The statute about to be declared unconstitutional was enacted pursuant to article VI, § 1, of the State Constitution which provides in part: "* * * The existing judicial districts of the state are continued until changed as hereinafter provided. * * * The legislature may alter the judicial districts once after every federal census or state enumeration, each district being bounded by county lines and thereupon re-apportion the justices to be thereafter elected in the districts so altered." (Italics added.)
A majority of the court have concluded that in its context the word "alter" may not be construed to mean increase, although a meaning commonly ascribed to that word is "To add to or diminish." (3 C.J.S. 898; People v. Sassovich, 29 Cal. 480,484; Kosidowski v. Milwaukee, 152 Wis. 223, 226.)
I believe that to read the phrase — "The legislature may alter the judicial districts * * *," as granting permission toincrease those districts is consonant with the historical development of the Judiciary Article. Passing earlier data it appears that when the delegates gathered for the Constitutional Convention of 1894 they found that, as to judicial districts then existing in the State, the Judiciary Article, as last amended in 1869, contained the restriction — "The legislature may alter the districts without increasing the number, once after every enumeration, * * *" (Italics added). In the course of the Convention's deliberations a proposal (No. 279) was introduced to amend the Judiciary Article by striking out the words *Page 221 "without increasing the number" (which followed the word "alter"). The purpose of the amendment, as declared in the proposal was — "* * * to permit the legislature to increase the number of judicial districts." (Revised Record Constitutional Convention, 1894, Vol. 1, p. 641.) In the body of that proposal the only amendment to the existing text was "to strike out the words `without increasing the number' * * *." The proposal was adopted by the Judiciary Committee. Subsequently, in a written statement explanatory of the revision of the entire Judiciary Article recommended by the Judiciary Committee, Mr. Elihu Root as chairman advised the Convention that proposal No. 279 was among those adopted and included in the proposed revised article. (Revised Record Constitutional Convention, 1894, Vol. II, p. 468.) As thus revised the Judiciary Article was adopted by the Convention of 1894 and subsequently in the same year was approved by the People of the State.
No amendment has since nullified the particular constitutional change thus set in motion by the introduction in the Convention of 1894 of proposed amendment No. 279, the declared purpose of which was "to permit the legislature to increase the number of judicial districts."
In that connection it is noteworthy that when that same Convention, by its revision of section 2 of the Judiciary Article, constituted four new judicial departments as an incident to the creation of the present four Appellate Divisions of the Supreme Court, it again employed the word "alter" when it granted to the Legislature power "to alter the judicial departments." In doing so, however — as if to emphasize that by its prior use of the word "alter" it had meant increase — the Convention expressly qualified the power thus granted to the Legislature by the phrase — "without increasing the number thereof."
Finally, I find it significant that although the 1925 amendment to the Judiciary Article omitted provisions which had been included in the amendment of 1905 relating to a local condition, it did not replace the restriction against increasing the number of judicial districts which the Convention of 1894 had eliminated.
These considerations lead me to the conclusion that article VI, section 1, afforded a constitutional basis for the enactment of chapter 617 of the Laws of 1944. Accordingly, I dissent and vote for affirmance. *Page 222
LOUGHRAN, CONWAY and DYE, JJ., concur with LEHMAN, Ch. J.; LEWIS, J., dissents in opinion in which DESMOND and THACHER, JJ., concur.
Orders reversed, etc. [See 294 N.Y. 963.]