
    The People ex rel. Henry C. Henderson, Resp’t, v. The Board of Supervisors of the County of Westchester, App’lt.
    
      (Court of Appeals,
    
    
      Filed September 27, 1895.)
    
    1. Statute—Unconstitutional.
    A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and, until every reasonable mode of reconciliation of the statute with the constitution has been resorted to, and reconciliation has been found impossible, the statute will be upheld.
    
      2. Constitution—Senate distbicts.
    When, by the constitution, it is declared that a senate district is to consist of certain specified counties, there is established an organic relation, between the counties as they existed territorially at the adoption of the constitution and the senate districts thereby established, and a subsequent change of county boundaries by the legislature, whereby a senate district would comprise a part of two counties, would violate the constitutional plan, unless permitted by some other provision of the instrument.
    3. Same.
    When the constitution declares that the twenty-second senate district shall consist of the county of Westchester, it is a declaration that the county of Westchester as then organized, with its then existing territorial limits, shall constitute that district, and a change of territorial boundaries-of the county will change the senate district as established.
    4. Same.
    The insertion, in the section of the constitution relating to the apportionment of assemblymen and the creation of assembly districts, of the clause that “ Nothing in this section shall prevent division at any time of counties and towns and the erection of new towns and counties by the legislature,” indicates an intention to leave the legislature free to exercise the power to change the boundaries of counties and towns and to erect new towns at any time in its discretion.
    5. Same—Annexation act.
    Under the present constitution, chap. 934 of 1895, as an act of annexation, was within the constitutional power of the legislature, though it changed, as to the twenty-second senate district, the county boundaries of the district.
    6. Same.
    The construction of the annexation act, which affirms its validity as-such, but leaves the annexed territory part of the twenty-second district and of the second judicial district and department and within the jurisdiction of the board of supervisors of Westchester county for the purpose of forming assembly districts, most clearly harmonizes the provisions of the constitution relating to senate, judicial and assembly districts, and the power possessed by the legislature to divide counties and towns.
    7. Same.
    The words “in every respect and to the same extent,” found in the Annexation Act, read in connection with the context, are satisfied by construing them as referring to municipal burdens and municipal rights in which the annexed territory and its inhabitants were to share.
    8. Same.
    The voters in the annexed territory are entitled to vote for senator, member of assembly and for justices of the supreme court the same as though the Annexation Act had not been passed; but the elections in the annexed territory will of necessity be conducted under the control of the election officers "of the city and county of New York, and the returns will he made to the proper authorities of Westchester county.
    9. Same—Constitutional.
    The Annexation Act of 1895 is constitutional, hut does not operate to take the annexed territory out of the jurisdiction of the board of supervisors of Westchester county in forming assembly districts pursuant to section 5, art. 3, of the constitution, and it was the duty of the hoard at its meeting, on the second Tuesday of June, 1895, to have included the annexed territory within one of the three senate districts allotted by the Constitution to the county of Westchester.
    10. Same—Mandamus.
    
      Mandamus is properly granted to compel the hoard of supervisors of Westchester county, which then failed, to perform this duty.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term directing the issuance o£ a peremptory writ of mandamus, requiring the board of supervisors of Westchester county to re-asseinble and divide the said county into three assembly districts, in accordance with the provisions of the constitution of the state of Hew York.
    The appeal was heard September 17, 1895, at a special session of the court, convened in accordance with the provision of the constitution (art. 3, § 5), that “any court before which a cause may be pending involving an appointment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session, it shall convene promptly for the disposition of the same."
    On September 27, 1895, the court rendered the following decision :
    “1st. That the act, chapter 934 of the Laws of 1895, annexing certain territory taken from the county of Westchester to the city and county of Hew York is constitutional.
    “2nd. That by virtue of the act the annexed territory became, for all purposes of local government and administration, a part of the city and county of Hew York, except as otherwise provided therein.
    “3rd. That the act did not operate to change the territorial boundaries of the twenty-second senate district, established by the constitution of 1894; or to take the annexed territory out of the jurisdiction of the board of supervisors of Westchester county, in forming assembly districts pursuant to section 5 of article 3 of the constitution ; or to change the boundaries of the second judicial district, as they existed when the act was passed, or the boundaries-of the second judicial department, as established by'chapter 376 of the Laws of 1895.
    “4th. That for the- purpose of voting for senator, members of assembly and justices of the supreme court, the annexed territory is to be regarded as a part of the twenty-second senate district, and of ad assembly district to be formed bv the board of supervisors of Westchester county, and of the second judicial district.
    “5th. That the public property in the annexed territory vested under the act of annexation in tíre mayor, aldermen and commonalty of Hew York, as provided in said act.
    “6th. That it became the duty of the board of supervisors of Westchester county, at its meeting on the second Tuesday of June, 1895, to include the annexed territory within one of the three assembly districts allotted by the constitution of the county of Westchester.
    “7th. That having omitted to perform their duty, the mandamus was properly granted.
    “ The order and judgment of the general term is, therefore, affirmed, with costs to the relator.”
    Thereafter, on October 8, 1895, on the re-assembling of the court in regular session, the opinion was handed down, in which the facts, so far as material, are stated.
    
      William H. Robertson, for app’lt; William D. Guthrie, for resp’t; Won. B. Hornbloweo' and McOready Sykes, for app’It in People ex rel. Field v. Board of Aldermen of the city of New York; Francis M. Scott and John Proctor Claodce, for resp’ts in People ex rel. Field v. Board of Aldermen, etc.; Town of Westchester v. Haffen, and the village of Williamsbridge v. Haffen.
   Andrews, Ch. J.

This controversy involves the constitutionality of chap. 934 of the Laws of 1895, approved June 6, 1895, and which took effect the same day, annexing a portion of the county of Westchester to the county of New York. The annexed territory at the time of the annexation consisted of a town and parts of towns, and of two villages in the county of Westchester, having a population of upwards of 13,000 persons, excluding aliens, of whom about 2,500 were duly qualified voters. The act declared that the territory therein described, “with the inhabitants and estates therein, is hereby set off from the county of Westchester and annexed to, merged in and made a part of the city and county of New York and of the twenty-fourth ward of said city and county, subject to the same laws, ordinances, regulations, obligations and liabilities, and entitled to the same rights, privileges, franchises and immunities in every respect and to the same extent as if said territory had been included within said city and county of New York at the time of the grant and adoption of the first charter and organization thereof and had so remained to the passage of this act, and except as may be modified by this act, as if such territory had been included within said twenty-fourth ward by the provisions of chapter 613 of the Laws of"1873, entitled ‘An act to provide for the annexation of the towns of Morrisania, West Farms and Kingsbridge in the county of Westchester to the city and county of New York, and the several acts amendatory thereof, and had so remained up to the passage of this act.’ ” The board of supervisors of Westchester county assembled on the second Tuesday of June, 1895 (six days after the act of annexation took effect), pursuant to the requirement of section 5, art. 3, of the new constitution, to divide the county into three assembly districts, equal to the number of members of" assembly apportioned to Westchester county, and made the division of the then existing territory of the county into three assembly districts, excluding from the division the territory embraced in the act of annexation. The board of aldermen of the city of New York on the same day assembled and divided the city and county of New York into assembly districts, but in the division no notice was taken of the annexed territory, and the division was confined to the territory of the city and county of New York as it existed before the act of annexation. The result of the action of the two boards was, therefore, to leave the annexed territory unattached to any assembly district. Thereupon the proceeding was instituted to compel the board of supervisors of Westchester county to re-assemble and re-form the assembly districts by including in the division the territory taken from the county of Westchester by the act of annexation. The proceeding was taken on the view that, notwithstanding the act, the annexed territory remained a part of West-Chester county for assembly district purposes. A mandamus proceeding was also instituted in the ciiy and county of New York to compel the board of aldermen of that city to re-assemble and include in an assembly district to be found therein the territory added to the county by the act of annexation. This proceeding was based on the contention that the act of annexation operated from the time of its passage to make the excluded territory for all purposes, including the formation of assembly districts, a part of the city and county of New York. In addition to the two proceedings mentioned, actions were commenced in the county of Westchester, one by the town of Westchester and one by the villige of Williamsbridge, which town and village were included in the act of annexation, against certain officers of the street and police departments of the city of New York, who, acting under the authority of the city, had intermeddled with the public property of the town and village, to obtain an injunction to restrain them from interfering therewith. The act of annexation by its terms vests in the mayor, aldermen and commonalty of the city and county of New York all the public property in the annexed territory, and these actions were based upon the theory that the act of annexation was wholly unconstitutional and void for all purposes whatever. The mandamus proceeding against the board of aldermen of the city and county of New York has been heard and decided by the special and general terms in the first district and department, and the other mandamus proceeding and the injunction actions by the courts in the second department, and all the cases have been argued before us on appeal. The courts below have concurred in the opinion that the annexed territory should he treated as a part of Westchester county in the formation of assembly districts, and that it was the duty of the board of supervisors of Westchester county to have included it in one of the three districts in that county. The courts in the second department affirmed the constitutionality of the act, chap. 934 of the Laws ■of 1895, as an act of annexation, but held that the annexed territory is still a part of the twenty-second senate district, and that for the purpose of voting for senator, assemblyman and judges of the supreme court, it must still be considered as- a part of Westchester county. The learned judge who delivered the opinion at special term in the case arising in the city and county of New York, held substantially the same view as that of the judges in the second district. The general term of the first department did not pass upon the question of the constitutionality of the act, but limited itself to deciding the precise question presented in that case, viz., whether the annexed territory should he included in an assembly district in the city and county of New York, or in the county of Westchester. The appeals before us, taken together, cover the whole field of controversy, and they impose upon the court the duty of finally determining the grave and difficult questions presented.

The main grounds of attack upon the constitutionality of the Annexation Act are (1) that it changes the twenty-second senate district, which by the constitution was declared to consist of the county of Westchester, the claim being that no alteration in county lines can be made without changing the senate district, since by constitutional arrangement the county of Westchester with its established boundaries at the time of the adoption of the constitution of 1894 and tlm senate districts, were and must remain inseparably associated until after another enumeration; (2) that taking from Westchester county a part of its territory changes the basis of the apportionment of members of assembly made by the constitution to the county of Westchester and nullifies the requirement that each assembly district shall be wholly within a senate district formed by the constitution, because it would become impossible of execution if the act is valid. The twenty-second senate district, it is claimed, existing after the act took effect, would not be the same district defined in the constitutional apportionment, viz., the county of Westchester as then organized; (3) the act changes the lines of judicial districts and departments theretofore established, in defiance of constitutional restrictions.

It becomes necessary in considering these objections to-refer to the provisions of the new constitution. . The constitution, by section 3, article 3, divides the entire territory of the state into fifty senate districts, corresponding to the number of senators to be elected, consisting of one or more counties or of subdivisions of a county. It declares that the twenty-second senate district shall consist of the county of Westchester, and it divides the city and county of New York into twelve senate districts, bounding each of the twelve districts by streets and avenues, or by streets, avenues and public waters, except that in constituting the twenty-first senate district (one of the twelve districts) a general clause is added to the description by streets and avenues, which includes therein territory taken from the county of Westchester and annexed to the city and county of New York by the act chapter 613 of the Laws of 1873, which territory, it is saicl, had not been mapped and laid out with streets or avenues on a permanent plan when the convention prepared the legislative article. Section 4 of the same article provides that an enumeration of the inhabitants of the state shall be taken in the year 1905, and every tenth year thereafter, and directs, that the senate 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 a form as possible, 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 one county." The section also prohibits the division of a town, or block in a city inclosed by streets or public ways, in the formation of a senate district. By section 1 of the same article the assembly is to consist of one hundred and fifty members. Section 5 deals with the subject of apportionment of members of assembly, and prescribes the manner of constituting assembly districts in counties entitled to more than one •member. It perpetuates the single district system, and declares that each county theretofore established (counting Fulton and Hamilton counties as one county) shall be entitled to one member <of assembly. It directs that the members of assembly shall be apportioned by the legislature at the first regular session, after the return of every enumeration, “among the several counties of the state as nearly as may be, according to the number of their respective inhabitants, excluding aliens.” It prescribes the ratio for apportionment and how members shall be apportioned on remainders. The section itself makes the apportionment. It declares that, “until after the next enumeration, members of assembly shall be apportioned among the counties as followsand apportions thirty-five members to the county of Hew York and three members of the county of Westchester. The constitution does not, as In the case of senate districts, divide counties entitled to more than one member into assembly districts. It imposes that duty upon the boards of supervisors, except that in any city embracing an entire county and having no board of supervisors, the common •council or the body exercising the powers of a common council is to make the division. This latter provision, under existing circumstances, is applicable only to the city and county of Hew York. The board of supervisors of any county entitled to more than one member of assembly, or in the city and county of Hew York, the common council of that city, is required to “assemble on the second Tuesday of June, 1895, and at such time as the legislature making an apportionment shall prescribe, and divide such counties into assembly districts, as nearly equal in number oi inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county shall be entitledand (the section adds): “Such apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. ” It prohibits the division of a town or block in a city in forming assembly districts, and following the provisions above enumerated are the words: “Hothing in this section shall prevent the division, at any time, of counties and towns and the erection of new towns by the legislature.”

Section 1, article 6, of the new constitution, continued the existing judicial districts “until changed as hereinafter provided,” and authorizes the legislature to alter the judicial districts “once after every enumeration of the inhabitants of the state.”' Section '2 of the same article declares that the legislature shall divide the state into four judicial departments; “The first department shall consist of the county of Hew York, the others shall be bounded by county lines.” In obedience to this mandate of the constitution the legislature on the 13th day of April, 1895, two months prior to the act of annexation now in question, divided the state into four judicial departments, the first consisting of the county of Hew York, and the second “of the counties embraced within the present second judicial district,” of which Westchester county was one.

The act of annexation, as has been stated, set off from the county of Westchester the territory described therein, with its inhabitants and estates, and declared that it was annexed to and merged in, and made a'part of the city and county of New York. As a necessary consequence, it divided the county of Westchester and changed the boundary lines both of the county of Westchester and the county of New York. It preserved, however, the existing arrangements for the collection of unpaid taxes and assessments in the territory annexed, and the sale of lands therefor, and provided for the equitable apportionment and for the payment by the city and county of New York, of such portion of the debts and obligations of the county of Westchester and of the towns and villages taken from Westchester, as should be fixed by the apportionment. If the act is valid, the territory taken from Westchester county became from the time of the approval of the act on the 6th day of June, 1895, except as otherwise specified therein, for all purposes of local government and administration, a part of the city and county of New York, and it was made subject to the burdens and became entitled to the rights, privileges and immunities, “in every respect and to the same extent,” as if the annexed territory had originally been a part of that city and county and had been included in the territory annexed thereto from the county of Westchester by the act chapter 613 of the Laws of 1873 and the acts amendatory thereof.

The constitution vests in the senate and assembly the legislative power of the state (Canst, art. 3, § 1), and the power to divide counties or townsj and to erect new counties and towns, or to change their boundaries, is legislative in its character and is conferred upon the senate and assembly by the general or legislative power; and unless restrained in a particular case by other provisions or arrangements of the constitution, the time and mode of its exercise is in the discretion of the legislature. The power of the-legislature to erect new counties, although not conferred by any express grant, is implied in the prohibition in § 5, art. 3, relating-to members of assembly, that “no new county shall be hereafter-erected unless its population shall entitle it to a member.” The power is by this clause both recognized and limited. The power to divide towns or counties, or to erect new towns, was not given by any direct language in the constitution of 1846, but it was exercised in many cases by the legislature as a part of its ordinary legislative • power. We shall have occasion to refer to some provisions in the constitution of 1894, in which the existence of this-power is expressly recognized.

The act of annexation now in.question is, therefore, presumptively valid, because it is an act of legislation within the ordinary scope of legislative power, and for the further reason that the presumption of constitutionality attaches to every statute enacted by the legislature. The duty and the burden of establishing that the act of annexation is unconstitutional rests, therefore, upon the parties asserting its unconstitutionality. It needs no citation of authorities in support of the doctrine that a statute can be dedared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the constitution has been resorted to, and reconciliation has been found impossible, the statute will be upheld.

The senate districts are established by the constitution. The whole territory of the state is by section 3, article 3, divided into senate districts upon a plan which preserves the unity of the county in their formation, no county being divided except to constitute two or more senate districts within the same county. The rule that counties were not to be divided in the formation of senate districts except in the cases specified, was followed by the convention, and it was made obligatory in all future apportionments. We think it is plain that the general scheme of the constitution was to associate senate districts with county organizations and to make them co-terminous with county boundaries, and that when by the constitution it was declared that a senate district was to consist of certain specified counties, there was established an organic relation between the counties as they existed territorially at the adoption •of the constitution and the senate districts thereby established, and that a subsequent change of county boundaries by the legislature, whereby a senate district would comprise a part of two counties, would violate the constitutional plan, unless permitted by some other provision of the instrument. The claim that the counties determine the senate districts merely in the sense that their boundaries on a certain day were used as convenient measurements for the districts ignores the constant relations between counties and senate districts which has been maintained during the whole existence of the state government. This was equally true of the large senate districts established by the constitutions of 1777 and 1821, and of the single senate districts under the constitution of 1846 and the constitution of 1894. The general principle that the apportionment of representatives in the legislature is to be made upon the basis of population has been modified to preserve the autonomy of counties and their relation to representative senate districts. There could doubtless be a more exact mathematical division of population for the purpose of legislative representation, if the boundaries of counties were disregarded. But the principle of equality in representation is to some extent subordinated to the purpose of making counties the representative territorial units in the apportionment of senators. It is not difficult to trace the origin of this system embodied in the state constitution. It has its root in the prominence given to county government and to county organizations from the earliest period of our history and to the habits and associations of the people formed under the county system. The territory of the state in colonial times was divided into counties. Under the state constitution the county has been the agency of local government and administration in county affairs. Through the counties the state collects its taxes, and through county officers the judgments of its courts have been executed. Powers of local legislation from the beginning have to a greater or less extent been exercised by county boards, and the inhabitants of a county have been accustomed to act together in public affairs and in the promotion of local interests. It was not for mere convenience, therefore, that senate districts established by the constitution were made to consist of counties. There was inserted in the constitution of 1821 a provision which has been incorporated into every subsequent state constitution, that “no county should be divided in the formation of a senate district,” a provision which, though addressed to the legislature and applicable to future apportionments only, is an emphatic formulation of the policy which has uniformly "prevailed.

We assent, therefore,, to the proposition that when the constitution declares that the twenty-second senate district shall consist of the county of Westchester, it was a declaration that the county of Westchester as then organized, with its then existing territorial limits, should constitute that district, and that a change of the territorial boundaries of the county would change the senate -district as established, because neither the whole district nor any part of it was by the general scheme to remain outside of the county organization.

The answer that the word “ county ” in article 3, section 3, constituting Westchester county as the twenty-second senate district, refers to that county as a political organization, and that so long as the county exists, although shorn of a part of its territory, the part remaining constitutes the district, must be rejected. The claim assumes that by the act of annexation the exscinded territory became, for senate district purposes, a part of the city and county of New York. The specific boundaries in the constitution of the senate districts in the city and county of New York by streets, avenues and public waters, with the general clause in connection with the boundaries of the twenty-first district, inserted to embrace territory in the city not capable of a description by street boundaries, do not admit of enlargement so as to include territory subsequently added to the city by the legislature, and the added territory would form no part of any senate district in the state if dissevered from the twenty-second district. But there is a broader objection to an interpretation of the constitution which would permit the legislature to take territory from one county and senate district and annex it to another senate district. It would interfere with the basis of apportionment founded upon population, upon which the convention acted, and enable the legislature at any time, by changing the boundaries of counties, to subvert the approximate equality in' population of the senate districts which it was the aim of the constitution to establish. It would place it in the power of the legislature to undo and defeat the work of the convention under guise of changing county boundaries. The constitution gave to the county of Westchester one senator and three members of assembly, and the apportionment was fixed on the basis of its then existing population. The argument assumes that Westchester county would continue until another enumeration entitled to one senator and three members of assembly, although the greater share of its population may, by an act of annexation, be transferred to another county, and although the county to which it is annexed will gain no additional representation. The consequences which might flow from the interpretation of the constitution just considered forbid its ■adoption. It would open the door for legislative interference with representative districts for partisan purposes under the guise •of changing the boundaries of counties, the prevention of which was the object of several provisions of the constitution.

Leaving out of view for the present a consideration of special clauses in the new constitution relating to the division of counties and towns, and assuming that the legislative power over the subject is that only which is embraced in the general grant of legislative power, we have on the one hand senate districts consisting of counties constituted and defined by the constitution, and on the other a general legislative power to change the boundaries of counties and towns and to erect new ones. The constitution contains no express declaration restraining the legislature from altering the senate districts established by that instrument, intermediate a decennial enumeration. It requires the legislature so to alter the districts as to produce equality as near as may be, at the first regular session after the return of every enumeration, but no power is given by express language to alter them at any other time. If the validity of the act of annexation now in question ■depends solely upon the force of the general grant of legislative power, the case of Lanning v. Carpenter, 20 N. Y. 447, is an authority against its constitutionality. That case arose under the constitution of 1846 and involved the validity of the law passed in 1854 (intermediate two decennial periods), creating Schuyler county out of parts of three counties, and the new county as formed embraced parts of two senate districts and of two judicial districts. The act was held by a divided court to be unconstitutional for the reason that the existing judicial, senate and assembly districts organized by or in pursuance of the constitution then in force, continued unchangeable until after the next succeeding enumeration and that a change of county boundaries, which should leave senate-districts not bounded by county lines, was a change in contravention of the constitutional requirement that they should consist of entire counties. It was claimed in. support of the act that the power to create a new county was vested in the legislature under the general grant of legislative power and that such incidental and temporary changes in the county boundaries of judicial and legislative districts as might result from the exercise of this power did not invalidate the act. The court rejected this view, and held that the general power must yield to the specific regulations for the formation of senate and judicial districts, and that the power of the legislature to erect a new county, if it involved a change in the boundaries of senate and judicial districts by county lines, could only be exercised contemporaneously with the return of a new enumeration. In the subsequent case of Kinne v. City of Syracuse, 3 Keyes, 110, an act changing the boundaries of the city of Syracuse, passed in 1858, by annexing territory belonging to an assembly district in that county to territory in another assembly district therein, was held to be invalid on the ground that it was an alteration of assembly districts intermediate two decennial periods, in violation of the constitution.

But the question as to the validity of the annexation act of 1895 does not arise under the constitution of 1846. The constitution of 1894 contains provisions not found in the constitution of 1846, which in our judgment materially affect the question now to be determined. When the constitutional commission of 1873 assembled these cases had been decided. The legislative article proposed by that commission divided the state into eight senate districts, as under the constitution of 1821, and apportioned the members of assembly among the counties as under the constitution of 1846. It appears from the journal of the commission that after the legislative article had been reported by-the committee having this subject in charge, on motion of a member from the seventh judicial district, whoresided in one of the counties from which Schuyler county was taken, the article was by unanimous consent amended by adding to the section relating to the apportionment of members of assembly and the constitution of assembly districts the clause: “Nothing in this section shall prevent division at any time of towns and counties to be effectual for the purpose of town and county administration.” See Journal of Constitutional Commission, p. 408. Subsequently, when the article was reported by the committee on revision, this clause was changed so as to read : “Nothing in this section shall prevent division at anytime of counties and towns and the erection of new towns and counties by the legislature,” and in this form was adopted by the people. But the plan of eight senate districts was rejected. The clause in a form slightly changed is incorporated -in the present constitution. There was no similar clause in the constitution of 1846. There can be no doubt that this provision was inserted to overrule the doctrine of the Kinne case and to relieve the legislature in the exercise of the power to divide counties and towns from the restriction imposed by the decision in that case. The power, it declares, may be exercised “at any time” It is neither restricted as to time, nor by the relation which the dissevered territory may bear to existing assembly districts. Under this power a town may at any time be taken from one county and added to another. Towns belonging to one assembly district may be divided, and the part taken away may be added to a town in another assembly district. Such changes would not violate the prohibitions that “ no-town shall be divided in the formation of assembly districts,” and that assembly districts once formed “ shall remain unaltered until another enumeration," on the construction that the assembly districts existing when a division is made remain territorially the same, notwithstanding the division. It is true that the clause is inserted in the section relating to the apportionment of assemblymen and the creation of assembly districts, and declares that “ nothing in this section shall prevent,” etc. Upon this reading is based an argument that the rule in Lanning v. Carpenter, as applicable to the change of .senate districts, remains unaffected. But we think the insertion of this clause indicates an intention to leave the legislature free to exercise the power to change the boundaries of counties and towns and to erect new towns at any time in its discretion. It is difficult to see any reason for denying this power when its exercise would affect a senate district, and for permitting its exercise in the case of the smaller unit. There is another clause of some significance in the legislative article of the new constitution, taken from the amendments of 1874; “ but the legislature may abolish the county of Hamilton and annex the territory thereof to some other county or counties.” This power could not be exercised between two apportionments without changing the lines of the 27th senate district, since after the division that district would cease to be bounded by county lines.

We are of the opinion that, under the present constitution, the act chapter 934 of the Laws of 1895, as an act of annexation, was within the constitutional power of the legislature, although it changed, as to the twenty-second senate district, the county boundaries of the district. But such effect should be given to the act as will least disturb the general plan, and this will be accomplished by regarding the annexed territory as still a part of that district for the election of a senator. The departure from the plan that senate districts shall be bounded by county lines will be temporary. Upon a new enumeration, the counties of ■New York and Westchester, as they stand at that time, will be units of division in forming the new legislative districts. It will be then the duty of the legislature, under the mandatory provisions of the constitution, to organize the senate districts out of the then existing counties, and courts in considering the constitutionality of statutes may act upon the assumption that a duty positively enjoined will be performed. This mode of reconciliation between the constitution and the statute will not interfere with the policy, so carefully guarded in the constitution, of preventing a change of representative districts intermediate two enumerations, for partisan purposes. It also gives full effect to the requirement of the constitution, article 3, section 5, that boards of supervisors in constituting assembly districts shall so arrange them that each assembly district “ shall be wholly within a senate district formed under the same apportionment.”

There are some embarrassments in regarding the annexed territory as part of the county of Westchester for the purpose of division of the county into assembly districts. Boards of supervisors in counties entitled to more than one member of assembly are, by sections 5, article 3 of the Constitution, to meet, and “ divide such counties ” into assembly districts. The annexation act took the annexed territory out of Westchester county and made it a part of the county of New York. Its corporate relation to Westchester county was changed. The framers of the constitution may not in using the word “ counties ” have had in view the case of a change of county boundaries after an apportionment and before a division into assembly districts. But, construing the word “ counties ” in this connection as meaning the territorial division existing when the apportionment was made, the difficulty may be overcome. So also upon the construction we give to the act of annexation, the inhabitants of the annexed territory will not be represented in the board of supervisors of Westchester county when it comes to form the assembly districts. So also their interests as residents of the city and county of New York may possibly at time be antagonistic to those of the inhabitants of Westchester county, and yet the senator and members of assembly from that county will be the common representatives of such diverse interests.

We are not unmindful of the difficulties in the case. But they attend any construction which may be given to constitutional provisions, on their face somewhat hostile, but which the court is bound if possible to reconcile. We think the construction of, the act of annexation, which affirms its validity as such, but leaves the annexed territory part of the twenty-second district and of the second judicial district and department, and within the jurisdiction of the board of supervisors of Westchester county for the purpose of forming assembly districts, most nearly harmonizes the provisions of the constitution relating to senate, judicial and assembly districts, and the power possessed by the legislature to divide counties and towns.

The objection to the annexation act that it violates the constitutional provision establishing judicial districts and departments, is answered by the reasoning upon which we sustain the change in the county lines of the twenty-second senate district.

The words, “ in every respect and to the same extent,” found in the annexation act, read in connection with the context, are satisfied by construing them as referring to municipal burdens and municipal rights in which the annexed territory and its inhabitants were to share. The voters in the annexed territory will be entitled to vote for senator, member of assembly and for justices of the supreme court, the same as though the annexation act had not been passed. Elections in the annexed territory will of necessity be conducted under the control of the election officers of the city and county of New York, and the returns will be made to the proper authorities of Westchester county. This was the plan adopted under the annexation act of 1873, and for several years elections were conducted thereunder without confusion or difficulty.

Our conclusion is that the annexation act of 1895 is constitutional, but that it did not operate to take the annexed territory out of the jurisdiction of the board of supervisors of Westchester county in.forming assembly districts pursuant to section 5, article 3 of the constitution, and that it was the duty of the board at its meeting, on the second Tuesday of June, 1895, to have included the annexed territory within one of the three assembly districts allotted by the constitution to the county of Westchester. The board having failed to perform this duty, the maridamus was properly granted.

The judgment should be affirmed.

All concur .

Judgment affirmed.  