People ex rel. Pond v. Board of Supervisors of Monroe County

Dwight, P. J.

I concur in the affirmance of the order below, on the ground that the legislative act in question involves a palpable violation of *103that requirement of the constitution of the state which is intended to secure to the people, as nearly as practicable, equality of representation in their legislature. The requirement is clear, positive, and mandatory that “the members of assembly shall be apportioned, among the several counties of the state, as nearly as may be, according to the number of their respective inhabitants.” An apportionment which gives additional representation to the county of Hew York for an excess of population of only 18 per cent, of the ratio of representation, and withholds it from the county of Monroe, with an excess of 70 per cent, of the ratio; which gives to Albany county, with an excess of 21 per cent., the additional representation which it denies to St. Lawrence, with an excess of 65 per cent.; and to Rensselaer, with an excess ef 49 per cent., the representation which belonged to Chautauqua, with 51 per cent.,—palpably violates the constitutional injunction. From, it result such anomalies as that Dutchess county, with a population less than that of St. Lawrence, receives double the representation.of the latter; that Albany county, with less than twice the population of St. Lawrence, receives four times its representation; and that Monroe county, with 24,000 more population than Albany, receives one less representative. Here is no room for - the theory of mistake or inadvertence. The j usfc method of apportionment, which, up to a certain point, had been followed, was deliberately abandoned, and, instead of awarding the three remaining members of assembly to those counties which (as among the six) had the largest fractions of population, they were arbitrarily awarded to those which had the least. Shall it be said that the vice of this apportionment did not attach to the method employed, and therefore is not subject to the condemnation of the court? The vice resulted from the abandonment of method, and the substitution of might for right. Probably the motive of legislators is not a necessary subject of inquiry when a violation of the constitution is in question; but, if it were so, that motive must be inferred from the act and its effect. The effect of the action complained of was to deprive some counties of the representation to which they were entitled under the constitution, and to confer it upon other counties to which it did not belong. If this may be done in the case of three counties, it may be done in the case of as many more as may be deemed necessary to give to the party making the apportionment the control of the legislature for an indefinite time to come. It is against such possibilities as these that the injunction of the constitution, above quoted, is provided. Other provisions in respect to the same subject may be technical, or may relate to matter of form; this one is essential. It represents the cardinal principle of equality, which lies at the foundation of all representative government. It is not within the discretion of the legislature to disregard it. It cannot be wantonly violated without drawing down upon the act the condemnation of those tribunals which are set for the defense of the constitution. The order appealed from should be affirmed.