This court is about to annul an act of the legislature (Laws 1906, chap. 431) apportioning the state into fifty-one senate districts, and fixing the number of assemblymen to be elected in each county of the state. Against that decision I desire to record my dissent, because I deem it unnecessary in fact and unwarranted in law. Of the fifty-one senate districts into which the state has been divided, two have been selected by this court as presenting such inherent and controlling elements of invalidity as to justify the demolition of the whole of the existing legislative structure. It needs no argument that to avert such a consummation, with its inevitable train of confusion and uncertainty, the judicial department as one of the co-ordinate branches of the government should invoke every means within its power. As briefly as possible I shall attempt to convince my associates that the apportionment of 1906 was a valid exercise of legislative power, both as regards the element of legislative discretion and compliance with constitutional mandates. In this effort *Page 222 I shall not go into the constitutional history of the state, for that has been most admirably done by my brother CHASE, but will confine the discussion to those questions of immediate and practical importance that arise out of the Constitution of 1894 and the Apportionment Act of 1906.
The Constitution provides that "An enumeration of the inhabitants of the State shall be taken under the direction of the Secretary of State, during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter; and the said districts shall be so altered by the Legislature at the first regular 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 be in as compact form as practicable, 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 a senate district except to make two or more senate districts wholly in such county. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein adjoining such district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.
"No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have more than one-third of all the senators; and no two counties or the territory thereof as now organized, which are adjoining counties, or which are separated only by public waters, shall have more than one-half of all the senators." (Art. 3, sec. 4.)
It will be noted that this section of the Constitution imposes upon the legislature seven limitations in the making of an apportionment, four of which are mandatory and imperative, and three of which are coupled with discretionary powers. *Page 223 The mandatory limitations are (1) that senate districts "shall at all times consist of contiguous territory;" (2) that "no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county;" (3) that "no town and no block in a city inclosed by streets or public ways shall be divided in the formation of senate districts;" (4) that no district shall "contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein adjoining such district." The discretionary limitations are, (1) "each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens;" (2) "and be in as compact form as practicable;" (3) "counties, towns and blocks which, form their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens."
Pursuant to the above-quoted constitutional provisions an enumeration of the inhabitants of the state was made in the year 1905, and this was followed in 1906 by the enactment of the statute, colloquially referred to as the Apportionment Law, by which the state was divided into fifty-one senate districts, and the number of assemblymen was fixed at one hundred and fifty to be apportioned among as many districts to be created by the several boards of supervisors of the counties of the state.
Under the enumeration of 1905 the citizen population of the state was 7,062,988 which, divided by 50 as directed by the Constitution, gives a ratio of 141,259 upon which to apportion senate districts. This simple sum in arithmetic revealed the cogent and immutable fact that at least twenty-three of the fifty-one senators must be allotted to the counties of New York, Kings and Erie, leaving but twenty-eight senate districts for all the rest of the state. After deducting from the total citizen population of the state that portion which was centered in the counties of New York, Kings and Erie, there was left for the other counties a total of 3,645,337 *Page 224 which, when divided by twenty eight, made a ratio of 130,190 for each of twenty-eight senatorial districts to be erected in the territory extending from the Harlem to Lake Erie and from the St. Lawrence to the Pennsylvania line. Of these remaining twenty-eight districts at least nine are quite as arbitrarily fixed as the twenty-three in New York, Kings and Erie, either on account of population or geographical location. These are the districts composed of Monroe, Onondaga, Oneida, Rensselaer, Westchester, Chautauqua and Cattaraugus, Rockland and Orange, Orleans and Niagara. Thus there were really only nineteen districts the formation of which had not been practically prearranged by the express commands of the Constitution. A mere glance at the map of the state is sufficient to convince one that these districts must necessarily differ in varying degrees, in the character and number of inhabitants, configuration and topography of territory, defined avenues of travel, means of intercommunication, and legislative needs. When the apportionment of 1906 is studied in the light of these potential considerations, and of the four imperative constitutional limitations above adverted to, it seems to me to present to the judicial mind abundant reason for the differences in size, shape and population that characterize the districts which are not arbitrarily confined to the fifteen enumerated counties by the express commands of the Constitution. Since these general propositions are so obviously true as to remove them from the realm of dispute, they are alluded to only for the purpose of showing that in selecting for criticism the two particular senate districts upon which the fate of this appeal now depends, my brethren seem to have lost sight of some of the just and broad considerations that have been influential if not controlling factors in securing judicial approval of other districts no less vulnerable. These general observations sufficiently pave the way for the discussion of the two districts as to which we differ.
It is said that in the erection of the second senate district, composed of the counties of Queens and Richmond, the legislature *Page 225 has violated several of the express commands of the Constitution, and has so palpably transcended the limits of legislative discretion as to compel the courts to declare the Apportionment Law invalid. It is true that in the creation of this district the legislature did not obey the constitutional mandate that each senate district "shall at all times consist of contiguous territory." And why? Because compliance with that mandate was impossible. Richmond county, with a population of 66,441, is an island literally contiguous to no other territory in the state. It is practically contiguous to New York and Kings counties, but cannot be joined with either of them because the Constitution also provides that "no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county." As the population of Richmond is scarcely more than one-half of the ratio which is the basis of the apportionment, it is obvious that the legislature adopted the only alternative in joining it to the territory most contiguous, which is the county of Queens. It is said that in joining together the counties of Queens and Richmond the legislature has violated that other constitutional requirement, "that each senate district shall contain as nearly as may be an equal number of inhabitants." The appellants call attention to the fact that, although the ratio is 130,190, the county of Queens has alone a population of 179,746, or an excess of 49,556, while the addition of Richmond gives the district a population of 246,187, which makes it the largest in the state and gives it an excess of 115,977 over the ratio. For the purpose of emphasizing the alleged legislative violation of the Constitution the appellants set these figures over against the 97,717 of population credited to the district composed of the counties of Wayne and Ontario, which is the smallest in the state. This is manifestly not a fair comparison. A scrutiny of the whole list of districts clearly discloses the varying inequalities in population caused by the effort of the legislature to observe, as nearly as possible, all the other conflicting constitutional requirements as to contiguity, compactness *Page 226 and county lines. These inequalities, so far from evincing the legislative disregard of the constitutional command that equality of population shall be produced "as nearly as may be," are a demonstration of the necessity for compromises between co-ordinate and conflicting requirements of the Constitution. When we consider that twenty-three of the fifty-one senate districts must be assigned to three counties before there can be any attempt to apportion the rest of the state, and that another group of eleven counties must as inevitably be divided into nine of the districts now appearing upon the map as though they were specifically named in the Constitution, it becomes apparent that there were great difficulties in the division of this vast remaining domain, embracing nearly 50,000 square miles, into the remaining nineteen districts, which had to be erected with due regard, not merely to approximate equality of population, but in obedience to the other and even more positive commands of the Constitution. The smallest district as well as the largest one may have been fixed by conditions from which there was no escape. Two districts at opposite ends of the state, the one wholly urban and the other almost entirely rural, cannot fairly be compared to test the validity of either, for each may be hedged about by peculiar conditions which render it impossible to avoid inequality in population. This is well illustrated in the case of the Queens-Richmond district. The geographical location of Richmond county is such that, within the limitations of the Constitution, it cannot be joined to any territory except that on Long Island outside of Kings county. To say that it may be joined to Rockland, Putnam or any other of the so-called Hudson river counties, which are from twenty-five miles to forty miles distant, is to annihilate every constitutional command save that which relates to equality of population. Such a solution of the problem would be as unreasonable as unjust. When we turn from such an impossible alternative to the only possible one, namely, that of a union of Richmond with one or more of the Long Island counties outside of Kings, we perceive that it presents nothing more *Page 227 than a choice of evils; on the one hand, Nassau and Suffolk which, when joined to Richmond, would have a population of 203,616, or 73,426 above the ratio; on the other hand, the Queens-Richmond district as now constituted with an excess of 115,997. It must be admitted that the difference of 42,571 is a very substantial one which, other things being equal, would be conclusive in favor of the Richmond-Nassau-Suffolk district, as against the Queens-Richmond district. But other things are not equal. Nassau and Suffolk counties are not as "contiguous" to Richmond as Queens. The two former are practically suburban counties, stretching along the shore of Long Island to a remote distance, while the two latter are distinctly urban, both being boroughs of the greater city and having an identity of interest that far outweighs the difference of a few thousand in population. These and other kindred considerations were probably influential in leading the legislature to decide upon the second district as it now stands. In Matter of Smith v. Board ofSupervisors, St. Lawrence Co. (148 N.Y. 191) the petitioner urged that there should have been a transposition of two towns in St. Lawrence county, which were on the dividing line between two assembly districts, because that would have resulted in reducing the disparity in population from 716 to 144, or a gain in favor of equality amounting to 572. In the discussion in that case of the constitutional commands to the effect that assembly districts shall be as nearly equal in number of inhabitants as may be, and that they shall be of convenient and contiguous territory, in as compact form as practicable, this court clearly recognized the ample discretionary powers delegated to legislative bodies charged with the important duties of making apportionment. In speaking of those qualified clauses of the Constitution relating to equality of population and compactness, which not infrequently conflict with the unqualified clauses relating to contiguity of territory and the division of counties, towns and city blocks, this court said: "These qualifying words indicate the clear intention of the framers of the Constitution to permit the exercise of a reasonable and honest *Page 228 discretion on the part of the supervisors, provided that in no case should there be a greater excess in population over an adjoining district than the population of a town therein adjoining such assembly district. In the exercise of this discretion they are to lay out the districts so as to be of convenient and contiguous territory, in as compact form as possible."
In view of the unique physical situation of Richmond county, which renders impossible a literal compliance with all or any of the constitutional mandates relating to apportionment, I think it cannot fairly be said that a difference in population of 42,571 in favor of some other arrangement than that adopted by the legislature is sufficient to nullify the plan for the whole state. This is especially true when we consider the decision of this court in People ex rel. Carter v. Rice (135 N.Y. 482), where it was held that an inequality of 135, 418 between two districts in New York city was not enough to condemn the apportionment then under review. That decision, moreover, was under the act of 1892, which was bitterly impugned for partisan unfairness, while the contest at bar, so far as appears, is entirely devoid of all partisan interest.
The validity of the apportionment is further assailed in so far as it relates to the thirteenth district, which is one of the districts in the borough of Manhattan in the city of New York, and the attack is made upon the ground that it is in violation of the constitutional mandate that senate districts shall "be in as compact form as practicable." This provision as to compactness was not in the Constitutions which preceded the one adopted in 1894, and has, therefore, not been the subject of judicial construction in our courts. The noun "compactness" is defined in the Century Dictionary as "the state or quality of being compact; firmness; close union of parts." The noun "form" is defined as "the external shape or configuration of a body; the figure as defined by lines and surfaces." These two definitions clearly disclose the possibility of confounding "form" and "compactness" in cases where there is reason for preserving the distinction between them. *Page 229 To the ordinary observer a first glance at the map showing the thirteenth senatorial district would seem to suggest a plain absence of compactness when in fact it is nothing more than irregularity in form. Close union of territory does not depend upon any particular shape. In the physical world the most compact body is the complete sphere in which the center is at the same distance from every part of the surface. Next in order of compactness, perhaps, would be the perfect square, and then the parallelogram. For obvious reasons these arbitrary symbols cannot be applied to the demarkation of lands into political divisions. The rarity with which they are even approximated is shown by every geographical map ever made. It is to be observed, moreover, that the command as to compactness is qualified by the test of practicability. The senatorial districts shall "be in as compact form as practicable." In other words, they shall be as compact as feasible; as compact as may be, within the bounds of actual execution as distinguished from theoretical discussion. Compactness as applied to one situation may have a clear meaning that would be wholly inapplicable to a different situation. It may be one thing as applied to the Adirondack region and quite another as to a tenement-house district in New York city. I think it may also be fairly argued that the term "compact" as used in our Constitution has reference not merely to territorial compression, but to density of population and such considerations as convenience of access and unity of interest, as well as those constitutional limitations inhibiting the division of certain city blocks and enjoining the placing of others so as to produce the most approximate equality of population. When the matter is viewed in the light of these suggestions, it seems to me that a court cannot pass upon the compactness of a given district without critically going over the entire territory of which it forms a part, so as to be able to see what effect a different subdivision would have upon the whole. The most practical test of the question is to draw a rough sketch of an island of irregular shape and divide the interior into absolute squares each of which theoretically contains an equal number *Page 230 of inhabitants excluding aliens. The outer edge or fringe of the island would, in the nature of things, have to be divided into spaces of irregular shape, having a greater or lesser area than the squares, and representing corresponding differences in population. By dividing the total population of the island by the number of senate districts to be erected, the ratio for each district would be obtained. It will readily be seen that even under such an arbitrary arrangement the senate districts would necessarily have to be of irregular shapes and different sizes, thus embracing varying numbers of the squares or irregular spaces. The actual problem which confronted the legislature in the apportionment of Manhattan island was infinitely more difficult than is the illustration given above, for the reason that the population of the city blocks varies all the way from a single inhabitant in some cases, to three thousand and upwards in others, and when this situation is applied to the constitutional inhibition against the division of city blocks, it is apparent that in the effort to make districts "as compact as practicable" the legislature must be given great latitude. The question is not to be decided upon the form of one district; nor as though the courts were a second legislature with powers of revision. It must be met upon the broad ground that the courts shall not invoke the judicial power unless, after giving due heed to every practical difficulty with which the legislature has had to deal in the apportionment of a whole state, they shall regard the legislative discretion as having been so far transcended that annulment of the legislative enactment is unavoidable. The inability of courts to deal satisfactorily with questions involving the exercise of legislative discretion is very aptly expressed in Smith v.Board of Supervisors (supra) in the following language: "It is quite impossible that the carving out of these districts with a due regard to convenience, contiguity and compactness could be accomplished in a satisfactory manner except by a board of officers thoroughly familiar with the territory and having an intimate knowledge of its towns, topography and means of communication by land and water. We should not *Page 231 feel justified in interfering unless convinced that there had been a clear abuse of discretion."
It is only when we consider that there is a legal presumption that the law-making power has performed its duty in the enactment of this statute, and that if there is any doubt upon the subject it is the duty of our courts, as a co-ordinate branch of government, to resolve it in favor of the validity of the work of the legislature, that we can fully realize how utterly indefensible the creation of a particular district must be, in order to justify the judicial overthrow of the whole plan of apportionment. In this connection the language of the Supreme Court of Illinois in a similar proceeding is singularly apposite. "Absolute exactness in that respect is not attainable. The requirement of contiguity of territory has been observed in every instance, but in the formation of one, at least, of the districts it might well have been urged in the General Assembly that the requirement of compactness had not been observed and complied with as fully, fairly and justly as might be done, and that a nearer approximation to compactness was attainable. How much nearer an approximation to compactness might have been made in this district could not, necessarily, be determined in view, alone, of the territory of that district and of the other districts adjoining it, but possibly only upon a view of all the districts of the state. A change in that district might have made necessary a readjustment of the entire apportionment, and this involved the exercise of judgment and discretion of the law-making body." (People ex rel. Heffernan v. Carlock,198 Ill. 150.) The only possible difference between the situation described in the case just cited and that in the case at bar, is that our legislature could have re-arranged the districts of New York city without affecting the districts in the state at large. Our courts, however, cannot do that. They must either support the whole structure or destroy it absolutely. Taking into account all the various elements that enter into a practical scheme of apportionment, I do not believe the courts should annul this act of 1906 because it is thought that the outlines of a particular district *Page 232 indicate that it is not as compact as it might have been made.
Having said all that I deem necessary about the two specific districts upon which the decision of this court is to depend, I will simply add a few general observations that may be quite as useful in pointing out the limitations upon the jurisdiction of the judicial department as in defining the extensive scope of legislative power. Under our theory of government all power is primarily lodged in the people. For practical purposes this power has been delegated to three departments, which are co-ordinate, but not necessarily in all respects co-equal. The legislative, executive and judicial departments, respectively, have powers as to which each is supreme. The power to make laws is manifestly superior to that of interpreting or executing them. Therefore, the legislative function is to that extent, and at least theoretically, paramount in dignity and efficiency to the executive and judicial functions. This I conceive to be one of the underlying principles which support the legal presumption that every statute pertaining to matters that are within the acknowledged powers of the legislature is valid and constitutional. This presumption can only be overcome by contrary proof that amounts to a demonstration. (Fletcher v. Peck, 6 Cranch, 87; Ex parte M'Collum, 1 Cow. 564; Morris v.People, 3 Denio, 381.) "Before courts will deem it their duty to declare an act of the legislature void as in violation of some provision of the Constitution, a case must be presented in which there can be no rational doubt. The incompatibility of the legislative enactment with the Constitution must be manifest and unequivocal." (People ex rel. Carter v. Rice, supra.) This general rule as to the presumptive validity of legislative action is accentuated when applied to a statute providing for a reapportionment of the inhabitants of the state, because the power to adjust and readjust the political divisions of a sovereignty is as purely political when exercised by the legislature as when exercised by the people. The mere fact that this power, when exercised by the legislature, is a delegated *Page 233 one, does not change its nature; it is always political, as distinguished from executive or judicial. Nor is it even strictly legislative. The adoption of the statute in which the power finds expression is doubtless a legislative act, but behind and beneath that act is the exercise of a power which is essentially political; the power to form and create subdivisions of the state. When the limitations upon that power are positive and arbitrary, so that the commands of the Constitution can be obeyed with mathematical precision, it follows that any substantial deviation therefrom must be fatal. But when the power is conveyed in language that not only implies but commands the exercise of discretion, it must be deemed a discretion adapted to the practical end sought to be attained; and the execution of such a power pursuant to several co-ordinate but conflicting constitutional commands, some of which are not arbitrary, but are qualified by expressions importing a grant of discretion to the legislature, is clearly beyond the reach of judicial interference unless the abuse of this political discretion is so gross and palpable that there can be no just dispute about it. Any other rule would necessarily involve the usurpation by the courts of the powers granted to the legislature. Upon that particular phase of the question before us, this court has spoken in no uncertain tone. Speaking through PECKHAM, J., it had said: "We do not believe in the propriety or necessity of any such rule. On the contrary, we think the courts have no power in such a case to review the discretion intrusted to the legislature by the Constitution, unless it is plainly and grossly abused." (Peopleex rel. Carter v. Rice, supra.) In the same case the same learned jurist shows how plain and gross must be the legislative violation of the Constitution before the courts can interfere with the work of the legislature in making apportionment, and with his very apt words I close this discussion: "There are some inequalities which any one individual intrusted with the power might at once remedy, but which might be very hard to alter when brought under the review of one hundred and twenty-eight assemblymen and thirty-two senators. Local *Page 234 pride, commercial jealousies and rivalries, diverse interests among the people, together with a difference of views as to the true interests of the localities to be affected, all these things and many others might have weight among the representatives upon the question of apportionment, so that, in order to accomplish any result at all, compromise and conciliation would have to be exercised. Looking to the act as a result of such circumstances, and it seems clear that it cannot be said to be so far a violation of legislative discretion as to cause its complete overthrow by the courts." (People ex rel. Carter v. Rice,supra.)
For these reasons I vote for the affirmance of the orders made by the courts below.
VANN, WILLARD BARTLETT, JJ. (and GRAY, J., in opinion) concur with CHASE, J., and CULLEN, Ch. J.; HAIGHT and WERNER, JJ., read dissenting opinions; WERNER, J., how ever, concurs in so much of Chief Judge CULLEN'S opinion as deals with the effect of the decision made.
Orders reversed, etc.