202 N.Y. 430 | NY | 1911
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *432 These three proceedings were brought to accomplish the same object, to wit, to have the legislative apportionment act passed in 1907 (Ch. 727) declared unconstitutional and void, and to have the election to be held in November of this year (1911) conducted in conformity with the apportionment made by the Constitution of 1895. They will be considered in the order in which they have been argued before us.
(1) The first of these proceedings was commenced by an order to show cause granted by a Special Term of the Supreme Court of the county of New York on November 7, 1910. It was founded on a petition made by the appellants on behalf of themselves and all other citizens of the state, which alleged that the new apportionment was in violation of the constitutional provision on that subject for reasons stated in detail. The relief asked was that the present apportionment of the senate and assembly districts be reviewed and adjudged unconstitutional. On the presentation of the petition the court made an order addressed to the attorney-general, to the governor of the state, the president of the senate and the speaker of the house, directing them to show cause why the prayer of the petition should not be granted. The order was served on the officers named, who appeared on the return day of the order and objected to the jurisdiction of the court. This objection was overruled and an order was entered to that *438
effect. On appeal the Appellate Division reversed the order and dismissed the proceedings on the ground that there was no warrant in law for the maintenance of such a proceeding which was held to be wholly extra judicial. We entertain the same view and concur with the opinion of MILLER, J., in the court below. While the legislature might under the Constitution have authorized such a proceeding as the one before us, it had not until yesterday enacted any statute on the subject. That statute cannot be retroactive to the extent of rendering the previous decisions of the Appellate Division erroneous. We are of the further opinion that had such proceeding been maintainable, the petition was properly denied on the ground of laches. Apportionments are directed by the Constitution to be made every ten years. They are made subject to review by the Supreme Court at the suit of any citizen under such regulations as the legislature may prescribe, and it is expressly directed that "any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same." (Const. article III, section 5.) After the census of 1905 the legislature at its session in 1906 passed an apportionment act. (Ch. 431.) The validity of that act was attacked by an application for a mandamus to the secretary of state to issue the election notices in accordance with the old apportionment on the ground that the new apportionment was a nullity. This application was denied by the Supreme Court in both branches and the elections of 1906 were held under the apportionment act of that year. On appeal to this court, however, the orders of the Supreme Court were, in April, 1907, reversed and the apportionment under review declared invalid. (Matter ofSherrill v. O'Brien,
The order appealed from should be affirmed, with costs.
(2) The second of these litigations is a taxpayer's action brought to enjoin the defendants, constituting the board of elections of the city of New York, from holding the primaries of the respective political parties and the general elections in conformity with the apportionment of 1907. The application for an injunction was denied by both branches of the Supreme Court and the appeal is taken to this court by permission granted by the Appellate Division, which has certified three questions, as follows:
"1. Does chapter 727 of the Laws of 1907 violate any of the provisions of the Constitution of the State of New York?
"2. Was the motion of the plaintiffs properly denied as matter of law?
"3. Can a taxpayer maintain an action to enjoin the board of elections of the city of New York from expending the money of said city necessary to hold a primary and general election for the year 1911 in the several senate and assembly districts in said city, as organized *440 under Chapter 727, Laws of 1907, on the ground that said act is unconstitutional?"
The action was brought after the adverse decision of the Appellate Division already considered. In disposing of it we are not favored with the views of the Appellate Division, for no opinion was there written. In our view of the case it is not necessary to its determination to answer the question of the constitutionality of the statute. The application for an injunction was properly denied on several grounds. 1st. For laches on the part of the plaintiffs — a subject already considered in the discussion of the first proceeding; 2nd. We are of opinion that neither section 1925 of the Code, nor section
The orders of the Appellate Division and Special Term should be affirmed, with costs; the second question should be answered in the affirmative, the third in the negative and the first left unanswered.
(3) The third appeal is from an affirmance by the Appellate Division of an order denying the relator's application for a mandamus to the secretary of state commanding that officer to transmit to the several county clerks and boards of elections in the city of New York election notices in accordance with the apportionment contained in the State Constitution of 1895, and not with that prescribed by the law of 1907. This proceeding was the proper one for the purpose sought to be accomplished, being the same as that adopted in Matter of Sherrill v. O'Brien (supra). We are thus brought to the merits of the application. The validity of the Apportionment Act of 1907 was impugned on two grounds only: First, that the non-contiguous counties of Richmond and Rockland had been united to form a senatorial district; second, that the Apportionment Act was passed at an extraordinary, instead of a regular session of the legislature. We consider the first objection disposed of by what has been said on the subject in the Sherrill case. The Constitution requires that each senate district shall contain as near as may be an equal number of inhabitants; that it shall be as compact as practicable and consist of contiguous territory, and that no county shall be divided in the formation of a senate district, except to *443 make two or more senate districts wholly in such county. In the case of Richmond county the constitutional requirements are irreconcilable, and it was impossible to comply with all. The only counties contiguous to Richmond are New York and Kings. Each of these counties contained more than one senatorial district. To combine Richmond, therefore, with parts of either of these counties would violate the requirement of the Constitution last mentioned. If combined with any other county it would violate the rule as to contiguity. To constitute Richmond by itself a senatorial district would violate the constitutional requirement as to equality of population — the population of that county being only 72,000, about one-half the requisite population if the state were divided into exactly equal senatorial districts, regardless of the county or municipal lines. The union of Richmond and Rockland counties complies as nearly with the letter of the Constitution as is physically possible, and probably complies nearer with the spirit of the Constitution than any other that could be suggested. Indeed, in the Constitution itself Richmond county is treated as an exception; for by that instrument it was joined to the non-contiguous county of Suffolk to form a senatorial district.
The objection that the apportionment was made at an extraordinary session of the legislature is not well founded. As to apportionments the Constitution provides: "The said districts shall be so altered by the Legislature at the first regular session after the return of every enumeration." (Article III, section 4.) The question is whether the provision as to the regular session is a qualification as to the character of the session at which an apportionment bill can be enacted, or whether it is merely part of the definition of the time or period at which the duty is imposed on the legislature to make a new apportionment. We think it is clearly the latter. "First regular" merely prescribes when the legislature *444 is first empowered to alter the districts for legislative representation.
We think the suggestion that the legislature at an extraordinary session would be under the domination of the governor and thus be induced to pass an unfair statute, and that the constitutional provisions were intended to guard against such an evil, is wholly fanciful. Such a thought might occur to a recluse whose knowledge of the world is exclusively gathered from the books in his library, but would not be considered seriously by any one whose familiarity with government was acquired by participation in public affairs. The governor would have no personal interest in an apportionment, and if he and the legislature were in accord, he would have no reason for resorting to an extraordinary session. On the other hand, no one can imagine that any governor could force a hostile legislature to enact an apportionment bill unfair to the party of the legislative majority either at a regular session or at an extraordinary session, unless possibly by the exercise of the veto power, which is equally great at either session. If our interpretation of the Constitution is correct, the power vested in and imposed upon the legislature to pass a constitutional apportionment bill was a continuing one until exercised and discharged, and the legislature at any time after the time prescribed by the Constitution and at any character of session, might discharge the duty which was still undischarged.
The order appealed from should be affirmed, with costs.
Concurrence Opinion
I concur in the opinion of the chief judge in these proceedings.
In Matter of Sherrill v. O'Brien (
VANN, WERNER, HISCOCK, CHASE and COLLIN, JJ., concur with CULLEN, Ch. J.; HAIGHT, J., concurring in memorandum.
Order affirmed.