People Ex Rel. Carter v. . Rice

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] All these proceedings have for their object the decision of the question as to the validity of the Apportionment Act of 1892. The boards of supervisors of the counties of Monroe and Oneida are the only boards in the state which have refused to make a division of their counties into assembly districts for the purpose of carrying out the provisions of the act of 1892.

The secretary of state has issued and delivered to the clerk of Oneida county an election notice in which provision is made for the election of but two members of assembly therein, and the supervisors claim the right of the electors of the county to elect three members under the Apportionment Act of 1879, and therefore it is specially asked that the secretary be compelled to issue notices for the election of three members of assembly in the county of Oneida, pursuant to the apportionment contained in the law of 1879, and that the secretary be commanded to desist from doing any act or thing under chapter 379, of the Laws of 1892, or to in any way recognize that act as valid or binding.

This apportionment of 1892, it is alleged, violates the provisions of the Constitution in several particulars which are set forth, and the court is called upon at the instance of all parties to these litigations, to decide the questions involved at the earliest practicable moment in order that the supervisors and the election officers may be guided in the discharge of their duties by the opinion of this court as to the validity of the act of 1892.

We have given all the consideration possible to these cases since the argument thereof, and while the questions are in themselves most important and far reaching, yet we are compelled by the necessities of the case to decide them at once. We, however, feel more competent to do this because however important the questions may be we think the proper and correct answers are quite plain and clear.

The rule which has governed courts ever since the adoption of our constitutions, both federal and state, in relation to the exercise of the power to declare an enactment of the legislative body unconstitutional, has been laid down in many reported cases and has been rigidly adhered to by both the federal and state courts. Before courts will deem it their duty to declare an act of the legislature void as in violation of some provision of the Constitution, a case must be presented in which there can be no rational doubt. The incompatibility of the legislative enactment with the Constitution must be manifest and unequivocal. Judge DENIO, in People v. Draper (15 N.Y. 546), expressed the rule in substantially the above language. There is no doubt of its correctness and I have heard no counsel who have challenged it. We must proceed to the examination of the constitutionality of the act of 1892, guided by this rule.

Section 4 of article 3 of our State Constitution reads as follows: "An enumeration of the inhabitants of the state shall be taken under the direction of the legislature in the year one thousand eight hundred and fifty-five, and at the end of every ten years thereafter; and the said districts shall be so altered by the legislature at the first session after the return of every enumeration, that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed; and shall remain unaltered until the return of another enumeration, and shall at all times consist of contiguous territory; and no county shall be divided in the formation of a senate district, except such county shall be equitably entitled to two or more senators."

Section five of the same article, after providing for 128 members of assembly, continues: "The members of assembly shall be apportioned among the several counties of the state by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts. * * * The legislature at its first session after the return of every enumeration, shall apportion the members of assembly among the several counties of the state, in manner aforesaid," etc. The apportionment and districts must remain unaltered until another enumeration shall be made as provided in the Constitution.

First. It is contended on the part of those who allege the invalidity of the law of 1892, that it was passed in violation of that provision of the Constitution which directs the alteration to be made by the legislature at the "first session after the return of every enumeration."

The act was in truth passed at an extraordinary session of the legislature called by the Governor, and after the return of the enumeration of 1892. The point is made that an extraordinary session is not such a session of the legislature as is contemplated by the Constitution. To my mind the objection is wholly without force. An extraordinary session is, nevertheless, a session of the legislature. The Governor, by the terms of the Constitution, has "power to convene the legislature (or the senate only) on extraordinary occasions." When thus convened, is not the legislature in session? And can it be for a moment correctly contended that a session thus convened is the same session which had already terminated by an adjournment without day? It is not a regular session, it is true; it is what the Constitution describes it, an extraordinary session, but yet a session of the legislature. The Constitution does not say that the session which is to deal with the question must be a regular one. All it directs is that the legislature at the first session after the return shall proceed to make the alterations. The Constitution provides for the assembling of the legislature on the first Tuesday in January in each year. When it adjourns sinedie, has not the session of the legislature ended? The term of office of its members may not have ended, but the legislative session has certainly terminated by an adjournment without day. It could not again assemble and perform any valid act unless the Governor, under the special power given him by the Constitution, should convene it. When thus convened the legislature is in session, and it is clearly not the same session which was ended by a prior adjournment thereof without day. The Constitution does not provide that the next legislature after the return of the enumeration at its first session shall make this apportionment. It is directed to be made by the legislature at the first session after such return. Wherein does this extraordinary session fail to fill that description? It was a session of the legislature and it was the first which was held after the return of the enumeration, and it was competent to deal with that subject because of the recommendation of the Governor.

There is no basis, in the language of the Constitution, for the claim that the session of the legislature referred to in that instrument is the first session of the legislature which itself first convenes after the return of the apportionment. The Constitution does not say so, and I fail in finding any reason in principle or in the nature of the subject which calls for such a construction. On the contrary, to so construe it is to arbitrarily supply words which are not used and which neither the context nor the surrounding circumstances call for. Such construction also twists and distorts the ordinary and plain meaning of the language actually employed. The result is that in order to construe the Constitution in the manner desired, words must be supplied which have not been employed and the language actually used must be construed as meaning something different from the meaning ordinarily given to it.

This court is not prepared to make such an attempt.

We also fail entirely to see the force of any argument based upon the assertion that the Constitution intended that some considerable interval should elapse between the return of an enumeration and the apportionment of senators and members of assembly under it. There is nothing whatever in the language of the Constitution which assumes or seems to provide that any material interval ought to pass after the return of the enumeration and before the enactment of the statute. On the contrary, the language of that instrument with regard to this provision would seem clearly to point to definite and prompt action at the earliest practicable moment; in other words, action at the first session of the body that can make the alteration. Such language is not that which would be used for the purpose of advising or directing delay.

Judicial notice may be taken of the fact that an enumeration of the inhabitants of the state was ordinarily a matter that occupied some time to complete it, and the members of the constitutional convention of 1846, as well as the people, knew that it might, and in all probability it frequently would, happen that the legislature which ordered the enumeration would complete its other business and adjourn without day before the enumeration provided for was itself completed. In such event the legislature not being in session, could not apportion the districts and members. In order, however, to insure prompt action upon the matter and at the earliest opportunity, the Constitution provides for the alteration consequent upon an enumeration at the first session after its return. I think that under this constitutional provision the legislature which ordered the enumeration might remain in session until after its return and then itself proceed to the alteration made necessary by the results of such enumeration.

It would seem to be a complete perversion of the ordinary and plain meaning of language to change what on its face is clearly a direction for prompt action, into one providing for or securing delay. There is nothing in the nature of the subject which calls for it. On the contrary, as these alterations are to last but ten years before an enumeration is again presented for another alteration, every intendment would point to the prompt and speedy fulfillment of the constitutional duty, so that the legislature should at once represent the people of to-day and not those of years ago.

An argument in favor of that construction of the Constitution which would cause a delay in making alterations after an enumeration has been returned, is suggested in the fact that an examination of the different returns might reveal some great mistake or a gross fraud, and to such an extent that no alteration of a previous apportionment ought to be based upon such an enumeration. It is, of course, true that mistakes are possible, and it is conceivable that a fraud might possibly be perpetrated in some portion of the state. The idea, however, that the Constitution looks to any delay in legislative action following the enumeration, because of such possibilities, finds no lodgment in the language used in the instrument itself. Such possibilities attach to all human affairs and would be the accompaniment of the second as well as of a first enumeration. But the possibilities of any error or fraud which would really work any material injustice are so remote, both as to perpetration and discovery, that an argument for delay based upon them can have no weight whatever when brought before and compared with the plain language of our fundamental law. The argument for an interval of time is also answered by the fact that the legislature might provide for taking an enumeration in November or December, and the filing of the returns in the last of the month of December. The incoming legislature, which might meet in a day or two thereafter, is concededly competent to deal with the subject. And yet in such case there would be no material interval of time provided for or existing.

Another argument against regarding the extraordinary session of the legislature as competent to deal with this subject, consists in the assertion that if such a session can be claimed to fill the conditions of the Constitution, it would in that event rest with the Governor whether an apportionment act should be then passed, for he might call an extraordinary session and not recommend the consideration of this subject, and if he did not, the legislature, it is said, could not pass an apportionment act, although the extraordinary session were the first session after the return of the enumeration. If the Governor should call such a session and not recommend this subject for consideration, it might then be a question which of the two constitutional provisions should prevail, that which provided for the passage of the apportionment act at the first session, or the one which provided that at an extraordinary session the legislature should consider no other subject than such as should be recommended to it by the Governor. If the former provision should be held to prevail, the act could be passed, and if the latter, it could not. In such case the extraordinary session would not be the first session of the legislature within the meaning of the Constitution. Admitting that unless the Governor recommended the consideration of the subject to the legislature at the extraordinary session called by him, an apportionment act could not then be passed, it by no means follows that the legislature could not pass the act at such extraordinary session, provided the subject were recommended to its consideration by the Governor. In the one case the extraordinary session is not the first session after the return of the enumeration within the meaning of the Constitution, and in the other case it is. This is only saying that when a legislature which has ordered an enumeration adjourns without day before the return thereof, the first session of the legislature after the return of the enumeration will not occur until the regular legislative session provided for by the Constitution, unless the Governor should call an extraordinary session, but that if the Governor after a return of the enumeration should choose to exercise his constitutional power and convene the legislature in extraordinary session and recommend the subject of the apportionment to it, such extraordinary session would have the constitutional power to deal with the subject. There is nothing either dangerous or in the slightest degree calculated to awaken the fears of the friends of good government in holding that such a session of the legislature is, under the circumstances stated, fully competent to deal with the subject. And the holding is itself plainly called for by the language of the instrument under consideration.

Again the fact that the public printer has for many years included in one volume the laws passed at the regular and at extraordinary sessions of the same legislature, and indorsed the volume as containing the laws passed at the ninety-first or other regular session, taking no note of the extraordinary session, is not of the least consequence. For convenience of indorsement or for reference to a volume, the regular and extraordinary session may be regarded as the same, but their inherent difference as separate sessions of the legislature cannot be obliterated, and the fact that they constitute two sessions cannot be expunged by any action of the printer or of a state officer. No court in this state has decided the proposition that an extraordinary session of the legislature, which was the first session thereof after the return of an enumeration, could not pass an apportionment act. The language of Judge DENIO, in Lanning v. Carpenter (20 N.Y. 453), as to the lack of power of the legislature to alter the assembly, senate or judicial districts until the session of the legislature commencing in 1856, was evidently based upon the assumption that the return of the enumeration was not to be made until the commencement of that session. In such case the legislative session of that year would be the first session after the return of the enumeration. The case does not hold, or pretend to hold, that the legislature of 1855 could not have provided for an earlier return of the enumeration, which might then have been acted upon by the regular session of the legislature, if then in existence, or at an extraordinary session thereof called by the Governor and actually in session before January 1, 1856. That question was not before the court and received no consideration at the hands of the learned judge.

We think there is no force in the several objections made as to the extraordinary session not being the first session of the legislature.

Second. The act is alleged to violate the Constitution because based upon an enumeration taken in 1892, instead of 1885. It is true that it was the duty of the legislature in 1885 to direct an enumeration of the inhabitants of the state in that year, and if it had discharged that duty it would have been the duty of the legislature at the first session after the return of that enumeration to proceed to apportion the members of assembly and to alter the senate districts. The legislature of 1885 omitted to perform the duty of directing an enumeration which was cast upon it by the Constitution. Each succeeding legislature up to 1892 also omitted to perform this duty, and thus for several years the constitutional mandate had been violated. It is wholly immaterial to discuss the reason for such omission. It is clear that it should not prevent the performance of the duty by the next succeeding legislature. The provision of the Constitution is so far mandatory that we can say the legislature of 1885 ought to have complied with it by directing the enumeration, yet as it did not, the duty continued and the power of the next legislature to deal with the subject cannot be disputed upon any well founded principle. And this duty continued and was cast upon each succeeding legislature until the constitutional obligation was fulfilled. The same may be said of the obligation to make the apportionment. If it be not made at the first session after the return of the enumeration, the duty to make it devolves upon the legislature at the next and each following session, until the duty is performed. It cannot be tolerated that a legislature, by a mere omission to perform its constitutional duty at a particular session, could thereby prevent for another ten years the apportionment provided for by the Constitution. The apportionment made in 1879, which the Oneida board of supervisors asks us to still enforce, was itself not made by the legislature at the first session after the return of the enumeration of 1875. In the case of Rumsey v. People (19 N.Y. 41), the learned judge, delivering the opinion of the court, says the apportionment is valid, although not passed at the first session after the enumeration. It would seem as if authorities should not be required upon such a proposition.

Here is a plain duty imposed upon a legislature and it wholly fails to perform it. The Constitution does not in terms limit the performance of this duty to the particular legislature. It is a duty which in its very nature and essence is continuous. If the first legislature fail to perform it, can it be that, upon a subject of this kind, such failure shall be sufficient to thereafter prevent the performance of the constitutional mandate for the whole decennial term? There is, as it seems to us, neither sense nor principle upon which to base so extraordinary a proposition.

Because the duty has been omitted for one year, we think it rests with accumulated force upon the next and each subsequent legislature until it has been performed. It is of a nature which requires performance, and it is to the interests of the whole people that it should be performed as directed, and if not at that time, then at the earliest possible moment thereafter. We are of opinion that the objection made has no color of validity.

Third. A third objection is raised to the validity of this act. It is stated that, as to the senate districts, it is not based upon an equal number of inhabitants, excluding "persons of color not taxed."

One answer to this objection is offered by stating that these proceedings have reference to the invalidity of assembly districts only, and that in the provision of the Constitution for their formation it is not required to exclude from the enumeration persons of color not taxed.

We are inclined to the view that the act of apportionment is so closely connected as a whole that if the senate districts are based upon an absolutely unconstitutional enumeration, and to such an extent that it can be judicially seen that great injustice to many of the inhabitants of the state is the necessary and unavoidable result of such an enumeration, we cannot separate the assembly from the senate district, and the whole act must go down.

The objection itself is one which in its nature appears to be most ungracious. It urges a ground of invalidity which, if allowed, strikes out from the senate constituency all colored citizens who are not taxed. These men, it is claimed, must not be counted as inhabitants of the state for the purpose of creating senate districts. Since the adoption of the amendments to our Constitution in 1874, this view of the law, which is now urged with so much eagerness, has not been regarded as the true one.

The law which provided for the enumeration in 1875, did not contain any direction to separate persons of color into two classes, those who were and those who were not taxed, and to exclude the latter as a basis of apportionment, nor did the Apportionment Act of 1879 itself provide for the exclusion of persons of color not taxed, in making up the senate districts. This, of course, is not in any way conclusive of the question, although perhaps of some importance as a legislative interpretation made by two different legislatures and almost immediately after the adoption of the amendments of 1874.

We think, however, there is an answer to the objection, which we will now proceed to give. From the earliest period of our state history up to 1874, a discrimination of some kind was made against the negro in regard to his right to vote.

By the Constitution of 1777, which created a property qualification as a condition of voting; the negro then being in a state of slavery was unable to comply with its provisions, and hence was unable to vote. In 1821, although a property qualification, or its assumed equivalent, was imposed upon all citizens as a condition of voting, yet it was made more onerous in the case of colored citizens, and such citizens were exempted from taxation, unless seized and possessed of a certain prescribed amount of real estate.

In the Constitution of 1846, no property qualification, as a condition of voting, was imposed upon the white citizen, but it was therein provided that "no man of color, unless he shall have been for three years a citizen of this state, and for one year next preceding any election shall have been seized and possessed of a freehold estate of the value of $250 over and above all debts and incumbrances charged thereon, and shall have been actually rated and paid a tax thereon, shall be entitled to vote at such election. And no person of color shall be subject to direct taxation, unless he shall be seized and possessed of real estate as aforesaid." (Constitution of 1846, § 1 of article 2.)

Here was, among other things, a property condition annexed to the exercise of the right to vote on the part of a colored person.

The meaning of the exclusion in sections 4 and 5 of article 3 of the Constitution of 1846, is at once plain when the above fact is considered.

In order to vote, a colored person had to be taxed as provided for in the Constitution, and unless he was the owner of a certain amount of real estate, he was exempt from all direct taxation. Here then was a class of colored persons which, by the terms of the Constitution itself, was exempt from the taxation therein spoken of. And when the Constitution, in the subsequent article (3), speaks of "persons of color not taxed," it clearly and without doubt refers to the colored persons not taxed as provided for in the preceding article limiting their right to vote, and providing for their exemption from direct taxation, unless owners of real estate as prescribed in the same article.

The framers of the Constitution evidently thought that persons of color, who were not entitled to vote, ought not to be counted in making up the number of inhabitants upon which to base the alteration of senate districts and the apportionment of members of assembly.

The Constitution remained for many years in this condition both as to the formation of senate and assembly districts and as to the right of the colored persons to vote. While it so remained, the war of the rebellion commenced and came to an end. Before 1874 the 13th, 14th and 15th amendments to the Federal Constitution were ratified and their adoption duly proclaimed.

Those amendments showed the great change which had come over the public mind in this country relative to the rights of the colored person. Slavery had been banished from the land by virtue of one of these amendments, and the right of the colored person to vote was treated of by the last of such amendments and the right was not to be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude. I allude to these amendments only for the purpose of showing the trend and strength of the sentiment of the people of the north and also of this state upon the subject embraced in those amendments. History shows that this state was one of the ratifying parties to all of them, and their adoption by this and the other states shows that in the public estimation the time had passed when a man's color should be permitted to disqualify him from the exercise of any political rights or privileges.

All these amendments to the Federal Constitution had been ratified and adopted before the proceedings ending in the adoption of certain amendments to our own Constitution were inaugurated. The amendments to our State Constitution passed two legislatures consisting of different senates, and were submitted to the people and adopted by them in the fall of 1874. The first section of article two was amended by omitting the condition for the exercise of the elective franchise by the colored person, so that his right to vote was from that time placed upon the same foundation as that of the white inhabitant. The condition that he must be the owner of real estate to the amount of $250, and actually taxed thereon, disappeared and with it also disappeared all legal distinction between colored persons into those taxed and those not taxed.

An amendment to the fifth section of article three was at the same time submitted to the people and adopted, and the clause providing for the exclusion of persons of color not taxed was omitted from the section as adopted. In some way not affecting this question the amendment to section four of the same article striking out the exclusion as to senate districts regarding persons of color not taxed, was not submitted to the people, and hence in words that section remains as it was. Does the section therefore still demand the exclusion of persons of color not taxed? I think not. It will be remembered that the plain meaning of the phrase in the two sections regarding the enumeration, as the Constitution stood at the time of its adoption as a whole, was that the legislature was to exclude from the inhabitants persons of color not taxed, as provided for in article 2, section 1 of the same Constitution. That section did provide both in regard to their taxation before being permitted to vote and also as to their exemption from direct taxation, and hence when a subsequent section alludes to persons of color not taxed, it naturally, if not necessarily, follows that it means by the use of such an expression the persons of color not taxed as already provided for in the same instrument. And when by amendment the provision which is thus referred to is stricken out, does not such exclusion impliedly abrogate the provision which was based upon the part thus dropped out? I think it does in a case like this where the reason for the continued existence of the provision in the 4th section of article 3, has been wholly taken away by the amendment already made to the 1st section of article 2.

A repeal by implication is not favored even in regard to a statute, still less can it be favored in regard to any provision of our organic law. It is, however, a question of intention in both cases. The power that made can unmake.

A constitutional provision can be impliedly abrogated by the adoption of another and later one which is antagonistic to it, although the original provision may in terms remain unaltered. The later will of the people constitutionally made known must in such case take the place of the other provision, even though it may still in form remain in the organic law as a part thereof. It can only be said that in the case of the constitutional amendment, the fact of its opposition to a former provision and the intent to displace it by the amendment adopted must be so plainly shown by the provisions themselves that there can be no rational doubt in regard to it. I think these conditions are entirely filled by the proof showing the adoption of the amendments to section 1 of article 2, and to section 5 of article 3. I have no manner of doubt that the people intended by the adoption of these amendments to effectually blot out all distinctions of a political nature between white and colored persons, and I think these amendments taken in connection with the sections as they stood before amendment clearly show that such intention has been effectually accomplished so far as the Constitution is concerned.

We are fully conversant with the indisputable proposition that courts cannot dispense with a constitutional or statutory provision, merely because it appears that the policy upon which it was established or created has ceased or changed. (Brown v.Clark, 77 N.Y. 369.) When, however, that change in constitutional policy is proved by wholly incontestable and overwhelming evidence and, indeed, is nowhere challenged or denied, and where effect to such change has been given in terms by amendments to more than one section of the Constitution, and where it appears that the provision in still another section, although not stricken out by an amendment in terms, is by the other amendments left without reason or excuse for its existence, it is not too much to hold that in such a case the alterations and amendments which have been actually made in the course of the attempt to effect the change of policy, do in effect and by implication strike out and abrogate a provision which, by reason of the amendments, has no longer any excuse for existence.

Another answer has been suggested to the general objection under discussion. It is that there can be no presumption that any particular proportion of colored persons not taxed lives in any one district and it cannot be presumed without proof that any one has therefore been injured by a failure to exclude such colored persons from the number of inhabitants upon which to base the senate districts. If the same proportion of colored persons not taxed to whites existed in all the districts, it is clear no one would suffer any harm from this failure to exclude such colored persons, and if no one would be harmed, it of course follows that no court would spend time in attempting to remedy errors which injured no one and which brought up nothing but abstract questions for adjudication.

No court should be called upon to presume any particular fact without the least legal evidence of its existence, for the purpose of thereby furnishing a reason for overthrowing an enactment of the legislature which must be presumed to have been enacted from good motives and for proper purposes.

Unless an unequal proportion of colored persons not taxed, to white persons, should be found or presumed to exist in the different districts, it cannot be said that any human being suffers harm. There is no evidence of the fact in these papers and its existence ought not to be presumed.

I think on both grounds herein set forth the answer to the claim of invalidity may well be placed.

So far in the discussion we have not alluded to any legal effect which the adoption of the amendments to the Federal Constitution may have had upon the provisions of our State Constitution on the same subject. We do not decide the case upon any such ground and we intimate at present no opinion upon that subject.

For the reasons above given we are of the opinion that the objection to the validity of the act of 1892, based upon the failure to exclude persons of color not taxed, cannot prevail.

I have given these objections such an extended discussion not because I have felt the least doubt as to their proper decision, but because they have been so eagerly and zealously urged by counsel at the bar and because of the opinions of some of the learned judges in the courts below, which gave a force and validity to one or two of them, which it is impossible for us to allow, and, therefore, we feel called upon to give our reasons for our dissent at greater length than we should otherwise deem necessary.

There is another objection to this act which we will now consider.

Fourth. It is finally objected that the act is invalid because the senate districts do not contain an equal number of inhabitants as nearly as may be. These proceedings relate only to the assembly districts in Oneida and Monroe counties, but the inequalities in the senate districts in other portions of the state are cited for the purpose of showing a violation of the constitutional mandate in their formation and as a consequence the invalidity of the whole act, including the apportionment of members of assembly. This question of inequality contains in my judgment the only debatable proposition arising in these cases.

The act of 1892 when compared with the returns of the population as contained in the last enumeration, must be conceded (when a like comparison is made of the former acts with the enumerations which preceded them), to be the one which most nearly approaches fairness and equality, yet it is the only one which has been brought before the courts.

From the formation of government under written constitutions in this country the question of the basis of representation in the legislative branch of the government has been one of the most important and most frequently debated. It is not true that equality of numbers in representation has been the leading idea at all times in regard to republican institutions. Political divisions of the state have in New England been the bodies which were entitled to representation, and the town as a town and irrespective of the number of inhabitants has had its representative in the legislature, so that a large town necessarily had no more representation than a much smaller one. This is the case to-day in some of the New England states.

The power to readjust the political divisions of a sovereignty with the view of representation of those divisions or of the inhabitants thereof, in the legislature, resides of course in the first instance with the people, who in this country are the source of all political power. The essential nature of the power itself is not, however, altered by that fact. In its nature it is political as distinguished from legislative or judicial. In intrusting such power to any particular body, the people could by their Constitution give written instructions as to how it should be carried out, yet the essential nature of the power still remains. If a portion of it be intrusted to a body of men acting as a board for the mere purpose of making a mathematical calculation and with instructions to discharge its duties in a way which is solely mathematical, it is clear that the board has no discretion whatever and it is bound strictly by the terms of the grant of power. In such case the people have not in reality parted with the whole power. There may then be a power in the court to correct the very slightest deviation from what can be clearly seen to be a mere ministerial duty. There being no possibility for the exercise of the slightest discretion, a violation of the arithmetical rule of proportion would become a violation of the Constitution and as such might be the subject of review by the courts. The power to review would exist because of the fact that the people had so bound and limited the exercise of the power to readjust the political divisions of the state that the power itself thus limited had become in its exercise by the body to which it was intrusted, one of a ministerial nature only. Its nature as a political power in the board itself would in such case have been changed by the refusal of the people to permit of its exercise upon any other than a mathematical basis. Hence a direction to a body created by the people for such a purpose, which permitted no discretion in its exercise under any circumstances, might properly form the subject of enforcement by the courts. This, however, is not the case under our constitution. The power to alter these political divisions has been deposited by the people with the legislature and under such circumstances as to compel the exercise of legislative discretion in carrying out the power granted. The political nature of the power is thus retained. The learned judge who delivered the opinion at Special Term in the Pond case himself admits that some discretion is vested in the legislature and that in the nature of things it must be so left. He was of opinion that the discretion thus vested in the legislature had been overstepped and that the constitution had been thereby violated, and that the courts could review and reverse this action of the legislature. Discretion is necessarily reposed in the legislature because of the direction of the constitution that in making up the senate districts they must at all times consist of contiguous territory and that no county shall be divided in the formation of a senate district, except such county shall be equitably entitled to two or more senators. It is also provided that in apportioning members of assembly every county shall be entitled to one member.

This renders the mathematical process impossible, both as regards senate districts and the apportionment of members of assembly. We start then with the proposition that to the legislature is intrusted some discretion in the matter of apportionment. Is the court to interfere with such power whenever it thinks that the legislature might in its exercise possibly have come nearer to an equality, after complying with the special conditions mentioned in the Constitution? This would be to assert a power in the court to supervise the use of the discretion granted to the legislature, if such discretion were exercised in the slightest degree after the constitutional mandate in regard to county lines and county members had been complied with. We do not believe in the propriety or necessity of any such rule. On the contrary, we think that the courts have no power in such case to review the exercise of a discretion intrusted to the legislature by the Constitution, unless it is plainly and grossly abused. The expression "as nearly as may be," when used in the Constitution with reference to this subject, does not mean as nearly as a mathematical process can be followed. It is a direction addressed to the legislature in the way of a general statement of the principles upon which the apportionment shall in good faith be made. The legislative purpose should be to make a district of an equal number of inhabitants as nearly as may be, and how far that may be carried out in actual practice must depend generally upon the integrity of the legislature. We do not intimate that in no case could the action of the legislature be reviewed by the courts. Cases may easily be imagined where the action of that body would be so gross a violation of the Constitution that it could be seen that it had been entirely lost sight of and an intentional disregard of its commands both in the letter and in the spirit had been indulged in.

In the report made to the senate of the United States in April, 1832, by a committee of that body of which Mr. Webster was chairman, it was stated that the words of the Federal Constitution were equivalent upon this subject to a direction to apportion the representatives among the states upon the basis of population, as nearly as may be. (3 Webster's Miscellaneous Works, 369.) It was then stated that the process theretofore adopted by congress was unconstitutional and that the true process was a mathematical one, which the report set forth. It was not then adopted by congress, which adhered to its old method. There is no intimation in the report that the action of congress, although what was termed unconstitutional, was subject to the revision of the courts. No such remedy was ever suggested. Congress has since that time adopted the theory of the report and made a mathematical problem of the subject and referred it to the secretary of the interior to carry out its instructions on the basis of arithmetic.

In this case mathematics cannot enter into the whole problem, because of the constitutional obligation as to county lines and county representation, and hence the sole question now is whether the legislative discretion has been so far abused as to render the act liable to an overthrow by the courts. This brings us to an examination of the act itself.

It can be stated at the outset that although the fairest that has been passed upon the subject the act is not an ideal one. There are some inequalities which any one individual intrusted with the power might at once remedy, but which might be very hard to alter when brought under the review of 128 assemblymen and thirty-two senators. Local pride, commercial jealousies and rivalries, diverse interests among the people, together with a difference of views as to the true interests of the localities to be affected, all these things and many others might have weight among the representatives upon the question of apportionment, so that in order to accomplish any result at all, compromise and conciliation would have to be exercised. Looking at the act as a result of such circumstances, and it seems clear that it cannot be said to be so far a violation of legislative discretion as to cause its complete overthrow by the courts.

In regard to the senate districts some criticism has been indulged in, both in the courts below and by counsel here, for the purpose of showing they are inequitably made up. So far as regards the Oneida and Monroe districts there does not seem to be much room for adverse criticism. Those who claim the act to be void cite other senate districts, which, when compared together, are alleged to be unequal, and hence they claim the constitutional obligation in regard to senate districts has been disobeyed, and, therefore, the whole act is void.

It is proper to here remark that there are no figures in the record in these proceedings from which it can be determined what are the numbers of inhabitants in the different senate districts in the city of New York. Certain figures have been referred to by counsel, but they have been obtained, not from the record in these proceedings or from any public record, but from some source whose accuracy cannot be relied on, and which at all events is not in any manner before the court.

The real burden of complaint lies in the alleged violation of the Constitution in regard to the apportionment of assembly districts. So far as these parties litigant are concerned, it would seem that courts would not be specially astute to discover some inequality in senate districts which did not affect the propriety or equality of the representation in the senate districts of which they are inhabitants.

As to the senate districts, when it is considered that in their make up county lines must be adhered to, unless a county is equitably entitled to two senators, it is plain that great and necessary discretion is left to the legislature in their formation. The union of different counties in the state for the purpose of making up a senatorial district which must consist of contiguous territory, and in regard to which counties cannot be divided, necessarily results in inequalities which can in no possible way be avoided.

Certain districts may be picked out from the whole number and compared with certain others, and inequality be charged against them. But when all the counties in the state are to be arranged and brought into connection upon some plan in which the express commands of the Constitution as to contiguous territory and county lines are to be observed, it will pass the wit of man to make such an alteration of the senate districts for this state that may not be the subject of adverse criticism and of alleged possible improvement. We are of the opinion that the legislature, by the alteration of the senate districts under the act of 1892, has not violated the legitimate and necessary discretion intrusted to it by the Constitution.

As to the assembly districts the burden of complaint rests upon the apportionment of four or five members of assembly out of 128.

The learned counsel for the appellant in the case of the relator Carter makes up a list of the members of assembly as they have been apportioned and as he claims they should have been apportioned. In this list he shows that Albany is entitled to three, while four members are actually awarded. Dutchess is entitled to one, while two have been awarded. Kings is entitled to nineteen, while but eighteen have been awarded. New York is entitled to thirty-one, while but thirty have been awarded Monroe is entitled to four, while but three are awarded. Queens and Rensselaer are entitled to but two each, while three each have been awarded them. This list shows that at least two counties (New York and Kings) have by the action of the legislature lost each one member while it is notorious that both were in accord with the dominant party in the legislature. It cannot be said that in regard to the others partisan considerations entered into the subject, because the counties to which the members were awarded are, when divided into districts, very uncertain as to the political complexion of their representatives in the assembly. By this act each county has been in fact awarded every member to which it was entitled by the ratio which obtained between population and representation. The only claim asserted or in fact existing is that in apportioning the remaining members after each county had been awarded its full number of members to which it was entitled upon the ratio adopted, the members thus remaining were in some few instances awarded to counties which had a less surplus over their ratio than some other counties, no county having enough to entitle it to another member upon the ratio existing.

In regard to these fractional parts of a ratio, an examination of the debates in the constitutional convention of 1846 shows that the subject of the representation of such fractions was discussed and efforts were made to provide in terms for a rule of representation for them, so as to limit the discretion of the legislature. (Debates on Constitution of 1846, page 366.) See also debates of constitutional convention of 1867 and the commission of 1872, where the subject was debated.

The convention of 1846 finally framed the provision without any statement as to the fractions of ratios or how they should be treated, and the question was thus left to legislative discretion to be exercised in good faith, and not to be abused.

The reason for the particular action of the legislature upon this question must be sought for in some considerations other than partisan, for I think it is shown these did not enter into the question upon this point.

The inference is fair that these changes were absolutely necessary in order to secure the passage of the bill, having regard to the conditions under which legislative action is practicable. The Constitution is silent as to the ratios and some of the assailants of the act insist upon making up a new ratio, which shall require a larger number of inhabitants than the 1-128 part in order to entitle any county to a member, and they obtain this ratio by deducting the population of thirty counties, which must have one member each, from the total population of the state, and then dividing it by ninety-nine, the number of members remaining to be apportioned, which gives them a new ratio of 48,800, which is 3,559 in excess of the ratio based upon an absolute equality of apportionment. This operates unjustly against the counties entitled to the largest number of members, so that in the case of New York, entitled to at least 31 members, there is a loss of 31 times 3,559, or 110,329. And so correspondingly in the case of Kings. There is no arithmetical necessity in the adoption of this new ratio, if there be a sufficient number of members of assembly to be apportioned to give one to every 1-128 part of the entire population, with four to spare. By adopting the larger ratio, which the opponents of the act insist on, eleven members of assembly remain to be assigned to counties not having a full multiple of the ratio necessary to entitle them to an additional member. As to eight of these it is conceded that they are actually assigned to counties having the highest fractional excesses, but not so large as the other counties named if the assignment was made according to the plurality of excess. But it must be observed that by the adoption of this new, arbitrary and unnecessary ratio, New York's representation would be reduced from 31 to 29, and Kings from 19 to 18, and that loss of three would fall to a portion of the state which, according to its population, has a much larger proportion of the business and wealth of the state.

Here were two ratios presented for adoption, each one of which had its defects, and the legislature certainly cannot be charged with any desire to be unfair or unjust if, in the distribution of the members of assembly after each county had received its full quota, according to the highest ratio, it took into account the large losses incurred by the populous counties if such ratio were adopted without modification.

It is also to be noted that the three members were assigned to counties, all of which have shown by the census increased population.

Other considerations might be added to show that the legislature of 1892, in the passage of the act under review, did not approach the danger line of an abuse of legislative discretion, but this opinion, which has grown to such large proportions, as well as the total lack of time, both warn me to desist from an attempt which is really unnecessary. It is proper at this stage to advert to the consequences which would or probably might follow the overturning of the act.

It is said, indeed, that courts have no right to look at the consequences which may follow their decision of legal questions. This is quite an erroneous statement of the principle. After a decision has been come to, it is true that courts have nothing to do with consequences. But in seeking for a correct solution of any legal question, especially the question of the proper construction of a statute or a constitution, the result which may follow from one construction or another is always a potent factor, and is sometimes in and of itself conclusive. In speaking upon the same subject in Rumsey v. People (19 N.Y. 52), the learned judge, in delivering the opinion of the court, said, upon a question of construction: "We have a right to consider the evil which would result from the prevalence of the alternative; * * * should the act be annulled and the new county (Schuyler) annihilated, the consequences would be disastrous." The learned judge then proceeds to state what they would be, and argues from them that another construction ought, if possible, to be given the act.

We are asked to say that in this act of 1892 the legislature has abused or overstepped the discretion devolved upon it by the Constitution. What is the result which would follow?

In the first place we should have every enumeration and every apportionment act brought before the courts for review, and as it would not be necessary to act immediately, any citizen at any time during the running of the decennial period would have the right to invoke the aid of the court to set aside as void any such act, and leave the people to suddenly confront such a situation as is now presented. This in itself is sufficient to induce a court to say that only in a case of plain and gross violation of the spirit and letter of the Constitution should such a power be exercised. Every county in the state but the two before us has acquiesced in the requirements of the act, apportioned its members among the towns and wards of the county or city, and done everything necessary to proceed to an election under its provisions. The greatest confusion and disorder would result from a holding that this act is invalid. Whether any members of assembly could actually be elected under any other law at this late day is quite problematical. The spectacle of a legislature elected under an unconstitutional law, or part of the members elected under it and part under another, is one which ought not to be contemplated without the greatest anxiety by all honest citizens.

When we come to the question of what law is in force in this state if the law of 1892 is not, the situation becomes most alarming. In the case of the relator Carter we are asked to command the secretary of state to issue notices for the election of members under the act of 1879. This act, if enforced now, would work still greater injustice than has ever been suggested against the act of 1892.

The same reasoning which would set aside as void the act of 1892 would be still more powerful and cogent as showing the total invalidity of the act of 1879. That act, when passed, was well known to be a most unjust and unequal one, particularly in regard to the interests of New York and Kings counties. Governor Robinson, in his memorandum filed with the act, which he refused to approve, shows beyond question its disregard of the constitutional mandate as to equality. The governor therein called particular attention to the matter, and said: "In the distribution of members of assembly the bill is still further from meeting the requirements of the Constitution. I find that Cattaraugus county, with 45,737 inhabitants, has two members, while Suffolk, with 50,330, is given but one. Orange, with 82,225 inhabitants, has but two members, while St. Lawrence, with only 78,014, gets three. Nor can I understand the philosophy which gives to the latter county, with 78,000 inhabitants, the same representation as Monroe, which exceeds it in population by nearly fifty thousand. These discrepancies are not to be explained. They admit of no apology or excuse. They are of the same class as that so-called necessity which entirely deprives 150,000 inhabitants in New York and Kings of their proper representation." So wrote Governor Robinson while refusing to veto the act, because as it stood it was better than the condition of things which it was to replace. Should this court now after thirteen years, and when the injustice and inequality have vastly increased, still order the secretary of state to issue election notices under such a law and should a legislature be elected under it? It is said in answer that we need not decide upon the invalidity of the act of 1879, but leave it to the secretary of state what course to pursue and what law to regard, so long as he does not regard the act of 1892. This is as it seems to us a most absurd proposition and at the same time one fraught with the most alarming contingencies. To hold the act of 1892 void for this reason and yet to say nothing in regard to the law of 1879, which is far more obnoxious to the very arguments upon which we are asked to avoid the act of 1892, is to place the people of the whole state in a most improper and unfair position. The necessity of deciding is also founded upon the petition of the relator in the case against Rice, that he shall be ordered to give notices under the act of 1879. The question will arise at once, what act are we living under and what apportionment is the true one upon which to base election of members of assembly? The people are entitled to know what law they are living under, and where the apportionment is to be found which is legal and under which they could proceed to elect members if there were time enough left in which to put the machinery at work to accomplish that end. But there is not, in fact, time enough left for such purpose.

If the act of 1892 is void, the act of 1879 is also plainly void and no election of members of assembly should be tolerated under it. This might relegate the people to the act of 1866, and thus we might have an attempt at an election for members of assembly under an act more than a quarter of a century old and a legislative representation of the people of that time. This would be a travesty on the law and upon all ideas of equality, propriety and justice.

We are compelled to the conclusion that this act of 1892 successfully withstands all assaults upon it and is a valid and effective law.

Upon the argument our attention was called to certain cases decided in Michigan and Wisconsin, involving to some extent the questions decided herein.

In some of them the violation of the spirit of the Constitution was gross beyond cavil or argument. They would come within the description of an abuse of legislative discretion. In others the positive commands of the Constitution as to counties were plainly violated. The actual decisions might perhaps be upheld on the lines laid down in this opinion, but there are some things stated in some of the opinions which go beyond what this court is prepared to concur in.

The discretion necessarily vested in the legislature must be finally disposed of by it, unless, as we have said, there is such an abuse of that discretion as to clearly show an open and intended violation of the letter and spirit of the Constitution.

The order in the first above entitled proceeding should be affirmed, with costs in all courts, and those in the second and third above entitled proceedings should be reversed and the motions for a mandamus granted, with costs in all courts.