I am of opinion that the Apportionment Act of 1892 is void for the reason that in apportioning members of assembly among the counties of the state, it violates the rule of equality prescribed by the Constitution. It is the cardinal principle of free representative government that every elector shall have equal weight in exercising the suffrage. Proportionate representation according to population is the rule both in the Federal and State Constitutions, except where, by reason of constitutional arrangements and compromises, its full application has been departed from. The rule can never be disregarded consistently with our representative system, except under the express sanction of the people, given in the Constitution, or necessarily implied from its provisions. This is a constitutional principle so fundamental and so well recognized that the citation of authorities in its support is unnecessary.
The Constitution of New York, in prescribing the manner of constituting the legislature, has adhered to the principle of representation according to citizen population, except so far as it was necessarily modified to accomplish another purpose also deemed of great importance, viz., that the autonomy of the counties should be preserved in the formation of senate districts, and that each county should be entitled to at least one member of assembly. The Constitution (Art. 3, § 4) prescribes that counties shall not be divided in the formation of senate districts, except where a county shall be equitably entitled to more than one senator, and (Art. 3, § 5) that each county, except the county of Hamilton, shall be entitled to one member of assembly, and that when a county is entitled to more than one member, it shall be divided into districts; but that no town shall be divided in the formation of assembly districts. This scheme of creating territorial districts for the election of senators and members of assembly necessarily results in some inequality. But except as modified by these *Page 514 provisions, the Constitution carefully preserves the principle of representation according to population. It enjoins upon the legislature to so constitute the senate districts "that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed" (Art. 3, § 4), and it commands that "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 the respective inhabitants, excluding aliens." (Art. 3, § 5.)
The intention of the people to preserve and guard, by the Constitution, the principle that every voter is to have equal weight and voice in the selection of representatives, subject only to the modification before referred to, is unmistakably indicated in other parts of the legislative article. The provisions prescribing decennial enumerations of the inhabitants of the state, and a decennial arrangement of senatorial and assembly districts, were inserted to accomplish this object. The supreme purpose of these provisions was to secure at short recurring periods a readjustment of the inequalities, which might arise from the growth or shifting of population during the decennial period. Further, to prevent such inequality and to secure the practical operation of the fundamental principle of equal suffrage, the Constitution in the provision quoted, enjoined upon the legislature that the senate districts should be organized, and the members of assembly should be apportioned, as "nearly as may be," according to the number of inhabitants.
By what process the legislature reached the results embodied in the apportionment act does not distinctly appear. It had before it the enumeration of the representative population in each of the counties of the state. The problem (in respect to the assembly) was to apportion among the several counties the 128 members of assembly, "as near as may be," according to the number of the respective inhabitants, excluding aliens. It seems to have first assigned to twenty-nine counties (reckoning Fulton and Hamilton as one), each having less than a *Page 515 full ratio of population necessary to constitute an assembly district, one member each, leaving ninety-nine of the 128 members unassigned. It then assigned to each of the other counties a member or members, corresponding with the number to which it was shown to be entitled, as ascertained by dividing the whole population of the county by the ratio. This left remainders in all the counties and eleven of the 128 members unassigned. The eleven counties having the largest remainders were: Orange, 44,474; Onondaga, 44,460; Kings, 39,400; Ulster, 39,593; Monroe, 34,833; Steuben, 32,600; St. Lawrence, 31,800; Westchester, 31,226; Queens, 26,376; Dutchess, 26,272; Chautauqua, 25,085.
If in apportioning the eleven unassigned members the apportionment had been made upon the principle of assigning them to the counties having the highest remainders, one would have been assigned to each of the counties above named in their order. The legislature did assign an additional member to each of the first four counties named, and when it came to Monroe, skipped and gave no additional member to that county, but did instead award one to Steuben. It refused to give an additional one to St. Lawrence, but gave one to the succeeding county, Westchester. It gave one to Queens and one to Dutchess, but gave none to Chautauqua. In preference to Monroe, St. Lawrence and Chautauqua, it gave an additional member to Albany, having a much smaller remainder than the others. It gave one to New York county, which had a remainder of 8,813, and one to Rensselaer, having a remainder of 24,081. Neither Albany, New York county or Rensselaer had a remainder equal to any of the eleven counties named, and in some of the cases the disproportion was very great. The inequality in the distribution of political power under this apportionment is illustrated by another form of statement contained in the opinion of Judge DWIGHT. Dutchess county, with a population less than St. Lawrence, receives double the representation of the latter; Albany county, with less than twice the population of St. Lawrence, receives four times its representation, and Monroe county, with *Page 516 24,000 more population than Albany, receives one less representative.
The question is, was this apportionment of members to counties having smaller remainders of representative population than other counties, and giving the former additional representation denied to the latter, a compliance with the command of the Constitution that the apportionment should be made "as nearly as may be" according to the number of inhabitants of the respective counties. I think the question admits of but one answer, and that it is incontestable in reason, that the constitutional rule required that the eleven members should have been assigned to the counties having the highest remainders. This would have been the nearest approximation to equality, according to population. That this is so is a mathematical certainty, and admits of no controversy.
A question identical in principle was considered by Mr. Webster in a report made to the United States senate in 1832, by a committee of that body, of which Mr. Webster was chairman, relating to the rule which ought to prevail in the apportionment of members of congress among the states. The Federal Constitution provides (Art. 1, § 3) that "Representatives and direct taxes shall be apportioned among the several states according to their respective numbers," etc. The question considered by the committee was as to the constitutional method of apportioning unassigned representatives as between states having fractions of population less than a full ratio. The committee were unanimously of the opinion that the loss of members arising from the residuary numbers should be made up by assigning as many additional members as are necessary for that purpose to the states having the largest fractional remainders, and this was the rule subsequently adopted by congress. (Webster's Works, vol. 3, p. 368.) It will be observed that the words "as near as may be" are not in the provision of the Federal Constitution, but it was the opinion of the committee that the meaning was the same as if these words had been inserted. Mr. Webster said: "The Constitution, therefore, must be understood, not as *Page 517 enjoining an absolute relative equality, because that would be demanding an impossibility, but as requiring congress to make an apportionment of representatives among the several states according to their respective numbers, as near as may be. That which cannot be done perfectly must be done in a manner as near perfection as can be. If exactness cannot, from the nature of things, be attained, then the nearest practicable approach to exactness ought to be made. Congress is not absolved from all rule merely because the rule of perfect justice cannot be applied. In such a case approximation becomes a rule; it takes the place of the other rule, which would be preferable, but which is found inapplicable, and becomes itself an obligation of binding force. The nearest approximation to exact truth or exact right, when that exact truth or exact right cannot be reached, prevails in other cases, not as matter of discretion, but as an intelligible and definite rule dictated by justice and conforming to the common sense of mankind; a rule of no less binding force in cases to which it is applicable, and no more to be departed from than any other rule or obligation." Again (p. 379), "The Constitution, as the committee understood it, says, representatives shall be apportioned among the states according to their respective numbers as near as may be. The rule adopted by the committee says, out of the whole number of the house, that number shall be apportioned to each state which comes nearest to its exact right according to its number of people." No one can fail to perceive the analogy between the question discussed in this report to that which is involved in the apportionment now under consideration.
The argument urged upon us that the words "as nearly as may be" give a discretion to the legislature, if it means anything, as applied to the circumstances of this case, means that the legislature may disregard the plain meaning and mandate of the Constitution. I deny that the rule that apportionment must be "as nearly as may be" according to population, is, or under any circumstances can be discretionary. I can conceive that an apportionment act should not be held to be unconstitutional for *Page 518 every trivial departure from the rule of equality. Some mistakes will inevitably be made in the enumeration in the first instance, and afterwards by the legislature in making the apportionment, although it may act under the most sincere desire to apply the rule of the Constitution. But because the apportionment cannot be exact according to population, and some inequality is unavoidable, this does not absolve the legislature from applying the rule in every case, and it cannot, under the cover of the words "as nearly as may be," disregard the rule and relegate the proceeding to the domain of discretionary powers and escape its binding obligation. When the court can see that the rule of the Constitution was not in fact applied and the circumstances for its application were clear and unequivocal, then there is nothing left to the court but to declare the apportionment void. The suggestion that the circumstances under which legislatures act in such matters give opportunity for the play of passion and prejudice, and therefore this must be considered in determining the validity of an apportionment act, seems to me to have no place in this discussion. The very object of constitutional restrictions is to establish a rule of conduct which cannot be varied according to the passion or caprice of a majority, and to fix an immutable standard applicable under all circumstances. If a departure from the fundamental law by legislatures can in one case be justified by the frailties of human nature, and the constitutionality of an act may be made to depend in one case upon such a consideration, the constitutionality of all legislation may be governed by the same rule. I have said the very object in imposing restraints in the Constitution is to protect great principles and interests against the operation of such eccentric and disturbing forces. The discretion of the legislature, if any, in apportioning members, ends where certainty begins, and that point was reached when the counties having the largest remainders were ascertained. The attempt to justify the apportionment of 1892 by the fact asserted (which seems to be true), that the apportionment of 1879 was subject to as great or greater objection on the score of inequality than *Page 519 the later act, fails because the fact is irrelevant. It is one thing that a legislature has disregarded its duty on a former occasion and that the people have acquiesced in the usurpation, and quite a different and much more serious thing if such a disregard of constitutional limitation should receive judicial sanction.
Reference was made on the argument to the senate districts constituted by the Constitution of 1846, and by the convention which framed that instrument. The tables presented by the attorney-general show that the ratio for a district was about 81,000, and the greatest variations were in New York, which with four senators had a surplus of about 48,000, a little more than half enough for another senator, and in the thirtieth district, which consisted of the counties of Allegany and Wyoming, in which there was a deficiency of about 28,000. These were the two extremes. The problem to be solved had three inflexible elements preventing equality and compelling instead, approximation. The convention found in existence a senate of thirty-two members elected in eight districts or four from each. Those districts were to be changed from eight to thirty-two, each electing a single senator. That was the first condition. The next was that no county should be divided unless it was entitled to two or more senators; and the third that the districts should be composed of contiguous territory. The debates show that it was quite generally conceded that a nearer approach to equality could only be reached by enlarging the number of the districts, which the convention was unwilling to do; and no different and better apportionment consistent with the conditions was formulated by anybody, or shown to be reasonably possible. It was the opinion of the members of the convention, as shown by the debates, that no nearer approach to the equality for which they struggled could be reasonably attained. To cite a necessary inequality as a precedent for an unnecessary one, a discrepancy cempelled by inexorable conditions for one which there was perfect freedom to avoid, the compulsion of an inherent difficulty for a wrong both voluntary and needless, *Page 520 constitutes no answer to the inequalities in the assembly apportionment. If in 1846 there had been one additional senator to be allotted to some one district and such allotment had been denied to the first district with a surplus of 48,000, and given to the thirteenth, with a surplus of about 1,000, it would have been a precedent for what was done in the case at bar. The convention in projecting the new scheme was treading on unfamiliar ground, but it did not leave in doubt the rule by which future legislatures should be governed.
The departure from the constitutional method in the act of 1892, is substantial, and its validity having been challenged in the courts, it cannot be upheld without establishing a dangerous precedent for the future. The claim that the legislature in making an apportionment may take into consideration the probable unequal growth of populations, has no support in the Constitution. The apportionment is to be based on existing populations, as ascertained by the preceding enumeration. The decennial enumeration and apportionment is the constitutional remedy for any such temporary inequalities. If the legislature was permitted to act upon the ground suggested, it would introduce a most uncertain element and might be made the cover for great abuses. It is plain that in the present case the inequalities are not attributable to any such consideration. Monroe county, containing a rapidly growing city, and with a much larger population than Albany county, was given three members, and Albany was given four. It is unnecessary to consider in this case the question of the constitutionality of the act of 1892, so far as it relates to senate districts. The inequalities in some instances are very great and seem to have been unnecessary. For example, one of the districts in the city of New York has a population of 241,138 while another district in the same city has a population of 105,720, and they are not bounded by ward or election district lines. But having reached the conclusion that the apportionment act in the apportionment of members of assembly violates the Constitution, the question as to the senate districts is unimportant in the decision of this case. The act must stand *Page 521 or fall as a whole, and if in respect to one branch of the legislature the act is unconstitutional, it cannot be upheld as to the other.
I shall not undertake to show that the question presented is of judicial cognizance. That it is a judicial question cannot, under the authorities, be denied. The legislature and the courts are alike bound to obey the Constitution, and if the legislature transgresses the fundamental law and oversteps in legislation the barriers of the Constitution, it is a part of the liberties of the people that the judicial department shall have and exercise the power of protecting the Constitution itself against infringement. The power of the courts to set aside an unconstitutional apportionment has quite recently been asserted and exercised by the courts of Wisconsin and Michigan. (State v. Cunningham, N.W. Rep. vol. 51, 1133; Giddings v.Blacker, Id. vol. 52, 944; Supervisors of Houghton Co. v.Blacker, Secy. of State, Id. 951.) These cases consider with much ability the question of judicial power, and determine that a substantial departure in an apportionment act from the rule of equality, renders it void.
I recognize the gravity of the question now presented. Nor do I fail to appreciate that holding the apportionment act void will produce temporary inconvenience, but the evils which may flow from this are not to be compared, I think, with the public injury which will result from sanctioning a disregard of one of the vital principles of representative government.
EARL, Ch. J., O'BRIEN and MAYNARD, JJ., concur with PECKHAM and GRAY, JJ. ANDREWS and FINCH, JJ., dissenting upon point discussed in opinion of ANDREWS, J., but concurring with PECKHAM, J., on all other points.
Ordered as directed in opinion of PECKHAM, J. *Page 522