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

Lewis, J.

By section 5, art. 3, of the constitution, it is made the duty of the board of supervisors of such counties as may be entitled, under an apportionment, to more than one member of assembly, to assemble at such times as the legislature making the apportionment shall prescribe, and divide their respective counties into assembly districts equal to the number of members of assembly to which the county is entitled. By act (chapter 397, Laws 1892) entitled “An act to organize the senate districts, and for the apportionment of the members of assembly of this state, ” three members were allotted to the county of Monroe. The act required the board of supervisors to meet on the third Tuesday of July, 1892, and proceed to divide their respective counties into so many assembly districts as they are entitled to, respectively, and make and file the proper certificates. The board of supervisors of Monroe county convened on the day designated, but refused to divide their county as required by the act, for the avowed reason that the board was advised by counsel that the act aforesaid is unconstitutional and void, upon various grounds stated in resolutions adopted by the board. Thereupon a motion was made at the Monroe special term, ex rel. Charles F. Pond, a resident citizen and elector of Rochester, for a mandamus commanding the board to convene and proceed with the division of the county, as directed by the act. 19 N. Y. Supp. 978. The motion was denied, and an appeal was thereupon taken to this court from the said order.

The constitutionality of the act is assailed for reasons which will hereafter be mentioned. Section 4, art. 3, of the constitution, provides “that an enumeration of the inhabitants of the state shall be taken under the direction of the legislature in the year 1855, and at the end of every, ten years thereafter, and that "the senatorial districts shall be so altered by the legislature at the first session after the return of every 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.” Section 5 provides that the legislature, at its first session after the return of every enumeration, shall apportion the members of assembly among the several counties of the state. The legislature of 1885 passed an act providing for an enumeration. This act met with an executive veto, and nothing further was done looking to an enumeration until the session of 1892, seven years after the decennial year 1885, when an act was passed, which provided for the taking of a census, and required the secretary of state to tabulate and arrange the returns of the enumerators, and report the same to the legislature. An enumeration was made, and on the 21st day of April the secretary of state made a report to the legislature of the result of such enumeration. On the day of the making of this report, and while the legislature was still in session, the governor, by special message, called an extraordinary session of the legislature to convene on the following Monday, April 25, 1892. The legislature adjourned sine die April 21st, and again convened on the day designated, and oil the 30th day of said month passed, and on the same day the governor .signed, the act, (chapter 392 aforesaid.) ° -

It is the contention of the respondent that there was no power in the legislature to pass this act in the year 1892, as that is not a decennial year; that the act was unconstitutional and void, because it was passed at the same session, and by the same legislature, under whose direction the enumeration was taken; and for the further reason that said extraordinary session'was not a session of the legislature, within the meaning of the constitution, having the power, under the constitution, to make the apportionment, and on the further ground that the apportionment was unequal and unjust. It is the contention of the appellant that the provisions concerning the enumeration and apportionment are simply directory; and that, therefore, it is discretionary with the legislature when the enumeration and apportionment shall be made. The constitution, as has been seen, provides that the apportionment of the members of assembly shall be made at the first session after the return of every enumeration.

First, then, are these provisions of the constitution mandatory, or advisory simply? That the people have the right in their constitution to speak in mandatory language no one will question.. They are the source of power; the constitution emanates from them. They have the right to impose such limitations and restrictions upon powers they confer upon their servants as they choose. If important interests are involved which may be jeoparded if the language be held to be simply advisory, it must be assumed that its authors intended to speak in mandatory terms. If the provisions under consideration are advisory simply, it follows that an apportionment may be made at any time that suits the wishes or plans of the party in .power. If advisory only, an enumeration can be taken, and a tabulated statement of the result delivered to the legislature, to be immediately followed by an apportionment, without any opportunity for its examination by the people, and the people may thereby be made victims of a party in power, who may, for partisan purposes, so manipulate and falsify an enumeration, and follow it by so arranging the senatorial districts and apportioning the members of assembly, as thereafter to place the control of the election of members of both houses under the control of a small minority of the electors. The districts could easily be so selected and arranged that a majority of the legislators could thereafter be elected by electors whose predilections were with the party making the apportionment, and who composed but a small minority pi the electors of the state, and the majority would be practically disfranchised; and, as amendments to the constitution can be secured only through and by the consent of the legislature, it would be practically impossible to remedy the wrongs by lawful means. If directory only, there is no necessity for calling an extra session; the enumeration and apportionment may be consummated at one sitting of the legislature. Holding these provisions to be mandatory not only does no violence to the language of the constitution, but accords with the common understanding of the people. “Courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done, and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims and fix those unvarying rules by which all departments of the government must at all times shape their conduct, and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. * * * If directions are given respecting the times or mode of proceeding in which a power shall be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only. * * * There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application.” This is a quotation from Cooley, Const. Lim. marg. pp. 78, 79.

Judge Emott said, in speaking for the court in People v. Lawrence, 36 Barb. 186: “It will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory, and not imperative.” The same doctrine is held in Brown v. Goben, 122 Ind. 113, 23 N. E. Rep. 519. Judge Orton, in the Wisconsin Apportionment Case, 51 N. W. Rep., at page 730, says: “That most dangerous doctrine, that this and other restrictions upon the power of the legislature are merely declaratory, and not mandatory, should not be encouraged, even to the extent of discussing the question. The convention, in making the constitution, had a higher duty to perform than to give the legislature advice.”

There is no part of the machinery of our state government which more vitally affects the interests of the people than the provisions for enumeration and apportionment. Ours being a representative government, frauds which may tend to deprive the people of equal representation, especially in their legislative bodies, strike at the very foundation of our institutions, and naturally and inevitably tend to arouse bitter and vindictive feelings. The people, appreciating the importance of this matter, naturally would wish, in this respect at least, to retain power in their own keeping, and direct how it should be exercised, and not leave its exercise to the discretion or caprice of their servants selected from time to time to represent them in the legislature. While legislative acts sometimes speak in directory language, a constitution has the right to speak, and should speak only in words of command. Upon the authorities referred to, and for the reasons suggested, the provisions under consideration must, we think, be held to be mandatory; and, if mandatory, it follows that the legislature had not the power-to make the apportionment at the same session that the enumeration was taken. Hence the question arises, was this extraordinary session, within the meaning of the constitution, the first session after the return of the enumeration ? Article 10, § 6, of the constitution, provides that “the political year and legislative term shall begin on the 1st day of January, and that the legislature shall assemble on the first Tuesday in January, unless a different day shall be appointed by law.” The legislative term, therefore, may begin before the meeting of the legislature; it begins and ends with the year, and the life of a legislature also ends with the year.

A brief review of the provisions of the various constitutions of the state relating to this subject may aid in the solution of this question. The constitution of 1777 provided that, as soon after the expiration of seven years subsequent to the termination of the present war as may be, a census should be taken, and that, once in every seven years after the taking of the first census, a new one should be taken. No time or session was specified for making the apportionment. The first census was taken in 1790, pursuant to chapter 7 of that year. The first apportionment by the legislature was made by chapter 4, Laws 1791. The next census was in 1795. The apportionment was made by chapter 19, Laws 1796. Another census was taken in 1801, pursuant to an act passed April 7th. Chapter 175. An amendment to the constitution was adopted October 27, 1801, providing that the legislature, “at their next session,” shall apportion the number of assemblymen fixed by the said amendment, and make a reapportionment upon the return of every census thereafter. Accordingly, the legislature made an apportionment March 81, 1802. The next census was in 1807-, pursuant to an act of April 3, 1807. The apportionment was made April 1, 1808. Another census was taken in 1814. Act April 15th. Apportionment was made by chapter 142, Laws 1815. The constitution of 1822 provided that an apportionment shall be made by the present legislature according to the last United States census; that a census should be taken in 1825, and at the end of every 10 years thereafter; that the senate districts shall be altered, and the apportionment of the members of assembly shall be made, “at the first session after the return of every enumeration.” The legislature accordingly made an apportionment by chapter 207, Laws 1822. No state census had been taken since 1814. By chapter 100, Laws 1825, the legislature provided, not only for the taking of the census that year, but also for future years. The next apportionment was made by chapter 289, Laws 1826. The act of 1825 was substantially incorporated into 1 Rev. St. p. 87, which took effect January 1, 1830. The census was taken in 1835; an apportionment made by chapter 436, Laws 1836. The provisions of the Revised Statutes for the taking of the census were superseded by Laws 1845, c. 140, which was amended by chapter 239, Laws 1854. These statutes were repealed by Laws 1855, c. 64. An apportionment was made by chapter 44, Laws 1846, based upon the census of 1845. The constitution adopted in 1846 is substantially the same as the constitution of 1822, in so far as the particular matter here under consideration is concerned. The next census was taken in 1855.; the apportionment was postponed until 1857. Chapter 337. Another apportionment was made by chapter 607, Laws 1866, based upon the census of 1865. Another enumeration was had in 1875, but no apportionment was made until 1879. Chapter 208. It will be observed from the foregoing that the invariable practice has been to make the enumeration at an annual session after the taking of the census. This is the first instance, since these provisions were incorporated into the constitution that the same legislature has assumed to make both the enumeration and tne apportionment. No census was taken in 1885, for the reason before stated.

The framers of our constitution, in providing that the apportionment should be made at the first session after the enumeration, were aware that the taking of the census of this populous state would be a work of great labor and detail, necessarily more or less complicated, and that every step in the proceeding should be done deliberately and openly, so that the people would have an opportunity to watch its progress, and that a sufficient time should elapse between the completion of the enumeration and an apportionment, to enable all who desired so to do to fully examine into the details; and, to accomplish that, it was necessary that full and complete statements of the work of the enumerators should be deposited in some public office, there to remain for a sufficient time for full examination before the apportionment should be made. The convention that framed the constitution of 1846 was in session the year following the passage of chapter 140 of the Laws of 1845, which provided a complete plan for taking the census, with ample provisions for the deposit of the returns of the enumerators in public offices for the inspection of the people. A compliance with the provisions of this act would necessarily require all the time prior to the sitting of the annual session of the legislature in 1846. The members of the convention, we assume, were familiar with this act, and, in preparing the provisions of the constitution under consideration, it is reasonable to suppose, understood the importance of providing that the apportionment should not be made at the same session as the enumeration.

Another reason why the enumeration and apportionment ought not to be made by the'same legislature is that, if irregularities or frauds should occur in taking the census, the electors should have an opportunity at the polls to prevent the consummation of the fraud, by electing members of the legislature for the following year who had not taken part in the frauds. If an extraordinary session of the same legislature is a “session,” within the meaning of the constitution, it would be within the power of a hostile governor to prevent an apportionment by failing to recommend to the legislature that subject for consideration. Section 4, art. 4, provides: “At extraordinary sessions, no subject shall be acted upon except such as the governor may recommend for consideration. ” There have been many instances of extraordinary sessions of the legislature since the state existed. The proceedings of the entire year, including those of the extraordinary session, have invariably been called and known and printed as the laws of but one session. This shows the meaning attached to the words “session of the legislature” by the people. The governor is required to communicate by message to the legislature, at every session, the condition of the state, and recommend such matters to it as he shall judge expedient. No governor has yet, so far as we are aware, considered.this provision of the constitution applicable to an extraordinary session of the legislature. Section 16 of article 6, prior to the amendment of 1879, provided that judicial districts might be reorganized by the legislature at the first session after the return of every enumeration, “and at no other time.” The appellant’s counsel concedes that this provision of the constitution is mandatory. If so, the same embarrassment would arise if the governor should fail to recommend that subject for consideration. To hold that an extraordinary session is, within the meaning of the constitution, the first session, deprives the provisions under consideration of any effective meaning. They might as well have been left out of the constitution, for they afford no safeguard or protection to the people. The history of the legislation under consideration is an impressive illustration of this fact, as there were but three days between the adjournment and the convening of the extraordinary session. The constitution not having left this power of apportionment within the general delegation of legislative authority, the use of the phrase “first session” must be held to have both significance and effect. We are of the opinion that an extraordinary session of the same legislature, under whose direction an enumeration is taken, is not, within the meaning of the provision under consideration, the first session. We are also of the opinion that the said provisions are mandatory.

We have carefully examined the cases of Rumsey v. People, 19 N. Y. 45, and State v. Cunningham, (Wis.) 51 N. W. Rep. 724, relied upon by the appellant’s counsel as deciding that the provisions under consideration are merely directory, and do not think they are authority upon this question. The case of Rumsey v. People holds that an apportionment may be made by a subsequent legislature, when their predecessors have neglected their duty in that regard. The questions presented in the case at bar were not before that court for decision. In the case of State v. Cunningham, supra, the supreme court of Wisconsin adjudged- an apportionment act void because it was unequal and fraudulent. Judge Pinney, in his opinion, suggests that another apportionment cquld be passed at a special session if one should be called. It was a casual suggestion, evidently made without an examination of the question, and was obiter. We have not been referred to, and are not aware of, any case deciding the questions here involved; In the event that the legislature, for any reason, should fail to provide for an enumeration at the decennial year, as required by the constitution, whether it could be taken by some succeeding legislature we do not deem it necessary to consider, for that question is not before us; nor is it necessary to pass upon the question whether an apportionment can be made at an extraordinary session. It undoubtedly could be so made, provided it was not a meeting of the same legislature under vwhose direction the enumeration was taken.

The constitutionality of the act under consideration is further assailed for the reason that the provisions of the constitution requiring that each senate district shall contain, as nearly as may be, an equal number of inhabitants, and 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, excluding aliens, was violated in the apportionment under consideration. The ratio of representation for a member of assembly, as shown by the enumeration, is 45,241. Monroe’s representative population was 181,230; the county was therefore entitled to four members," with a surplus population of 266. She was given but three. The population of Albany county was 156,348. She was therefore entitled to but three members, but was given four. Two members were awarded Dutchess county, with a population of 75,078, and yet but one was given to Lawrence county, with a population of 80,679. These were not unintentional errors. The constitution 1 says: “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 their respective inhabitants, excluding aliens.” The case presents many other striking illustrations of gross and inexcusable irregularities in apportioning members of assembly and in arranging senatorial districts, etc. This point was so fully and ably discussed and illustrated in the opinion of Justice Rumsey at special term that we do not deem it necessary to add anything, except to say that we fully concur in his conclusions. No one can read the figures and facts set out in the record, and fail to come to the conclusion that the apportionment was a flagrant violation of the plain provisions of the constitution; that it could not have been the result of the best judgment of the members of the legislature, but was a bold and partisan proceeding, enacted and consummated with a view of giving the party engineering the bill advantages in representation to which they were not in justice or in truth entitled.

Other points were presented and discussed by counsel which I do not deem it necessary to consider, for I prefer to put the decision upon the grounds discussed in this opinion, and, for the reasons stated, I think the act (chapter 397, Laws 1892) unconstitutional, which leads to an affirmance of the order appealed from.

1 Const. N. Y. art. 3, § 5.