A act cannot as a stand valid legislative apportionment exercise when it is discretionary power legislature manifest that the constitutional been disre provisions'have than an more order of the Division can Appellate garded a create of fact that there is one when question by declaring of fact exists. no Matter 179 Y. question (See Totten, N. Slate Co. v. Granville Penryhn Elec. & Light N. Y. Co., 181 other determination Power 80.) Any result the constitutional courts standards might being down broken wholly disregarded.

We have seen that an such as to apportionment may that the act be declared invalid and void as matter require law. Let us look then authority legislature. are vested and sovereign People supreme is the The voice People authority. speak- Court, per Opinion Eep.] Y.N. Elevated N. Y. in their (Matter sovereign capacity.

ing Y. 327, N. R. R. Co., . the' is the voice People speak- act of

An authority their representatives. through ing authority delegated representatives Constitution. derived from it is dependent wholly it is 20, 1777, first Constitution, pro- our adopted April By within this state, That the power supreme legislative vided of men and distinct bodies ; vested two shall be separate of the state of New York; called the to be Assembly one the state of New York; called Senate of other to be * * shall form (Section 2.) who, legislature, together, that November 6,1894, Constitution, provides Our adopted “ in the shall vested this State be of power legislative section III, (Article gen- Senate Assembly.” 1.) and unlimited as is absolute except eral power legislative v. Brown, (Bank Chenango restrained by of v. 46 N. Y. ex rel. McLean 467; Flagg, 26 N. Y. People that observed, no however, be power It will general in the of vested legislature, the Constitution change its members or districts from the number of modify has elected. The Constitution are to be always which they thereto and such relating special included provisions special full It authority constitute legislature. provisions that over itself we must of legislature authority before us. aid determining questions examine study that the it was senate of provided By freeholders. Section 12 . of pro- consist twenty-four should “ after man- senators shall be this election of That vided this state as is now into parcelled so much That ner : districts: the southern dis- four into be divided great counties, * * the senators shall *. That be trict comprehend the said as districts, the freeholders qualified elected by to wit: In the southern in the following, aforesaid, proportions * * * it that census ordained, And be nine. district, after the of seven as be expiration as soon may taken shall under the direc- war, termination present from years [April) Sherrill "Court, Opinion per [Yol. tion on such it shall legislature; if, census, appear n that the number senators is not to the justly proportioned ;¡

several that the as districts, proportion, adjust near as to the number of may be, freeholders, ¡ qualified * ** in each that district. And be ordained, ]’aforesaid,

it shall be in the future power state, legislatures for the convenience and thereof, advantage good people to divide the same into other such further and counties as shall to districts, them appear necessary.” In the section of the Constitution (Section 5) relating after for the it further assemblymen, census, providing pro- “ vides: And if on such census it shall that the num- appear, e , her of from said counties is representatives assembly f to the number of electors said justly proportioned counties do respectively, adjust the same apportion rule.” The constitutional amendments of 1801 retained directions that senators and should As assemblymen be apportioned number nearly may electors,” but according no further limitations were general placed upon power apportionment. the Constitution of 1821

By the state was into divided eight senate It districts. was therein further (Article I, provided “ that An section enumeration the inhabitants of the 6) taken, shall be under the direction state, in legislature, one thousand hundred and at year and eight twenty-five, the end of ten and the said thereafter; every years districts shall so be altered at the first session after legislature, the return of that each senate district shall every enumeration, be, as as an number of contain, nearly may equal inhabitants, and aliens, colour not taxed and excluding ; paupers persons shall remain until the return unaltered, of another enumera- j shall at all times and consist of tion, contiguous territory and shall be in the no divided formation of senate county district.” the Constitution of 1846 was into state divided

By senate districts with the number of correspond thirty-two Court, Opinion per Y. of N. therein further provided elected. And was

senators be inhabitants enumeration of the sec. that An 3, (Art. 4) state shall be under the direction taken, legislature, at and and in hundred one thousand fifty-five, year eight the said districts and thereafter; the end of ten every years after at the first session so altered shall be legislature, shall district that each senate enumeration, the return of every an of inhabitant;-, as as number be, contain, nearly may equal taxed; and shall and aliens, color persons excluding and enumeration, until the another remain unaltered return of and no shall at all times consist of contiguous territory; shall in the formation of a senate district, be divided county or more such shall be entitled two except county equitably senators.” November divided the 1894,

The Constitution 6, adopted into districts it further article 3, state fifty provided by as : section follows shall

“An enumeration of the inhabitants of the State be under the direction of the of State taken Secretary during June, hun- months of one thousand nine May year and in the same tenth there- dred five, months'every year and the said shall so altered.by be after; Legis- the return at the first session after lature every regular that each senate as district shall contain enumeration, nearly an number of inhabitants, as be equal aliens, excluding and shall remain form practicable, compact until the return of another and shall unaltered enumeration, no shall at consist times, territory, contiguous of a senate district divided formation except two more senate districts such make No wholly county. in a inclosed streets or -and no block town, city public of senate shall be divided the formation districts; ways, district excess shall contain nor population- greater than the district in same county, popu- over adjoining lation of a town or block therein such district. adjoining which, from their location towns or blocks be Counties, may either two be so districts, shall included in to placed op Sherrill O’Brieh. Opinion Court, per [Vol. make said most districts in number of nearly equal inhabitants, aliens. excluding “ No shall have county four or senators more unless it shall have a full ratio for each senator. No shall have more than one-third all the senators and no two counties ; or thereof as now territory which are organized, adjoining which counties, shall separated only by public waters, * * have than more one-half of senators. In- true representative should government every person in its represented bodies. Exact equally repre- sentation senator and requires every every assemblymap shall the same number of represent maintenance people. town and block lines and other county, considera- practical tions, in recognized by provided Constitution, makes mathematical exactness in the division of the state into senate and assembly Because of the impossible. , variations in the number of necessity in slight inhabitants j ¡¡j in districts formed accordance with the directions of the Con- it has in substance for a If-stitution, always provided division as n nearly may accordance with the number of inhabitants. - that we have made from first quotations our and from amendments thereto subsequent and changes show that therein, to equal representation proportion popu- been cardinal and lationhas to which underlying principle has directing always pointed authorizing the state. reapportion legislature The direction that the senators be appor- ” as near as tioned be to number of freeholders limitation on only power contained and the amendment in the first Constitution of 1801. The of a decennial for in the several census-provided very purpose has state Constitutions differences adjust arise from of abode or places changes population of inhabitants, in the number and thus from time increase make more representation time nearly ideal. 1821 a second new limitation was

By 203 v. O’Brien. Matter of Sherrill Court, per Chase, Opinion the J. of N. T. in the matter of the of

placed upon power that senatorial districts it is which by provided apportionment Substan of “shall at all times consist territory.” contiguous in the third Consti included same limitations were tially of the constitutional convention 1846. of Prior tution in the state had arisen about much controversy of the state into senate and divisions. of unfair possibility or individual in advan so as to result party districts, assembly 1879, of 1879 (Laws of chap. 208) apportionment tage. of the inhabitants the enumeration criticized; was provided of the state in was for in 1885 delayed; which was carried vote 1892, 1892 (Laws chapter 397), by Oof a different of a of politi representing majority in was also criticized, than the cal majority party in the courts as not in act was accord being challenged Constitution. At with the letter least spirit ance had were commenced which for their three pur proceedings determination of constitutionality pose judicial Term of act The decisions G-eneral of 1892. in such' were Court From proceedings conflicting. Supreme an in was taken to each this -orders proceedings appeal the1title of the decisions under court and reported People v. in case the ex rel. Rice Carter (supra), question was summed the court up before prevailing opinion “ The sole now whether the words, question these legis has been so far abused as to render the lative discretion act to an courts.” conclusion liable overthrow by the court was that the Act of 1892 majority successfully assaults it and is a valid witLstands all and effective Andrews was con law.” A dissenting opinion Judge Thereafter and before the con curred Judge Finch. convention of 1894 another came before stitutional proceeding court Baird Supervisors, (Matter supra) that the division of into assem was held county Kings had made principles bly disregard Constitution. The contrary equal representation exercise was case decision Baird jurisdiction v. O’Brien. Court, Opinion per [VoI. determination, this court and a that the constitutional pro- visions to of had regard been dis- equality representation section-5 article 3 at obeyed, although of Constitution of. a amended vote of time, November by people 3, a 1874, for division of the counties provided into “respective districts each of which districts shall consist of assembly convenient and contiguous territory.” Lincoln’s

In Constitutional of New York History (Volume he calls attention to"the address of page 135) opening convention, thereon he president : commenting says “ was doubtless on both subject given precedence óf its account intrinsic and also of because importance results of the of 1892 and the unsatisfactory apportionment evident of rules which would necessity formulating prevent of a and insure repetition inequitable apportionments pro- of representation to strict portionate population according mathematical far so as consistent with other computation rules of limitation based on territorial divisions.” specified to the of 1892 he Referring again says (page apportionment “ Like other events which have been noticed in many 203): these was a studies, statute and was the history-making- immediate occasion of constitutional important changes.” he “The says 1892 (page 218):

Again apportionment referred to in the course of the was Its frequently debate.^ and the under the 'Constitu inequalities possibilities existing a tion, as shown decision in the Carter Case N. Y. (135 a were considered sufficient reason for 473), including rules which would make a Constitution impossible repetition statute.” a These statements fully justified by perusal pro the convention to the ceedings relating subject appor we can look when tionment, proceedings judicially ex -Constitution. rel. v. Henderson (People construing Co., Westchester N. Y. Matter 1; Supervisors Y. 148 N. Heymer, court, This Matter Smith v. Board St. Supervisors, N. Y. Co. said: The evil (148 187), Lawrence sought op O’Bbieh. Sherrill Court, per Opinion of N. Y. was to those

remedied the new gross prevent that liad and representation discrepancies name scandal and good reproach public long the Constitution With that end in view, of the state.” 1894 includes the mandatory provisions regard following districts: senate at all times 1. Shall consist territory. contiguous of a senate in the formation 2. No shall be divided two or more senate districts district make wholly except such county. no in a inclosed streets

3. No town and block pub- city districts. of senate lic shall be divided in formation ways ‘ a shall contain excess 4. Nor district popu- any greater in the same than lation an district county over adjoining district. therein such a town block of adjoining population | it more unless have four or senators 5. No shall county full ratio senator. shall have for each all shall have more than one-third of No county 6. senators. thereof as now No counties or organ- two territory

7. are or which separated which counties ized, adjoining than have more one-half of waters, shall only by public senators. it directs: to these provisions

In addition mandatory - ; as contain, be, district shall nearly may 1. Each senate aliens. inhabitants, number of excluding equal form as in as 2. Be practicable. compact location, their Counties, which, from towns or blocks 3. shall be so two districts, placed in either of be included in number of most make said districts nearly as to equal v. Board aliens. Smith (Matter inhabitants, excluding of of 148 N. Y. Co., St. Lawrence Supervisor's, re Smith v. In court, these limitations view of In assured that We feel said: (supra), Board Supervisors to those never the state can subjected again the People which gave representation inequalities so long constitutional to present provisions rise some Matter, oe Sherrill v.-O’Brien. Court, per Opinion [Yol. the maximum excess in the of the district is limited population to the a town mandatory provision population adjoining ' such district and the discretion assembly exercised within that limit is to narrow subject courts.” supervision .the These words were used with a reference to division of counties into districts. assembly

Can it be that in doubted view of constitu- history tional to changes regard legislative apportionment shows withdrawal from the gradual discretionary and continued of limitations their power adding power and in view of thereto, the clear intention relating con- stitutional convention of 1894 People adopting that this court Constitution should now hold that the mini- mum discretion necessary preserve other lines county reasonable consideration other give provisions is left to the ? As the discretion of the to the relative legislature relating in senate of inhabitants number districts arises from necessity it should cease where for discretion necessity ends. In the section of relating (Arti- assemblymen section that in 5) cle 3, entitled provided any more one member of than board of assembly supervisors and in an entire city no embracing county having “ the common board shall supervisors, council, Divide such into districts as counties in assembly number of nearly equal as inhabitants, aliens, be, excluding convenient in as form as territory compact practicable.” contiguous “convenient” is The'word omitted in the directing legisla- to a division of the ture in state into senate regard districts. must assume it was We omitted. intentionally (Roosevelt Godard, 52 Barb. of the Constitution which Every allows provision dis- in cretion must to some by legislature, and controlled be affected extent other every by provision but in division of the state into senate of mere districts matters convenience individual taste are consideration. for not subjects d. or Sherrill Court, per Opinion of the

T.N. case of the Garter force While we binding recognize in the con- then the court, to the facts before applied we are as it then existed, struction of the Constitution be con- as it now exists should that the Constitution opinion that the so as to strued dividing require to an into senate districts make as close state approximation inhabitants as exactness number of reasonably possible and that such view of other constitutional provisions, the limit of discretion. approximation as in con- In construing language of a courts should look statute, struing language its used intention People give language - and plain ordinary meaning. ordinary meaning ” is not near words territory territory by, contiguous „ but of, territory locality touching, adjoining neighborhood from and connected, distinguished territory separated other territory. Queens

Richmond is not to within county contiguous county as thus defined. Rich- meaning contiguous Although its mond boundaries county by statutory county adjoins the latter its inter- boundaries county by statutory Kings, venes of Richmond and the between county county Queens. Richmond never had a county, having population entitle it has reason of its insular senator, sufficient to to situation been situated. The Constitu- peculiarly People, by acts of the have treated it as tion legislature, Constitution in mandatory provision exception it and because has been has regard contiguity, necessary in senate been districts with counties whose actual and joined boundaries do not touch or it. statutory adjoin of terri- mandatory provision regard contiguity a senate has district the Constitution tory comprising the Constitution of 1816 the since Rich- By Queens was with the counties of Suffolk and mond joined first senate district. 339 -of the constitute By chapter of which the senate districts of the state 1857, Laws were by said counties were to con- changed by legislature, joined oe Sherrill v. O’Brien. Court,

Opinion per [Vol. the first senate district. stitute 805 of the By Laws chapter of 1866 these counties to make legislature again joined the first senate district. in 1879 Richmond Although county was with of Hew York and jiart county joined 1892 with the Constitution part county Kings, counties Richmond and Suffolk to make joined the first senate district. reason of a new constitutional By of Richmond cannot now county be to a provision joined or of either Hew York counties to make a senate part Kings view of district. In the construction on the placed Constitu- tion constitutional it should by provisions, be legislative held that the of Richmond is from the county consti- exempt tutional senate be districts provision requiring composed however, should territory. exception, contiguous than is made more from the constitutional required general It nowhere precedents. Con- by appears 1846 or 1894 that it stitution of was intended that the county be so of Richmond should from its generally exempt provi- sion that it could be contiguity regard territory other statute counties of the state joined a senate make district. Richmond absurdity joining with some of the interior counties of the state to make county a senate district is a mere apparent of such suggestion It should not be with a joined other possibility. county like itself bounded on the than one Atlantic ocean with a bounded on Hudson river which is county sufficiently near to Richmond so a senate district so formed county be as far as within letter and would possible spirit that senate shall constitutional provision requiring in as form compact practicable.” that the We do not think violated the mandatory of the Constitution of terri- relating contiguity provision Richmond'with county tory by joining Queens.

The citizen of the state as shown enu- population of 1905 was meration this number 7,062,988. Dividing a ratio of 141,259 provided by gives 209 Matter or Sherrill -v. O’Brien. Chase, Court, Opinion per J. N. Y. the that ratio it for senators. With such appears apportioning entitled to 12 senators'; of New York was county Erie to to and .3, 8, county county Kings be a district would counties the to citizen average population county 147,347 146,192, 150,024, respectively than the number senator more was entitled to one Kings therefor adopted specifically provided by it and under the new constitutional 1894, provision 50 to increased the full of senators in state from number 51. from entire citizen population Deducting York, state the citizen of New counties population a citizen there remains Erie, population Kings other counties of the state of which divided 3,645,337, York, counties of New the number of senators outside district of for each senatorial ratio Erie, Kings gives counties than New York, other 130,190. Kings excess of ratio Erie a citizen having population Rens senators Queens, Westchester, Albany, apportioning Each of these coun selaer, and Monroe. Oneida, Onondaga the ratio is enti excess of ties citizen having population construction of Consti and reasonable tled any just least senator. ex rel. tution to at one (State Atty.-Gen. v. Ind. Wis. Parker 133 440; State, 81 Cunningham, counties were determined by The minimum such rights an taken not be away by enumeration and could they at unless the least of discretion by exercise as to of some small was such county position geographical it some one it be necessary joined make absolutely No such absolute required of such counties. necessity Queens or to other county Richmond county joined its ratio. Richmond full county Joining having county Queens senatorial district was to make the second county not author- arbitrary power exercise by Richmond should county the Constitution. If ized make a citizen Nassau would popula- joined Opinion Court, per [Vol. tion and even if the equal ratio, peculiar position those island counties allow the discre- would its tion to the counties of Nassau and Suffolk join Richmond, one senate district combined citizen of such population counties would be but The relative 203,616. citizen popula- of the first and second senate districts as tion by provided act to and 137,175 246,187, between the first and second if first was of the three districts, counties stated composed Queens and the second would alone, be county 203,616 or a difference in favor of 179,746 first between the equality and second senatorial districts of The 85,142. rights Queens under the Constitution because of its county having above the ratio citizen and also reason of population in the number of citizens in the first and second inequalities Queens that senate districts a senator required county given with it without other county. joining will A reference show how diagram grossly pro- of the vision Constitution has been regard compactness thirteenth senatorial in the district within violated which is York. All of the of New the county territory county that of Manhattan island New York portion comprising level and shown on covered diagram comparatively fully on streets which blocks have blocks bounded by buildings residential for business or erected and no purposes, possi- the exercise discretion to make a for district ble purpose has been no effort shown, is not and reasonably compact to have been made to make the seems district whatever in as mentioned compact-form practicable. for the reasons alleged rambling territory comprising district with its senate boundaries of thirteenth many immaterial and various wholly angles recog-

sides of senate dis- apportionment nized by to the boundaries senate districts A reference tricts. made the constitutional convention shows in said county can divided into are reason- districts which few sides each comparatively angles. compact, having ably of a entitled to limits senators the many Within city v: O’Brieh. 1907.J Court, Opinion per Y. N. seem to exclude

requirements would compactness pos- aof district in the of the thirteenth senatorial sibility shape district as shown on the re (In Timmerman, diagram. Y.N. Supp. 57.) of constitutional disregard provisions forming

second and thirteenth senate districts is affect clear, so they the entire as to make it to declare necessary the act unconstitutional and void. It is.not wholly necessary wise to discuss the of the act other provisions relating senate districts that differences from except say arising differences the citizen necessity slight population senate districts the relative differences in weight slight with considerations comparison population compactness or which men of reverse, and discretion upon judgment are matters may differ, to the fairly belonging distinctly legis- lature and not to branch of the judicial government, which court has with this no disposition jurisdiction interfere. must stand its Every apportionment own particular);

facts. The rules and which we have stated are principles gen-;,' eral, result from an examination Constitution andfI ¡ its a development. They to the study facts applied oh '>f so far as stated and so far as stated. only appeal v It is difficult and to state rules perhaps impossible by can future be measured. apportionments This court has said J., Matter already by Baird v. Super Peckham, that visors We have no trouble whatever in (supra), detect the difference between noon but ing the exact and‘midnight, line between the dusk of separation the dark evening ness of is-not so drawn.” advancing night easily (See People rel. v. ex Schau Mc 185 N. Williams, Y. 92, 100.)

I concur the views expressed by Cullen, Ch. as to the J., a of the acts of de effect so as mem- its long faeto remain actual incumbents of bers their offices respectively. should orders reversed, costs to appellants courts, but as since the institution of the proceedings have several out office and respondents the election gone Cullen, Ch. J. 'per

Opinion [Vol. itself has no !' order should be made held, directing aof of mandamus. writ jlissue In Ch. conclusion which we have reaching

Cullen, announced we have not opinion Judge means failed to and consider the that results fully weigh our While follow from decision. our is to may supreme duty enforce the upon which, provisions the whole fabric of this state foundation, government we that rests, is or should be fully appreciate government and that courts should pre-eminently practical thing long hesitate into to throw confusion and disorder government an act of and so declare invalid, declaring violation, of the when the constitutional mandate clear only and certain. That violation Constitution is too is the conclusion which we have plain disregarded the reasons stated been forced brother Chase but ; by my at time we think it the same but our only proper duty that fear our throw in our decision opinion say - of the state into confusion is unfounded. the government was before us When this immediately prior gen- appeal unani- eral last we election year, dismissing appeal of 1906 that whether the Act said Apportionment mously act- not, or the be was constitutional might that the electors of the state under chosen appor- ually a acts would, be de whose tionment would legislature, faeto still To that declaration we in all be respects, binding. It is now, understand no one to it. and we adhere, gainsay that the that when our decision however, Appor- suggested that time announced, unconstitutional is from tionment Act is a will no be de body. longer present faeto under is without force either This principle suggestion if as vio- invalid, An act of the the authorities. legistature enact- the time of its is invalid from lating its character by from declaration of not ment, merely aof or election public courts. But appointment though acts that his official it is law be officer elementary may illegal, 213 Matter, O’Brieh. Culler, Opinion, per J.Ch. Y.K. valid and of the officeare bind incumbent he an actual

while Kent’s third Comm. 295 ; and on (2 parties. on public ing v. Collins, ; Johns. 549 Wilcox Smith, ex rel. v. 7 Bush Peopile ex 108 N. Y. rel. Sinkler v. 231; 1; Wend. Terry, People there the case last In cited Carroll, v. Conn. State officers of the doctrine best one expositions defacto is not one of in the The doctrine conven found to be reports. ex rel. Knowlton In State ience but necessity. merely that it contended a statute of Wis. was Williams (5 308) was invalid because a whom the state approved governor declared not to be entitled to the courts office. subsequently it was held that as the statute was Keverthless, approved bjr an actual incumbent of the office of was governor, and effective. Of an valid officer course, who, respects is not such de de ousted from the facto, jure, though he holds instituted to his office proceedings try illegally and when a he office, title to ceases usurper adjudged time to an that officer de But to have from facto. must in a be rendered effect to oust judgment proceeding it is not sufficient for the ; office him from his purpose in a collateral be declared bad A title office proceeding. is the of this case of ex rel. principle People notable example N. Y. which was v. Schiellein (95 124), application Smith town Mew Lots mandamus board to canvass against award a certificate to who relator, vote and claimed to a at the elected town have been peace justice meeting. on his claim that of the relator a statute depended right of the town of Mew Lots to be peace justices directing was at the election unconstitutional and void, chosen general held. It that one however, so the courts happened, was a defendants peace proceeding justice office under statute declared elected very holding if was the statute he was He insisted invalid invalid. the town nor member of board, peace justice the not run him. This writ should and, therefore, against it-was sufficient that overruled objection, saying court raised the was who Watson, defendant, objection, actually Sherrill Opinion Cullen, per Ch. J. [Vol. and it also said that the decision in the office, mandamus suit of itself did not oust him. Buger wrote for the Judge court: It that one of the results the deter following of this will mination be his removal from appeal but office, will not be the direct result of our Title adjudication. to liis office not triable in this therefore, and, proceeding here cannot be It was, adjudicated.” therefore, entirely pos that had no sible been taken proceedings against Watson, had he not he voluntarily relinquished office, have might therein remained adverse decision of despite court, liis acts would have been valid. The position mem bers of much legislature present stronger. before us is not to the title of proceeding try member any to his but certain office, administrative against as to the of an officers conduct election. were it Therefore, for the courts to the title of members of the possible try legis lature this decision would not affect that title. directly But, each house Constitution, under is the exclusive the election and judge of mem qualification no The courts have bers. determine the title jurisdiction In the case member. ex rel. People any Sherwood Board Canvassers Y. State N. a (129 divided 360) court it was held relator under being disqualified a from election as senator the courts would a board of canvassers a not certificate of compel give his but even election, conceded that majority opinion would in court no bind the when way senate, ruling on the of the relator’s As convened, question rights. already the senate and elected under the said, assembly Ajiportion assembled ment Act and constitute in actually any aspect aAs each house under has, legislature. body defacto defacto exclusive only but exclu power the title of of its sive members to a seat judge right -Whoever either house receives as its therein. elected legally entitled to a seat becomes member de thereby j-ure of that even house, courts, member were such a though them, be of triable a different before opinion. might question O’Bbieh. of Shebbill Matteb Okay, Opinion per J. IT. T. a is the that not therefore, only legislature

It follows, present so thereof, that each member valid but long legislature, not oust him, does he house which the belongs particular a de mem- but world not de as to the only jure facto the of a member, to all the entitled ber, privileges like, and the of his the to his salary exemption person, right before tribunal his title to office cannot be challenged in any tliere can be no vacancy the house itself. Thus except can call or other officer district which the particular governor ousts the member the unless the house electors to fill, All this, however, declares him not entitled to his seat. that is a mere 'ulmén does show our decision Torutumf on the title of no effect. While the court cannot pass practical it can control action member of any present legislature, of the next election of administrative officers conduct a new that takes should If place. present pass in with the bill provisions compliance apportionment election at which members of next Constitution, general under either are to be elected will be held the new house then If the fails statute. duty, discharge must be held accordance with election apportion- In other while words, ment under 1895. with the cannot interfere they courts present legislature, future elections to be held with the can compel compliance Constitution. J. I should hesitate with opinion agree G-kav, ¡u to the brother

my unconstitutionally Appor- if I tionment were not convinced the amendment of Act, had the State materially changed rules, which should govern legisla- citizens of the State. ture of the representatives ex rel. v. Rice, In case Carter N. Y. People (135 Act of which involved 1892 and Apportionment 473), I was of the in the decision which I took part, opinion the then vested certain dis constitutional existing provision its cretion legislative body power, exercising Matter oe Sherrill Opinion, per Gray, [Yol. which the court should not had when there interfere; neither a of nor an unmistakable violation, flagrant disregard, the constitutional that be the should injunction apportionment ” as as citizens. nearly may number of according

As be discovered from the in the may debates constitutional convention of the decision in the that Rice case moved to recommend new or body rules, for an provisions, appor- tionment. were intended to whatever They defective- remedy ness in the old rules the made observed possible inequalities, act. apportionment preceding

It is of has a most it, great significance necessarily, coui;t the the attitude of towards the important upon bearing that action, the article the of Constitution, (Art. Ill, sec. a 5), review expressly provides judicial any appor- tionment the legislature. The exercises by now, legislature, its to a review the court of its which act, power subject by citizen invoke. The form, in its as article, present well the out, reduces Judge points discretionary power Chase to a minimum. The limitations its upon exercise are relaxed, with practically, only respect preser- vation town and block lines. It is intention county, State, as declared the recent amendment of People by the article of the in Constitution, that, dis- apportionment there shall near to an be as exact in the number tricts, equality is from a inhabitants, consideration of possible nothing than the else constitutional that provisions upon subject; shall consist of that contiguous they territory; shall be in as form as divisions compact possible towns or blocks shall be made the cases counties, only It was insure that such an should specified. no considerations nor rest convenience, governed a that a review discretion, court was large political for. That has made expressly provided mandatory, was In before before amend- my opinion, discretionary. ment of the was a and doubtful Constitution, grave ques- tion of a whether, absence violation of plain gross court was with justified interfering 1907:] Haight, opinion, Dissenting per

N. Y. government execution legislative department hy the amendment, But, of its duty apportionment. and the devolved basis duty matter is different placed upon when complained the court to review apportionment, mandates the constitutional to enforce and, of, thereby, they expressed. I shall concur with Chase’s opinion these reasons,

For Judge constitutional Act violative that this Apportionment provisions. no seri-

I with the Chief am, also, Judge agreement can arise or embarrassment ous, real, respect govern- mind may acts. However lay mental, legislative, the confusion as the result of our decision, legal apprehend in is and is clear stated correctly situation, my opinion, Judge Cullen. held that the J. it has While (dissenting).

Haight, in courts have review the acts of the the legislature power the determin- senatorial districts for apportioning purpose in with the whether such acts are compliance requirements ing it has been the of considerable subject as or be and how, discussion the can when, raised, question the as the extent of that should be exercised the power in such review. It because of such dis- court was, doubtléss, a and that new was inserted cussion uncertainty provision which as “An follows: provides other shall or be sub- apportionment by body, legislature, at the suit of to review citi- Court, Supreme any ject as the zen, under such reasonable may regulations a court which be and before cause prescribe; any may pend- shall thereto an involving give precedence ing apportionment, and if said court be over all other causes and proceedings, it shall for the session disposition promptly convene not, has .same.” (Art. 3, 5.) Unfortunately, § as practice yet, adopted any regulations prescribed I, however, a am of should be followed such review. that the the absence and, self-executing, opinion provision v. O’Brieh. opinion, per Haight, Dissenting [Vol. a to be legislation courts practice followed, providing will such as will secure to all their adopt practice parties rights to the review will for. It that the be observed door provided has been thrown wide and citizen state open, any “ to have a review. is at It the suit of given right any citizen.” The word suit,” defined is of com- by Bouvier, in a prehensive signification, applies any proceeding court of a which a which justice person pursues remedy the law affords him for the redress or the injury aof It includes both actions recovery right. proceed- ” - “At the suit of citizen ings. may by proceeding, to be should be of the practice adopted simplest citizen, form. move therefore, the court Any may upon or affidavit setting forth the which petition grounds upon he that the claims Act violates Apportionment provisions the Constitution, such notice court upon may which, should be served doubtless, require, attorney- officers of the possibly two branches general presiding before court, legislature, thereupon, the motion must thereto pending, give precedence over other causes and and if not in session proceedings, shall convene and I same. enter- promptly dispose tain the view that this of the was provision intended to to citizen the desired, who so give every state, to the review of an opportunity constitutionality appor- tionment and that citizen act, the first the proceed- instituting the court all other citizens jurisdiction, ing gives desiring to move should come with that him, so there join may of the be determination which will one be final and question, all' that conclusive the thus persons, remedy given the of and is takes exclusive of other remedies for place review which have heretofore existed. Otherwise the may must remain for at citizen, door time ojien any during for which the runs, .the ten to years bring up for review which arise in the different may questions parts with reference to the state thus validity act, involving de the existence every doubt jure v. O’Brien. Haight, opinion, per Dissenting Y. N. and the Under the Constitution

be elected by people. divided into to be senatorial districts statutes required into election districts. districts and districts assembly assembly laws .election followed our This is general primary and the manner of candidates nominations providing until its to valid election. A statute be of their presumed so to is ad a court do. jurisdiction having invalidity judged it be violative Con If provisions adjudged law as if the statute remains stitution, existing previous In this effect would be to had case not passed. the senatorial districts as restore they previously assembly ex rel. existed. Farrington Mensching, (People Y.N. the old the new Act sixteen of sena

Under Apportionment remain torial districts thirty-four unchanged. remaining with are divided and united other territory. districts By it follow that sixteen old districts would sena restoring torial would he senate districts only present represented and the other districts would not ; thirty-four represented and that in de members would be assembly only jure those the old which have ivlio districts remained represent we In that event should be confronted ques unchanged. tions which to be determined importance ought grave or without the aid of whether dictum vacan argument, cies exist districts and whether -would unrepresented issue his would be duty governor proclamation districts; elections such or whether special calling a de could continue body, legislature, being present facto time its for which individual mem existence during it were elected, bers fact notwithstanding composing were elected were represent they in violation of It can created Constitution. readily such a situation would not seen that only disarrange branch of the the machinery government, and chaos all of create confusion other but would thereon was said ; thereof by branches dependent Peck- Rice ex rel. ham, J., case Carter People (135 Sherrill oe per

Dissenting opinion, Haight, [VoI. N. Y. What is the result which ? 473): would follow In the first we should have enumeration and place every every act before the courts for brought review, and itas "wouldnot be act to necessary at citizen, immediately any time of the decennial any during running period, .would invoke have to the aid of court to set aside as right such void act and leave the any confront People suddenly a such situation as is now is suffi- presented. This, itself, cient to induce court to case and say only plain violation and letter of Constitution gross spirit * *"* should such a be exercised. power greatest confusion and disorder would result from a that this holding act is invalid. Whether members of could any assembly be elected under another law at this late actually day quite of a elected under spectacle problematical. law an unconstitutional of the members elected under part under it and is one another, not to be con- part ought without all honest citizens.” templated greatest anxiety by ,,us thus called I have attention to the situation that confronts us in purpose aiding determining meaning the new of the Constitution under consideration as provision when the time should be instituted. As we proceeding citizen have seen institute the may The time proceeding. within which is to be instituted is not proceeding specifically but the court is the case stated, required give precedence all other and if it is not in over session it shall causes, convene of the satne. If a citizen take his dispose promptly may time for own command of the instituting proceedings for a determination the courts speedy would To to be unnecessary. my' mind, seem spirit .intent If the is to act court the suitor should apparent. speedily door, While the is thrown also. citizen to insti- open every he must act tute so"that the proceeding, promptly ques- him raised determined and thus tions avoid speedily of the other annulment the Con- proceedings required the statute with reference to the stitution division acts, into districts other assembly senatorial 221 Matter Sherrill opinion, per Hep.] Dissenting Werner, Y. J. N. the disarrange- thereon and prevent

proceedings dependent confusion and the ment of the machinery government Act chaos that to follow. The liable Apportionment first 1906. pro- became a law on 14th day May, commenced that to it annulled was was instituted have ceeding to taken first on thereafter. The appeal 27tli day July division after court is dated December 6,1906, long their senatorial districts into assembly of sena- division into the election election districts and after delay This tors and had made thereunder. assemblymen assembled no fault Each court of the courts. was through it. to and at once determined the presented speedily question taken that in this It true court the former appeals us in form to orders from to be were found not give appealed should operate but this fact review; jurisdiction now relieve the the situation confronting from parties moving favor therefore, which is the result their fault. us, I, own of laches. dismissal proceedings upon ground to annul J. about This court (dissenting). Werner, act of the apportioning legislature (Laws chap. 431) number of state into senate fifty-one districts, fixing the state. to be elected in each assemblymen I because decision desire to dissent, I record my Against in law. Of deem it and unwarranted fact unnecessary divided, state has been senate districts which the fifty-one into inherent such two have been selected this court as presenting the demo- elements of controlling invalidity justify structure. It lition of whole of legislative existing consummation, needs no that to avert such argument its inevitable train of confusion and uncertainty, judicial as one of the co-ordinate branches govern- department As ment within its briefly should invoke means every power. associates I shall convince my possible attempt exercise of was a valid legislative discretion both as the element of power, regards this effort with constitutional mandates. In and compliance v: O’Brieh. opinion, Dissenting per Werner, [VoI. I shall not into the constitutional state, go history that has been most done brother admirably by my will but confine the discussion those of immediate questions and practical that arise out importance 1894 and the Act of 1906. Apportionment

The Constitution that “An enumeration provides inhabitants of the State shall be taken under the direction of June, months of Secretary State, t]ie during May in the one thousand in the nine hundred and five, year same months tenth and the said dis- thereafter; every year tricts shall be so altered at the first Legislature regular after session the return of that each senate every enumeration, district shall contain as as an number of bemay nearly equal inhabitants, as and be as form aliens, excluding compact and shall remain until the return unaltered practicable, another times, and shall at all of con- enumeration, consist and no shall divided in the forma- tiguous territory, county tion of a senate district to make or senate two more except districts in such block in a' wholly town, Mo no county. inclosed streets or shall in the city be divided public ways, formation of senate nor shall district contain a districts; excess an over district greater population adjoining same than the or therein town block county, population such district. towns or blocks adjoining Counties, which, from their be included in either of two dis- location, may shall be so as tricts, to make said most districts placed nearly in number of equal inhabitants, aliens. excluding “Mo shall have four or more senators unless shall county a full have ratio for each senator. Mo shall have county than more one-tliird of all the senators; and no two counties or thereof as now which are territory organized, adjoining or which are counties, shall waters, separated only by public have more than of all the one-half senators.” sec. (Art.

It will be that noted section of the Constitution seven limitations in the imposes upon making of an four which are apportionment, mandatory imper- ative, and three of which are coupled discretionary pow- (LBbieh. Sherrill Webneh, opinion, per Bep.] Dissenting N. Y. districts that senate

ers. “ limitations mandatory (1) ” that at shall all times consist of (2) territory; contiguous dis- shall in the formation of senate “no be divided trict make two» or more senate except wholly ” “ in a such town and no no block county; city (3) divided inclosed streets shall be public ways ” “ formation of senate district shall con- no districts; (4) tain a excess in an over district greater population adjoining than the same of a town or block county, population therein such limita- district.” The adjoining discretionary tions each senate district shall are, contain (1) nearly ” number aliens ; maybe equal inhabitants, excluding “ ” and as form as compact counties, (2) practicable; (3) and location, towns blocks from their which, be included in either of two shall be so as to make said districts, placed districts most in number of nearly inhabitants, equal excluding aliens.”

Pursuant constitutional above-quoted provisions enumeration of the inhabitants of the state was made in the and -this was followed in 1906 year the enactment of by the statute, referred to as the colloquially Apportionment Law, which the state was divided into senate districts, fifty-one and the number of was at fixed hundred assemblymen one and to be as districts fifty apportioned among many created the several boards of bj7 the counties of supervisors the state.

Under the enumeration of 1905 the citizen population the state was 7,062,988 divided which, directed a ratio of which to 141,259 gives senate districts. This sum in arithmetic apportion simple revealed the and immutable fact that at least cogent twenty- three of the senators must be allotted to the counties fifty-one of Mew and York, but Erie, sen- Kings leaving twenty-eight ate districts for the rest of the state. After deducting from total citizen state population portion was centered counties of Mew and York, Kings there left for other counties a was total of Erie, 3,645,337 oe Sherrill per Werner, Dissenting opinion, [Vol. when divided which, made a ratio of by twenty eight, for each of 130,190 senatorial districts to be twenty-eight erected in the from Harlem to Lake territory extending Erie and from the St. Lawrence to the. line. Pennsylvania these at Of least nine are remaining twenty-eight fixed as the in New arbitrarily York, quite twenty-three and either on Erie, Kings account population geograph- ical location. These are the districts of Monroe, composed Oneida, Rensselaer, Westchester, Onondaga, Chautauqua Rockland and Orleans and Cattaraugus, Orange, Niagara. there Thus were nineteen districts the formation really only had not been of which practically prearranged by express commands Constitution. A mere at the glance map of the state is sufficient to convince .one that these districts differ in must the character necessarily varying degrees, and number of inhabitants, configuration topography defined avenues of means of travel, intercommuni- territory, needs. When the cation, these 1906 is studied light potential considerations, of the four constitutional imperative limitations above it seems me to, adverted mind present judicial for the differences reason in size, abundant shape popula- the that characterize districts which are tion not arbitrarily the fifteen enumerated counties confined the express of Constitution. Since these commands general proposi- the true are so as to remove them obviously tions from the realm alluded for the of of dispute, they show- only purpose that in for criticism the two senate selecting particular ing the fate of this now districts upon appeal depends, my have seem to lost of some of the sight brethren broad just that have influential if considerations controlling of factors other districts no securing approval less judicial These observations vulnerable. general sufficiently pave for the discussion of two districts as to which we way differ. of is said that erection the second

It senate district, Queens the counties of of Richmond, composed legis- O’Erieh. opinion, Werner, Eep.] Dissenting per K. Y.

lature has violated several of the commands of express and has so the limits of transcended palpably discretion as to declare the courts to compel Law is true'that invalid.' It in "the creation Apportionment district the did not the constitutional obey mandate that each senate shall at all district times consist of “ And ? Because with contiguous territory.” why compliance that mandate was Richmond with impossible. county, anis island to no population 66,441, literally contiguous other in the state. It is territory practically contiguous Mew York and but cannot counties, Kings joined either of them because Constitution also provides “ no shall be divided in the formation of senate dis- county trict to make two or more senate except districts wholly such As the county.” Richmond is population scarcely more than one-half of the ratio which basis of it is obvious that the apportionment, legislature adopted alternative in it to the only most territory joining contiguous, Queens. which is the It is said that county in joining Queens the counties of together Richmond the legislature has violated that other constitutional that each requirement, senate district shall contain as anbe num- nearly may equal of inhabitants.” The call appellants attention to the fact ber Queens ratio is that, 130,190, has although alone a or an 179,746, excess of population while 49,556, the addition of Richmond the district a gives population it which makes 246,187, the state and largest gives an excess of over ratio. For 115,977 purpose violation of the emphasizing Constitu- alleged legislative tion the set these over appellants the 97,717 figures against credited to the district population composed counties of Ontario, which the smallest in Wayne the state. This is not a fair A manifestly comparison. of the whole list of discloses the scrutiny clearly caused the effort of varying inequalities population to as as observe, the other nearly possible, constitutional to com- as conflicting requirements contiguity, O’Bribh. opinion,

Dissenting per Webmeb, [VoI. lines. These far from pactness comity so inequalities, evincing constitutional com- disregard mand that shall as equality be population produced as be,” are a demonstration of for nearly may necessity between co-ordinate and compromises conflicting requirements Constitution. When we consider that twenty-three senate districts fifty-one must be to three coun- assigned ties there before can be to the rest of any 'attempt apportion and that state, another of eleven counties must group be divided into nine of the inevitably districts now appearing were in the named map though they specifically it Constitution, becomes that diffi- there were apparent great culties division of this vast embrac- domain, remaining into the 50,000 miles, nineteen ing nearly square remaining which had to districts, be erected with due regard, merely to but in obedience to approximate equality population, and even other more commands the Constitution. positive smallest district as well as the one have been may largest fixed conditions from which there was no Two escape. at ends of the the one urban state, opposite wholly the other almost rural, cannot be entirely fairly compared test the either, to each about' validity may hedged conditions which render it avoid peculiar impossible This is well illustrated in the case inequality population. Queens-Richmond district. location geographical Richmond such within the that, limitations of the it cannot be that joined any territory except Island outside of To that it on Long Kings county. say Putnam Rockland, other of the so-called joined river counties, which are from Hudson miles twenty-five is to annihilate distant, miles com- every constitutional 'forty save that which relates to mand equality population. would be as solution unreasonable as Such problem turn When we from such an alterna- unjust. impossible tive to the of a union of one, only possible namely, with one or more of the Island counties Richmond Long we outside perceive presents more Kings, nothing O’Brieh. Matter opinion, per Werker, J. Dissenting T. IT. ¡Nassau and Suffolk hand, a of on one

than choice evils; have a would popula when to which, ¡Richmond, joined the other on ratio; of above 73,426 tion or 203,616, with Queens-Richmond as now constituted district hand, that the differ must admitted an excess It 115,997. other which, ence of is a substantial one 42,571 things very favor the Rich be conclusive in .of would being equal, Queens-Richmond as mond-NTassau-Suffolkdistrict, against and Suf are JNassau district. But other not things equal. as not as to Richmond folk counties are “contiguous” Queens. counties, are suburban The two former practically dis Island to remote the shore stretching along Long botli urban, while the two latter tance, being distinctly interest city having identity boroughs greater few thousand in that far the difference of a outweighs popu lation. These and other kindred considerations were probably second influential decide to leading as it district now stands. In Matter Smith v. Board N. Y. St. Lawrence Co. (148 peti Supervisors, 191) tioner that there should have of two beema transposition urged towns in St. were on the Lawrence which county, dividing have line between two would because assembly districts, to resulted from 716 reducing disparity population in favor of to In 572. gain equality amounting discussion that case of the constitutional commands effect districts shall as in number nearly equal assembly of inhabitants as and that shall be of convenient be, they form contiguous territory, practicable, compact dele court clearly ample discretionary recognized powers duties of bodies important charged gated those clauses In qualified apportionment. making speaking and com Constitution relating population equality with the conflict infrequently unqualified pactness, and the division of clauses relating contiguity territory said : towns and this court These counties, blocks, city quali the framers of words indicate the clear intention of fying the exercise of a reasonable and honest permit or Sherrill Dissenting opinion, per Werner, [Yol. discretion on the that in no part supervisors, provided case should there be a. in excess over greater population district than the of a town therein adjoining population such district. the dis- In exercise of this adjoining assembly cretion are to out the districts so as to of convenient they lay be in as form contiguous as territory, compact possible.”

In view the situation of Richmond unique physical which renders a literal all county, impossible compliance mandates, or of the constitutional relating apportion think it I cannot ment, in said difference fairly in favor of 42,511 some other population arrangement than is sufficient to adopted by nullify for the whole state. This is true we when plan especially consider the decision of this in court ex rel. Carter People v. Rice N. Y. where it was held that an (135 482), inequality between two districts in 135,418 Rew York not was city to condemn the under then review. enough apportionment That was decision, moreover, 1892, under act of which was bitterly while the con unfairness, impugned partisan test at so far as bar, devoid of appears, entirely partisan interest. is further assailed in so validity

far as it relates to the thirteenth district, which is one of Manhattan in the of Rew borough city and the attack is made that it York, ground violation of constitutional mandate that senate districts “ in as form as shall be This compact practicable.” provision was as not in Constitutions which compactness preceded one not been the sub- has, therefore, adopted.in “ in our construction courts. The noun com- ject judicial ” “ is defined in the the state pactness Century Dictionary close firmness; union compact; quality being parts.” ” “ form is noun defined the external or con- shape of a as defined lines and sur- figuration body; figure faces.” These two definitions disclose the clearly possibility “form” in cases where “compactness” confounding is reason for there distinction between them. preserving O’Brieh. Sherrill Werner, Dissenting opinion, per N. Y. at the observer a first map showing

To ordinary glance district would seem senatorial suggest plain thirteenth than more when in fact is nothing absence of compactness union of does form. Close territory depend irregularity world most In particular shape. physical upon any at the center is is the body complete sphere compact same, the surface. Mext distance from every part be the would square, order of perhaps, perfect compactness, these arbi- For obvious reasons then- the parallelogram. of lands demarcation cannot applied trary symbols with which even divisions. The rarity into they political ever made. is shown map by every geographical approximated that the as to command com- moreover, It is to observed, be the test of The sena- is practicability. qualified pactness “ be in as form as shall torial districts compact praoticableP as shall be as as com- feasible; words, In other they compact as within the of actual execution as bounds be,- may pact theoretical discussion. as from Compactness distinguished one situation have a clear that would to may meaning applied a different It situation. be one be may wholly inapplicable to the as Adirondack another as region applied quite thing in district I think it Mew York city. to a tenement-house “ ” term as used in our also bé fairly argued compact has reference not to territorial merely compres- and such considerations as but density sion, population as as well those interest, of access convenience unity limitations the division of .certain constitutional inhibiting so as to ánd others blocks pro- enjoining placing city most When duce the approximate equality population. in of these it is seems matter viewed suggestions, light cannot a me that a court upon compactness pass over entire critically district without going territory given a so as to able to see what a be effect forms part, of which have the whole. The would most subdivision different upon a is draw sketch of an test question rough practical divide interior into absolute shape irregular island .of contains an number theoretically equal each squares Mattes ob Sheebill O’Beieit. Dissenting opinion, per Webiíeb, [Yol. of inhabitants aliens. The outer or excluding fringe edge the island in the nature of would, have to divided be things, into spaces or lesser area irregulaar shape, having greater than the differences squares, representing corresponding the total population. By island dividing population of senate number districts to ratio erected, each district would be obtained. It will be seen that readily even under such an the senate districts arbitrary arrangement would have to be of and different necessarily irregular shapes thus sizes, numbers embracing varying squares irregu lar The actual which confronted the spaces. problem legisla ture of Manhattan island was infinitely more difficult than is the illustration for the reason above, given that the blocks varies from population city way inhabitant some three cases, to thousand and single others, when this situation is upwards applied inhibition constitutional the division blocks, it city against the effort to make districts apparent compact must be latitude. practicable” given great to be form decided of one dis upon question trict nor as the courts were a second ; though must met of revision. It the broad powers ground that the courts shall not invoke power unless, judicial due heed to after with which practical giving every difficulty has had to deal in the of a whole shall discretion state, as hav they regard legislative so far transcended that annulment of the been ing is The of courts enactment unavoidable. to deal inability with the exercise of satisfactorily questions involving legis discretion is in Smith v. lative very expressed Board aptly “ in It is (supra) following language: Supervisors .the of quite these that the out of districts with impossible carving and convenience, a due compactness contiguity regard in be a manner a could accomplished satisfactory except by familiar with the board of officers aud thoroughly territory of its intimate towns, and knowledge topography having land and We means of water. communication should O’Brieh. opinion, per Werner, Dissenting ÍT. Y. there had in convinced that unless

feel interfering justified a abuse of been clear discretion.” there is It is we consider that presump when only legal in its has that the duty tion performed law-making power that if there is doubt enactment of this statute, upon as a co-ordinate branch it of our courts, duty subject in to resolve it favor of validity of government, realize, how that we can utterly work of fully legislature, must in be, of a district the creation indefensible particular whole order to overthrow plan judicial justify In this connection language apportionment. in a similar Court of Illinois proceeding singularly Supreme in that is not attain exactness respect apposite. Absolute has been able. requirement contiguity territory at the formation of instance, one, but observed every well have been of the districts urged least, might had that the of compactness Assembly requirement General observed complied fully, fairly justly not been to compact that a nearer done, approximation as might nearer an ness was attainable. much How approximation not, could district have made in this compactness might territory determined in alone, necessarily, view, but it, districts possibly that district and of the other adjoining A change all the of the state. a view of only have made necessary district readjustment might the exercise and this involved judg entire apportionment, ex (People ment and discretion of law-making body.” 198 Ill. only possible v. Carlock, rel. Heffernan described the case between situation cited just difference at our is that could bar, in the case have York the districts of Hew -without city affecting re-arranged Our in the state at however, courts, the districts large. must either whole structure do that.' support cannot They all the into account various it absolutely. Taking or destroy a scheme of enter into that practical apportionment, elements annul this should act 1906 the courts I do not believe the of a dis- that outlines particular is because thought 282 op Sherrill opinion, per Werner,

Dissenting [Vol. trict indicate that it is not as as it have compact might made. said all that I deem about two

Having necessary spe cific districts which decision of this is court to upon I will add a observations that depend, simply few'general as useful in out the limitations quite pointing as in judicial jurisdiction department defining extensive Under our scope legislative power. theory power primarily For government lodged people. this has been to power three purposes practical delegated which are but not in all departments, co-ordinate, necessarily . The co-equal. executive and respects legislative, judicial have respectively, to which each is powers departments, to make laws is to power supreme. manifestly superior that of them. Therefore, interpreting executing legis is to that lative function and at least extent, theoretically, executive and efficiency paramount dignity judi This I conceive to be one of the cial functions. underlying which support legal presumption principles every to matters that are within the statute pertaining acknowledged valid and constitutional. This powers can be overcome only by contrary presumption proof a v. demonstration. amounts 6 (Fletcher Peck, Cranch, 1 M'Collum, Ex Cow. ; 564; Morris v. parte People, “ Before will courts deem it their Denio, 381.) duty an act of void as in declare violation of some case must be presented provision there can be no rational doubt. incompatibility enactment with Constitution must be mani the legislative ex rel. Carter Rice, fest unequivocal.” (People supra.) rule as to This presumptive validity general when is accentuated to statute action applied providing of the inhabitants of the because the state, a'reapportionment divisions of a sov adjust readjust political power when exercised is as political purely legisla ereignty The mere fact that as when exercised by ture people. is a when exercised legislature, delegated power, £33 O’Brieh. v. opinion, Dissenting per Werner, T.N. its it does is as dis nature;

one, change always political, from executive is it even Uor judicial. strictly tinguished of the in which the statute adoption power legislative. is a act, doubtless behind and finds but legislative expression is act is the exercise of a that beneath power essentially create form and subdivisions power political; are state. When limitations and power positive so that the commands of the can be arbitrary, it follows that sub with mathematical precision, any obeyed therefrom must be fatal. But stantial deviation when that not hut is conveyed language only power implies exercise of it must be a dis discretion, deemed commands to the end to be attained cretion practical ; adapted sought a of such the execution several co-ordi and power pursuant constitutional some of which commands, nate but conflicting but are not qualified arbitrary, expressions importing to the is discretion clearly beyond legislature, grant interference unless the abuse of this reach of political judicial that there so and can be no palpable discretion just gross rule it. other would involve about Any necessarily dispute the courts to the powers granted usurpation before Upon particular phase question legislature. in no uncertain court has tone. this spoken us, Speaking “ said it had : We do not believe in J., Peokham, through such rule. On we or necessity contrary, propriety such cáse to have no review the think the courts power intrusted discretion abused.” ex grossly rel.

unless plainly (People In same case the same learned Rice, supra.) Carter must be the how viola plain shows gross jurist before courts can interfere with of the Constitution tion making; apportionment, work of I close discussion: There are words his apt very one individual intrusted with the which any some inequalities but which hard at once remedy, might very might power the review of one hundred under to alter when brought senators. Local thirty-two assemblymen twenty-eight People v. Nelson.

Statement of case. [Yol. commercial and pride, diverse jealousies rivalries, interests with a difference of views as to among people, together the true interests of the localities to be all these affected, and others have many tilings might weight among repre sentatives so in question that, apportionment, order to result at con accomplish any all, compromise ciliation would have to be exercised. to the act as Looking a result of such circumstances, and seems clear that it can be said be so far a not to violation discretion as its overthrow cause courts.” complete ex (People Rice, rel. Carter v. supra.) reasons these I vote-for the

For affirmance of the orders the courts made below. JJ. (and J., opinion) Willard Bartlett,

Vann, Gray, Haight with J., concur Ch. J.; Cullen-, read JJ., opinions; how dissenting J., Werner, Werner, in so much of concurs Chief ever, Judge opinion Cullen’s effect of decision made. deals etc. reversed, Orders People v . Respondent, State New York,

William Nelson, Appellant. Appeal — Delay. — Any Unreasonable delay Crimes unreasonable argument appeal bringing on for in a criminal case subversive of disgrace good justice. public administration of When such wholly assigned fault of counsel delay is defendant and is unex- criticism, they it merits severe plained should retained they assigned position assigned thereafter in other actions.

criminal 1907; 5, April 1, April (Submitted decided affirm without argument judgment Motion aat Trial criminal Term, Court branch, Supreme 9, rendered York, April New defend- convicting crime of murder the first ant degree.

Case Details

Case Name: Matter of Sherrill v. . O'Brien

Court Name: New York Court of Appeals

Date Published: Apr 3, 1907

Citation: 1907 N.Y. LEXIS 1119

Court Abbreviation: NY