(dissenting.) The relator, Charles F. Pond, is a citizen and elector in the city of Rochester, Monroe county. As such, he applied to the special term, upon an order to show cause, for a mandamus requiring the board of supervisors of Monroe county, which had adjourned without taking such action, to reconvene and divide the county of Monroe into three assembly districts, in accordance with the terms of the last apportionment act of the legislature, being chapter 397, Laws 1892. This motion was denied by the special term solely upon the ground'that such act was unconstitutional and void, and that, for that reason alone, the defendant was not bound to obey the statute. The right of the relator to complain of the nonaction of the board of supervisors, and that the high prerogative writ of mandamus is the appropriate remedy, provided the act of the legislature be constitutional, are propositions not questioned by the learned counsel for the defendant; nor *104could they be successfully controverted, under the decisions in the cases of People v. Rice, 129 N. Y. 461, 29 N. E. Rep. 358, and People v. Rice, 129 N. Y. 449, 29 N. E. Rep. 355. But the learned counsel for the relator does not in turn anywhere concede that the board of supervisors may defeat his motion by establishing the unconstitutionality of the statute, while, upon the most important proposition contained in the case, the power of the court in the premises is affirmatively denied by him. This appeal comes up, not upon a case containing issues framed by appropriate pleadings and findings of fact and of law thereon, so that the scope of the decision below might readily be grasped and its several parts duly weighed, as was contemplated by the provisions of the Code of Civil Procedure, §§ 2067-2090, and as would have been advisable in a matter of this magnitude; but it is rather from an order most general in its terms, and which nowhere points out the precise constitutional defect relied upon for the overthrow of this statute. Yet the mode of procedure resorted to is authorized by the Code, and when the special grounds of the order are' ascertained by resort to the opinion of the learned justice ad special term, as they must be upon this appeal, it will be found that, in at least two out of the four points involved, this mode of presenting the question is as effective as any.
In order to understand clearly all of the questions arising upon this appeal, it is necessary briefly to state the allegations contained in the moving and the opposing affidavits. The affidavit of the relator sets forth the passage of the act named. It also alleges the taking of the enumeration under chapter 5, Laws 1892. This enumeration, as reported to the legislature by the secretary of state, contained three columns of figures, one being headed “Total Inhabitants, ” the second “Total Citizens,” and the third “Total Aliens,” and exhibited, by counties, the number of total inhabitants, total citizens, and total aliens throughout the various towns and cities in the state. Another exhibit annexed to the affidavit shows the details of the apportionment act, including both the senate and the assembly representative districts. This affidavit then sets fortli the attitude of the board of supervisors of Monroe county, which it is unnecessary to repeat in this connection, as the same merely covers the four points against the constitutionality of the apportionment act upon which the respondent’s" counsel rely.'
• The opposing affidavits are two,—one of them to the effect that, to the affiant’s knowledge and belief, in most if not all of the counties of the state, there were at the time of the taking of the enumeration, and up to the present time, large numbers of persons of color, who were not taxed, but who were bona fide inhabitants of the state of Hew York; and the other was that of a reporter for a newspaper who was present in the assembly chamber of the legislature on April 21, 1892, while the assembly was in session, and who at that time heard a message read from the governor, calling a special session of the legislature to be held at the capítol, April 25, 1892, and that no particular subject for the consideration of the legislature was mentioned in the call for such special session. "Upon these facts it is contended by the learned counsel for the defendant that the apportionment act (chapter 397, Laws 1892) is unconstitutional and void, for the reasons (1) that no constitutional enumeration can be made excepting in every tenth year after the year 1855; (2) that the apportionment act (being chapter 397, Laws 1892) was not passed at the first session after the enumeration was returned to the legislature, but at the same session; (3) that the secretary of state, in complying with section 12 of chapter 5 of the Laws of 1892, requiring him to prepare and report to the legislature a general account of the enumeration, specifying the result thereof in the several election districts, towns, and counties of the state, with a full recapitulation of the whole, did not report to the legislature, and the legislature did not have before it, in enacting chapter 397, any enumeration, report, tabulation, or other information of the inhabitants of the state who are *105“persons of color not taxed;” (4) for the reason that gross and flagrant inequalities exist at large in the apportionment of members of the assembly and senate set forth in chapter 397, Laws 1892, and that the same particularly affect thé county of Monroe, to its detriment.
If the act in question be unconstitutional for any of the reasons alleged against it, this court possesses ample power to adjudge it to be unconstitutional. Under the constitution the supreme court possesses general jurisdiction in law and equity, subject only to such appellate jurisdiction of the court of appeals as is prescribed by law. If the legislature has transcended its constitutional powers, it is our duty to say so by our judgment, and we cannot avoid that duty, in this instance, any more than in any other instance. The constitution is the act of the whole people of the state, and is the law of the land, and it is not in the power of the legislature to violate any of its provisions. It was deliberately enacted as the guide to legislators as well as to courts; and, though there may be no legal remedy against the legislature or its members for a violation of its provisions, as there are against judges if they turn their backs upon it, yet the people have a remedy clear and distinct, and that is the requirement laid upon their courts to annul such unconstitutional laws, because they are abhorrent to the sense of justice and right, as expressed by the people themselves in their organic law. That which the legislature cannot do by the terms of the constitution, or by necessary implication therefrom, it cannot do at all. If the contention made against this almost elementary proposition should be maintained, there would be no room for courts in the land, but the contention is without reason to support it. In the language of Daniel Webster; “Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form and idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare or to administer the justice of the country.”
The constitution provides that the senate shall consist of 32 members, and that the senators shall be chosen for two years; that the assembly shall consist of 128 members, who shall be annually elected. Article 3, § 2. The senate is divided into 32 districts, called “senate districts, ” each of which may choose one senator. Id. § 3. By section 4 of this article, the enumeration of the inhabitants of the state is commanded to be taken under the direction of the legislature, in the year 1855, and at the end of every 10 years thereafter; and the districts to be “so altered by the legislature, at the first session after the return of the 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 senate districts, except such county shall be equitably entitled to two or more senators. ” By section 5 the members of assembly “shall be apportioned among the several counties of the state, by the legislature, as nearly as maybe according to the number of their-respective inhabitants, excluding aliens, and shall be chosen by single districts. ” If any counties are entitled to two or more senators or members of assembly, it is made the duty of the board of supervisors “ to assemble at such times as the legislature, shall prescribe, and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled.” “Ho town shall be divided in the formation of assembly districts. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly,” except that the counties of Hamilton and Fulton are deemed *106to be one county for such purpose, and entitled to but one member of assembly.
The enumeration directed by the constitution to be made in the year 1885 was not made in that year, nor until this act in question was passed in 1892, seven years afterwards. The learned justice at special term did not consider that the first two questions, namely, that the enumeration was not taken in the tenth year after 1855, nor that the apportionment was made at the next session after the return of the enumeration, were open as original questions: but, on the contrary, he was of the opinion that they had been practically decided against the respondent in the cases of Rumsey v. People, 19 N. Y. 45, and State v. Cunningham, (Wis.) 51 1 N. W. Rep. 724; but it appears to me, from an examination of these authorities, that the point relating to the power of our extraordinary or special session of the legislature, called by the governor, had not been directly up in either of them; so that the question has not been closed against the respondent by past adjudications of the courts. The direction of the constitution, that the enumeration shall be made at. the end of every 10 years after the year 1855, is, I think, a continuing duty, rest-ing upon each successive legislature, until such enumeration is actually made. As the legislature of 1885, owing to the veto of the governor, failed to have such enumeration made under its direction, it was the duty of the succeeding legislature to cause it to be done, and so on, until it was actually done. This provision of the constitution is not a mere privilege granted to the legislature, nor a bare power which its members may exercise or not at the time designated, and, if not timely exercised, it is gone forever. It is rather a duty resting upon them as the chosen instruments under the constitution for making suitable provision for a readjustment of the representation of tho people in its legislative body. But the constitution has directed that the apportionment act shall be passed “at the first session after the return of every enumeration.” This is, indeed, an additional requirement beyond those prescribed for ordinary legislation, under article 3, § 1, of the constitution, conferring general legislative power upon the senate and assembly. Under it, the two houses of the legislature have not the right to make the apportionment of senators and assemblymen at the same session at which the return of the enumeration was made. Though the legislature has not, in its own hands, the power under the constitution to do this act, it by no means follows that, if an extraordinary session is appointed by the governor, such appor-' tionment may not be then made, although it is done in the same year of their previous session.
The constitution (article 4, § 4) declares that “ the governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature (or the senate only) on extraordinary occasions. At extraordinary sessions, no subject shall be acted upon except such as the governor may recommend for consideration. ” Under this provision, if he were of the opinion that the exigencies of legislation required him to do so, the governor had the power, and it was his duty, to call the legislature together to consider the question of apportionment. A session so called is as much a constitutional session as the stated session. For one reason and another, the enumeration had been delayed for seven years. At last it was taken, and if the apportionment, during the decade for which the enumeration was directed by the constitution to be taken, was to be of any efficiency or value, it would seem that the exigency had arisen, requiring the governor to call the legislature in extraordinary session, in order that a year might be saved out of the three years remaining of the constitutional decade. It was a session that the legislature could not themselves have appointed by adjournment or otherwise. The argument made in behalf of the respondent, it seems to me, confounds the expression “at the first session after the return of every enumeration” with the political year and legislative term. Happily, *107the constitution has not left us in doubt as to the meaning of the legislative year; for section 6 of article 10 declares: “The political year and legislative term shall begin on the first day of January, and the legislature shall, every year, assemble on the first Tuesday of January, unless a different day shall be appointed by law. ” That there may be more than one session of the legislature during the legislative year, and that an extraordinary session may be the next session after the return of the enumeration of the legislature, if the governor interposes his discretionary power so to reconvene that body, though in the same year, is, I venture to think, well shown by the constitution itself, taken as a whole. For these reasons, the first two grounds for declaring the apportionment act unconstitutional cannot be upheld.
But it is contended, and it was so decided by the special term, that the senate apportionment is unconstitutional, because, in estimating the number of its inhabitants in the new senate districts, persons of color not taxed were included. As has already been stated, by the constitution the senate districts shall be so divided as to contain, “as near as may be, an equal number of inhabitants, excluding aliens, and persons of color not taxed,” etc. It is true that each and every provision of the constitution, whether wise or not, must be given force and effect, but, in determining the scope and meaning of the constitution, all of its parts must be regarded. When this provision of the constitution was adopted in the year 1846, persons of color not having a property qualification were not only excluded from the enumeration in both senate and assembly districts, but were also excluded from the right to vote at general elections. In the amendment made to the constitution in the year 1875, this provision, so far. as it related to the assembly districts, was struck out; but, probably by an oversight of the members of the constitutional convention, it was permitted to remain as applicable to the apportionment of senate districts. It was argued by the counsel for the relator that the fourteenth and fifteenth amendments to the federal constitution have abrogated this provision of the state constitution, and rendered it nugatory. The fourteenth amendment, referred to, declares that no state shall make or enforce any law which shall abridge the privileges or immunities of any citizen of the United States. Tne fifteenth amendment merely declares that the right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude. So long as our state constitution does not deprive persons of color, who are citizens, of the privilege of voting, it does not contravene either of these amendments to the federal constitution. The power still remains in it to make any provision, even an arbitrary one, for the apportionment of senators and representatives in its state legislature. Yet this provision of the constitution has been wisely ignored by the legislature and by the common consent of the whole people of the state. The amendments to the federal constitution were adopted, respectively, in the years 1868 and 1870. Prior to the enumeration now in question, there has been but one enumeration taken since that time, namely, that of 1875, and in that instance, too, as well as in this, persons of color, not taxed, were not excluded from the enumeration. Whether this was done under the mistaken notion that the federal constitution had abrogated these state provisions it is not necessary to pause to inquire. Yet, while persuaded that this part of the constitution remains unaltered in words, I am not prepared to say that a failure to observe it can be successfully alleged as a reason for declaring the apportionment unconstitutional. The first reason for not so regarding it as an obstacle in the way of the apportionment act is that the question is forced into this controversy collaterally, and not directly. I do not see that the act of the legislature, if it were just and fair under the actual enumeration as returned to it, can be adjudged to be unconstitutional, because there was a technical defect in the mode in which the enumeration had been made and *108returned. What proceedings might have been instituted against it, either beiore or after its return to the legislature, by persons who imagined themselves aggrieved, it is not the province of the court now to say; but that an act of the legislature otherwise valid, and of such vast importance as an act of apportionment, shall be declared to be unconstitutional because of some defect in proceedings antedating such legislation, over which, as a legislature, it had no control, as it had nob in this particular, is a proposition so at variance with my conception of the constitutional power of the court, and of their duty as to time and cause for exercising that power, that I cannot consent to it. In order to reach this end, the court is asked without proof to take judicial notice that there exists in this state a- large number of such persons. But, even if it were competent to do so, the assumption would not affect the validity of this act, unless it went a step further, and assumed, also, that the distribution of such persons was so unequal among the counties as to affect rights of localities to representation in the senate. This the court cannot do. We may, perhaps, take judicial notice of the existence and general character of the flora and fauna of the earth, but not of their particular and comparative distribution. We may take judicial notice that roses bloom in summer, but hardly that more of them bloom in a plaintiff’s garden than in a defendant’s garden.
The fourth ground, uamely, that the act is unconstitutional because of the gross inequality in the apportionment of senators and assemblymen, is not so readily and satisfactorily disposed of. It is doubtful whether, under the Code, the record before us presents sufficient information for us to act upon. There has been returned to us the enumeration of. the representative inhabitants, the apportionment of the senators and assemblymen among such inhabitants, and nothing else. The proposition is broadly presented to us, therefore, that, in the exercise of the greatest powers possessed by a court, we should, on examination of those tables, declare that the legislature has committed a gross outrage upon the people. As was stated at the outset, the case comes up, not upon pleadings and findings, but upon an order refusing to direct a peremptory writ of .mandamus to issue to the board of supervisors, compelling it to reconvene. But, by section 2070 of the Code of Civil Procedure, such writ can be issued in the first instance, and without the intervention of an alternative writ, with a right of demurring or answering, only when the applicant’s right to the mandamus depends solely upon questions of law, and not upon questions of fact. Certain inequalities are stated in the briefs, and actually appear by comparison of the number of inhabitants of several senate and assembly districts. Whether these inequalities could have been all remedied and cured by the legislature does not appear, particularly in regard to the apportionment of the senators. The provision of the constitution that no county shall be divided in the formation of a senate district, unless such county is entitled to two or more senators, rendered inequality of distribution inevitable, as well as the other provision that assembly districts should not be divided in the formation of senate districts. I am in some doubt whether the learned justice at special term would have reached the conclusion that the inequalities of the senate districts were such as to warrant the interposition of the court. He says: “There can be no doubt that the apportionment of the several senate districts is so-manifestly and flagrantly unequal as to amount to a clear violation of the constitutional requirement, as is also the undoubted disparity between the number of inhabitants of the county, as distinguished from city, districts.”
But I am unable, from a comparison of the tables before me, and without proof of some facts other than those contained in this record, to say that the legislature did not act, in making such distribution of the senators among the representative inhabitants, within the scope of the constitution. The learned justice further says, in his opinion: “It is clear, too, that the constitution *109was grossly disregarded by giving to Albany county one more member of assembly than is allotted to Monroe, with over twenty-four thousand more inhabitants, as well as allowing to Dutchess county, with 75,078 people, two members, and to St. Lawrence, with 80,679, only one. These are violations which are clearly utterly unnecessary, and because of them the act is void. The provisions of an act of this kind are so largely dependent upon each other that, if part of them violate the constitution,'the whole act must be declared void.” The total population of the state, according to the last enumeration, for the purposes of representation in the legislature, is 5,790,865. There being 128 assembly districts, if every county had a population sufficient to equal the quotient produced by dividing the number of inhabitants by the number of assembly districts, the distribution of assemblymen would be a comparatively easy matter; but the provision of the constitution that each county shall have at least one member of assembly, however small its population, renders resort to an equitable, rather than to a mathematical, division neces- • sary. The following method of calculation, whether it or some other was in fact pursued by the legislature or not, seems to be fair and equitable, and is one of the methods the propriety of which is not questioned by counsel: There are 30 counties having a population less than the number which would be produced by such division of the population by assembly discricts, but the counties of Hamilton and Fulton are reckoned as one for the purposes of representation in the assembly. There are therefore 29 districts which would be set apart as having the right to 1 assemblyman, though their population be less than that of the average. There remain 99 assemblymen to be divided among a population of 4,831,162, which would give a member of assembly for every 48,799 representative persons. By the act of the legislature, every county of the state was properly divided upon this basis, and the assemblymen mathematically apportioned among them; but from the nature of the case, after dividing the population of the counties by this divisor, there resulted certain remainders of representative persons, so that there were, of the 128 members of assembly, 11 undistributed by such a division. These properly should have been apportioned among the counties having the highest remainders. These counties are as follows, named in the order of their surplus representative population: Orange, 44,472; Onondaga, 44,460; Kings, 39,400; Ulster, 36,593; Monroe, 34,833; Steuben, 32,601; St. Lawrence, 31,880; "Westchester, 31,226; Queens, 26,376; Dutchess, 26,276; Chautauqua, 25,085. The legislature did proceed to add a member of assembly to each of the above first four counties containing the highest number of remainders, but it seemed to falter at such just arithmetic when it came to the county of Monroe, and gave no additional member to that county, but did instead award one to Steuben, thé next highest on the list. It refused to give an additional one to St. Lawrence county, but gave it to the succeeding county, Westchester. It conferred another upon Queens, and another upon Dutchess, but failed to give one to Chautauqua. In place of Monroe, St. Lawrence, and Chautauqua, it gave an additional member to Albany county, which had a remainder of 10,-351; another to Hew York county, which had a remainder of 8,813; and the other to Rensselaer, with a remainder of 24,081,—none of the last-named 3 counties being among the first 11 counties having the greatest remainders.
Though I do not hesitate to say that the legislature should have pursued its original mathematical calculations and countinghouse method clear through, and awarded the 11 additional members to the 11 counties having the highest remainders, yet it does not fojlow that the court should overturn the entire apportionment act for these three discrepancies and errors. The question is not, I apprehend, what we, in our deliberation, may think should have been done by the legislature in this regard. The question is whether or not, in arriving at the results, the legislature has adopted any unconstitutional methods. So far as is ascertainable from these papers, it has observed *110the command of the constitution that, in carving out senate districts, no county shall be divided unless such county is entitled to two or more senators, and that the territory of each of such districts shall be contiguous; and also the other injunction, that the assembly districts shall not be divided in" making up senatorial districts. Ho county having a full quota is deprived of the additional member. In many cases, such, for instance, as appeals from awards of commissioners in condemnation proceedings, the courts refuse to vacate the reports made by the commissioners, although they do not meet completely the judgment of the court, unless it is made to appear that the commissioners, in arriving at their results, have adopted an erroneous method of calculation. So, in this case, we see that the provisions of the constitution were all observed, and the apportionment made within its lines, until the remainders for assembly districts came to be apportioned; and then, for some cause, unexplained in these papers, but which we are bound to assume, in the absence of proof, was not a bad or corrupt cause, the legislature placed three assemblymen where they should not have been placed, and took away three assemblymen from where they should have been placed, if the highest remainders were to be followed. While this action cannot be approved by the court, nor by honest and reflective legislators who must have for the moment weakly yielded their judgment to the stress of urgent legislation, I am not prepared to say that it affords sufficient ground for wholly setting aside the statute. In the cases of Giddings v. Blacker, (Sup. Ct. Mich., filed July 23, 1892,) 52 N. W. Rep. 944, and Board of Sup’rs v. Blacker, Id. 951, the legislature had palpably violated the constitution of the state in claiming the right, against a provision similar to ours, to dismember a county. The apportionment act of New York state has no such constitutional taint. It is doubtless a piece of legislation, following the precedent of 1879, well up to the line of party aggrandizement beyond which the constitution says it shall not go. But, so long as the legislature pauses at such line.it is beyond the power of the court to interpose. I think the motion for a mandamus should have prevailed, and that, consequently, the order appealed from should be reversed.