I concur in the opinion of the chief judge in these proceedings.
In Matter of Sherrill v. O'Brien (188 N.Y. 185-217) I entertained the view that the proceedings in that case should be dismissed upon the ground of laches. I was then of the opinion that the provision of the Constitution giving to any citizen the right to have an apportionment *Page 445 by the legislature reviewed by the court was self-executing; and in the absence of an act of the legislature prescribing the practice to be followed the courts would entertain an application on the part of any citizen for a review; and that consequently it was not necessary to wait until it became time for the secretary of state to give notice of the election of senators and assemblymen and the districts from which they were to be chosen. But my associates then differed with me with reference to my construction of the provision, holding that, in the absence of legislation establishing the practice to be followed, a citizen could only proceed under the provisional remedies given by the Code, and, therefore, it was necessary to wait until it became time for the secretary of state to give the notices of election and then proceed by a mandamus. That decision established the practice, and, although it was against my view, it now becomes my duty to follow the determination then made.
VANN, WERNER, HISCOCK, CHASE and COLLIN, JJ., concur with CULLEN, Ch. J.; HAIGHT, J., concurring in memorandum.
Order affirmed.