197 A.D. 705 | N.Y. App. Div. | 1921
This proceeding challenges the constitutionality of the act in question upon two grounds: First, upon the ground that the apportionment formation of the aldermanic districts is not measured by the number of residents or inhabitants, but is disproportionate therein; and, second, upon the ground that the Legislature repassed the act before the expiration of the fifteen days allowed to the mayor of the city of New York to consider and return the same under article 12, section 2, of the State Constitution.
As to the first ground I think the challenge cannot be sustained. The aldermanic districts are apportioned substantially as are the assembly districts in the city. That apportionment has been acquiesced in and has not been judicially questioned. Nor, do I think that it can be successfully questioned. There is no requirement in the Constitution that the apportionment of aldermanic districts should be based upon the equality of population. In Matter of Dowling (219 N. Y. 44, 54) the Court of Appeals quoted from the Revised Record of the Constitutional Convention of 1894 (Vol. 4 [1900], pp. 1255, 1256): “ We believe the provision to be sound in principle, that somewhere in every representative government there should be a recognition of variety of interest and extent of territory as well as of mere numbers united in interest and location. Such a departure from the rule of strict numerical representation is recognized by the Constitution of the United States in the organization of the Senate, by the Constitution of the State of Pennsylvania in limiting the representation which the city of Philadelphia may have in its Senate to one-sixth of its members, and by the Constitution of the State of Maryland in limiting the representation which the city of Baltimore may have. Similar provisions have been adopted by the State of Ohio affecting Cincinnati and Cleveland, the State of Missouri affecting St. Louis, the State of Rhode Island affecting Providence, and by other States of the Union having large cities. It is the rule, rather than the exception, throughout the Union.”
It is not claimed that the difference in population was occasioned by any attempt to gerrymander the districts as that word is commonly used. Staten Island has become a
The principal ground of challenge, however, arises under the provisions of section 2 of article 12 of the Constitution. It is therein provided that special city laws shall not be passed except in conformity with the provisions of this section, and the provision further reads: “ After any bill for a special city law, relating to a city, has been passed by both branches of the Legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, or if the session of the Legislature at which such bill was passed has terminated, to the Governor, with the mayor’s certificate thereon, stating whether the city has or has not accepted the same. In every city of the first class, the mayor, and in every other city, the mayor and the legislative body thereof concurrently, shall act for such city as to such bill; but the Legislature may provide for the concurrence of the legislative body in cities of the first class. The Legislature shall provide
The bill in question was passed upon the thirty-first day of March, and immediately mailed by the clerk of the Assembly, in which the bill originated, to the mayor of the city of New York, who received the same on April 1, 1921, about eleven o’clock. On April 16, 1921, the bill was again passed by both branches of the Legislature on the theory that the certified copy had not been returned within such fifteen days. The sole question on which the Legislature acted was “ Shall this bill become a law, notwithstanding the failure of the mayor to return to the house the bill within the time fixed by the Constitution,” the Speaker ruling that the bill should have been returned to the house before midnight of April fifteenth. After this bill was passed by both branches of the Legislature the Governor signed the bill, and upon the bill it was stated that the same was passed without the acceptance of the city. The question for determination here is whether the fifteen days in which the city may act and return the bill begins to run upon the date that the bill was mailed in Albany, or upon the date upon which it was received in New York city. The validity of the bill, therefore, depends upon the construction by the Legislature and by the Executive of the State that the
Constitutions, as well as statutes, must be construed from a common-sense standpoint in a way which will make their operation practicable. If the bill related to several cities, the date of the receipt of the bill by the authorities of those cities might vary one or two days. The Legislature is not presumed to know the exact space of time which will pass upon the mailing of the bill before its receipt by the city authorities, and still the limit of fifteen days before it is returned is a point of time of which the Legislature must have exact knowledge, in order to conform to the Constitution in repassing a bill, in case the same is not returned with the acceptance of the city within the time prescribed. There is no provision
In my judgment the Special Term correctly interpreted the constitutional provision and the order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Dowling, Page and Greenbaum, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.