Matter of Tishman v. Sprague

292 N.Y. 235 | NY | 1944

The Board of Supervisors of Nassau County, assuming to act pursuant to section 124 of the Reapportionment Act of 1943 (L. 1943, ch. 359), adopted Ordinance No. 83-A which divided the county into four Assembly districts. The constitutionality of that ordinance was thereafter challenged by each of the three proceedings now before us. At Special Term the ordinance was declared unconstitutional insofar as it purports to divide the town of Hempstead into two Assembly districts. The order of Special Term contains the recital that in the opinion of the court "it is impossible within the limitations of the Constitution to divide the second senate district into assembly districts", which recital is followed by provisions designed to carry into effect the election of two members of Assembly at large from the territory comprising the second Senate district "until a division of said senate district shall be legally and constitutionally possible."

Direct appeals to this court from the order of Special Term were taken by the Board of Supervisors of Nassau County and by the petitioners Tishman and Van Der Veer pursuant to section 588, subdivision 4, of the Civil Practice Act. That statute empowers this court on a direct appeal to determine only "the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States" and directs that "on any such [direct] appeal only the constitutional question shall be considered and determined by the court."

Each of the appellants now before us concedes that Ordinance No. 83-A violates article III section 5 of the State Constitution by dividing the town of Hempstead into two Assembly districts. Upon its direct appeal it is the position of the Board of Supervisors that — "if no other rule for a division can be found which produces so sound a result as this, the Board of Supervisors' action should be sustained." The petitioners Tishman and Van Der Veer ask us to consider and determine the constitutionality of different plans — not adopted by the Board of Supervisors — for dividing Nassau County into Assembly districts. We are also asked to determine the constitutionality of the order of Special Term insofar as it directs the election at large of two members of the Assembly until a division of the second Senate district shall be legally and constitutionally possible.

The narrow scope of our jurisdiction on direct appeal — defined by article VI, section 7, subdivision 3, of the Constitution and section 588, subdivision 4, of the Civil Practice Act — will not permit us to pursue the inquiries demanded by the notices of appeal served by the several appellants. Each of the direct appeals now before us involves questions other than the single question of "the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States" (Const. art. VI, § 7, subd. 2; Civ. Prac. Act, § 588, subd. 4).

The appeals should be dismissed, without costs.

LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.

Appeals dismissed.