The fundamental question involved in this appeal is the validity of the act of the Legislature, chapter 797, Laws of 1917.
My views are at variance with the conclusion stated in the prevailing opinion, that the Legislature of this State when it enacted chapter 890, Laws of 1911, redistricting the State, immediately following an apportionment made by the Congress August 8th, the same year, failed to fully perform a duty imposed upon it by the Congress, in that a continuous obligation rested upon the Legislature to keep the State so divided into Congressional Districts that Representatives to the Congress thereafter elected should be from districts composed of contiguous territory containing as nearly as practicable an equal number of inhabitants, and with the construction placed upon the act of Congress of August 8, 1911, in support of such conclusion.
The law of 1911 is not, and has not been assailed as invalid either as to the districts defined, equality in *Page 501 number of inhabitants or for any reason. The law of 1911 was in substance the same in character as the statutes enacted by the Legislatures of this State since 1842, each statute following an apportionment by Congress based upon a decennial census of the inhabitants of the State. During that period the Legislature of this State has numbered amongst its membership a fair proportion of able lawyers, each of whom it is fair to assume was interested in the Congressional District of which he was a resident, as well as in the success of the political party with which he was affiliated. The Session Laws of this State during the years stated disclose that the State was redistricted by the Legislature once in ten years, following immediately each apportionment by the Congress. Evidently during all the years, the legislative bodies of this State while giving such practical and reasonable construction to the authority vested in them by the Congress did not appreciate the now established fact that they failed to fully perform a continuous obligation imposed upon them by the Congress to keep the State divided into Congressional Districts, the only limitation being that the rule as to territory and inhabitants should not be disregarded. In support of the conclusion as to the continuous obligation resting upon the Legislature, the prevailing opinion, referring to the act of Congress of 1911, declares 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 purposes of the act, as the division directed to be made was not only for the sixty-third, but "each subsequent Congress." In other words, year by year following a redistricting of the Congressional Districts the Legislature is authorized to again redistrict by reason of shifting population. The inquiry is pertinent: *Page 502 How will the "shifting population" be ascertained? It is obligatory that districts shall contain as nearly as practicable an equal number of inhabitants. Shifting in population occurs annually in every district and the only manner in which the population can be ascertained every year or every two years is by an enumeration of the inhabitants of the State. I am loath to believe that the Congress had in mind the imposition of such an unnecessary burden and extraordinary expenditure of money by the State. On the contrary, its expressed intention was otherwise. I do not understand that any division of opinion exists that the Federal Constitution which provides for a Congress, the term of office of Representatives therein, the qualifications requisite to holding the office and the qualification of electors to vote for them, the number of Representatives, the method of apportionment of the same, and, as a prerequisite to such apportionment the return of a decennial census of the stated inhabitants of the various States, is supreme. The only authority ever granted by the Federal Constitution to the States is found in article 1, section 4, subdivision 1, which reads: "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 such regulations, except as to the places of choosing Senators."
Under that provision of the Constitution, each State was for a certain time permitted to elect Representatives either at large or by districts. In this State from the earliest day, Representatives were elected by districts. The above provision of the Federal Constitution reserved to the Congress the right at any time by law to make or alter any regulation made by the States as to the times, places and manner of holding elections for Representatives. In the exercise of such reserved power, the Congress immediately *Page 503 following the return of the census of 1840, enacted chapter 47 of the statutes of 1842, and provided therein "That in every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives to which the State may be entitled, no one district electing more than one Representative." The purpose of that law was to provide for uniformity amongst the States as to the manner in which Representatives should be elected and to avoid "an undue preponderance of power to the political party which had a majority of votes in the State however small." (Exparte Yarbrough, 110 U.S. 651, 660.)
The enactment by the Congress in the law of 1842 deprived the States of the right to regulate the "manner" in which Representatives should be elected, and likewise provided the "places," i.e., districts, from which they should be elected. Later Congress denied to the States the power to fix the "times" of holding elections and by virtue of its reserved power enacted that Representatives from the States and Territories should be elected on the Tuesday after the first Monday in November, 1876, and every second year thereafter. The purpose of that law was uniformity independent of the time fixed by the States for holding elections. (Chapter 11, act of Congress 1872.) The power granted to the States to establish by law the times, places and manner of holding elections was abridged. Congress declared the "times" the Tuesday after the first Monday in November, the "manner" by Congressional Districts and the "places" where Representatives should be elected — Congressional Districts. I am unable to discover any authority remaining in the Legislature under the provision of the Federal Constitution, save to regulate *Page 504 the elections by election districts under the general Election Law of the State.
It is asserted that the power of the Legislature in 1917 to redistrict the State was conferred by the Congress in the Apportionment Act of August 8, 1911, which act as has been now held directed the division to be made not only for the sixty-third but "each subsequent" Congress. A review of the act of Congress of August 8, 1911, leads me to a contrary conclusion. The return of the thirteenth census of 1910 was a prerequisite to the power of the Congress to make an apportionment of Representatives. When in August, 1911, the Congress made the apportionment that body was powerless under the Federal Constitution to enact a law making another apportionment until after the return for the fourteenth census ten years later. (Exparte Siebold, 100 U.S. 371.) The basis of an apportionment by the Congress is the number of inhabitants in the States as shown by the decennial census, and as I construe the act of Congress in question the same decennial census of the inhabitants of the State of New York has ever been, and is required to be, the basis of action by the Legislature in a division of the State into Congressional Districts. It is incomprehensible that following the Federal census of 1910 it would be deemed necessary or prudent that the State should immediately thereafter make a second census. Had the Legislature undertaken to do so and divided the districts based upon the census so taken its action would be in conflict with the act of Congress, as its sole authority to divide the State into districts is derived from Congress. The decennial census of 1910 being the foundation of the legislative power to divide the State into districts so far as the number of inhabitants is concerned, the suggestion that a shifting population may authorize a redistricting, based as it must be upon something other than the decennial census upon which the apportionment was *Page 505 made, is fallacious. This is apparent when we interpret the act of Congress in its entirety rather than by selecting two or three words therein and declaring them as controlling the intention of the Congress. Section 3 of the act reads: "Section 3. 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. The said Districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative."
The words relied upon as indicating the intention of Congress that the Legislature was empowered to redistrict the State at any time are "the Representatives to the Sixty-third and each subsequent Congress." The words "each subsequent Congress" were not used for the first time in the act of 1911. The same words will be found in a number of earlier apportionment acts. Having in mind the limitations upon the power of Congress to make an apportionment save once in ten years to be based upon a census, let us turn to the act of Congress of August 8, 1911. The title of the act which we are permitted to consider is, "An Act for the apportionment of Representatives in Congress among the several States under the thirteenth census." Effect must be given to the words "under the thirteenth census." Congress declared that under that census the State of New York was entitled to forty-three Representatives. It required the Legislature to divide the State into forty-three districts, each district to be composed of contiguous territory. It commanded that districts as nearly as practicable should contain an equal number of inhabitants, the basis of the latter being the thirteenth census, upon which Congress had made the allotment and which disclosed *Page 506 in detail the number of inhabitants within the several subdivisions of the State. We assume that the Legislature thus far performed the duty imposed upon it and as generally understood to have ever been the rule, divided the State so far as the number of inhabitants was concerned upon the basis of the Federal census. As I have heretofore stated, no question has been or is raised as to the validity of the act of the Legislature of 1911. Although the division of the State was made in 1911, the same year the apportionment was made, no election was to be held until the year 1912 when Representatives to the sixty-third Congress were to be elected and so the act of Congress provided that Representatives to that Congress and each subsequent Congress should be elected by districts. What districts? Districts which might be created at any time by reason of shifting population? I think not, but rather from districts created by the Legislature based upon and under the thirteenth census. Three several Congressional elections were held in this State under the act of the Legislature of 1911, which adds to the number of legislative bodies of previous years which gave a practical construction to the power of the Legislature to which I have already adverted. The only power the Legislature possessed to divide the State into Congressional Districts was derived from the act of Congress. The power conferred was not a continuing authority. To so determine one must conclude that the power of the Legislature was greater than the power of Congress. When, in 1911, the Legislature determined and defined the boundaries of Congressional Districts and complied with the requirements of Congress as to territory and the number of inhabitants it fully performed the duty imposed upon it by the Congress.
I am in accord with the suggestion that the State of New York should not be denied full membership in the Congress. I do not agree that unless the elections be *Page 507 held in the districts as defined in the act of 1917, that elections cannot be held. If the law of 1917 is invalid it is of no effect. Assume, for illustration, that the fact was established beyond doubt that the districts as defined therein were not composed of contiguous territory and that a most unjust discrimination existed in the number of inhabitants. Would we determine in such case that the elections must be held in such districts thus organized in direct violation of the Federal Constitution and the act of Congress? Would we not determine, as we have in cases arising in this State under apportionment acts by the Legislature of senate and assembly districts, where an act has been declared invalid, that elections were required to be held in the districts as they existed prior to the enactment of the statute declared invalid? (Matter of Sherrill v. O'Brien,188 N.Y. 185, 215; Matter of Dowling, 219 N.Y. 44, 59.)