The decision of this case depends upon the validity of the act of the last session of the legislature, by which the new county of Schuyler was erected. (Laws of 1854, ch. 386.) If that act was constitutional, the plaintiffs in the court below were entitled to recover. That court rendered judgment in favor of the defendant, upon the ground that the act was in violation of certain provisions of the constitution. .
According to our republican theory, the whole power of 'government resides, primarily, in the people of the state. This power is usually denominated legislative, judicial, and executive or administrative; the power to make laws, to interpret them and judge of their application, and to execute or administer them when thus made and interpreted. The people, by their organic or fundamental law, have transferred these powers, and distributed them into three departments, corresponding with the above mentioned division. By this organism of government, each department has annexed to the exercise of its functions certain restraints and limitations, a violation of which renders their acts, to the extent of the violation, inoperative and void. But, in each department,' the power, circumscribed by the prescribed limitation, is supreme and absolute. The people have relinquished it altogether, and, for the time being, it is irrevocable. If the agents, to whom its exercise is committed, prove unequal to the task they have undertaken, or unworthy of the confidence reposed in them, the remedy óf the people lies in a sort of reserved
In the consideration of the case now before us, we are to set out with, the presumption that every state statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional; and that such presumption is not to be overcome, unless the contrary is clearly demonstrated. (Fletcher v. Peck, 6 Cranch, 87. Ex parte M’Collum, 1 Cowen, 564, Morris v. The People, 3 Denio, 381; and per Edmonds, J. in The People v. Newell, 3 Seld. 109.) With the foregoing considerations in view, we will proceed to the examination of the objections urged against the law in question, which are founded upon its supposed incompatibility with the constitution. The first of these is, that the act, being á local bill, embraces in its title and provisions more than one subject, and is therefore in violation of the sixteenth section of the third article of the constitution. This objection was properly overruled by the county court. The several matters to which the act relates, and the provisions which it contains, are all clearly upon one and the same subject, within the meaning of the section referred to. Their object was the erection of the new county, and they are all subordinate and auxiliary to that. The reasons of the county judge, in his opinion which is furnished us with the case, are satisfactory upon this point.
The next two objections may be considered together. They are, that the territory embraced in the act erecting the county of Schuyler does not contain, according to the last state census, sufficient population to entitle it to a member of assembly ; and also, that the act reduces the representative population of Che-mung county, by the same census, below the required ratio for a member; and is therefore a violation of the 5th section of the 3d article of the constitution. That section, near its close, contains the following provisions; “ Every county heretofore estab
It has been urged, among other objections to the law under consideration, that the consequence may be, if it should be sustained, that at the next enumeration of inhabitants under the constitution, the territory embraced in the new county, as well as that of Chemung, may, one or both of them, be found so deficient in population as not to be entitled to a member of assembly according to the ratio of representation to be established by the legislature upon such enumeration, and the inequality of representation be thereby unnecessarily increased. To this it is a sufficient answer, that the same thing is liable to happen in respect to many of the other counties of the state. In this age of change, locomotion and emigration, it would not be surprising, if long established counties, whose population at the last census afforded a large fraction of representative population, should, by means of the arrangements and mutations of business, or the promptings of fancy or caprice, be reduced in population below the required ratio for a member of assembly. A great increase in one portion of the state, while other portions remained stationary, would tend to such a result. But the argument is an unfortunate one for the objector, as it proceeds upon the hypothesis that there has been, or will be, a decrease in the population of the territories embraced in the new county and in that of Chemung; while it is apparent that by adopting the census of 1845, if the hypothesis be true, the deficiency and consequent inequality would be greater than by proceeding upon the actual population, as it existed at the time of the passage of the act. If, on the other hand, the population of the proposed new county, or that of the counties from which it is to be taken, has increased since the census of 1845, it is equally obvious that its lines of boundary could be adjusted upon the basis of
It is also contended that the plan and structure of the constitution contemplates the decennial enumerations therein directed, as the bases of all erections and divisions of counties thereafter to take place. But this is nowhere declared in the instrument, nor can it be shown by just inference or intendment, and the assertion must be regarded as gratuitous. Assuming that the legislature may adopt that basis, we are of the opinion they are not bound to do so. The county judge, in his opinion, which is certainly able and ingenious, adopts it as an undeniable proposition, and builds his strongest argument upon that assumption. Therein, as we conceive, consists the fallacy of his reasoning. His premises being wrong, the conclusions are necessarily erroneous. The original and primary object -of the division of the state into counties was for judicial and municipal rather than political purposes. The mode of arranging practically the representation in the two branches of the state legislature and in the national congress, is secondary and subordinate, and has varied from time to time to suit the actual or supposed necessities or convenience of the people; at one time the state having- but four senate districts, afterwards increasing them to eight, and finally to thirty-two; formerly electing members of assembly by counties, and now by single districts ; and the same instability is predicable of the arrangement of judicial districts.
Ho one will deny that the erection and division of towns and counties, and the alteration of the boundaries thereof, are among
That it is competent, in establishing the boundaries of a new county, to follow the lines of towns as they are found at the time of its erection, must be true; as, otherwise the result will be liable to follow, that the lines of the county will cross and intersect town lines as they exist at the time, leaving towns lying partly in one county and partly in another. There is no escaping the force of this view, but by holding the power ■ of the legislature over the subject, limited to the first session after an enumeration, and before any further changes are made in' town lines. We cannot agree that the power is to be thus circumscribed by construction and inference.
It is also contended that there is no legitimate means by which- the legislature can ascertain the actual present population of the territory to be embraced in a proposed new county, or of that of the counties from which it is to be taken. This objection supposes the legislature a subordinate tribunal holding jurisdiction under a superior power, and governed by establish
Several objections were raised upon the argument, to the effect that the erection of the new county interferes with the present constitutional arrangement of judicial, senatorial and assembly districts. These objections, we think, are unfounded in fact. Those districts as now established are to remain the same as at present until after the next decennial state enumeration of inhabitants, when the legislature are required by the constitution to rearrange and reapportion them. (Art. 3, §§ 4 and 5 of the Const., and §7 of the act in question.) This we think relieves the case from all constitutional difficulty of this description. We can perceive no objection to the erection and organization of a county for municipal and judicial purposes only, until the next political arrangement and apportionment of representation can be constitutionally made, with provisions securing to the electors, in the mean time, the full enjoyment of the right of suffrage; which we think the act in question has made. A principle analogous to this has been expressly held in the state of Massachusetts, and has been recognized in the state of Maine. In Massachusetts, as in this state, the constitution requires a census to be taken at the expiration of every ten years. In that state, members of the house of representatives are chosen by towns, and senators by counties. In March, 1851, the senate proposed to the supreme judicial court certain questions, to which an answer was returned, in which all the members of the court concurred; to the effect, that the legislature have constitutional power to change the boundary line of counties, by transferring or setting off any number of entire towns for all purposes for which counties are established, except that of constituting senatorial districts. That they also have the constitutional power to change the boundary lines of towns for all purposes other than those incident to the election of senators and representatives, although, by so doing, they change the boundary lines ofcounties; and in changing the boundary lines of towns by annexing part of one town to another, or by constituting a new town from one or more existing towns, the legislature may reserve and secure to
In an opinion of the supreme judicial court of the state of Maine, given in answer to questions submitted by the house of representatives of that state upon a kindred subject, the court, in conclusion, say: “ The right of the legislature to incorporate a town, composed of parts of several other towns, is not intended to be denied or questioned. If not done at the time of a general apportionment, provision may be made that such inhabitants as are entitled to vote for a representative shall remain united to their respective districts for the election of a representative, until the next general apportionment.” (33 Maine R. by Reddington, 587, 8.)
The 7th section of the act erecting the county of Schuyler, declares that the electors embraced within the new county, until after the next state census, shall continue to vote for members of the legislature and justices of the supreme court, as electors of the respective counties to which they have heretofore belonged, the same as if the act had not been passed. • If it should be objected that here is provision made for voting, only until after the next census, which may be completed before the general election of 1855, and if so, the electors of the new county may, to a certain extent, be disfranchised at that election ; the answer obviously is, that by a reasonable and fair construction of the section, the provision is to continue as long after the census shall be taken, as may be necessary to enable the legislature of 1856 to alter and rearrange the senate districts under section 4 of article 3, the judicial districts under section 16 of article 6, and to reapportion the members of assembly under section 5 of article 3 of the constitution. Such construction does not violate the letter, and is plainly the meaning of the section.
For the foregoing reasons we are of the opinion that the law, erecting the new county of Schuyler, is valid and constitutional; and that the. judgment of the county court holding otherwise should be reversed, and a new trial granted, with costs to abide the event.
T. B. Strong, J., concurred.