W.M.C.A., Inc. v. Simon

The motions to remand herein should being sustained, en- and an order is sustaining today the motions tered remanding Chancery ease to County, Fort

Court District, Sebastian Smith it

whence was removed. Straus, Joseph

W.M.C.A., INC., R. Peter Maio, Lind, De laney, Edward Thomas De S. Brown, C. James Mc Edward J. Cafferty, Plaintiffs, SIMON, Secretary of State

Caroline K. York, the State of New Louis J. Lef kowitz, Attorney General York, Screvane, Paul R. Presi of dent of the City City Council of the York, Eugene Nickerson, Chair H. man, Supervisors, Board of Nassau County, Berman, Chairman, Leonard Supervisors, Board of Westchester County, Leonard, Chairman, William J. Supervisors, County, Board of Suffolk Power, Mahon, Denis J. James John R. Mallee, Crews, Commissioners, Thomas Elections, City, Board of New York De

fendants.

United States District Court D. New S. York.

Aug. 16, 1962. others, Commissioners

J. Mahon York; City of Board of Elections of New George Dwight, Benjamin Offner, New City, of York counsel. George Atty. Jr., County Percy, W. County Y., Suffolk, Riverhead, N.

for Leonard, for defendant J. Chair- William man, Supervisors, Board of Suffolk Coun- Stanley County ty; Corwin, Asst. S. Atty., of counsel. County Harnett, Atty.,

Bertram for County Nassau, Mineóla, Y., for N. Eugene Nickerson, defendant H. Chair- man, Supervisors, Board Nassau County; Douglas Null, Deputy P. Senior Atty., County of counsel. Morgan, County Atty. J.

Francis County, Plains, Westchester White N. Y., Berman, for defendant Leonard Chairman, Supervisors, Board of West- Irving County; Libenson, chester Asst. County Atty., counsel. WATERMAN, Judge, Before Circuit LEVET, Judges. RYAN District LEVET, Judge. District judgment This is action for a de- claring that the constitutional and stat- utory provisions of the State of New governing York Assembly Senate districts are uncon- stitutional. previous history proceed-

ings appears A., in this Court in W. M. C. Simon, D.C.S.D.N.Y.1961, Inc. v. 758, F.Supp. and the action is the here three-judge the one before this same F.Supp. (1962). in 202 court Silverman, Robinson, Aron- Pearce & original decision was a dismissal of the Gross, City, New York and Max sohn complaint. Sand, B. York plaintiffs; Leonard Following decision in Baker v. City, of counsel. 186, 1962, 691, Carr, 369 U.S. S.Ct. Atty. Lefkowitz, of New J. Gen. Louis Court, on L.Ed.2d Y., pro York, Albany, se and for N. 11, 1962, judgment vacated the June Secretary Simon, K. of State Caroline by opinion upon the us contained entered Irving York; Galt, Asst. Sol. of New F.Supp. 741 and remanded in 202 George Mantzoros, Gen., Sheldon C. further consideration “for case Gen., Attys. of counsel. Raab, Asst. light Carr.” Baker v. 370 U.S. 190 at 8 L.Ed.2d 82 S.Ct. Corp. Larkin, Counsel, New Leo A. City, R. for defendant Paul Scre- Accordingly, City due vane, after notice to the President of Council hearing held York, City parties, a and defendants Denis Court of New Manual, York, 1961-1962, August 1, page tive time the 1962 at which on proofs (in parties far as 289. On so November on vote to offered relevant) revise the Constitution been and amend the to have we believed argument same, 506,563 oral vote was for and extensive submitted and 658,269 against. p. heard and Id. was at 292. On No- of the claim on the merits 5, 1957, parties Now vember the submitted. vote for a conven- briefs in tion to revise the reconsideration Constitution and amend deliberation and after 1,242,568 light Carr, supra, 1,368,063 the same was we find for Baker v. and of the against. p. Id. at 309. as follows: conclude and basis, also, aon similar 5. We FACTS note: constitutional York State 1. The New City population of with statutory provisions forth set are and popula- 7,781,984 the state’s or of 46.0% (Constitu- complaint. as exhibits assemblymen 16,782,304, has 65 tion of 4,3,2, 3, 5. Statutes Art. Sections tion assembly, and 25 or of the total 43.3% Consol.Laws, McKinney’s Law, c. —State the total number of of senators or 43.1% 120-123.) 57, §§ senators, the counties' other than while by legisla- the is no failure 2. There City, with of those in New York 54.0% comply Constitu- the State to ture population, the have total 56.7% malapportion- only so-called the tion assembly and of the senate seats. 56.9% Assembly dis- ment of Senatorial 6. The courts of the State of New (Minutes of involved. is here tricts approved present the York have methods 32-33.) 15, 1961, pp. Nov. apportionment. of Matter Sherrill v. of purposeful discrimination 3. No 185, O’Brien, 1907, 188 N.Y. 81 N.E. any race, religion, against creed or sex Fay, 124; Matter of 291 N.Y. origin by plaintiffs. is claimed or national 97; .2d also Matter Dow N.E See of 32.) August 1, pp. 31, (Minutes, ling, 1915, 219 N.Y. 113 N.E. 545. objection that of The whole summary provisions A of 7. the of representation of fair urban is not there the State Constitution and statutes rela- 32.) (Id. p. at areas. apportionment tive to Senatorial is sub- plaintiffs’ claim that the Con- stantially as follows: the of New York is of State stitution “The Senate districts are created under the Federal Con- unconstitutional primarily pop on the basis of citizen pp. 127, 128.) (Id. at stitution. by ulation. A ‘ratio’ is determined York, City of New its to the coun- As dividing population the citizen of allegation that was no sel conceded by (the the number of “other than a discrimi- discrimination Senators); Senate districts are then arising from financial matters ei- nation combining by dividing formed or of taxes or in the collection the dis- ther counties so that each district con by taxes or funds collected tribution approximately tains this number throughout and distributed the the State ‘ratio’) (the of citizens. The Con various communities whole State provides stitution that each district (Id. p. and cities.” nearly shall contain as be judicial 4. We take notice equal inhabitants, number of ex following: cluding aliens, compact and be in as practicable. revised Constitution of 1894 a form as con- There are provisos: taining present apportionment pro- any four further When county entitled was submitted to to more than the voters on visions three Senators, approved by enlarged 1894 and was Senate is November 410,697 327,402; legisla- (50) by from its minimum size a vote approved by number of these additional tive Sena 350,625. tors; 404,335 Legisla- county no can have four vote See or county, county border full more than one no has a unless it Senators more each; line in the formation can broken no population ratio type of either all district. third of one more than have shall Senators; no two counties sub- data were Certain statistical by separated adjoining or are that Stipulation parties in a mitted waterway more have public shall one August and, filed order on (The half the Senators. than of all record; part court made a inop provisos are two these last through con- Plaintiffs’ also Exhibits en erative, no are since copy tain statistical tables. A of Tables Senators.)” number of titled A) (Appendix (Appendix IV VIII Defend (Opening For Memorandum B) stipulation append- from the said Before Lefkowitz Simon and ants projected ed These statistics of hereto. Statutory Remand On The Court an based on the Supreme the of Court From the plain- appear census to state the basis of 4-5.) States, pp. United tiffs’ claims. provisions summary of of the A8. appendices at- the hereto we rela- statutes and Constitution the State Assembly (a) map present tach a of the Assembly apportionment is sub- to tive original Apportionment, of the which is stantially follows: as pp. contained 748-749 of the between Assembly- of “The total number Legislative Manual of New of the State every at with is fixed men year (Appendix C), for the York (which county except Hamilton present (b) map Appor- a of the Senate Assemblyman Ful- one shares original tionment, the of which is con- County) to one Assem- entitled ton publication tained in same between the Sixty-one blyman. thus seats are (c) pp. (Appendix D), 712-713 a Table remaining for. accounted Population York, of of the State of New however, apportioned seats, are original County Recapitulations, the of population The citizen manner: pp. 1,030 is contained on which by total the State divided of the Legislative 1,031 of the Manual of the Assemblymen, the of number year of York for the 1961- State the quotient achieved becomes thus E). judicial (Appendix We take Every county whose citi- ‘ratio.’ facts therein notice of the contained. equals the population times zen 1% a second Assem- ISSUES is entitled to ‘ratio’ blyman. the are The rest of seats by questions for determination among apportioned those coun- then are as follows: this Court greater populations with citizen ties undisputed First, do facts consti- the appor- the ‘ratio.’ Seats twice than against tute “invidious discrimination” appor- remainders are on tioned similarly plaintiffs and those the situated highest remain- order tioned under the decision of the United States proviso ders, that no coun- with the Carr, supra; Court in Baker v. Assemblymen ty shall have more assuming second, answer affirmative larger citizen a with a than question, first to what to the relief are (Opening population.” Memoran- ? entitled For Defendants Simon dum Statutory BAKER V. CARR Before Lefkowitz From On the Su- Remand Court are unable conclude that We States, preme Court of the United decision, supra, Carr has in- Baker 4.) p. type particular appor- validated provisions which here at- Senate or tionment than one As- more While recognize the force of We sembly contained within tacked. can be district single to the full extent county, decision indicat- Baker while whole opinions by of the Court. ed We consist given district Senate acknowledge jurisdiction validity laws, deny of the 741). (202 F.Supp. power proper We we did before to assure a diffusion of accept justiciability. political We the mandate of initiative as between its apportionment provi- thinly populated test the New York counties and those having masses, sions such standards are able as we concentrated in view ascertain. fact the latter have practical opportunities exerting premise an However, unable we are political weight their polls at invalidity provisions of the State Id., available to the former.’ upon v. Carr the Baker (Emphasis [69 S.Ct. at 2]. the absence reason determination supplied.)” (369 pp. 251-252, U.S. applicable indicia. 82 S.Ct. concurring in Douglas 1. Mr. Justice 3. Mr. con- Justice Stewart his supra, Carr, stated: Baker v. curring opinion Carr, supra, in Baker v. under the test traditional “The stated: has been Equal Protection Clause today “The Court decides three ‘an in- made a State has whether things ‘(a) and no more: that the discrimination,’ as it does vidious possessed jurisdiction court subject matter; particular race ‘a it selects when (b) justicia- that a nationality oppressive treat- or upon ble cause of action is stated Oklahoma, v. ment.’ See Skinner appellants which would be entitled 1110, 535, 541 [62 316 S.Ct. U.S. * * appropriate relief; (c) 1113, Universal L.Ed. 1655]. appellants standing that the have test; equality there is is not the challenge apportion- the Tennessee weighting. \yeAs stated room for Ante, pp. ment statutes.’ 197-198 Co., Optical Lee in v. Williamson 736], p. [82 S.Ct. 461,465, 483, 489, [75 348 U.S. S.Ct. complaint “The in this case prohibition as- of ‘The 99 L.Ed. 563] system goes ap- serts that Tennessee’s of Equal no Protection Clause the — n portionment utterly arbitrary' discrim- than the invidious further any possible justification without (369 244-245, in pp. ination.” U.S. rationality. The District Court did p. S.Ct. claim, not reach the merits of that 2. Mr. Justice Clark in his concur- quite properly and this Court ex- ring opinion Carr, supra, Baker v. in presses subject. no view on the wrote: Contrary suggestion my to the of “I take the law of the case from Harlan, Brother say the Court does not MacDougall Green, v. 335 U.S. 281 imply legislatures or that ‘state 1, (1948), L.Ed. S.Ct. [69 3] must be so structured as to reflect an which involved attack under the approximate equality the voice upon Equal Illi- Protection Clause every Post, of p. voter.’ 332 [82 nois election statute. The Court de- say The S.Ct. Court 772]. does not on cided that case its merits with- imply anything or that there is in ‘political the out hindrance from prevent the Federal Constitution ‘to Although question’ doctrine. the acting State, irrationally, a from upheld, under attack statute it choosing any legislative electoral clear that the Court based its deci- structure it thinks best suited to the upon the determination sion that the interests, temper, and customs of its represented a rational statute p. people.’ Post, 334 [82 S.Ct. 773]. policy. It stated: contrary suggestion And to the of “ strange indeed, my ‘It would be Douglas, Brother the Court most doctrinaire, Court, applying assuredly for this does not ques- decide the concepts ‘may tion, weight broad constitutional such a the vote process equal protection as due of one or one district more ar- here this result for which weights in vote heavily it than gue. Ante, p. S.Ct. 244 [82 another?’ 737]. CONSTITUTIONALITY Green, MacDougall 335 U.S. v. “In is a principle that 3], L.Ed. S.Ct. 281 [69 constitu principle presumption favor in Equal Protection held that the Court tionality and the a statute ‘deny a State does not Clause a before must be clear a that violation power proper diffusion to assure its equity lend will federal court political between initiative disruption the state power to the thinly populated its Gray, (Sanders v. processes election having masses, those concentrated 170) F.Supp. D.C.N.D.Ga.1962, 203 the latter view of fact apportion have been re-enunciated practical opportunities for ex have Baker rendered since ment decisions weight erting political at the their Carr determination. V. polls former.’ to the not available U.S., In 2]. at 284 S.Ct. at [69 Williams, v. Caesar arising after case under the case Equal Idaho, April Court of the State the Court Protection Clause Capital 9 Idaho 371 P.2d again only has said what said it McFadden, J., Report 161, wrote: Fourteenth last ‘the Term—that considering question of “In permits Amendment the States acts, constitutionality these enacting scope of wide discretion rules at all certain fundamental groups laws which affect some kept in mind. times must be differently citizens than others.’ showing unconstitu- burden Maryland, 366 U.S. McGowan upon tionality of a statute 1101, 1105, 425 6 L.Ed.2d [81 S.Ct. asserting party Eberle Niel- it. v. arising In case after un 393]. case 1083; 572, son, 78 306 P.2d Idaho der that Clause have also said we 311, Williams, 81 341 Rich v. Idaho establishing that ‘the burden of P.2d This without 432. court is unconstitutionality a statute rests nullify power a con- to invalidate or Metropoli on him who assails it.’ legislature; if stitutional act Casualty Brownell, tan Ins. Co. v. clearly legislature does vio- not 580, 538, 294 U.S. 584 [55 S.Ct. Constitution, must late this court 540, 79 L.Ed. 1070]. Padgett uphold it. will v. Wil- “Today’s decision does not turn its 114, liams, 82 Idaho 350 P.2d 353. precedents.” back on these settled Every presumption must reasonable (pp. 265-266, 736-737.) 82 S.Ct. indulged in favor of the constitu- Harlem, 4. Mr. Justice in his dissent tionality of a statute. Robinson v. (370 to the remand in case at bar 603; Enking, 24, 58 Idaho 69 P.2d 191, 1234, 1236), U.S. 190 at 82 S.Ct. Dredging Idaho Gold Co. v. Balder- stated that Baker v. Carr does indi- 692, ston, 58 Idaho 78 P.2d 105.” “any guidelines” cate to be followed Report Capital 164.) (9 161 at Idaho deciding courts in lower cases such as Maryland 2. Committee for Fair the instant one. Tawes, Md.Cir.Ct., Representation v. has conceded Counsel County, May 24, 1962, Anne Arundel nothing explicit that “There Judge Md., part: Duckett wrote against opinion of Baker Carr which “Every intendment must be re- ultimately the indicate how would cases constitutionality in favor solved merits,” were to be resolved on al- showing and the burden unconsti- though that there counsel contended tutionality petitioners” on the against Baker Carr which is “much in citing Maryland, August 1, p. 366 implicit.” (Minutes, 1962, v. McGowan U.S. 393; 420-426, 6 L.Ed.2d 81 S.Ct. unable to This Court is discern 374 296; Williams, 643, R.I., A.2d Sims v. University No. 183 Hopkins v.

Johns F.Supp. D.C.M.D.Ala.1962, Frink, 205 892; v. Norris 199 Md. 86 A.2d (Statutory Court). 245 531. Baltimore, 192 A. Md. post in Other cases Baker v. Carr Fortson, D.C.N.D.Ga. In Toombs v. arrangements Statutory volved F.Supp. 248, great any disparities, rational lack Court stated: wanting respects basis and in other “ * ** an additional there is thus far than those of the different importance Fed- when factor of present ap no case. Those cases have upon to invali- eral Court is called plicability Fortson, here. Toombs v. See solemnly constitu- date enacted State (Stat D.C.N.D.Ga.1962, F.Supp. Bearing mind tions laws. utory Court); Gray, D.C.N.D. Sanders by the plain lesson laid down Ga., April 28, 1962, F.Supp. repeatedly Court (Statutoiy Court); Sup. Hare, Scholle v. alleged constitutional violation of Michigan, June, 1962, Mich., Ct. of 116' rights clear must be the State 350; Barnett, N.W.2d Fortner v. Chan equity will before a Federal Court District, cery Court of First Judicial disruption power to the lend its County, of Hinds Miss. * processes, the State election inserted.) (Emphasis TESTS Tests for “invidious discrimina DECISIONS OTHER tion” have been held to include fol Baker v. decided since Certain cases lowing : discrepancies substantial Carr involved (1) Rationality policy of state and: apportion existing legislative between system arbitrary. whether or not the pre-existing constitu ments and provisions. v. Wil Caesar See tional (2) present Whether or not the com- liams, Supreme of the State Court plexion legislature has a historical' Idaho, 3, 1962, Idaho, April 371 P.2d basis. 161; Capitol Report Harris v. 9 Idaho (3) Whether lies within the elec- Shanahan, of Shawnee District Court any torate of the New York May Division, County, Kansas, Second possible remedy (if gross inequalities, Maryland Kan.; 1962, for 31, Committee exist.) Tawes, Representations State v. Fair 1962, (4) including Geography, accessibility Maryland, April Appeals, Court of legislative representatives (Failure 412, A.2d 656 their Md. 180 228 legislature comply electox*s. Con with State a Constitutional and convene stitution (5) upon' Whether Court is called by voters); approved Lein Convention as solemnly to invalidate enacted State Con- D.C.D.N.D., Di Sathre, Southwestern v. stitutions and laws. F.Supp. May 1962, 536 vision, 31, 205 Fortson, D.C.N.D.Ga.1962, Toombs v. 205 Burkhart, Court); (Statutory Moss v. 248; F.Supp. Gray, v. Sanders D.C.N.D. 1962, D.C.W.D.Okla., 19, F. 207 June 158; Ga.1962, F.Supp. Maryland 203 Court); (Statutory Supp. v. Start Representation for Committee Fair v. Pa., Lawrence, Court of Commonwealth Tawes, Court, Md. Circuit Anne Arundel 1962, 13, Equity Docket No. June May County, Maryland, Md.; 1962; 187 Commonwealth Docket and No. Carr, 1962, 186, 258,. Baker v. U.S. Carr, D.C.M.D.Tenn., Nashville Baker v. 691, L.Ed.2d 82 S.Ct. 663. 341; F.Supp. Div., June Rationality and Lack 1. Arbi- Rousseau, Supreme Court, Chit Mikell v. trariness Term, County, Vermont, May tenden 817; Vt., Sweeney provisions 183 A.2d of the State The Constitu- 5) (Art. in reference Sup.Ct. tion 3 Sec. Notte, Jr., Island, C.Q. to- of Rhode wholly basically or fol- make two more districts Assembly as senate Districts are county. limitations, (Certain in such lows: prohibit pertinent too here divisions among (a) Apportionment several cities; however, may towns and it is noted nearly state, “as counties of the counties, towns, that be etc. which according their re- number to the districts, included in either of two “shall excluding spective inhabitants, aliens.” placed be so as to make said districts (b) county except Every Hamilton nearly equal most in number of inhabi- entitled to member. one tants, excluding aliens”.) establishing for quotient ratio After (d) county No shall have four or more provisions are further fhe whole state senators unless it shall a full ratio have .as follows: for each senator. containing than county less (c) Each (e) provisions today Other which have one receives over one-half a ratio and absolutely application provide factual no member. (i) county no that shall more have than (i. e. those (d) counties All other (ii) one third of all the senators and half) re- having a ratio and than more adjoining counties, no two or counties member. ceive a second separated only by public which are ap- remaining (e) members are waters, shall have more than one-half having the portioned to the all the senators. highest order thereof. in the remainders plaintiffs complain Apparently Nothing arbi- provisions is these gist so called “full ratio rule” the geographi- ingredient trary unless the which is as follows: as- of one minimum of a allowance cal county I. shall “No have four or more county semblyman per considered. so it senators unless shall have full n Certainly ratio which nois classification for each senator.” N.Y.Const. Art. Ill § differently from urban counties treats The net result counties. other assemblymen “ * * * except any II. (subject minimum that if to the county having county, minimum three or more sena- per like the provision any apportion- tors at the time of Federal provision members Representatives fact ment shall be entitled on are in such ratio House n substantially senators, population. an additional senator or on citizen based such additional senator or senators Constitu- provisions given shall be to such in addi- 4) 2, 3, (Art. 3 Sections tion fifty senators, tion to and the basically as Senate reference whole number of senators shall be follows: increased to that extent.” N.Y. (a) Fifty are es- senatorial districts Ill Const. Art. 4.§ 3) (section tablished provisions The are, above mentioned do not (b) after census districts Such arbitrary appear or intervals, irrational. specified to Unless “be so returns readjusted subject senatorial districts are to be to that each senate or altered n district relatively repeated frequent nearly may and read- as as shall contain practicable justments, inhabitants, some means ex- of ad- equal number of an provided. compact dition of more senators must be cluding aliens, form in as and be 4) (Plaintiffs (section practicable.” Judge as Chase in As stated Matter of do that the statutes not no claim make Dowling, 219 N.Y. 113 N.E. provi- constitutional reflect 545, 546: sions) given exception one, for “The augment requirements other Certain only purpose, one and that and is to foregoing provisions: implement having or prevent three or obtaining from more senators (c) county in No shall be divided n formation larger number of at the except senators ex- a senate district to government pense South, of local of the counties of the state having the middle 3 or senators.” states established both more Eng- townships. counties and New designed provisions ef- These to are towns, land used counties and but fectuate electorate, senatorial administration relegated the former were sub- designed meet accessi- and position.” (The ordinate American proof bility, practicability. and No System Government, McGraw- by plaintiffs submitted the sena- Company, Inc., York, Hill Book New districts, vari- torial aside from some York, Ed., 1961, pp. 668, New 6th population in otherwise ance citizen 669.) subject to criticism. Kneier, County See also and Fairlie Gov- system not irrational. It clear- The Century ernment and Administration ly gives weight population within the Co., York, 1930, pp. New 1-38. forms for state’s counties which a basis ingredient accessibility area, and Professor Cullen B. Gosnell writes: “ * -x- * character of interest. in Local Government arrangement arbitrary. is not traced di- Such the United States can be grew adapted rectly England. County It has factors to the needs of County York constituted State New as it out of the Shire. While the England urban, areas, vogue is of suburban rural was not in until congestion population spot, Conquest, in one Norman it had after the intensity with areas of lesser in other become well established before the (State sparsely spaces and with settled America.” locations colonization of popula- more remote from the centers of and Local in the United Government ingredients Prentice-Hall, present, States, York, tion. All are 14). Inc., 1951, p. is no arbitrariness in formulae or in the result thereof. Bryce James wrote: 2. Historical Basis “In middle States Jersey Union, Pennsylvania, New present provisions apportion- York, conquered and New settled or origin. ment are historic In New by Englishmen somewhat later than county York, gov- is a classic unit of England, the town and town- organization ernmental and administra- meeting exist, did not as rule consistently tion. New York has em- original county was the basis phasized county government and the organization.” (American Common- county unitary approach. wealth, Company, 1926, MacMillan H, Beard states that in most Charles 1., p. Vol. country units cases the Bryce also stated: dating imprint precedents “bear the England”, (American County perhaps to medieval back “The to be re- Politics, garded MacMillan York, Government at least New Penn- 787.). Company, 1949, p. sylvania Ohio, unit, true (for they townships and the so Ferguson explained As and Mc- usually called) as its subdivisions.” Henry: (Ibidem 600.) p. “ * ** When the American England settled, Cheyney, first colonies were Professor Edward P. of the shires, University Pennsylvania discussing was divided into which in of English turn, parishes, County Officers, subdivided into were “The and Its manors, boroughs. hundreds, (1600-1650)” oldest, and stated: “The most transplanted Colonies, important to the and most When stable government unit of local gave way shire, county.” ‘shire’ term to its was the the synonym or ‘county’. County Background (European of American History, 1300-1600, Harper was first instituted in which Vir- and Broth- primary 261.) ginia, ers, p. later became the unit twenty-fourth part County one Wager, creased Govern in Paul W. University electors, the Nation, of number of which whole Across the ment census, in this ob said shall be found to be 1950, p. Press, North Carolina period state. “During Colonial the served: system of in evolved New Amendments to the Constitution of fea government main which in its local By delegates in to a convention * perpetuated.” tures, has been the 1801 the number of members the assembly hundred was one increased to OF 1777 CONSTITUTION provision should with a that number the recognized by mak- the was All of this fifty. The never exceed one hundred and 1777, adopted constitution of ers of the legislature apportion the was directed to during progress in of the Revolution “said one hundred members of the assem- perhaps one third state in which bly among the several counties of military operations took of that war nearly (emphasis inserted) state, as as IY) (Section place. This constitution may according be, to of elec- the number seventy assembly provided for an in tors shall be to be each which found annually “to be chosen in members county by census to directed be taken added), (emphasis and several counties” year.” present (New York State for each numbers of members certain Annotated, Constitution New York State specified. county Y then Section were Constitutional Convention Committee provisions for followed contained which pp. 22). II Part census after termination of At the time same the number of sena- year at seven there- and intervals war thirty-two tors was fixed that the so adjustment repre- and for after (32) apportioned entire number among county. provision of each No sentation great the “four districts” as any county from for omission some “nearly may be, according as num- to the combining representation or one for qualified ber of electors tors, for to vote sena- county appear. another shall which found to be each (Sections X, constitution The same (Ibidem p. 22). of the said districts.” twenty- XII) provided XI, for a senate OF 1821 CONSTITUTION years, for four freeholders elected four up of 1821 one A constitutional convention classes so that to be set year. which was a new constitution quarter reelected submitted each approved 1822 and took for of sena- voters in divided the election state great districts”; This consti- “four and the effect December tors into p. 24) provided (Ibidem for a be contained in district tution to each assembly an specified 32 members and as the number of sena- as well senate “great” Article Section divid- districts. 128 members. for each these tors districts, mentioning into census to be senatorial After the state ed the assembly taken, purposes, specified the counties in each and stated as the 1777 for provided reapportion- choose four for each district should that constitution may provided reap- ment, be, for as “as near number Section senators. every years ten so that each portionment and the freeholders each district” may nearly contain, any as a senator district in shall addition of district be, equal number etc. Districts were number had in- of electors which * Contemporary representa latures, Prob- 17 Law Each is allotted one states; lems, It also be noted lower tive in the chamber of 23 among Alabama, wit, Arizona, Arkansas, of these states were seven Florida, Georgia, Idaho, Maryland, original union. Cer- states of this Michi Mississippi, Missouri, Jersey, gan, senator also assxire one tain states Now Connecticut, Idaho, Yox'k, county, Carolina, Ohio, wit North each Okla Montana, Jersey, Carolina, Maryland, Maine, Pennsylvania, homa, South Lashley Wyoming. Oregon, Carolina, (Harvey, Vermont South Utah Reapportionments Legis- Wyoming. (Ibidem.) G., of State contiguous territory, to consist of and no constitutional reform “to needed was county legislature fonna- was to be divided in the' elect one house of on the population give big tion of a senate basis of district. cities to Times, representation.” fuller York New provided Section 7 members that the Sept. 7, 1957, p. 1, New col. 8. See assembly by of the coun- shall be chosen Times, Sept. 24, 1957, p. 29, col. according nearly may be, ties as to as According 1957, p. 22, Oct. to- col. 5. excluding number inhabitants census, repre- the 1960 the six counties county Every aliens etc. to en- was be sented the six had individual assembly titled to one member of the population a 9,129,780, citizen or county and no erected new was to be population. of the total State 56.2% population unless its shall entitle it to a heavily populated member. The 10 most counties population 11,937,406, had a or 73.5%' CONSTITUTION OF 1846 population of the citizen of the state. adopted The Constitution of 1846 on Thus, majority chose not to convene (Ibidem p. 44) November aban- a constitutional convention. groupings doned the known as “four negate any compelling- This tends to great thirty-two up districts” and set requiring circumstances the interven- separate senatorial districts each of equity power. tion of federal elected, which one senator was to be present XIX, of the Section Article (Art. 3). Ill, Section Provisions as to gen- provides that “at the constitution equalization inhabitants, of numbers of year nine- be in the election to held eral contiguous territory, prohibition every fifty-seven, and hundred teen county division of a unless entitled to year thereafter, and also twentieth appear. (Section two or more senators legislature may by times as such 4). question provide, ‘Shall law assembly The members of the the constitu- to revise be convention apportioned among be the several coun- the same?’ shall be sub- and amend tion ties, nearly may be, according as as and decided the electors mitted to the number of inhabitants etc. but the majority In decides case of the state.” same reservations for each delegates question, of this are in favor (Section 5). before were continued held. Dele- and a convention be elected gates be follows: each delegates; chosen as are CONSTITUTION OF 1894 district elects 3 senatorial changes No further ap- were made in delegates- elect electors at-large. portionment matters until the constitu- passed tion of 1894 adopted by noted that be en- It it would the voters as heretofore stated. The tirely populous possible for the ten most present provisions substantially are paragraph mentioned in the next counties same and are elsewhere discussed. constitutional convention. to control a concluding this discussion of his- origins, it is fair 4. GEOGRAPHICAL toric to state that the pattern apportion- DISCRIMINATION basic New York’s provisions character, ment historic heavily The fact is that the ten most governmental fitted to the nature of the populated (Kings, development Empire State. York, Queens, Bronx, Nassau, Erie, Westchester, Suffolk, Monroe and Onon- 3. AVAILABILITY OF POLITICAL daga) have, apportion- under the current REMEDY seats, ment, 38 senate of all 65.5% assembly seats, vote 1957 on the call senate and 93 62.0% assembly legislature constitutional convention was heralded all seats. When the apportionment. as an reapportions issue York on Governor the basis urgent stated figures, Harriman the most 1960 census these same coun- 5. A OF and INVALIDATION STATE seats 37 senate ties will have re- ENACTMENT assembly seats, CONSTITUTIONAL and 61.3% 64.9% (minutes, spectively Houses two of the plaintiffs Here the seek to invali 154). August 1, 1962, pp. 153, date not a mere a con statute but state geography, already ac- provision duly propounded indicated As stitutional political cessibility, proper of adopted by diffusion and a Constitutional Con thinly provi a state’s Moreover, initiative as between vention in 1894. these having con- populated solemnly counties and those were sions ratified as shown masses, cast out have not been centrated the above voters who since have de proper factors in clined on a number of occasions to vote change. is, course, methods. for a This court of give supremacy bound to U. the S. plaintiffs The six in which counties Constitution, Constitution over popu- the citizen contain of reside 56.2% invalidity but unless the is clear and State, these counties lation of the but definite, we are reluctant to overthrow only comprise the of the of area 3.1% this choice of the electors of this state. Bronx, Kings, state. (cid:127)Queens in may are the smallest counties the connection we well heed distinguished is smallest state. Nassau the ninth the wise admonitions of county. of members the United States spoken Court who have as follows: worthy Another factor of considera- “The traditions and cen- habits of of the fact that the interests tion is turies not were intended to over- may ^‘upstate” counties be diverse while thrown when that amendment [the city may those of be united. districts passed.” Opinion Fourteenth] Ninety-seven percent of area State’s of Mr. Justice Holmes Interstate Is six outside the in which Railway Consolidated Street Co. v. plaintiffs reside. Massachusetts, 1907, 79, 207 U.S. District includes 40th Senatorial The 26, 27, 28 S.Ct. 52 L.Ed. 111. coun- Lawrence, and Franklin Clinton St. “The Constitution as a continu- totalling 5,511 square miles ties, an area ously operating Charter Govern- larger of Con- the State than is which impossible ment does not demand the County alone Lawrence St. necticut. impractical.” Opinion or the miles, 2,767 square which covers Hirabayashi Chief Justice Stone larger Delaware. the State than area States, 1943, v. United 320 U.S. matters, extensive and social Economic 63 S.Ct. L.Ed. developments, roads, and their resources systems, and other mat- welfare school “ * * * legislature, act- [T]he geo- necessity emphasize of some ters ing sphere, presumed within its in a graphic consideration people to know needs York. It character of size Opinion the State.” of Chief Justice population arguable if stand- that strict Hughes Yeomans, in Townsend v. adopted certain undesirable ards 441, 451, 301 U.S. 57 S.Ct. might as an such increase follow results 842, 847, 81 L.Ed. 1210. legislature such an size may debate be ham- that effective extent CONCLUSIONS pered increase in the size dis- or an opinion hereby con- areWe an extent that contacts to such tricts that clude legislator the individual between impractica- (1) have shown become his constituents preponderance results, the relevant possibility fair these ble. “invidious however, discrimination” is not determinative as to evidence raised in the case at bar. exists. issues provi-

(2) attempted plaintiffs’ have sustain claims. sions of the State New York are ra-

tional, arbitrary, of substan- (4) No costs should be allowed tially origin, against any historical contain no party to or hereto this since geographical permit public discrimination, is a matter of con- interest cern. change majority electoral alter or foregoing findings

same and are not unconstitutional under constitute our fact conclusions law. Let the relevant decisions of the United judgment pursuant be entered States Court. opinion herein. (3) opposed who The defendants have view this determination there is action are entitled to a dismissal of necessity passing standing no on complaint against on the merits as W.M.C.A., party plaintiff Inc. as a against such herein. defendants E APPENDIX RYAN, Judge (concurring). District by tional cause of action is stated a arbitrary impairment claim of of “equal This suit seeks to invoke the by invidiously votes means of

protection” dis- clause of the Fourteenth criminatory geographic classifica- Amendment to United States Con- tion.” stitution. allege (Sec- III Plaintiffs that Article majority opinion In the of Baker v. 2-5) York Constitu- Carr, tions New Justice Brennan stated: “ designates tion, * * * which the method open it [is] to courts * geographic apportionment * * * * * Senators to determine that Assemblymen elected to the policy, a discrimination reflects no Legislature, State is unconstitutional be- simply arbitrary capricious but against cause it discriminates the urban action.” and, therefore, con- residents “Invidious discrimination” is an irra- “equal protection” flicts with the clause. against tional inconstant action We do not find that “invidious dis- group of citizens. We do not find that impos- crimination” is exists or that it apportionment policy the New York State change sible the State Constitution irrational; is all that have il- non-judicial means. apportionment lustrated is that the not’ Supreme In the solely Court’s remand of population. based on But as was case, per opinion curiam MacDougall stated: Green, said in 335 U.S. “ * * * 281, 283, 1, 2, 69 S.Ct. we held in Baker v. Carr, 691], 369 U.S. [82 S.Ct. political power “To assume that justiciable that a exclusively federal constitu- a function of numbers is disregard citizens of satisfied practicalities system. government.” the current The situation in New York different for' determin- criteria other There are Court, than other where the states population. ing apportionment besides granting requested, the relief stated that Carr, said: Justice Harlan In Baker v. prime one of the reasons was that there “Nothing Constitu- in the Federal remedy was no within the electorate. * * * from [stops] a tion choosing Fortson, D.C., Georgia, Toombs v. legislative any electoral F.Supp. 248. suited to thinks is best structure it findings We concur in the of fact and interests, temper, customs Judge ” conclusions of law reached * * * people. its LEVET; we concludethat this Court has interests of coun- factors as the Such jurisdiction subject over the matter of po- ties, geography, and concentration jurisdiction the suit and this has been power, considered. also be litical and, exercised after trial and examina- plaintiff counties contain The six 56.2% tion of the statutes involved and of the they population, con- state’s but undisputed facts, we conclude that Open- only (P. area. tain of its 3.1% complaint up- herein should be dismissed ing Memorandum Defendants—Be- its on merits. Statutory On Remand Court fore the United Court of from States.) WATERMAN, Judge. Circuit If were based concur, Judge I RYAN, as does Chief solely population, mean on this would findings of fact and conclusions of domi- state’s area would that 3% Opinion Judge law contained in the nate the rest of York. Even if the my colleagues LEVET. I concur with sincerely representatives urban ordering complaint that the herein be for the endeavor to care interests of the upon dismissed its merits. unlikely they whole, state as might it is fully be able to understand the remaining problems of the vast area of Each rural state. member

Legislature presently represents a much

greater his area than urban counter-

part. population If be made the apportionment,

sole the area criterion per representative certain districts Jr., PEEBLES, and Lee B. Baldwin E. Represent- would increase even further. Peebles, Plaintiffs, might represent adequately atives and, localities which were not their home America, UNITED STATES of correspondingly, the residents these Defendant. might localities lose the benefits of the No. 2622. governmental process. democratic States District United Court this absence of “invidious Besides dis- Alabama, D.S. S. D. crimination”, New York State Con- Aug. question provides that stitution convention revise “Shall there and amend the same?”

the constitution every put people

shall be before twen- (Article XIX, year.

tieth Section majority voted “No” to this though majority question even those

voting from the urban areas. This came voting most to indicate that seems

Case Details

Case Name: W.M.C.A., Inc. v. Simon

Court Name: District Court, S.D. New York

Date Published: Aug 16, 1962

Citation: 208 F. Supp. 368

Court Abbreviation: S.D.N.Y.