dissenting. I find myself unable to concur ■with my brethren in the conclusions to which they have arrived in this cause, and the subject under discussion is one of so much dignity, and the questions involved are of such importance in their bearing upon both public and private interests, that I do not feel at liberty to let the case pass with the simple expression of my dissent. Indeed, I doubt whether any judge could be regarded as having fully and faithfully discharged his duty, who should thus singly array himself against the judgment of the legislature and that of his associates, without assigning the reason on which his convictions are founded.
It is conceded on all hands, that the right of the plaintiffs to maintain this action, depends entirely upon the question, whether or not the act of the legislature of the 17 th April, 1854, is *93a valid, constitutional act. This is manifestly so ; because, although the legislature has the undisputed power to divide towns, and set off one part of one town to another, it is quite apparent that the division of towns was not the intent and purpose of the act, in anyway, except as an incident to the arrangement of territory for the erection of Schuyler county. This being so, if the law erecting the county fails, the subordinate and incidental arrangement of the territory, with a view to the formation of the county, fails with it. I concede, in the outset, all that can be claimed in favor of the powers of the legislature of this state: that it is invested with the whole legislative powers of the people of this state, and represents their legislative sovereignty. That this power resides there, an inherent, as contra-distinguished from a mere donated power; and that upon all legitimate subjects of human legislation, the authority of the legislative body is unqualified, except in cases where it is limited and restrained by the constitution, which operates upon legislative power, as a limitation and boundary to its sovereignty, beyond which it has no power, if it attempts to pass. I grant also that the erection of new counties is among the ordinary and accustomed powers of the legislature; and that the act in question should, and must be sustained, unless it is found to contravene some express or clearly implied provision of the constitution. All intendments and inferences, prima fade, are to go to the account of the validity of the act, in the first instance; and it lies wholly with those who deny the validity of the enactment, to overcome the intendment and establish clearly the invalidity. Notwithstanding all this, and after the most careful and anxious examination and deliberation, my mind has been brought to the clearest and most undoubting conviction,'that .the act in question contravenes, in letter and spirit,, several provisions of the constitution, and that it cannot be upheld without impairing seriously the integrity and authority of the fundamental law.
The county sought to be erected by the act, consists of what is, or was, portions of the territory of the counties of Steuben, Chemung and Tompkins, and includes parts only of assembly districts one and two in Steuben, part of Chemung which is a *94single assémbly district, and part of the assembly district in the county of Tompkins. It also includes parts of senate districts twenty-five and twenty-six, and parts of judicial districts six and seven. The sixth section of the act provides that the territory embraced within the lines designated, “ shall, from and after the passage of this • act, be for all purposes, except the election of members of the legislature, and justices of the supreme court, and for the holding and jurisdiction of the supreme and district courts, and courts of oyer and terminer, until after the next state census or enumeration, and thereafter, for all purposes whatever, a separate and distinct county of the state of ¡New York.” Section six provides that the electors of the territory embraced within the said new county of Schuyler, until after the next state census or enumeration, 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 though this act had not been passed, but for all other purposes they shall vote as electors of the new county of Schuyler.” The same section also assigns the new county to the twenty-seventh congressional district.
It will be seen by these provisions that when the next census shall be completed, which must I suppose be when the returns are all made as the act requiring it to be taken shall direct, from that moment- the new county is to be a county for all purposes whatever, and the electors in the territory are to cease to be electors of the several counties to which they belonged before the passage of the act, for any purpose, and would have no right to vote for members of the legislature or .justices of the .supreme court in such counties, dr elsewhere, should the census be completed before the. next election. ¡No member of assembly is apportioned to this body of electors, nor could there be, by the legislature which passed this act, without the most palpable violation of the plainest provisions of the constitution, as seems to be implied in the exceptions referred to in section six; and as the county is not and could not be included in any existing senatorial or judicial district, the legislative and judicial sovereignty of these electors must necessarily remain unrepresented entirely, *95between the period of the completion of the census and the new apportionment of members of assembly, and the new arrangement of judicial and senatorial districts, which can only be done by the legislature at its first session after the next enumeration. A very serious question, in my judgment, might be raised, as to whether the act should not be declared null anil void, upon the ground that it may, if indeed it must not necessarily deprive these electors of the right to vote for a time, at least, for some of the most important officers which are to be chosen by the people. The constitution, art. 2, seo, 1, provides “ that every male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of this state for one year next preceding any election, and for the last four months a resident of the county where he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are, or hereafter may be chosen by the people.” Can the legislature practically deprive a body of electors of this important right indirectly, for any period, by thus legislating them out of any assembly, senate, or judicial district, and leaving them with no representatives to choose ? I think not. But as I do not propose to place my dissent upon this ground, I shall not pursue it. There are other provisions and restrictions in the constitution, which in my judgment are more directly and palpably transcended by the provisions of the act, and to these I invite a careful and deliberate considerrtion.
First. The population embraced within the territory of the new county, did not entitle such county to a member of assembly at the time of the passage of the act, even conceding its numercial sufficiency. The constitution, article three, section five, declares, that “ no new county shall be hereafter erected unless its population shall entitle it to a member.” This is clear and explicit. Shall entitle it when? Clearly, at the time of the passage of the act. In this I believe all agree, at any rate the majority of the cottrt put this construction upon it, which is obviously the true one. Certainly this provision cannot be construed as though it had read “ unless its population shall at some *96future day, one year or ten years hence, entitle it to a member.” Did. then the population, within the limits of Schuyler county, entitle that county to a member of the assembly at the time of the passage of the act ? Clearly not. If it did, why was no member assigned to it ? It was for the very reason that the population within its limits could give the county no title to one, that none was given. That body of electors had no right to claim a member for the new county, and the legislature had no power to apportion them one. The population formed part of the representative population of other counties, and entitled the other counties, to which they belonged at the passage of the act to the number of members of assembly apportioned to them respectively, and of course could, while that state of things lasted, entitle no other county to a member. This entire population belonged to assembly districts in other counties, and constituted the representative population of such districts, and they could neither detach themselves without removal from such districts, nor could the legislature detach them until the time should arrive when the constitution permits a new apportionment, and a new arrangement of districts, and this the constitution does not permit until after the next census. For any purpose of entitling Schuyler county to a member of assembly, this population might as well have resided without its borders, or been composed entirely of aliens, awaiting the period when they might legally obtain the right of citizenship, and of suffrage within the county.
It is insisted, however, that if the county at the time of its erection contained a representative population, sufficient in number to entitle it to a member, in case an apportionment could then have been made, the requirement of the constitution is satisfied. But this is not only a misreading of the text, but a misinterpretation of the spirit of the provision. It is not numbers alone, but the entire status of the population, to which the provision refers. Can it, according to the constitution and laws, and existing arrangements, not subject to alteration, serve as the representative population of the proposed county, and thus entitle it to a member ? Undoubtedly one great object the framers *97of the constitution had in view, was to prevent the erection of new counties which could not be represented in the legislature, and this I think is apparent throughout the whole scheme and plan of apportionment, and the organization of districts, assembly, senatorial and judicial. Hence the provision that when assembly districts are once formed by the supervisors, after one enumeration, they shall not be altered or changed for the next ten years, or until after another enumeration and this is immediately followed by the provision that every county heretofore separately organized, except the county of Hamilton, shall always be entitled to one member of assembly, and the provision forbidding the erection of any new county unless its population shall entitle it to a member. It will be seen that this provision imposes no restriction whatever upon the erection of new counties, composed of one or more entire assembly districts, within the same senatorial and judicial districts. In such case, the population of the county would entitle it to a member, whenever the act might be passed, between the period of one enumeration and apportionment and another.
The population of each separate assembly district is entitled to a member of assembly while such district shall last, and it entitles that territory to a member, and the legislature has no power to change the boundaries of the district, or to deprive it of the right to a member of assembly, when it once attaches between one enumeration and another. But the case is widely different where the attempt is made to erect a county out of territory belonging in part to several assembly districts. The case then falls within the exact language of the prohibition, and is, as I think, equally opposed to its spirit and intent.
Nor is the act at all relieved of the difficulty by the attempt to erect it as a county, for the present, for certain purposes only, and for all purposes, at some future uncertain day. The plain limitations of the constitution are not easily evaded by proviso and exception. The language of the prohibition is general, and extends to the erection of counties for any purpose, and for all purposes whatever. There .is no exception or qualification in the language, and I know of no rule of interpretation by which such *98exception as the one sought to be made in favor of this act can be implied. ' But for this prohibition in the constitution, I see no good reason why the legislature might not, in the plenitude of its sovereignty, erect any number of counties for certain purposes other than that of being represented in the legislature, and enact that such counties should continue to be represented by the representatives of the counties from which they had been taken, and that the electors should continue to vote as the electors of such counties. But the exercise of legislative power must stop at the constitutional boundary, whether that be erected wisely or unwisely.
The case in 6 Cushing, 578, was much relied" on by the plaintiff’s counsel upon the argument. But I am unable to see its application to the case before us. It does not appear from that case that there was any such restriction in the constitution of Massachusetts as that I have been considering, and, independent of that, I should find no difficulty in agreeing with that case. But, under our constitution, T can see no way, nor do I believe one can be devised, by which a new county can be erected from parts only of different assembly districts, at any other period than that of a general reapportionment of the members of assembly, when a reorganization of the assembly districts becomes necessary, without coming into immediate conflict with some constitutional restriction.
Second. The boundaries of the twenty-fifth and twenty-sixth senatorial districts, and of the sixth and seventh judicial districts, divide the new county, and the constitution plainly forbids the division of counties in that manner; and, as a necessary consequence, forbids the erection of counties to be thus divided. Art. 3, sec. 4, of the constitution, provides 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. Unless this provision, by plain and necessary implication, forbids counties to be thus divided in their erection also, it is the merest empty form of words imaginable. Of what avail would such a limitation upon legislative power be, if the legislature, the moment they had erected senatorial districts, and scrupu*99lously bounded each by county lines, in obedience to the letter of the constitution, could turn around and erect new counties embracing territory on each side of such boundaries, and enact that the counties thus erected should remain divided by such district lines for the next ten years, until ' another enumeration and arrangement of senatorial districts. None, as it seems to me, can fail to see that the constitution would be just as much violated in the latter case, as though counties had been divided in the formation of senate districts. The provision is not a mere idle form of words. It was made part of the organic law, for a purpose deemed to be important, by those who framed it, and can no more be violated in its spirit than in the letter. The scheme of the constitution plainly is, to' secure and guaranty to every body of electors residing in the same assembly district, and in counties entitled to only one member of assembly, always complete unity of representation in each branch of the legislature; and hence no assembly district can be formed from parts of two counties, and no county, unless it is entitled to more than one senator, can be divided, in forming senate districts. All the electors in an assembly district are to be represented at all times, in the legislature, by the same member of assembly and the same senators. Here, too, the prohibition is general, “no county shall be dividedall counties are included, whether erected for one purpose or another, or for all purposes.
The same considerations apply to the act, in reference to judicial districts. The constitution, art. 6, sec. 4, provides that “ the state shall be divided into eight judicial districts, of which the city of New York shall be one; the others to be bounded by county lines.” The judicial districts, according to this provision, are to be bounded by county lines, not only in their formation, but in their continuance. What was the object of this ? Clearly, to prohibit and prevent just what this act is calculated to establish and promote, the inconvenience and incongruity of having different portions of the territory, and of the population of the same county, belong to different judicial districts, and subject to the cognizance and jurisdiction of different tribunals of oyer and terminer. The incongruity of such a state *100of things was too palpable to be overlooked by the framers of the constitution, and it remains to be seen whether the legislature can do, indirectly, what the constitution is so careful to prohibit.
The constitution provides, in substance and effect, that the entire territory and population of each county shall be within the boundaries of a single judicial district, and subject to the jurisdiction of the same court of oyer and terminer. This act provides, in substance and effect, that until after the next enumeration, one part of Schuyler county and its population shall belong to the seventh judicial district, and another part to the sixth; and other parts shall be subject to the local jurisdiction of three separate courts of oyer and terminer.
The act also, if valid, blots out former county lines within its borders, so that they can no longer serve as the boundary lines for senatorial and judicial districts, which the constitution plainly requires and intends. It is idle to suppose that the plain, clear, substantial provisions of the constitution can be thus paltered with and evaded, by enactments which, in one view, and for one purpose, create the clear, plain, organic form and substance of a county, but in another aspect, and for another purpose, make it a mere chimera, a dissolving view. It is either a county, by the terms and provisions of the act, or it is not. And if the act makes it a county at all, then the act contravenes both the letter and spirit of the constitution, and is void.
Whether, by the exceptions in section six of the act, it was intended to exclude this court from sitting and exercising its accustomed jurisdiction within the borders, or at the seat of justice of Schuyler county, until after the next enumeration, I do not now care to inquire. I take it for granted, that the legislature has no power to shut out and exempt any portion of the territory of this state from the jurisdiction of this court. This is a court of general jurisdiction, with powers original and inherent, which the legislature can neither take away, nor substantially abridge. The constitution, which distributes the entire .sovereignty of the people, deposited the judicial sovereignty *101with the courts, in the same manner that it did the legislative, with the senate and assembly.
Third. The territory does not embrace a sufficient population, in point of numbers, to entitle the county to a member; and Chemung county is reduced below the ratio for a representative. On this head it will scarcely be necessary for me to do more than to refer to the very able and elaborate opinion of the county judge, which seems to me entirely conclusive. I assume that a state census is the only basis upon which the apportionment of members of the assembly, and the arrangement of territory for the purposes of assembly districts, and new counties, for the purpose of being represented in the assembly, can be made. This I am aware is denied; but it seems to me the proposition can be clearly established. The present apportionment of members was made under the census of 1845, before the adoption of the present constitution, except so far as' relates to the division of counties into single districts, which was done by the board of supervisors in January after its adoption. The framers of the constitution themselves erected the senate districts as they now exist, and provided for an enume,ration of the inhabitants in 1855, and at the end of every ten years thereafter, and an alteration of such districts by the legislature at its first session, after the return of every enumeration. The convention, it is clear, acted upon the census of 1845, and adopted the apportionment of members among the several counties, which the legislature had, before that time, made upon the basis of that census; and by the constitution they provided, that the several boards of supervisors in such counties as were then entitled to more than one member, should assemble on the first Tuesday of January thereafter, and divide their respective counties into assembly districts, equal to the number of members of assembly to which such counties were then severally entitled by law. Bach district was to contain, as nearly as might be, an equal number of inhabitants, “ according to the last preceding state enumeration.” The constitution then provides that the apportionment, and districts so to be made, shall remain unaltered until another enumeration shall be taken. It also con*102tains the same provision in reference to the senate districts. Here there are arrangements, under the authority and in pursuance of the requirements of the constitution, upon the basis of the enumeration of 1845, by which certain counties and districts are entitled to the members of assembly thus apportioned, and must continue to be so entitled until after the return of the enumeration of 1855. It .is a right which the legislature has no power to change or take away until a specified period, to wit,' its first session after the next enumeration; up to that time they are to stand upon the basis of the former enumeration, and by virtue of the arrangement of the territory thus made. I understand it to be conceded, that the legislature, in making the new arrangement of districts, and the new apportionment of members of the assembly, at its first session after the enumeration of 1855, are to be governed and controlled by that enumeration; and if this be so, it follows, - as the inevitable deduction of logic, that any act of appointment, or any act by which territory is arranged, which would render the appointment of a member of assembly to such territory necessary in future, and with a view to secure it, founded upon any other basis or enumeration, would be of no avail, and void. The constitution leaves no room in which any other mode of determining the equality required, in making apportionments can operate. No one, I apprehend, will contend for a moment, ‘seriously, that the legislature, whose duty it will be to provide for the next arrangement of districts, and to make the next apportionment, will be at liberty to reject the enumeration to be taken in 1855, and pro-' ceed upon their own conjectures, -or upon information they may have derived in some other ^ way. But unless that legislature may do this, it is clear that no legislature can make any different arrangements intermediate the two enumerations in the same way, which can be upheld,
It is quite clear to my mind that the design of the constitution was, and is, that a decennial enumeration shall form the only basis and standard for apportioning members, and for ascertaining equality of members, as nearly as may be, until after anoth*103er is taken.; and that until another, and so on, as long as the constitution stands. The constitution provides for an apportionment of the members of assembly among the several counties of the state, as nearly as may be, according to the number of their respective inhabitants, and it also provides in what manner the number is to be ascertained, and it seems to me every other method is, by every reasonable and fair intentment, excluded. And besides, if the legislature of 1854 could thus legislate in regard to existing arrangements, if they could make new combinations of territory out of existing districts for the future, and enact, as they have in this instance in effect, that the territory thus arranged shall have a member apportioned to it after the next census, what was there to hinder them, or what is to hinder any legislature, at any session, from arranging every district in the state in the same manner, in advance of the enumeration, and thus entirely forestall and foreclose the action of the legislature, upon which the constitution has devolved the duty of reorganization and reapportionment ? N othing whatever. And if this act can be made to stand, the constitution cannot. It is impossible for the two to move on harmoniously together. The harmony of the constitutional system is deranged, and may be entirely broken up and destroyed, if this experiment upon it is permitted to succeed.
If, as I have assumed, and briefly attempted" to show, the census of 1845 is the standard for the legislature, and the only evidence to which they could legitimately resort for the purpose of ascertaining numbers in a case like this, it is clear that Schuyler county and Chemung are both deficient in population. And I shall take it for granted, without any extended argument, that the legislature has no more power to reduce an existing county below the ratio for a member, than it has to erect a new one, without a sufficient population to entitle it to a member. Each would be equally in derogation of the constitutional scheme of equality of representation. And if existing counties can be reduced at all below the existing ratio, they may be reduced, for-aught I can see, to. single towns. It is contended, however, by the plaintiff’s counsel, that the court below had no evidence. *104before it as to the state of the population in either Schuyler or Chemung, .and was bound to assume that the legislature had not transcended its powers in passing the act. And it was insisted that courts cannot take judicial notice of a state census ; but this I hold to be an error. It would be strange indeed if the' enumerations provided for by the constitution, as the evidence upon which the legislative power is bound to act, which has the guaranty of official responsibility for its accuracy, and which, when taken, becomes part of the public history of the state, could not be noticed as evidence by the judicial power. I have no doubt, whatever, that courts can take judicial notice of the state census, whenever it is taken and completed according to law, and brought- to their notice.
It is contended, also, that if courts can look to the census and take notice of it, it is as evidence of a fact to be established upon the trial, and that the court has no power to receive any evidence for the purpose of establishing • the existence or. nonexistence of a fact, upon which the validity of a law is made to depend.' The argument in brief is this: that wherever the right of the legislature to enact laws upon a given subject is limited to the existence of a certain state of facts by the constitution, the duty of inquiring, in regard to the existence of such facts, necessarily attaches to the legislature ; and wherever the legislature ascertains, to its own satisfaction in any way, that the state of facts does exist, and proceeds to act, the constitutional limitation is removed, and the act must be regarded as valid, whether in truth the facts upon which their power to act depend did exist or not. And it is even said that courts are bound to presume that the legislature made inquiry, and ascertained, and are precluded from all inquiry and all proof to. establish the contrary. In other words, that the legislative assumption of a fact is equivalent to its existence, and is conclusive evidence of its existence, and that an erroneous assumption is, for the purpose of upholding legislative authority, just as potent as an undisputed truth. This is a doctrine to which I can never subscribe. It is putting the constitution into the hands of the legislature entirely, and making them the sole and exclusive judges of their *105own power. I am aware that some judges have gone quite far in this direction, and made unguarded expressions, which seem to countenance, to some extent, this doctrine. But it must have been, I think, without a due consideration of the duty of courts and the true nature of judicial power, and without considering the deplorable consequences to which such a doctrine may lead.
[Monroe General Term, December 4, 1854.Johnson, T. R. Strong and Welles, Justices.]
It is one of the first and highest duties of courts not only to construe and determine the import and meaning of all acts passed by the legislature, but to inquire and determine also when their enactments are within, and when they have passed beyond, the limits assigned in the constitution to legislative power. How can they discharge this duty if they are precluded from all inquiry into facts, upon which the right to exercise legislative power in a given case rests % But I do not care to pursue this subject. I trust that it will never be established as the rule here, without the most careful consideration of all its bearings and consequences.
I have thus imperfectly gone through with this case, and assigned the reasons which, though failing to satisfy others, in whose learning and judgment I have been wont to confide, have nevertheless produced the firm conviction in my own mind, that the act in question is in plain violation of the constitution. And while I trust I shall ever be found ready to uphold and to give free scope to all acts which the legislature, having the power, determines in the exercise of its discretion to pass, I shall never shrink from the duty of pronouncing their acts void, when in my judgment they are found to be in conflict with the constitution. I am accordingly of opinion that the decision of the county court should be affirmed.
Judgment reversed, and new trial granted.