
    KINNE v. CITY OF SYRACUSE.
    September, 1866.
    Affirming 30 Barb. 349.
    
      A statute altering the boundary of a city or other local division of the State, is unconstitutional and void, if its incidental effect would be to alter the boundary of an assembly district at any other time than upon the decennial enumeration of population.
    The constitutional restriction (§ 6, art. 3) on the alteration of assembly districts, applies to the action of the legislature as well as to that of the supervisors.
    This was a case agreed upon by Enos Kinne and the City of Syracuse, for the purpose of presenting for adjudication the question of the constitutionality of the 9th section of the act passed by the legislature on April 17, 1858. This act, by its title, purported to be “An act to amend the act to-revise the charter of the city of Syracuse. The facts necessary to be stated, in order to present this question, are, that in 1857, the board of supervisors of the county of Onondaga, pursuant to the act passed in April of that year, requiring the formation of assembly districts, duly met and divided the county of Onondaga into three assembly districts. By this division the city of Syracuse formed a part of the second, and the town of Dewitt a part of the third assembly district; that town never having been at any time within the second district.
    By the 9th section of the act of 1858, above alluded to, a portion of the city of Syracuse upon the easterly line of the city, and adjoining the town of Dewitt, was takei! from the city of Syracuse and annexed to the town of Dewitt; or, in other words, the easterly boundary of Syracuse was changed by running a line which cut off from the city a territory about two miles in length and one in breadth," embracing from twelve to fifteen hundred acres of land, on which some two hundred and fifty persons resided, of whom fifty were voters, and annexed this territory to the town of Dewitt. This is the whole scope and purport of the section; and neither in the section nor in any part of the act, is any provision made in respect to the political status of the inhabitants of the exscinded and annexed territory; nor how, if at all, they shall be reckoned in regard to any assembly district, or in what manner participate in the election of a representative for such district.
    The plaintiff in this suit, at the time of the passage of the act, resided and still resides, within the territory thus set off, and owned real estate therein, subject to taxation. The authorities of Syracuse, subsequent to the passage of the act of 1858, caused a tax to be assessed upon his property within this district, issued a warrant for its collection, and levied upon and sold some property of the plaintiff to satisfy the .tax. The ground assumed by them was that the law, by which this territory was attempted to be set off to another town and assembly district, was unconstitutional and void, and that consequently the territory still remained a part of the city of Syracuse, and liable to contribution towards its public burdens; and that was the precise point presented in this case.
    The defendant claimed that section 9 of the act in question was in direct conflict with section 5 of the third article of the constitution. This section, after providing that members of assembly shall be apportioned among the several counties of the State as nearly as maybe according to the number of their respective inhabitants, directs that the supervisors of the respective counties shall meet on a specified day, and divide their counties into as many assembly districts as they shall be entitled to by law, each assembly district to contain, as nearly as may be, an equal number of inhabitants, and to consist of convenient and contiguous territory. It is further provided in this section that the legislature, at its first session after the decennial enumeration, shall reapportion the members of assembly, and the boards of supervisors shall meet and divide their counties into districts as before, and then it is added, “ the apportionment and districts so to be made shall remain unaltered until another enumeration shall be taken under the provisions of the preceding section.”
    
    
      The supreme court, upon grounds substantially the same as’ those assigned by this court, in the following opinion, gave judgment for defendants. Reported in 30 Barb. 349. The plaintiff appealed.
    
      
      Bedgwiclc, Andrews é Kennedy, for plaintiff, appellant;—
    Cited L. 1857, c. 63, tit. 5, § 22; tit. 6, § 1 L. 1858, c. 341, § 9; Const., art. 3, §§ 1, 5; Bank of Chenango v. Brown, 26 n. Y. 467; People v. Morrell, 21 Wend. 563; Benson v. Mayor, 24 Barb. 255,-259; Tanner v. Trustees, 5 Hill, 121; Purdy v. People, 4 Id. 398; reversing 2 Id. 31; People v. Cowles, 13 N. Y. (3 Kern.) 350; Exp. Collum, 1 Cow. 550; 1 Story Const. § 424, 425; People v. Draper, 15 N. Y. 543; Hill v. Village of Corning, Id. 303; 2 Clark & F. 36; 21 Penn. 160; 11 Id. 70; 15 N. Y. 543; 18 Id. 67; Sedgwick on Statute and, Constitutional Law, p. 482; Fletcher v. Peck, 6 Cranch, 128; Morris v. People, 3 Den. 394; Newell v. People, 7 N. Y.(3 Seld.) 109; Metropolitan Bank v. Van Dyck, 27 N.Y. 460; 5 Mass. 524-554; 6 Id. 401, 417; 12 Id. 252-257; 4 Beld. 4; Supervisors of Niagara v. People, 7 Hill, 510; 9 Wheat. 204; Metropolitan Bank v. Van Dyck, 27 N. Y. 428; Rumsey v. People (Schuyler County Cases) 19 Id. 41; Lanning v. Carpenter, 20 Id. 447; R. S.5 ed., 523, §§ 15,16.
    N. B. Smith, for defendants, respondent;
    
      Cited Bedgw. on Btat. é ¡Const. L. 382, 383; Supervisors of Niagara v. People, 7 Hill, 571; affirming 4 Id. 20; Warren v. Mayor of Charlestown, 2 Gray, 84, 100; 30 Barb. 364, 366; Decamp v. Eveland, 19 Barb. 81; Laning v. Carpenter, 12 How. Pr. 191; Lanning v. Carpenter, 23 Barb. 402; and affirmance, in 20 N. Y. 447; Rumsey v. People, 19 Id. 41; 6 Cush. 575,578; 33 Maine, 587; Slavison v. City of Racine, 13 Wis. 398.
   James C. Smith, J.

It is conceded that, by the operation of § 9 of the act of April 17, 1858, the constitutionality of which is challenged by the defendant, a strip of land, about one mile wide and two miles long, containing two hundred and fifty inhabitants,, of whom fifty were voters, was transferred from the second to the third assembly district, in the county of Onondaga, as such districts were formed, by the board of supervisors of that county, in 1857. The question is, whether, by reason of such operation, that section is in violation of the injunction of the constitution, that the assembly districts, formed pursuant to its provisions, " shall remain^ unaltered until another enumeration.” Art. III. 8 5.

The section is claimed by the appellant to be valid, upon two grounds: 1. That the alteration of the assembly districts was not the principal or direct object of the section, but was merely incidental to the act of changing the boundary-line between the city of Syracuse and the town of De Witt; and, 2. That the constitutional provision referred to, is a prohibition upon the boards of supervisors only, and not a restriction upon the power of the legislature to alter the boundaries of towns and cities.

I am of opinion that neither of these grounds can be maintained.

First. The act altering the assembly districts is none the less repugnant to the constitution because it also changes the boundary line of the city.- The general power of the legislature to change the boundaries of cities and towns is subject to to the injunction that assembly districts shall not be altered. The injunction is expressed in broad and explicit terms, admitting of no exception or .evasion. Assembly districts shall remain unaltered.” That which the constitution says shall remain unaltered, cannot be lawfully altered, either directly or indirectly. Any other construction would annul the provision. Its prime object undoubtedly was to prevent the gerrymandering of assembly districts, from year to year, for par tizan or other mischievous purposes. A similar object led to the adoption of the provision in the preceding section, that the senate districts should remain unaltered until "the return of another enumeration. The object of each provision might be wholly defeated if the legislature were permitted to change the boundaries of cities, towns and counties, in such manner as to alter assembly and senatorial districts. If it becomes desirable to change a boundary line of a town or city, which is also a dividing line between assembly districts, the act adopted for the purpose should be so framed as to take effect at the next reorganization of assembly districts, or in some other mode consistent with the constitutional injunction under consideration.

Second. There is no merit in the position that the injunction is directed to boards of supervisors alone, and not to the legislature. -As has been said, it is in the broadest terms. It applies to all bodies having power to alter assembly districts. It directs that “ the apportionment and districts so to he made shall remain unaltered.” The' apportionment mentioned is to be the work of the legislature exclusively, and, in that respect, it is clear that the mandate is addressed to that body.

But there is another consideration which is decisive of this point. The only power conferred upon boards of supervisors, respecting assembly districts, is the power to form them, at the time fixed in the constitution, and to reorganize them at such time as shall be prescribed by the legislature at its first session after each decennial enumeration. That duty being performed, the authority of the board of supervisors over the subject is at an end till another enumeration. They have no power of alteration in the interim. That power resides in the legislature alone, and to that body, therefore, the injunction is directed.

The judgment should be affirmed.

All the judges concurred, except Hunt, J., who dissented, and Moegan, J., not voting.

Judgment affirmed, with costs.  