
    Rumsey, Plaintiff in error, v. The People, Defendants in error.
    The Constitution gives to the Legislature general power to erect new counties, without restricting its discretion as to the time or mode of exercising such power.
    The question whether the territory of a new county contains ‘sufficient representative population relates to the time of its erection. The Legislature is not restricted to the last preceding census, for evidence as to the population, but determines it as a question of fact, and its determination is not reviewable elsewhere.
    
      It seems that the Legislature has constitutional power to create a new county out of different Senate, Assembly and judicial districts, postponing the operation of the act in respect to the representation of the existing districts in the Senate and Assembly, and the election of Senators, Members of Assembly, and Justices of the Supreme Court until after the next decennial census.
    The provision of the Constitution for reorganizing the Senate and Assembly districts at the session of the Legislature next succeeding the decennial census, is directory merely, and an act for that purpose, passed at a subsequent session, is valid.
    An act, at a session of the Legislature subsequent to that next succeeding the decennial census, and providing for attaching a county, formed after the last organization of the judicial districts, from parts of two of them, to one of those districts, is not to be regarded as a reorganization of the judicial districts of the State, within the spirit and meaning of the constitutional inhibition of a reorganization at any other time than the session next succeeding the return of the census.
    
      An act for an organization of a county will not be declared void for supposed constitutional objections, after its existence has been recognized for years by all departments of the government except the judicial: successive sessions of the Legislature have been organized and acted upon the assumption of its constitutional existence, admitting members whose right to sit depended upon the validity of such organization; and it has entered into the whole structure and operation of government.
    Writ of error to the Supreme Court. Rumsey was tried at the Chemung Oyer and Terminer in September, 1857, for an assault with intent to kill, alleged in the indictment to have been committed in the town of Catharine in the county of Chemung. The defendant put in a plea to the jurisdiction of the court because the offence was not committed in the county of Chemung, "nor within five hundred yards thereof, but in the county of Schuyler. The district attorney admitted that the offence was committed in that part of the town of Catharine which was formerly included in Chemung county, but was transferred to Schuyler county by the act organizing the latter, provided that act was constitutional. The court held the act unconstitutional and overruled the plea. The same question was raised by subsequent exceptions taken on the trial. The other questions are sufficiently stated in the following opinion. The prisoner was convicted and sentenced. The conviction was affirmed by the Supreme Court in the sixth district, and the defendant brought the record, by a writ of error, to this court.
    
      Nicholas Hill, for the plaintiff in error.
    
      Alexander S. Diven, for The People.
   S. B. Strong, J.

The defendant was indicted, tried and convicted in the county of Chemung, for an offence committed in the town of Catharine, in that part of the former county of Chemung, now, and at the time of the perpetration of the crime, constituting a part of the contested county of Schuyler, and at a place confessedly more than five hundred yards from the division line between the two counties. He was convicted at a Court of Oyer and Terminer, held in the county of Che-mung, and the conviction was affirmed at a general term of the Supreme Court in the sixth judicial district. Various exceptions were taken to the decisions of the Court of Oyer and Terminer in the admission of evidence, and to the charge to the jury, upon some points, and the refusal to charge as requested upon others. Hone of them seem to present any serious difficulty, except that relating to the organization of the county of Schuyler.

The indictment was for an assault with a deadly and dangerous weapon with an intent to kill. It was proved on the trial that there was a violent quarrel between the defendant and George Wickham, upon whom the assault was committed. The defendant told Wickham that he lied, and Wickham threatened to knock him down, and approached nearer to him for that purpose, when the defendant made an effort to stab Wickham with a knife, when Wickham retreated about a rod and the defendant followed, holding on to Wickham with one hand and stabbing him with the other between the eighth and ninth ribs, and at the left hip. A surgeon was asked on the trial, whether the wound on the chest endangered life. The question was objected to by the counsel for the defendant, but it was admitted by the court. It seems to me that the question was properly admitted. The witness was an expert, and the infliction of a dangerous wound was more indicative of an intent to kill than would have been one of a slighter character.

The court was requested by the counsel for the defendant to charge the jury that, if Wickham made the first assault, and the defendant, then having the knife in his hand, stabbed Wickham under such circumstances as would have constituted manslaughter if Wickham had died, he could not be convicted of an assault. Probably there is an omission in this part of the case. The counsel must have meant an assault with an intent to kill, otherwise the request would have been palpably absurd. But with that addition the court properly refused so to charge. One description of manslaughter in the second degree is, the unnecessary killing of another while resisting an attempt by such other person to commit any felony, or to do- any other unlawful act. In such case there may have been an intent to kill, under an actual but erroneous impression that it was necessary, in order to prevent the commission of the unlawful act. Probably if the conflict in question had terminated in the death of the person assailed, and the defendant had been tried for murder, he would have availed himself of the supposed necessity to reduce the crime to manslaughter. Indeed, if the proof had shown an intent to kill that would have been his only defence.

The court was right in charging the jury, that it was to be presumed that the defendant intended the natural consequences of his acts, and that it was for them to say whether the defendant, at the time when he inflicted the wounds, intended to kill. It mattered not when the design was formed; whether sometime before, or at the moment. All that the statute requires is, that it shall exist at the time. The court was also correct in saying, .that even if the defendant had been justified in the first blow which he gave to Wickham, yet if he wrongfully and unnecessarily followed Wickham, with an intent to kill, he was as guilty as if he had struck the first blow wrongfully. The court, no doubt, meant so far as it related to the charge for which he was tried. There is no pretence that the assaults upon Wickham, when he was retreating, were in self-defence.

The only remaining material question relates to the organization of the county of Schuyler. If the statute purporting to organize that county was originally unconstitutional, and had not been confirmed by subsequent legislation at the time when the crime alleged against the defendant was committed (13th of June, 1857), or at the time of his trial (September, 1857), then the town of Catharine was still, de jure, a part of the county of Chemung; and the proceedings in that county were legal, and should be sustained: otherwise, not. The jurisdiction of our Courts of Oyer and Terminer, and of grand juries, is confined to their own county, and the territory of the adjoining counties, within five'hundred yards of its limits (2 R. S., 205, § 29; 727, § 45). There are some exceptional cases, but they do not extend to the crime charged against the defendant.

The act to erect the county of Schuyler was passed on the 17th of April, 1854. The 6th section is in the following words: “All those parts of the counties of Steuben, Chemung, and Tompkins, which, after this act goes into effect, will be embraced within the towns of Orange, Tyrone, Reading, Catharine (including such parts of Newfield as was provided to be attached to Catharine, by chapter three hundred and twenty-seven, Laws of eighteen hundred and fifty-three), Dix, Cayuta, and Hector, shall, from and after the passage of this act, be, for all purposes except the election of members of the Legislature and Justices of the Supreme Court, . and for the holding and jurisdiction of Supreme and Circuit Courts and Courts of Oyer and Terminer, until after the next State census or enumeration, and thereafter, for all purposes whatever, a separate and distinct county of the State of New York, and shall be known or distinguished by the name of Schuyler; and the freeholders and other inhabitants of the said county of Schuyler, for all purposes (except as aforesaid), shall have and enjoy all and every the same rights, powers, and privileges as the freeholders and inhabitants of any of the counties of this State are by law entitled to have and enjoy, and not subject to be assessed and taxed by any of the counties from which they are by this act taken.” And the 7th section is as follows: “The electors of the territory embraced within the said new county of Schuyler, until after the next State census or enumeration, shall continue to vote for members of the Legislature, and Justices of the Supreme Court, as electors of the respective counties to which they have heretofore belonged, the same as if this act had not been passed; and for all other purposes they shall vote as electors of the new county of Schuyler; and they shall belong to, and form a part of, the twenty-seventh congressional district of the State.” By the 1st, 2d and 4th sections, additions were made to the towns of Orange, Tyrone, and Cayuta, from other towns retained in the counties of Steuben and Chemung; and by the Sd section' a part of the town of Cayuta was erected into a separate town, which remained in the county of Chémting.

By the 1st section of the 3d article of our existing State Constitution, the legislative power of this State is vested in a Senate and Assembly. Ho portion of such power has been retained by the people, nor can it be exercised by them, as was decided by this court in reference- to the free school act of 1849. (Barto v. Himrod, 4 Seld., 483.) Under this constitutional grant (for I consider it as such, and not as a mere recognition of an original inherent right), the Legislature acquired the power to erect new counties. Whatever may be the rule in other cases, this power is no further restricted than by the people in their organic law. A restriction may be in direct terms or by implication. It is by implication in any case where its exercise would be in conflict with any other constitutional provision. But in the latter case, the discrepance must be organic, not merely such as may affect some unimportant detail. In other words, the objection, to be available, must extend to the vitality of the proposed measure. There is but one restriction in direct terms to the power to organize new counties. That is contained in a part of the 5th section of the 3d article of the Constitution, and is in the following words: “Ho new county shall hereafter be erected, unless its population shall entitle it to a member.” It is objected to the organization of the county of Schuyler that its territory did not, or that the Legislature did not legitimately ascertain that it did, contain the requisite population. It was contended that the census taken in 1845 furnished, and until the next decennial census of 1855 continued to furnish, the only legitimate evidence of representative population. I think that it was intended that such census should furnish the only criterion as to population in the reorganization of the judicial, Senate and Assembly districts. That is plainly to be inferred from the directions that such organizations shall be made at the first session after the return of any enumeration [art. 3, §§ 4, 5; art. 6, § 16), and so far as it relates to the judicial districts at no other time, and as to the Senate and Assembly districts, no alteration can be made until the next enumeration. There is nothing in reference to the erection of new counties requiring that the extent of the required population should be fixed by the next preceding census. The requisition is general, that its population shall entitle it to a member. Ordinarily, the qualifications of an act apply to the time when it is to be performed. There can be no different criterion, unless some other time is mentioned. There is no direction that new counties shall be constituted only at the first session after an enumeration, as there probably would have been if such enumeration was to furnish the only guide. No one supposes that the Legislature, in the exercise of the power in question, is confined to any particular time. It is left to the legislative bodies to ascertain the population in the best way they can. In this case the preceding census would have been a very uncertain and imperfect guide. There had been no distinct enumeration of the inhabitants of the entire territory. Portions of several towns were included, and a part of one was excluded, and the number of inhabitants in each had not probably been separately returned or taken by the deputy marshals. According to a statement in the points submitted by the counsel for the people, the number of inhabitants in the several towns in the new county, in 1845, fell short of the requisite population for a Member of Assembly, to the extent of about two thousand eight hundred. But that did not include the parts of other towns which had been added. The Legislature was, undoubtedly, the appropriate tribunal to make the requisite inquiry, in order to ascertain whether their proposed act would be in conformity with the constitutional requisition. It is to be presumed that due inquiry was made, and the statute must be considered as a legislative declaration that the population of the proposed new county was sufficient. It was said that the postponement of the time when the county was to act as a new constituent of the election districts, was caused by a deficiency in the existing population, or by an apprehension in the Legislature that there was one. But that is merely conjectural; and there was another palpable reason, which, according to the principles of logic, should prevail. The Constitution prohibited any alterations in the Assembly or Senate districts until after another census should be taken, and probably there was some apprehension that any change in the judicial districts until then, might be deemed objectionable. Undoubtedly, if the statute had contained a declaration that there was a deficiency in the population, it would have been/eZo de se. Nothing further would have been necessary to effect its nullification. I think that its virtual determination the other way, should be equally conclusive. Who could review .the conclusion of the legislative bodies on a question of fact? Certainly not a jury of twelve men. Nor can this court or any other judicial tribunal, assume, without proof, the existence of a fact for the purpose of nullifying a statute. It is true the Legislature may make a mistake as to a fact, or may willfully disregard the constitutional injunction. But all public functionaries, judicial as well as legislative, are liable to be mistaken, and yet questions must be submitted to them for their determination, and we must abide by the decision of those from whom there is no appeal, right or wrong. Then, as to a willful violation of the Constitution by the majority of those who have solemnly sworn to support it, that should not be presumed, A palpable disregard of a constitutional provision would soon work its own cure in a country where there are frequent elections, and the conduct of public men is, as it should be, subjected to a severe scrutiny.

I agree with the counsel for the people, that the Legislature has no more power to reduce an existing county below the ratio for a member, than it has to erect a new one without a sufficient population to entitle it to a member. That is not expressly prohibited by the Constitution, but it is apparent that it was the design that no change should be made in the organization of the counties which would, of itself, create a defective representation. But there is no evidence, except the census of 1845, which, of course, applied only to the time when it was taken, to show that the county of Chemung, and none at all to show that either the comities of Steuben and Tompkins, was reduced in population below the required standard. On the other hand, the presumption, from the census of 1845, is, that the county of Chemung, as well as the counties of Steuben and Tompkins, were severally left with the requisite population. The number of the inhabitants of the county of Chemung was, in that year, 27,288, which exceeded the one hundred, and twenty-eighth part of the popu. lation of the entire State; and as the proportion of the number of aliens in cities greatly exceeds that in the rural districts, that county, no doubt, contained a considerably larger proportion of the representative population. ' The change from 1854, when the new county was created, to 1855, when the census was taken, could not have been very considerable.

My conclusions upon the questions as to the requisite population are, first, that the constitutional provision as to that had reference to the time when a new county should be erected, and not to any time antecedent or subsequent; second, that it is to be presumed that the legislature obtained and acted upon sufficient evidence; third, that there is no power in our judicial tribunals to review the conclusion of that body upon a question of fact; and, fourth, if such interference of the judicial with the legislative department had been warranted, a statute should not be annulled upon mere presumption. It is different "where a constitutional principle has been clearly invaded or disregarded, to the destruction or invasion of a private right. In such cases, it is undoubtedly competent for our courts, in adjudging upon such right, to declare the nullity of a statute.

The statute creating the county of Schuyler does not make any change in the territory of either the Assembly, Senate, or'Judicial districts. Each inhabitant entitled to a vote could still vote in the same district in which he had exercised that franchise before. He was not, therefore, immediately deprived of any constitutional right in that respect. He would still be, in fact, represented in the Legislature, and, if representation can be deemed applicable to the judicial department, in that also. It is objected, however,' that this would be only until after the next State census, and that 'there might be an interval between the -completion of that enumeration and- - the reorganization of the districts, when the inhabitants of the new county could not vote- anywhere, nor be, in fact, represented in the Legislature. The word “ after,” as used in the statute, is quite indefinite. It may refer to the next moment following the completion of the census, or to the--time--when the Legislature-should act upon it in reorganizing the districts; Where a phrase is susceptible of two interpretations, by one of- which- there would' be a suspension, and by the other a continuance, of important political rights, the latter is undoubtedly to be preferred. But, at all events, if there might be a difficulty from ■ the interruption of constitutional rights, it would not be either an immediate or- a-necessary result. It would have béen prospective, and might have - been remedied by the Legislature. -A possible prospective objection, which might be removed, would not annul a statute at the time of its passage, nor repeal it when it should eventuate. It was undoubtedly incumbent upon the Legislature to reorganize the districts, as soon as that might be done after the State census. But if that body was remiss in performing that duty, its tardiness would not, nor would any of its effects,' so operate as to repeal a preexisting statute predicated upon a supposition that there -would be punctuality in conforming to its exigencies.

- It was contended on the argument, that the proposed organization was void, because it was without the immediate investment of all the legal attributes of a county. But what are the constitutional rights of which the county was deprived? The one mainly relied upon was, that every county is entitled to a Member of Assembly. The Constitution provides -that every county theretofore established and separately organized, except the' county of Hamilton, should always be entitled to one member of Assembly; but there is no provision that a new county should have a member immediately upon its creation. It is true, that it directs 'that no new county should be erected unless its population should entitle it to a member. Mo doubt it was designed that a member should be assigned to the new county immediately, when that could be done without depriving other counties of their just representation. But there may have been, subsequent to the preceding census, such an increase in the population in the remaining part of the county or counties from which it is taken, as might well happen in such counties as Kings and Erie, and probably many others, that they could not properly be deprived of the then existing number of their representatives in the Assembly, and thus a member could not always be assigned to the new county, unless it should be erected at the time of a general organization of the Assembly districts. That the Constitution does not require; and it is probable that the omission to direct in positive terms that a new county should be absolutely entitled to a member immediately after its erection was from a disposition not to fetter the Legislature as to the time of the admission of new counties. Representation in the Assembly is not always, and representation in the Senate is never, a mere county right. Senators are uniformly, and Assemblymen are generally, elected by districts.

It was further contended by the counsel for the people that the statute in question would, if effectual, have caused the line between the twenty-fifth and twenty-sixth senatorial districts, and the sixth and eighth judicial districts to cross and thus divide the new county, contrary to two provisions of the Constitution. One of the provisions to which the counsel alluded is contained in the latter part of the 4th section of the 3d article, and is in the following words: “And no county shall be divided in the formation of a Senate district, except such county shall be equitably entitled to two or more Senators.” The other provision is in the first part of the 4th section of the 6th article, and is in the following words: “ The State shall be divided into eight Judicial districts, of which the city of Mew York shall be one, the others to be bounded by county lines, and to be compact and equal in population as nearly as maybe.” These provisions are undoubtedly mandatory upon the Legislature, and cannot be disregarded. The expressions “ formation,” in one of them, and “the State shall be divided,” in the other, show that they were intended to apply to the construction and general organization of the districts. They do not apply directly, nor do I see any reason why they should apply, to the mere consequences of some other action of the Legislature, and had at other times. I repeat that there is no reason to suppose that it was designed to fetter the Legislature as to the time when new counties should be admitted in any part of the State. But if a new county cannot be created when the district lines would divide it, and if the boundaries of the districts cannot be altered except at the general organization of the different districts, then there could be no construction of the proposed new county when it would consist of territory from the adjoining districts, except at the identical time of the adoption of one, and occasionally, as in this instance, of two organizations, which could be effected in only one out of ten years. Can the Legislature be thus restricted by mere inference ? The evils of having a county thus divided would, under the provisions in this instance, be inconsiderable, and but of brief duration. They are not of sufficient magnitude to authorize us (if anything could sanction the procedure) to strain a provision of the Constitution beyond the fair import of its language in order to avoid them. The facts of the case then present it in this position: The power of the Legislature to erect new counties is undisputed; it is not restricted as to time or place, nor in any respect except as to the required population. In the exercise of such power the Legislature has constituted the county of Schuyler; in doing so it has necessarily, and without being able to avoid the difficulty, contravened what may be presumed to have been the intent of the framers of the organic law in a comparatively unimportant particular. The acknowledged power and the presumed intent are antagonistic: which should prevail ? Most assuredly the former. In coming to a conclusion upon that point we have a right to consider the evil which would result from the prevalence of either alternative. The evils which would be consequent upon sustaining the statute are, as has been already stated, owing to its provisions, inconsiderable, and must be (or rather have been) of short duration. Whereas, should the act be annulled and the new county annihilated, the consequences would be disastrous. Titles to real estate and securities upon such property might be defeated; judgments in civil and criminal actions might be annulled; taxes for ordinary and necessary purposes might be vacated; vexatious suits might be sustained for invalid oficial acts; elections might be set aside, and various questions might arise as to the vaEdity of our recent State legislation. I do not deny the rule that, when the injunctions of the Constitution are positive, and consistent with each other, they must prevail, whatever may be the consequences; but where there is a discrepancy between the full pxercise of a power clearly conferred, and a supposed restriction upon it, the evils which would result from yielding to such restriction may weH be considered in deciding whether an act consummated under the power should be sustained or defeated. That the directions as to the constitution of the Senate and judicial districts had reference to the time of their general organization, and to no other, is, I think, plainly inferable from the requisition that the judicial districts should be equal in population as nearly as might be. Such equality may exist at the time when the districts are formed, but in the unequal progress in population of the different districts cannot continue for the next ten years. ' Thus, before the expiration of ten years from the adoption of the Constitution, and indeed when the next State census was taken, the population of several of the judicial districts exceeded that of one of the others by nearly two hundred thousand. If one of the directions could not be continuous, and the language as to that and the others is the same, the inference is plain that all referred to the time of the general organization, and were intended simply to control that operation. My impressions upon this point are, that the directions against the division of a county in the division of the State into Senate districts, and requiring that the judicial districts should be bounded by county lines, were peremptory upon the Legislature in making the general organization, but that if the provisions had any application to other times, they were simply recommendatory, and that a non-conformity, and especially one that could not be avoided in the constitution of a new county at any such other time, would not be fatal to that measure.

The question as to the validity of the statute erecting the county of Schuyler, has been agitated before the Supreme Court in the sixth and seventh districts, and different decisions have been rendered. In the seventh district it was decided by the majority of a divided court, in December, 1854, that the statute was constitutional and valid. (De Camp v. Eveland, 19 Barb., 81.) In the sixth district .the decision (again by a majority of a divided court) was the other way. (Lyon v. Swan, Pamphlet Rep.) The date of the latter decision is not given, but it was some time after the judgment was rendered in De Camp v. Eveland. An elaborate and very able opinion of my brother Gray, in the case in the sixth district, is appended to the points in behalf of the people in this case. I have perused that opinion with much attention, but with great deference I differ from its conclusions. The authorities may thus far be considered as balanced.

If, however, the statute in question had been objectionable, on account of defects at the time of its passage,, it would be an important question whether the difficulties have not been removed by subsequent legislation. In an act passed on the 13th of April, 1857, apportioning the Members of Assembly of the State, one is allotted to “ the county of Schuyler” (Laws of 1857, vol. 1, 700), on the same day another act was passed constituting the Senate districts of the State, by which it was provided that the twenty-seventh district should consist of the counties of Chemung, Schuyler and Steuben (id., 702), and on the 15th of April, in the same year, an act was passed annexing the county of Schuyler to the sixth judicial district. (Laws of 1857, vol. 2, 30.) All of these enactments were made previous to the perpetration of the crime charged against the defendant. It has been objected to the acts constituting the Assembly apportionment, and the Senate districts, that they were not passed at the first session after the return of the enumeration made in 1855, according to the direction in the Constitution. (Art. 3, § 4). That direction has not generally been considered so peremptory as to prohibit the performance of those acts at another time. It is apparent that no such restriction was designed, as to the time wnen such apportionment of Assembly districts and formation of Senate districts should be established, from the omission of a direction contained in the provision relative to the reorganization of the judicial districts (art. 6, § 16), that it should be made at no other time.” As to the judicial districts there could, of course, be no general reorganization of them in 1857. There is an essential difference between the prohibitions as to intermediate changes in the. Senate and judicial districts; as to the former they are to remain “unaltered” until the return of another " enumeration” (art. 3, § 4), but as to the judicial districts it is provided that they shall not be reorganized at any other time than that specially designated. What is the reorganization mentioned in the Constitution? Literally, it is of the entire State but probably it was meant to apply to each district. It appears to me, however, that it would be straining the obvious meaning of the word to include such changes in the district as must necessarily result from the erection of a new county, or the alteration of the boundaries of a preexisting one, or of a town, The addition to one county and subtraction from the other would not change the organization of either, certainly not within the meaning of the Constitution. It was well remarked by Judge Dentó, in the case of The People v. Draper (15 N. Y., 546) that “the business of the courts is with the text of the fundamental law as they find it. They have no political maxims and no line of policy to further or advance. Their only duty is the humble one of construing the Constitution by the language which it contains, and it was truly said by Judge Savage, in the case of ex parte McCollom (1 Cow., 550), that before the court will deem it their duty to declare an act of the Legislature void, a ease must be presented in which there .can be no rational doubt. An act of the Legislature cannot be set - aside as unconstitutional, unless its incompatibility with the Constitution is manifest and unequivocal.” In that .case it was decided that a statute providing that justices of the peace, appointed for the county of Ontario by its county authorities, pursuant to the then existing Constitution, should, upon the erection of a part of its territory into the new county of Wayne, in which such justices resided, without any new appointment by the authorities of the new county, become justices of the peace of that county, was constitutional and valid; as the power to alter their territorial jurisdiction necessarily arose from the constitutional power of creating new counties. That was a strong case to show that one provision in the Constitution should yield to another, where it should be necessary in order to effectuate the more important object. I consider the two acts of April 13th, 1854, and of April 15th, 1857, as constitutional and valid. They contain distinct recognitions, by the appropriate organizing power, of the legitimate existence of the county of Schuyler, and they incorporate it into the State system in such a manner that it cannot now be severed without seriously disturbing, if not destroying, the entire organization. By the Constitution (art. 3, § 2), the Assembly must consist of one hundred and twenty-eight members. If the county of Schuyler should be blotted out, there could not be, under the existing apportionment, that entire number. Can an apportionment of but one hundred and twenty-seven members be constitutional ? and if not, did we have in 1858, or do we have now, a lawfully constituted Assembly ? If the apportionment of 1857 should be declared null and void, and the preexisting one should be restored, what would become of the additional members from the counties of Kings and New York, and several other counties ? If there" is no legitimate county of Schuyler, then the new assignment of districts in the county of Steuben, made by its supervisors, and the constitution of Assembly districts in the counties of Tompkins and Chemung, would be contrary to the provisions of the Constitution. These evils would be of serious consequence, and their bare suggestion shows the propriety of the rule that where a new county was originally irregularly and perhaps unconstitutionally introduced, yet, when its existence is afterwards fully recognized by the legislative power, and it is so incorporated into our State system that it cannot be severed without seriously embarrassing the whole, and when, too, its defects are removed by subsequent legislation, such new county should be deemed and adjudged a valid and constitutional institution.

The judgment of the Supreme Court should be reversed ; the conviction in the Court of Oyer and Terminer should be set aside, and the indictment should be quashed.

Johnson, Ch. J., and Denio, J., delivered oral opinions. The Reporter’s notes do not enable him to discriminate accurately the remarks of one of those learned judges from those of the other. They said in substance:

By the actually existing arrangements of the government, Schuyler county is a constituent element of the State, the continued existence of which is indispensable to the existence of a government, according to the Constitution. It existing, Assembly, Senate and judicial districts exist, constituted in conformity with the constitutional provisions; so that a man, taking the Constitution in his hand, and looking only to the existing state of things, and not to the time at which the changes originated, would necessarily say that all the constitutional arrangements were complete and perfect.

If, on the contrary, it be now declared non-existent, the representation in the Assembly will inevitably become incomplete, and it may be doubtful how government could be carried on. It is at least clear that no arrangements could now be made which would be in harmony with the Constitution.

Both branches of the Legislature, and the executive departments of the government, have recognized the existence of the county, and it has entered as completely into every branch of administration as any other county in the State. While this state of things has been being arrived at, a time has occurred when there was clear power in the Legislature, in strict conformity- to ■ the Constitution, to create the existing. state of things. ■. The difficulty proceeds from their having failed in duty.- Now, as to Senate districts and Assembly apportionment, they had power to act in 1857, as the neglect of their imperative, duty in 1.856 would, not make..void the apportionment of 1857.'

If, therefore, in 1856, the Legislature had made the present apportionment to take effect at the end of the session, relying, if you please, ,on subsequent action by the Legislature to-conform the judicial districts to the new territorial arrangements of the apportionment bill, a failure by the Legislature to pass an act reorganizing judicial districts would not make invalid the preceding act of apportionment. Nor should we then be reduced.to the necessity of declaring constitutional government at an end, by reason of a judicial district act not. having been passed. That would have presented a case, like the case of Boston Comer, not within the language or the reason of the constitutional provision, nor within the mischiefs it was intended to guard against.' It is not a reorganization, but an act conforming the judicial arrangements to an actually existing state .of things, which state of things renders an -alteration of •the judicial districts necessary to keep up the scheme of the Constitution on that subject.

- The several acts of 1857, based on the independent existence of Schuyler county, and making its existence necessary to a government in conformity with the Constitution, the recognition of that county by both branches of the Legislature, who have a direct and independent right of judgment on their own mode of being constituted, and the action of all branches of the government, except the judicial, have put a practical construction on the whole subject, which has removed it from that region of doubt within which alone it is competent and suitable for a court to declare legislative acts void, as conflict ing with the Constitution.

Comstock and Grover, Js., concurred in reversing the judgment, upon both the preceding opinions.

Gray, J. (Dissenting.)

The leading and most important question, in many of its aspects, now submitted for our consideration, involves the constitutionality of the act passed April 17th, 1854, by which the Legislature of this State undertook to erect a new county by the name of Schuyler.

I have carefully considered this question in all its aspects, and entertain no doubt that the act referred to is, in many respects, incompatible with the Constitution. In the opinion I am about to give I shall confine myself to the question of its conflict with a single provision of that instrument, and in order justly to interpret the provision-to which I refer I will briefly allude to the state of things that existed long prior to and at the time of its adoption, and continues yet to exist, that we may see and understand more clearly the purport of its language. Ho local civil action could be brought elsewhere than in the county where it originated. All crimes committed within the several counties of this State, with a few specified exceptions made by statute, were not indictable and triable in any other county than the one in which they were wholly committed. Circuit Courts and Courts of Oyer and Terminer were required to be held annually in each county, the latter being the only court in the State having jurisdiction to try persons indicted for offences punishable with death or imprisonment in the State prison for life; jurors, grand and petit, could only be summoned to serve in the county in which they resided. All this was to afford to any citizen charged with crime the right to be tried by a jury of his vicinage, and to those whose necessities required them to prosecute or defend, especially in actions of a local character, the opportunity of doing so in the county of their residence, and to have their controversies, so far as the facts were involved, settled by a jury of their own county; the expense of all of which, so far as it was chargeable to the county, was, with the other expenses of the county, audited by a board of supervisors elected by themselves.

With this state of things existing, the present Constitution was framed, and for the purpose of keeping each county independent of any other, so far as it related to their local affairs, and less dependent upon the representatives of other counties and districts for legislation, each county was given a Member of the Assembly, and the Legislature were authorized to confer upon the boards of supervisors of the several counties the power of local legislation, and were required to divide the State into eight judicial districts, of which the city and county of Mew York should be one, “the others to be bounded by county lines.” (Const., art. 6, § 4.) It is upon the ground that by the act in question, the sixth and seventh judicial districts cease to be bounded by county lines, that I hold it to be in conflict with the Constitution and void. I have referred to the circumstances existing when the Constitution was adopted, and with which it has, in no respect, interfered, on account of a suggestion that the Legislature are not forbidden from making other boundaries than county lines for judicial districts, except when they establish them after an enumeration. This obviously is not so, and I did not understand the counsel for the defendant to put forth any such proposition. It is only because he referred to a case containing such a doctrine that I refer to it Judicial districts are to be bounded by county lines, and when they cease to be so bounded, whether before or after an enumeration, they cease to have the boundaries which the Constitution has prescribed for them. This is not only giving to that provision the fair import of its language, but in view of the state of things that existed at the timé of its adoption, the great public inconvenience that would result from any other interpretation precludes the idea that judicial districts bounded otherwise than by county lines are bounded as the Constitution, either in letter or spirit, requires. The act in question, for many purposes, went into effect immediately after its passage; for all purposes except the election of members of the Legislature and Justices of the Supreme Court, and for the holding and jurisdiction of the Supreine Court, Circuit Court and Courts of Oyer and Terminer, on the 1st day of January, 1855;. and for all purposes whatever, after the then next State census or enumeration. (Law of 1854, §§ 6, 26.) Assuming that, on the event of that enumeration, a state of things was sure to exist that would make the act valid had it not been passed until that time, raises the question whether the county organization provided for in the meantime, rendered the act obnoxious to the objection that by it judicial districts ceased to be bounded by county lines. This is not, as will be seen, the strongest aspect in which the question arises, as to the repugnance of this act to the provision of the Constitution to which I have referred; but if it depended upon this question alone, it could not, with any just regard for the Constitution, be upheld. I have shown the objects of requiring judicial districts to be bounded by county lines, and without repeating them, I have only to say that they apply with as much force to the state of things which this act authorized as to any county in the State. The territory embraced within its bounds at once ceased, every part of it, to be territory belonging to the adjoining counties, for any county or local purpose. The lines of no other county were within its bounds, and unless some more appropriate designation could be given to the territory comprising it, the Legislature were right in calling it a county. They could have called it nothing else. The Constitution has made no discrimination between counties of large or small advantages. It is enough if they are counties, and justly entitled to be called so, -to have them recognized as such- by the Constitution, and kept whole and undivided by the lines of judicial districts.

"A great- mistake has, to a considerable extent, prevailed, in supposing that the validity of the act in question depended upon or had any connection with what the' Legislature were bound to do at its first session after the enumeration which succeeded its passage, or at any other time. It seems to have been supposed that the Legislature was bound, at its first Session after that enumeration, not only to apportion the Members of the Assembly, but to reorganize the judicial as well as the Senate districts. (De Camp v. Eveland, 19 Barb., 81-90), and this was thought to relieve- the question I am now considering from any difficulty. That Legislature did not think so, but regarded the requirements of the Constitution, in respect to apportioning the Members of the Assembly and reorganizing the Senate districts, as directory, and left that duty to be performed by a subsequent Legislature; and So far as it relates to the reorganization of judicial districts the error is palpable. The Constitution has not commanded the Legislature which comes next after the return of any enumeration to reorganize the judicial districts. It has simply permitted it to be done at the next session after each enumeration. (Const, art 6, § 16.)

If, therefore, it be conceded that the validity of this act depended upon an act which the Legislature) at its first session after the then next enumeration, were required to do, there, and from that point, its conflict with the Constitution may be plainly seen. That Legislature was not bound, by any requirement in the Constitution, to place this county entirely within a judicial district, so as to reheve the act erecting it from the objection of preventing judicial districts from being bounded by county lines. Whatever, therefore, may be said in relation to the right of the Legislature to erect a county when it cannot be done for all purposes, one thing is entirely clear, and that is, if it is made to depend upon any future event, it must be one as sure to occur as any event in time, and an event, too, which will, of itself, reheve the act of ah constitutional objections; but I do not, by any means, think that the event, upon the occurrence of which this county was to become a separate and distinct county for all purposes, was one that was not sure to occur. It did occur. It was the return of the enumeration of the inhabitants of this State, an event of itself that amounted to nothing, that could by possibility relieve the act from a single objection to its validity. It neither gave the county a Member of Assembly to which it would be entitled, nor placed it wholly within a judicial district. It may be said that, by fair intendment, this county was not to be one for all purposes until the Legislature had acted upon the enumeration. Such a position cannot be maintained; but grant that it can be, and what then? The Legislature are bound to reapportion the Members of the Assembly and reorganize the Senate districts (Const., art. 3, §§ 4, 5); but they are not bound to reorganize the judicial districts, and, for aught that could be shown when this act was passed, they never would reorganize them under the present Constitution. Aside from this, it is clear that the Legislature, by the act itself, intended the return of the enumeration as the point of time when the act should go into full effect for all purposes, for the reason that the event which would make it do so must have occurred and passed before a Member of Assembly could be apportioned to it. No territory, except a full and perfect county, is entitled to be separately represented in the Assembly. It is not the reapportionment that makes a county, but a county that is entitled to have a member apportioned to it.

During all the time that elapsed between the return of the enumeration referred to and April, 1857, if the act in question is valid, the inhabitants of this county were without a representative in the Assembly, and thus, to that extent, its electors were disfranchised. (Const., art. 2, § 1.)

This is not all. Its inhabitants were without civil remedies in local actions, and crimes of the highest grade might have been committed with impunity, there being no court having jurisdiction of the offences. Have these objections been removed? It is claimed that they have, and that, notwithstanding the act was inva d when it was passed, the decision in De Camp v. Eveland, in favor of its validity, and the acts of the Legislature, passed April 13, 1857, reapportioning the Members of Assembly, and reorganizing the Senate districts, bringing this county within a Senate district, and apportioning to it a Member of the Assembly, together with the recognition of their validity by the State officers and the public, in twice electing a Legislature under them, rendered it too late to question the validity of the act by which this county Was erected. This view of the case was presented with great power and force of argument by the defendant’s counsel, and, for a time, I was, much more than a majority of my brethren, inclined to hold that the time had passed for questioning its validity; but upon reflection and more mature deliberation, I am satisfied that this view of the case cannot be sustained. 3STo evils have resulted from the acts last referred to that cannot be remedied without endangering the government, or the validity of the laws passed by the Legislatures organized under them. The question, then, so far as it depends upon legislation, comes to this; if a Legislature cannot, by a single act, erect a county for all purposes, with the lines of judicial districts passing through it, can they accomplish the same thing by two acts passed at different times? That they cannot does not involve a doubt. „ The apprehension that the legislative department of the government is to be broken up by thus holding, or that the acts passed by it since the last reapportionment of the Members of the Assembly and the reorganization of the Senate districts are not valid, is not well founded. When the framers of the Constitution provided that an apportionment and reorganization once made should remain unaltered until after the return of another enumeration, they had reference to an apportionment and reorganization in accordance with the Constitution, and none other; and unless such an apportionment has been made, the Legislature are unrestrained from making one that shall conform to the authority under which they undertook to make the one referred to. The fact that the members of the Legislature have been elected under a void apportionment does not invalidate the laws passed by them. It is enough that its members came in under color of a legal election to render all their acts valid, so far as it regards the public.

We come now to the case of De Camp v. Evéland, which it is claimed ought to have a controling influence in the decision of this case, not as authority, but because of public acquiescence in it. That action originated in the Steuben County Court. The object of it was to recover several penalties incurred for violations of the excise law. In one of the towns formerly belonging to the county of Steuben, which, by the act in question, was made a part of the county of Schuyler, the County Court held the act to be unconstitutional; and, upon appeal, a majority of the judges of the Supreme Court of the seventh district then composing the court, held otherwise, and the judgment was reversed. The unsuccessful party then appealed to this court, and before the cause was argued, and before the offence charged in the indictment in the case now before us was committed, this court held that County Courts had no jurisdiction in causes of that description. (Kundolf v. Thalheimer, 2 Kern., 593.) Hence, it will be seen, that the judgment in that case was not only not acquiesced in, but that the court in which it was pronounced had no jurisdiction in that case. And if we are to presume that the Legislature knew anything about that case when they apportioned to this county a Member of the Assembly, we should presume that they knew it was a question in no respect settled by our courts, and that the validity of the act was yet questioned, and would be litigated.

We come next to a subsequent act, passed April 15th, 1857, annexing this county to the-sixth judicial district. This act, like those that preceded it, is also repugnant to the Constitution, and for two reasons; the first of which is, that it annexed a county to that district that had no constitutional existence; and the second, that it was a reorganization of the sixth and seventh judicial districts, at a time when the Legislature were forbidden to reorganize the judicial districts of the State. The Legislature were authorized to reorganize the judicial districts of the State at the first session after the return of each enumeration, and are forbidden from doing it at any other time. ( Const, art 6, § 16.) It was not done at that session, and it is not .denied that annexing Schuyler county to the sixth judicial district was a reorganization of the sixth and seventh districts. But it is claimed that it was not a reorganization within the meaning of the Constitution. That the exercise of that power at one time upon all the districts of the State, and not of two of them, is what is prohibited. The framers of the Constitution had several objects in view in authorizing the organization and reorganization of judicial districts. One was .to have them bounded by county lines; another, to make and keep them compact and as nearly equal in population as possible. ( Const, art 6, § 4); another to diminish the number of districts, if necessary (art 6, §16). It cannot b'e said that a reorganization was not proper, if necessary, for either one or all of these purposes; or that, if it was made to accomplish either of them, it was not a reorganization within the meaning of the Constitution. It may well be, that one district may increase in population so much more rapidly than an adjoining district, that,- in order to carry out the injunction of the Constitution, and keep the districts equal in population as near as may be, a reorganization of the two districts may become necessary, when a reorganization of the others is in no respect required. Ho one, I apprehend, will pretend that such a reorganization can be made except at the one time specified by the Constitu- „ tion, or that, when it is done for any such purpose, it is not a reorganization within the meaning of that' instrument. The , power to reduce the number of districts, which of itself would . necessarily require a reorganization of all the others, is a distinct power, which is not, in express terms, forbidden at any time, though the prohibition is necessarily implied. This act transfers a large territory, consisting of three towns, from the seventh to the sixth district. If this may be done, Hamilton county, containing less than half that population, may be trans- ■ ferred from the fourth to the fifth district, or any other county in the State from one to another adjoining district; and, if it be not incompatible with the Constitution to reorganize two districts by a single act, the Legislature may, by separate acts in the same session, reorganize two at a time, until the judicial districts of the State are all reorganized (the Mew York district excepted). The Constitution has made no exceptions in its prohibition against reorganizing these districts; and, if this act is valid, it is in the power of the Legislature to nullify this prohibition by a reorganization of the districts, two at a time, at any one session, until the whole work is completed.

The Constitution is to be judged of by the fair import of the language used, without resorting to subtlety or forced construction to limit or extend its operation. (Waller v. Harris, 20 Wend., 561, 562.) If we find an exception in the Constitution, where none is made, for the purpose of upholding an act of the Legislature in clear conflict with its words, susceptible, by a fair and natural construction, of answering all public exigencies, and of being fairly carried out according to the language used, we make the statute, and not the Constitution, the paramount law.

I am unable to perceive what relevancy the annexation of “Boston Corner” to the town of Ancram, in Columbia county, has to this case. That is a small territory, containing about one hundred persons, ceded by the Commonwealth of Massachusetts to this State, and, by an act of our Legislature, annexed to the town of Ancram. (Laws of 1857, vol. 1, 776.) Mo one pretends that the cession of that territory to this State, or its annexation to the town of Ancram, deprives any citizen of any other portion of the State of any privilege theretofore belonging to him. I do not find that it has, by any specific act of legislation, been annexed to any judicial district; but concede it to be in the third judicial district, it arises from a necessity growing out of constitutional legislation, and in no respect conflicts with the prohibition against reorganizing judicial districts except at a given time. The prohibition does not, in terms, extend to increasing or diminishing a single district, but to districts, two or more.

I am, therefore, for the reasons stated, of opinion that the act erecting the county of Schuyler was repugnant to the Constitution and void.

Selden and Allen, Js., were also in favor of affirmance.

Judgment reversed. 
      
       Boston Corner is a small tract inhabited by some twenty families. It was originally in the southwest angle of Massachusetts, but being separated from the rest of that State by a mountain range, it was, on‘the petition of the inhabitants, ceded by Massachusetts - to New York by an act passed May 14, 1853. The cession was accepted by New York by an act passed July 21; 1853, and the consent of Congress to the transfer was given by its act of January 3,1855. The territory thereupon became a part of the State of New York, but it was not attached to any town or county, and no provision for that purpose or for the exercise of criminal jurisdiction was made until April 13, 1857, when the act (ch. 379) was passed, annexing the district of Boston Corner to the town of Ancram, in the county of Columbia.
     