While concurring in the affirmance of the order, I dissent from so much of the opinion of Judge HISCOCK, as holds the act of 1912, (Chap. 548), to be constitutional legislation. I think the effect of section 16 of that act was to delegate to the people of a portion of the territory affected a power, exclusively, legislative; namely, the power to declare whether the act of the legislature should be operative as a law. That section provides that, at the general election appointed to be held, the question was to be submitted to the voters: "Shall the territory within the Borough of the Bronx be erected into the County of the Bronx? If it shall appear that a majority of the votes cast on said question at said general election were against the erection of the County of Bronx, then this act shall be inoperative and void." To state the proposition, in its broadest and mildest form, this was a division by the legislature with the people of the territory of a responsibility, with which the former was, exclusively, invested. Under the Constitution of the state, (Art. 3, sec. 1), the legislative power is vested in the senate and the assembly. When exercising that power by the enactment in question, the legislature, in precise terms, in the first section, partitioned off from the county of New York the territory known as the borough of the Bronx and "erected (it) into the County of the Bronx as a separate and distinct *Page 558 county of the State of New York from and after the date oftaking effect of this Act." By the last section, the act was to take effect immediately. Thus, a county was, at once, created upon the passage of the act and, in its creation, the legislative body exercised one of the most important functions within its province. It was erecting a new political subdivision of the state and, when so acting, its action was intended to be, and is made, exclusive. No right was reserved by the People, when committing these high powers to its legislative body, to avoid, or repeal, an act by a popular vote. In submitting the question, whether the territory described should be erected into a county, after that the county had been, actually, created by the bill becoming a law, the legislature delegated the power to the voters of that territory to declare the statute inoperative and void; that is to say, abdicating a duty, exclusively, its own, to repeal a bad, or undesirable, law, it delegated that duty to others. The People might alter the fundamental law and provide for such a referendum; but, until that step be taken it is, impliedly, forbidden by the People. The decision of the leading case of Barto v. Himrod, (8 N.Y. 483), is applicable and its doctrine is quite as salutary to-day. There, the electors were to vote upon the proposition whether the act "establishing free schools throughout the State" should become a law and, as the vote resulted, adversely, or favorably, the act was to be "null and void," or should "become a law." In holding that the legislature had no power to make such submission, it was reasoned that the People did not reserve to themselves the power of ratifying, or adopting, laws proposed by the legislature, except as it might be expressed, and that it was an unsound policy that the legislator should shift the responsibility, with which he is charged by his constituents, upon others. It was held that, on the question of expediency, "the Legislature must exercise itsown judgment definitively and finally." It was said "the event on *Page 559 which the Act was made to take effect was nothing else than the vote of the People on the identical question which the constitution makes it the duty of the Legislature itself to decide. The Legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot delegate or commit to any other man or men to be exercised." (p. 491.) That case is still authoritative on the fundamental question of the right of the legislature to submit to the electors the question whether an act should become a law, or whether it should be null and void. In the cases, which have been referred to as affecting the authority of Barto v. Himrod, the question did not involve the same proposition, nor go so far as to hold that, after the legislature has enacted a bill into a law, it may be repealed by a popular vote.
In addition to the views I have expressed, and which need no more extended discussion to carry whatever force they may possess, I think the act is vicious, further, in the respect discussed, that, upon the assumption that the legislature might possess the power exercised in the enactment of section 16 of this act, the submission provided for should have been to the electors of the county of New York. The territory is taken from that county and all of the people within its borders are affected. But, if all the people were affected by the passage of the act, why may only a portion decide whether it shall continue to be a law? Upon what principle, of law, or of politics, can we uphold such discriminative legislation?
It seems to me that every consideration of wisdom and of sound policy demands that such loose legislation, as this act embodies, should be unsparingly condemned.
CUDDEBACK, HOGAN and MILLER, JJ., concur with HISCOCK, J.; WILLARD BARTLETT J., concurs with CULLEN, Ch. J.; GRAY, J., also reads opinion.
Order affirmed. *Page 560