At the general election held November 7, 1916, John J. Fitzgerald was elected a representative from the seventh congressional district of the *Page 496 state of New York to the sixty-fifth Congress of the United States. The boundaries of such district at that time were fixed and established by chapter 890 of the Laws of 1911. On the 1st of January, 1918, he resigned and a vacancy was thereby created, which now exists. Intermediate his election and resignation the legislature of the state of New York, by an act which took effect June 9, 1917, changed the boundaries of some of its congressional districts, and among others, the seventh. (Laws of 1917, chap. 797.) The governor of the state of New York, on the 23d of January, 1918, pursuant to the Federal Constitution (Article 1, sec. 2, clause 4) and section 292 of the Election Law (Laws of 1909, chap. 22, as amended by Laws of 1911, chap. 891) by proclamation duly issued, ordered that a special election be held on the 5th day of March, 1918, in the seventh congressional district, to fill such vacancy.
The question presented by the appeal is whether the election thus called is to be held in the seventh congressional district as it existed when Mr. Fitzgerald was elected or as it existed when the governor issued his proclamation. There is, as it seems to me, if the election is to be held at all, but one answer to the question.
The Federal Constitution provides that "The House of Representatives shall be composed of members chosen every second year by the people of the several States." (Article 1, sec. 2, clause 1.) The third clause of the same section, as amended by the Fourteenth Amendment, provides that "Representatives * * * shall be apportioned among the several States * * * according to their respective Numbers" excluding certain persons named. And section 4, clause 1 of the article provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter *Page 497 such Regulations, except as to the Places of choosing Senators." Pursuant to these provisions, Congress, on the 8th of August, 1911, passed an act (Chap. 5 of the Sixty-second Congress) reapportioning the number of representatives among the different states. That act provided that "after the 3rd day of March, 1913, the House of Representatives shall be composed of four hundred and thirty-three members to be apportioned among the several States as follows: * * * New York forty-three * * *." Section 3 of the act provides: "That in each State entitled under this apportionment to more than one representative, the representatives to the sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants."
After the apportionment thus made it at once became and thereafter continued to be the duty of the legislature of the state of New York to comply with the act by dividing the state into forty-three congressional districts in the manner prescribed. This it did by the act of 1911, but its power was not thereby exhausted nor its duty fully performed. It still remained obligated to keep the state so divided into congressional districts that members thereafter elected should be from districts composed of contiguous and compact territory containing as nearly as practicable an equal number of inhabitants. The language used in the congressional act indicates as clearly as anything can that Congress in its enactment took into consideration the fact that after a state had once been divided into congressional districts, by reason of shifting population, it might, from time to time, become necessary to redistrict it in order fully to comply with the intent and purpose of the act. The division directed to be made was not only for the sixty-third, *Page 498 but "each subsequent Congress." It is not claimed, nor suggested, that the seventh district as established by chapter 797 of the Laws of 1917, is not composed of contiguous and compact territory, or that it does not contain as nearly as practicable an equal number of inhabitants with the other districts of the state. The purpose of the legislature in passing that act, it must be assumed, was solely to comply with the act of Congress.
It is not claimed that the legislature had the power to make the seventh congressional district a migratory one so that Mr. Fitzgerald "would be representing during his term various parts of the state according to the will of the legislature." All that is claimed is that the legislature had the power given to it by Congress to divide the state into forty-three congressional districts composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants. In the exercise of the power thus given the act of 1917 was passed. The act took effect immediately and thereafter the new seventh congressional district took the place of the old one. Once the old one had ceased to exist the governor was powerless to issue his writ for an election therein. In my opinion the act of 1917 is a valid legislative enactment.
The ingenious and forceful contention of the appellant that the election should be held in the old district is easily answered. There is now no such district in existence. The act of 1917 created a new district consisting of part of the old and some new territory. The title to the act is: "An Act to amend chapter eight hundred and ninety of the laws of nineteen hundred and eleven, entitled `An Act dividing the state into congressional districts,' in relation to changing the boundaries of the congressional districts of the state from the third district to the tenth district, both inclusive." And section 5 provides: "That portion of section one of such act *Page 499 describing the boundaries of the seventh congressional district is hereby amended so that the boundaries of the seventh congressional district shall be established and fixed as follows." Then follow the boundaries of the territory taken in. The effect of this amendment was to repeal or supersede, as to the territory left out and the new territory taken in, the act of 1911, bounding the seventh congressional district. (Ely v.Holton, 15 N.Y. 595; Matter of Livingston Street, 82 N.Y. 621,623; Matter of Estate of Prime, 136 N.Y. 347; 36 Cyc. 1083.) An election cannot now be held in the old district because, as indicated, it does not exist and, in addition thereto, there are no facilities, including proper election officials, necessary for holding an election. The election, therefore, must be held in the new district or else the state must go unrepresented in Congress so far as that district is concerned — a result which we are all agreed should be avoided if possible. In this connection it is suggested that if a member be elected from the new district, he may not be permitted to take his seat in Congress. That is a matter solely for the determination of Congress itself. It is the sole judge of the qualification of its members and its action can in no way be controlled by this court.
The proclamation of the governor was issued by him in obedience to the commands of the Federal Constitution, which provides: "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." (Article 1, sec. 2, clause 4.) The only basis for holding the special election is the governor's proclamation. Whether a special election of the character of the one under consideration shall be held, and if so when, involves a matter of executive discretion with which the courts have no right or power to interfere. (People ex rel. Broderick v. Morton, 156 N.Y. 136; *Page 500
Matter of Guden, 171 N.Y. 529.) The proclamation as issued calls for a special election in the seventh congressional district as it now exists. It provides that the election must be held in the manner prescribed by law for the election of representatives to Congress at general elections. This must mean, as it seems to me, in the manner prescribed by the act of 1911, as amended by the act of 1917. That which is prescribed by law means that which is prescribed by an existing law and not by a law which has ceased to exist.
My conclusion, therefore, is that the court is without power to direct a special election to be held in the old district and that the proclamation of the governor calls for a special election to be held in the new district.
It follows that the order appealed from is right and should be affirmed, with costs.