Chapters 797 and 799 of the Laws of 1917 were never intended, in my opinion, to apply to vacancies occurring in the sixty-fifth Congress. They spoke for the future and applied to the next regular congressional elections.
Section 3 of the act of Congress, approved August 8, 1911, regulating the present apportionment of representatives, provides, "That in each State entitled under this apportionment to more than one representative, the representatives to the 63rd and each subsequent Congress shall be elected by districts composed of a contiguous and a compact territory and containing as nearly as practicable an equal number of inhabitants. The said district shall be equal to the number of representatives to which such state may be entitled in Congress, no district electing more than one representative."
There can be no question but that Congress had the power to regulate under the Constitution the manner of *Page 508 holding elections for representatives (U.S. Constitution, art. 1, sec. 4), and this regulation is binding upon the states. This state thereupon passed chapter 890 of the Laws of 1911, dividing the state into districts according to this apportionment by Congress. All previous acts upon the subject were repealed. When John J. Fitzgerald was elected in 1916 to the sixty-fifth Congress, it was from the seventh congressional district as fixed by this law of 1911.
Article 1, section 2, subdivision 4, of the United States Constitution provides that "When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." Mr. Fitzgerald having resigned to take effect January 1, 1918, the governor of this state issued his proclamation for the election on March 5th, to fill the unexpired term in and for the seventh congressional district. By chapter 797 of the Laws of 1917 the seventh congressional district was so changed by the state legislature as to include a large portion of the territory which was at the time of the election of John J. Fitzgerald in another district and also to exclude therefrom a large portion of the original territory. It is claimed that the legislature could change the seventh congressional district during the term of the congressman elected therefrom and shift it to any part of the state and that there is no redress. The argument for the respondents would carry the power of the state legislature to the extent of making the seventh district a migratory district so that John J. Fitzgerald would be representing during his term various parts of the state according to the will of the legislature.
Thus the state could, by this reasoning, place the seventh district over upon the territory of the fourth and direct that a vacancy occurring in the seventh be filled from the new congressional district. The same territory and electors would thereupon have two representatives *Page 509 in Congress, the one elected in 1916 for the fourth district still in office, and the one elected to fill the vacancy in the new seventh, changed to the boundaries of the fourth. This in part has been done here.
The act of Congress providing that no district shall elect more than one representative is complied with, it is asserted, because the same territory is called the fourth for one congressman and the seventh for the other — a numerical value wholly dependent upon the fiat of the legislature. But, it is said, the congressmen represent the state and not the districts. This may be true, but the act of Congress provides that he shall be elected in a defined district and that there shall be but one congressman representing that district. To shift that district during his term over upon the territory of some other district by simply changing the number and then permitting the vacancy to be filled from that other district is in effect, if not in theory, giving two congressmen from the same district. A district represents a defined territory and not a mere number. It is a practical matter and not one that yields to attenuated argument. I doubt whether the legislature has power in view of this act of Congress to change the congressional district from which a representative is elected during his term of office. However this may be, I am convinced that the legislature in passing the acts of 1917 never intended to have them apply to vacancies, but that, as above stated, the intention was to have these new districts for the next regular congressional election.
That the governor might issue his writ for an election in the old seventh apparently is conceded, but as he has failed to do this — as it is urged — the election must be in the new boundaries or there can be no election at all. This argument I cannot accept. The governor's proclamation makes no mention of the changed district but refers to the district from which Fitzgerald was *Page 510 elected. It reads: "WHEREAS, a vacancy exists in the office of Representative in Congress for the Seventh Congressional District of the State of New York, caused by the resignation of John J. Fitzgerald, Representative in Congress from said District; Now,therefore, I Charles S. Whitman, Governor of the State of New York, * * * do hereby order and proclaim that an election for Representative in the Sixty-fifth Congress of the United States for the Seventh Congressional District of the State of New York in the place, and for the unexpired term of said John J. Fitzgerald, be held in the said Seventh Congressional District." "Said Seventh Congressional District" refers to the district Fitzgerald resigned from and he resigned from the district he was elected in. Thus the governor has called an election in that district, the seventh as it existed at the general election in 1916. What else can he mean?
It is said that the legislature is supreme in these matters. Suppose the legislature should abolish the district altogether. This could not terminate Fitzgerald's office. What district would he then represent? By the act of Congress he must come from some district and be the only representative from that district.
The fact that there is no special repeal of previous laws in chapters 797 and 799 of the Laws of 1917, as is found in chapter 890 of the Laws of 1911, would seem to indicate that the previous law continued for the existing term of the congressmen.
We must trust, it is said, to the good faith of the legislature in these matters. I believe that the act of Congress above mentioned places some limitation upon this power of the state legislatures and that they are not supreme so that they may in effect disfranchise certain voters and give to others the right to elect two representatives. And this limitation is emphasized by section 26 of the United States Revised Statutes (U.S. Compiled Statutes *Page 511 Annotated, 1916, vol. 1, sec. 23). Section 26 provides as follows in relation to vacancies: "The time for holding elections in any state, district or territory for a representative or delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation or incapacity of a person elected may be prescribed by the laws of the several states and territories respectively."
It will be noted here that the states or territories can only prescribe the time for holding elections to fill vacancies; they cannot change the boundaries. The use of the word "district" is very significant following "state" as showing that the vacancy is conceived to be not alone in the state but in the very district, meaning the territory from which the former representative had been chosen. The power of Congress being plenary over elections to the house of representatives the state authorities are without power to change any of its regulations.
The regulations made by Congress governing the election of representatives are paramount to those made by the state legislature. (Ex parte Siebold, 100 U.S. 371, 384.)
When the state legislature changes the congressional districts for future elections, all the districts in the state or a given territory are changed so that there is no such overlapping as arises here. Thus in the election of 1918, within the districts changed by the Laws of 1917, there will be no district stretching over into an adjoining district. All voters and each district will have but one representative. This is another reason for concluding that the legislature never intended that the changed districts should hold for present vacancies.
But it is said voters move out of a district, others become twenty-one, aliens are admitted to citizenship, and women given the right to vote. Many of these *Page 512 changes are voluntary with the voter, others are privileges distributed equally over the entire state, and exist in all territory alike, but no such changes in the constituency which come about gradually is an answer to the proposition that this law of 1917 gives to a district which already has a representative in Congress the right to send another one there for a portion of the same term.
The fact that the election machinery may be difficult to work if now applied to the congressional districts as they existed in 1916 is not for us to consider. Expediency is no answer to the violation of an act of Congress. The corporation counsel representing the bi-partisan election board of New York city claims that the election machinery will work, and that it is practical to hold the elections in the old districts. This statement should suffice as an answer to this proposition.
For these reasons, I am for the reversal of these orders and the granting of the writs.
HISCOCK, Ch. J., CHASE, POUND and ANDREWS, JJ., concur with McLAUGHLIN, J.; HOGAN and CRANE, JJ., read dissenting opinions.
Order affirmed. *Page 513