
    People ex rel. Pond v. Board of Supervisors of Monroe County.
    
      (Supreme Court, General Term, Fifth Department.
    
    September 13, 1892.)
    1. Assembly Districts—Constitutional Provisions—Mandatory.
    Const, art. 3, § 4, prescribes when enumerations of the inhabitants of the state shall be taken “under the direction of the legislature, ” and provides that the senatorial districts shaU be so altered by the legislature “at the first session after the return of every enumeration” that each district shall contain, as nearly as may be, an equal number of inhabitants, and shall remain unaltered until the return of another enumeration; and section 5 provides that the legislature, “at its first session after the return of the enumeration,” shall apportion the members of the assembly am'ong the several counties of the state. Meld, that these provisions are mandatory, and an apportionment act passed by the same legislature under whose direction an enumeration was taken, and at the same session, was unconstitutional.
    3. Same—Legislative Term—Session—Extraordinary Session.
    Const, art. 10, § 6, provides that the political year and legislative term shall begin on the 1st day of January; and the legislature shall assemble on the first Tuesday in January, unless a different day shall be appointed by law. Meld, that an extraordinary session of the legislature is not a “session,” within the meaning of Const, art. 3, §§ 4, 5, providing that the legislature shall apportion the state into senate and assembly districts “at the first session” after such enumeration. Macombbr, J., dissenting.
    8. Same—Apportionment.
    An apportionment act which gives only three members of the assembly to a county that is entitled to four, and four members to a county that is entitled to only three, according to the ratio shown by the enumeration, is void, under Const, art. 3, § 5, requiring that the members of assembly shall be apportioned among the several counties of the state “as nearly as may be” according, to the number of their respective inhabitants. Macombbr, J.,. dissenting. 19 N. Y. Supp. 978, affirmed. '
    Appeal from special term, Monroe county.
    Application by Charles F. Pond for a writ of mandamus to the board of supervisors of Monroe county, commanding it to divide the county into assembly districts. From a judgment denying the writ, relator appeals. Affirmed.
    For opinion filed at special term, see 19 N. Y. Supp. 978.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      C. D. Kiehl, for appellant. W. A. Sutherland and Charles Daniels, for respondent.
   Lewis, J.

By section 5, art. 3, of the constitution, it is made the duty of the board of supervisors of such counties as may be entitled, under an apportionment, to more than one member of assembly, to assemble at such times as the legislature making the apportionment shall prescribe, and divide their respective counties into assembly districts equal to the number of members of assembly to which the county is entitled. By act (chapter 397, Laws 1892) entitled “An act to organize the senate districts, and for the apportionment of the members of assembly of this state, ” three members were allotted to the county of Monroe. The act required the board of supervisors to meet on the third Tuesday of July, 1892, and proceed to divide their respective counties into so many assembly districts as they are entitled to, respectively, and make and file the proper certificates. The board of supervisors of Monroe county convened on the day designated, but refused to divide their county as required by the act, for the avowed reason that the board was advised by counsel that the act aforesaid is unconstitutional and void, upon various grounds stated in resolutions adopted by the board. Thereupon a motion was made at the Monroe special term, ex rel. Charles F. Pond, a resident citizen and elector of Rochester, for a mandamus commanding the board to convene and proceed with the division of the county, as directed by the act. 19 N. Y. Supp. 978. The motion was denied, and an appeal was thereupon taken to this court from the said order.

The constitutionality of the act is assailed for reasons which will hereafter be mentioned. Section 4, art. 3, of the constitution, provides “that an enumeration of the inhabitants of the state shall be taken under the direction of the legislature in the year 1855, and at the end of every, ten years thereafter, and that "the senatorial districts shall be so altered by the legislature at the first 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 persons of color not taxed, and shall remain unaltered until the return of another enumeration.” Section 5 provides that the legislature, at its first session after the return of every enumeration, shall apportion the members of assembly among the several counties of the state. The legislature of 1885 passed an act providing for an enumeration. This act met with an executive veto, and nothing further was done looking to an enumeration until the session of 1892, seven years after the decennial year 1885, when an act was passed, which provided for the taking of a census, and required the secretary of state to tabulate and arrange the returns of the enumerators, and report the same to the legislature. An enumeration was made, and on the 21st day of April the secretary of state made a report to the legislature of the result of such enumeration. On the day of the making of this report, and while the legislature was still in session, the governor, by special message, called an extraordinary session of the legislature to convene on the following Monday, April 25, 1892. The legislature adjourned sine die April 21st, and again convened on the day designated, and oil the 30th day of said month passed, and on the same day the governor .signed, the act, (chapter 392 aforesaid.) ° -

It is the contention of the respondent that there was no power in the legislature to pass this act in the year 1892, as that is not a decennial year; that the act was unconstitutional and void, because it was passed at the same session, and by the same legislature, under whose direction the enumeration was taken; and for the further reason that said extraordinary session'was not a session of the legislature, within the meaning of the constitution, having the power, under the constitution, to make the apportionment, and on the further ground that the apportionment was unequal and unjust. It is the contention of the appellant that the provisions concerning the enumeration and apportionment are simply directory; and that, therefore, it is discretionary with the legislature when the enumeration and apportionment shall be made. The constitution, as has been seen, provides that the apportionment of the members of assembly shall be made at the first session after the return of every enumeration.

First, then, are these provisions of the constitution mandatory, or advisory simply? That the people have the right in their constitution to speak in mandatory language no one will question.. They are the source of power; the constitution emanates from them. They have the right to impose such limitations and restrictions upon powers they confer upon their servants as they choose. If important interests are involved which may be jeoparded if the language be held to be simply advisory, it must be assumed that its authors intended to speak in mandatory terms. If the provisions under consideration are advisory simply, it follows that an apportionment may be made at any time that suits the wishes or plans of the party in .power. If advisory only, an enumeration can be taken, and a tabulated statement of the result delivered to the legislature, to be immediately followed by an apportionment, without any opportunity for its examination by the people, and the people may thereby be made victims of a party in power, who may, for partisan purposes, so manipulate and falsify an enumeration, and follow it by so arranging the senatorial districts and apportioning the members of assembly, as thereafter to place the control of the election of members of both houses under the control of a small minority of the electors. The districts could easily be so selected and arranged that a majority of the legislators could thereafter be elected by electors whose predilections were with the party making the apportionment, and who composed but a small minority pi the electors of the state, and the majority would be practically disfranchised; and, as amendments to the constitution can be secured only through and by the consent of the legislature, it would be practically impossible to remedy the wrongs by lawful means. If directory only, there is no necessity for calling an extra session; the enumeration and apportionment may be consummated at one sitting of the legislature. Holding these provisions to be mandatory not only does no violence to the language of the constitution, but accords with the common understanding of the people. “Courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done, and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims and fix those unvarying rules by which all departments of the government must at all times shape their conduct, and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. * * * If directions are given respecting the times or mode of proceeding in which a power shall be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only. * * * There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application.” This is a quotation from Cooley, Const. Lim. marg. pp. 78, 79.

Judge Emott said, in speaking for the court in People v. Lawrence, 36 Barb. 186: “It will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory, and not imperative.” The same doctrine is held in Brown v. Goben, 122 Ind. 113, 23 N. E. Rep. 519. Judge Orton, in the Wisconsin Apportionment Case, 51 N. W. Rep., at page 730, says: “That most dangerous doctrine, that this and other restrictions upon the power of the legislature are merely declaratory, and not mandatory, should not be encouraged, even to the extent of discussing the question. The convention, in making the constitution, had a higher duty to perform than to give the legislature advice.”

There is no part of the machinery of our state government which more vitally affects the interests of the people than the provisions for enumeration and apportionment. Ours being a representative government, frauds which may tend to deprive the people of equal representation, especially in their legislative bodies, strike at the very foundation of our institutions, and naturally and inevitably tend to arouse bitter and vindictive feelings. The people, appreciating the importance of this matter, naturally would wish, in this respect at least, to retain power in their own keeping, and direct how it should be exercised, and not leave its exercise to the discretion or caprice of their servants selected from time to time to represent them in the legislature. While legislative acts sometimes speak in directory language, a constitution has the right to speak, and should speak only in words of command. Upon the authorities referred to, and for the reasons suggested, the provisions under consideration must, we think, be held to be mandatory; and, if mandatory, it follows that the legislature had not the power-to make the apportionment at the same session that the enumeration was taken. Hence the question arises, was this extraordinary session, within the meaning of the constitution, the first session after the return of the enumeration ? Article 10, § 6, of the constitution, provides that “the political year and legislative term shall begin on the 1st day of January, and that the legislature shall assemble on the first Tuesday in January, unless a different day shall be appointed by law.” The legislative term, therefore, may begin before the meeting of the legislature; it begins and ends with the year, and the life of a legislature also ends with the year.

A brief review of the provisions of the various constitutions of the state relating to this subject may aid in the solution of this question. The constitution of 1777 provided that, as soon after the expiration of seven years subsequent to the termination of the present war as may be, a census should be taken, and that, once in every seven years after the taking of the first census, a new one should be taken. No time or session was specified for making the apportionment. The first census was taken in 1790, pursuant to chapter 7 of that year. The first apportionment by the legislature was made by chapter 4, Laws 1791. The next census was in 1795. The apportionment was made by chapter 19, Laws 1796. Another census was taken in 1801, pursuant to an act passed April 7th. Chapter 175. An amendment to the constitution was adopted October 27, 1801, providing that the legislature, “at their next session,” shall apportion the number of assemblymen fixed by the said amendment, and make a reapportionment upon the return of every census thereafter. Accordingly, the legislature made an apportionment March 81, 1802. The next census was in 1807-, pursuant to an act of April 3, 1807. The apportionment was made April 1, 1808. Another census was taken in 1814. Act April 15th. Apportionment was made by chapter 142, Laws 1815. The constitution of 1822 provided that an apportionment shall be made by the present legislature according to the last United States census; that a census should be taken in 1825, and at the end of every 10 years thereafter; that the senate districts shall be altered, and the apportionment of the members of assembly shall be made, “at the first session after the return of every enumeration.” The legislature accordingly made an apportionment by chapter 207, Laws 1822. No state census had been taken since 1814. By chapter 100, Laws 1825, the legislature provided, not only for the taking of the census that year, but also for future years. The next apportionment was made by chapter 289, Laws 1826. The act of 1825 was substantially incorporated into 1 Rev. St. p. 87, which took effect January 1, 1830. The census was taken in 1835; an apportionment made by chapter 436, Laws 1836. The provisions of the Revised Statutes for the taking of the census were superseded by Laws 1845, c. 140, which was amended by chapter 239, Laws 1854. These statutes were repealed by Laws 1855, c. 64. An apportionment was made by chapter 44, Laws 1846, based upon the census of 1845. The constitution adopted in 1846 is substantially the same as the constitution of 1822, in so far as the particular matter here under consideration is concerned. The next census was taken in 1855.; the apportionment was postponed until 1857. Chapter 337. Another apportionment was made by chapter 607, Laws 1866, based upon the census of 1865. Another enumeration was had in 1875, but no apportionment was made until 1879. Chapter 208. It will be observed from the foregoing that the invariable practice has been to make the enumeration at an annual session after the taking of the census. This is the first instance, since these provisions were incorporated into the constitution that the same legislature has assumed to make both the enumeration and tne apportionment. No census was taken in 1885, for the reason before stated.

The framers of our constitution, in providing that the apportionment should be made at the first session after the enumeration, were aware that the taking of the census of this populous state would be a work of great labor and detail, necessarily more or less complicated, and that every step in the proceeding should be done deliberately and openly, so that the people would have an opportunity to watch its progress, and that a sufficient time should elapse between the completion of the enumeration and an apportionment, to enable all who desired so to do to fully examine into the details; and, to accomplish that, it was necessary that full and complete statements of the work of the enumerators should be deposited in some public office, there to remain for a sufficient time for full examination before the apportionment should be made. The convention that framed the constitution of 1846 was in session the year following the passage of chapter 140 of the Laws of 1845, which provided a complete plan for taking the census, with ample provisions for the deposit of the returns of the enumerators in public offices for the inspection of the people. A compliance with the provisions of this act would necessarily require all the time prior to the sitting of the annual session of the legislature in 1846. The members of the convention, we assume, were familiar with this act, and, in preparing the provisions of the constitution under consideration, it is reasonable to suppose, understood the importance of providing that the apportionment should not be made at the same session as the enumeration.

Another reason why the enumeration and apportionment ought not to be made by the'same legislature is that, if irregularities or frauds should occur in taking the census, the electors should have an opportunity at the polls to prevent the consummation of the fraud, by electing members of the legislature for the following year who had not taken part in the frauds. If an extraordinary session of the same legislature is a “session,” within the meaning of the constitution, it would be within the power of a hostile governor to prevent an apportionment by failing to recommend to the legislature that subject for consideration. Section 4, art. 4, provides: “At extraordinary sessions, no subject shall be acted upon except such as the governor may recommend for consideration. ” There have been many instances of extraordinary sessions of the legislature since the state existed. The proceedings of the entire year, including those of the extraordinary session, have invariably been called and known and printed as the laws of but one session. This shows the meaning attached to the words “session of the legislature” by the people. The governor is required to communicate by message to the legislature, at every session, the condition of the state, and recommend such matters to it as he shall judge expedient. No governor has yet, so far as we are aware, considered.this provision of the constitution applicable to an extraordinary session of the legislature. Section 16 of article 6, prior to the amendment of 1879, provided that judicial districts might be reorganized by the legislature at the first session after the return of every enumeration, “and at no other time.” The appellant’s counsel concedes that this provision of the constitution is mandatory. If so, the same embarrassment would arise if the governor should fail to recommend that subject for consideration. To hold that an extraordinary session is, within the meaning of the constitution, the first session, deprives the provisions under consideration of any effective meaning. They might as well have been left out of the constitution, for they afford no safeguard or protection to the people. The history of the legislation under consideration is an impressive illustration of this fact, as there were but three days between the adjournment and the convening of the extraordinary session. The constitution not having left this power of apportionment within the general delegation of legislative authority, the use of the phrase “first session” must be held to have both significance and effect. We are of the opinion that an extraordinary session of the same legislature, under whose direction an enumeration is taken, is not, within the meaning of the provision under consideration, the first session. We are also of the opinion that the said provisions are mandatory.

We have carefully examined the cases of Rumsey v. People, 19 N. Y. 45, and State v. Cunningham, (Wis.) 51 N. W. Rep. 724, relied upon by the appellant’s counsel as deciding that the provisions under consideration are merely directory, and do not think they are authority upon this question. The case of Rumsey v. People holds that an apportionment may be made by a subsequent legislature, when their predecessors have neglected their duty in that regard. The questions presented in the case at bar were not before that court for decision. In the case of State v. Cunningham, supra, the supreme court of Wisconsin adjudged- an apportionment act void because it was unequal and fraudulent. Judge Pinney, in his opinion, suggests that another apportionment cquld be passed at a special session if one should be called. It was a casual suggestion, evidently made without an examination of the question, and was obiter. We have not been referred to, and are not aware of, any case deciding the questions here involved; In the event that the legislature, for any reason, should fail to provide for an enumeration at the decennial year, as required by the constitution, whether it could be taken by some succeeding legislature we do not deem it necessary to consider, for that question is not before us; nor is it necessary to pass upon the question whether an apportionment can be made at an extraordinary session. It undoubtedly could be so made, provided it was not a meeting of the same legislature under vwhose direction the enumeration was taken.

The constitutionality of the act under consideration is further assailed for the reason that the provisions of the constitution requiring that each senate district shall contain, as nearly as may be, an equal number of inhabitants, and that the members of assembly shall be apportioned among the several counties of the state as nearly as may be according to the number of their respective inhabitants, excluding aliens, was violated in the apportionment under consideration. The ratio of representation for a member of assembly, as shown by the enumeration, is 45,241. Monroe’s representative population was 181,230; the county was therefore entitled to four members," with a surplus population of 266. She was given but three. The population of Albany county was 156,348. She was therefore entitled to but three members, but was given four. Two members were awarded Dutchess county, with a population of 75,078, and yet but one was given to Lawrence county, with a population of 80,679. These were not unintentional errors. The constitution says: “The members of assembly shall be apportioned among the several counties of the state by the legislature as nearly as may be according to the number of their respective inhabitants, excluding aliens.” The case presents many other striking illustrations of gross and inexcusable irregularities in apportioning members of assembly and in arranging senatorial districts, etc. This point was so fully and ably discussed and illustrated in the opinion of Justice Rumsey at special term that we do not deem it necessary to add anything, except to say that we fully concur in his conclusions. No one can read the figures and facts set out in the record, and fail to come to the conclusion that the apportionment was a flagrant violation of the plain provisions of the constitution; that it could not have been the result of the best judgment of the members of the legislature, but was a bold and partisan proceeding, enacted and consummated with a view of giving the party engineering the bill advantages in representation to which they were not in justice or in truth entitled.

Other points were presented and discussed by counsel which I do not deem it necessary to consider, for I prefer to put the decision upon the grounds discussed in this opinion, and, for the reasons stated, I think the act (chapter 397, Laws 1892) unconstitutional, which leads to an affirmance of the order appealed from.

Dwight, P. J.

I concur in the affirmance of the order below, on the ground that the legislative act in question involves a palpable violation of that requirement of the constitution of the state which is intended to secure to the people, as nearly as practicable, equality of representation in their legislature. The requirement is clear, positive, and mandatory that “the members of assembly shall be apportioned, among the several counties of the state, as nearly as may be, according to the number of their respective inhabitants.” An apportionment which gives additional representation to the county of Hew York for an excess of population of only 18 per cent, of the ratio of representation, and withholds it from the county of Monroe, with an excess of 70 per cent, of the ratio; which gives to Albany county, with an excess of 21 per cent., the additional representation which it denies to St. Lawrence, with an excess of 65 per cent.; and to Rensselaer, with an excess ef 49 per cent., the representation which belonged to Chautauqua, with 51 per cent.,—palpably violates the constitutional injunction. From, it result such anomalies as that Dutchess county, with a population less than that of St. Lawrence, receives double the representation.of the latter; that Albany county, with less than twice the population of St. Lawrence, receives four times its representation; and that Monroe county, with 24,000 more population than Albany, receives one less representative. Here is no room for - the theory of mistake or inadvertence. The j usfc method of apportionment, which, up to a certain point, had been followed, was deliberately abandoned, and, instead of awarding the three remaining members of assembly to those counties which (as among the six) had the largest fractions of population, they were arbitrarily awarded to those which had the least. Shall it be said that the vice of this apportionment did not attach to the method employed, and therefore is not subject to the condemnation of the court? The vice resulted from the abandonment of method, and the substitution of might for right. Probably the motive of legislators is not a necessary subject of inquiry when a violation of the constitution is in question; but, if it were so, that motive must be inferred from the act and its effect. The effect of the action complained of was to deprive some counties of the representation to which they were entitled under the constitution, and to confer it upon other counties to which it did not belong. If this may be done in the case of three counties, it may be done in the case of as many more as may be deemed necessary to give to the party making the apportionment the control of the legislature for an indefinite time to come. It is against such possibilities as these that the injunction of the constitution, above quoted, is provided. Other provisions in respect to the same subject may be technical, or may relate to matter of form; this one is essential. It represents the cardinal principle of equality, which lies at the foundation of all representative government. It is not within the discretion of the legislature to disregard it. It cannot be wantonly violated without drawing down upon the act the condemnation of those tribunals which are set for the defense of the constitution. The order appealed from should be affirmed.

Macomber, J.,

(dissenting.) The relator, Charles F. Pond, is a citizen and elector in the city of Rochester, Monroe county. As such, he applied to the special term, upon an order to show cause, for a mandamus requiring the board of supervisors of Monroe county, which had adjourned without taking such action, to reconvene and divide the county of Monroe into three assembly districts, in accordance with the terms of the last apportionment act of the legislature, being chapter 397, Laws 1892. This motion was denied by the special term solely upon the ground'that such act was unconstitutional and void, and that, for that reason alone, the defendant was not bound to obey the statute. The right of the relator to complain of the nonaction of the board of supervisors, and that the high prerogative writ of mandamus is the appropriate remedy, provided the act of the legislature be constitutional, are propositions not questioned by the learned counsel for the defendant; nor could they be successfully controverted, under the decisions in the cases of People v. Rice, 129 N. Y. 461, 29 N. E. Rep. 358, and People v. Rice, 129 N. Y. 449, 29 N. E. Rep. 355. But the learned counsel for the relator does not in turn anywhere concede that the board of supervisors may defeat his motion by establishing the unconstitutionality of the statute, while, upon the most important proposition contained in the case, the power of the court in the premises is affirmatively denied by him. This appeal comes up, not upon a case containing issues framed by appropriate pleadings and findings of fact and of law thereon, so that the scope of the decision below might readily be grasped and its several parts duly weighed, as was contemplated by the provisions of the Code of Civil Procedure, §§ 2067-2090, and as would have been advisable in a matter of this magnitude; but it is rather from an order most general in its terms, and which nowhere points out the precise constitutional defect relied upon for the overthrow of this statute. Yet the mode of procedure resorted to is authorized by the Code, and when the special grounds of the order are' ascertained by resort to the opinion of the learned justice ad special term, as they must be upon this appeal, it will be found that, in at least two out of the four points involved, this mode of presenting the question is as effective as any.

In order to understand clearly all of the questions arising upon this appeal, it is necessary briefly to state the allegations contained in the moving and the opposing affidavits. The affidavit of the relator sets forth the passage of the act named. It also alleges the taking of the enumeration under chapter 5, Laws 1892. This enumeration, as reported to the legislature by the secretary of state, contained three columns of figures, one being headed “Total Inhabitants, ” the second “Total Citizens,” and the third “Total Aliens,” and exhibited, by counties, the number of total inhabitants, total citizens, and total aliens throughout the various towns and cities in the state. Another exhibit annexed to the affidavit shows the details of the apportionment act, including both the senate and the assembly representative districts. This affidavit then sets fortli the attitude of the board of supervisors of Monroe county, which it is unnecessary to repeat in this connection, as the same merely covers the four points against the constitutionality of the apportionment act upon which the respondent’s" counsel rely.'

• The opposing affidavits are two,—one of them to the effect that, to the affiant’s knowledge and belief, in most if not all of the counties of the state, there were at the time of the taking of the enumeration, and up to the present time, large numbers of persons of color, who were not taxed, but who were bona fide inhabitants of the state of Hew York; and the other was that of a reporter for a newspaper who was present in the assembly chamber of the legislature on April 21, 1892, while the assembly was in session, and who at that time heard a message read from the governor, calling a special session of the legislature to be held at the capítol, April 25, 1892, and that no particular subject for the consideration of the legislature was mentioned in the call for such special session. "Upon these facts it is contended by the learned counsel for the defendant that the apportionment act (chapter 397, Laws 1892) is unconstitutional and void, for the reasons (1) that no constitutional enumeration can be made excepting in every tenth year after the year 1855; (2) that the apportionment act (being chapter 397, Laws 1892) was not passed at the first session after the enumeration was returned to the legislature, but at the same session; (3) that the secretary of state, in complying with section 12 of chapter 5 of the Laws of 1892, requiring him to prepare and report to the legislature a general account of the enumeration, specifying the result thereof in the several election districts, towns, and counties of the state, with a full recapitulation of the whole, did not report to the legislature, and the legislature did not have before it, in enacting chapter 397, any enumeration, report, tabulation, or other information of the inhabitants of the state who are “persons of color not taxed;” (4) for the reason that gross and flagrant inequalities exist at large in the apportionment of members of the assembly and senate set forth in chapter 397, Laws 1892, and that the same particularly affect thé county of Monroe, to its detriment.

If the act in question be unconstitutional for any of the reasons alleged against it, this court possesses ample power to adjudge it to be unconstitutional. Under the constitution the supreme court possesses general jurisdiction in law and equity, subject only to such appellate jurisdiction of the court of appeals as is prescribed by law. If the legislature has transcended its constitutional powers, it is our duty to say so by our judgment, and we cannot avoid that duty, in this instance, any more than in any other instance. The constitution is the act of the whole people of the state, and is the law of the land, and it is not in the power of the legislature to violate any of its provisions. It was deliberately enacted as the guide to legislators as well as to courts; and, though there may be no legal remedy against the legislature or its members for a violation of its provisions, as there are against judges if they turn their backs upon it, yet the people have a remedy clear and distinct, and that is the requirement laid upon their courts to annul such unconstitutional laws, because they are abhorrent to the sense of justice and right, as expressed by the people themselves in their organic law. That which the legislature cannot do by the terms of the constitution, or by necessary implication therefrom, it cannot do at all. If the contention made against this almost elementary proposition should be maintained, there would be no room for courts in the land, but the contention is without reason to support it. In the language of Daniel Webster; “Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form and idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare or to administer the justice of the country.”

The constitution provides that the senate shall consist of 32 members, and that the senators shall be chosen for two years; that the assembly shall consist of 128 members, who shall be annually elected. Article 3, § 2. The senate is divided into 32 districts, called “senate districts, ” each of which may choose one senator. Id. § 3. By section 4 of this article, the enumeration of the inhabitants of the state is commanded to be taken under the direction of the legislature, in the year 1855, and at the end of every 10 years thereafter; and the districts to be “so altered by the legislature, at the first session after the return of the enumeration, that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens, and persons of color not taxed, 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 senate districts, except such county shall be equitably entitled to two or more senators. ” By section 5 the members of assembly “shall be apportioned among the several counties of the state, by the legislature, as nearly as maybe according to the number of their-respective inhabitants, excluding aliens, and shall be chosen by single districts. ” If any counties are entitled to two or more senators or members of assembly, it is made the duty of the board of supervisors “ to assemble at such times as the legislature, shall prescribe, and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled.” “Ho town shall be divided in the formation of assembly districts. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly,” except that the counties of Hamilton and Fulton are deemed to be one county for such purpose, and entitled to but one member of assembly.

The enumeration directed by the constitution to be made in the year 1885 was not made in that year, nor until this act in question was passed in 1892, seven years afterwards. The learned justice at special term did not consider that the first two questions, namely, that the enumeration was not taken in the tenth year after 1855, nor that the apportionment was made at the next session after the return of the enumeration, were open as original questions: but, on the contrary, he was of the opinion that they had been practically decided against the respondent in the cases of Rumsey v. People, 19 N. Y. 45, and State v. Cunningham, (Wis.) 51 1 N. W. Rep. 724; but it appears to me, from an examination of these authorities, that the point relating to the power of our extraordinary or special session of the legislature, called by the governor, had not been directly up in either of them; so that the question has not been closed against the respondent by past adjudications of the courts. The direction of the constitution, that the enumeration shall be made at. the end of every 10 years after the year 1855, is, I think, a continuing duty, rest-ing upon each successive legislature, until such enumeration is actually made. As the legislature of 1885, owing to the veto of the governor, failed to have such enumeration made under its direction, it was the duty of the succeeding legislature to cause it to be done, and so on, until it was actually done. This provision of the constitution is not a mere privilege granted to the legislature, nor a bare power which its members may exercise or not at the time designated, and, if not timely exercised, it is gone forever. It is rather a duty resting upon them as the chosen instruments under the constitution for making suitable provision for a readjustment of the representation of tho people in its legislative body. But the constitution has directed that the apportionment act shall be passed “at the first session after the return of every enumeration.” This is, indeed, an additional requirement beyond those prescribed for ordinary legislation, under article 3, § 1, of the constitution, conferring general legislative power upon the senate and assembly. Under it, the two houses of the legislature have not the right to make the apportionment of senators and assemblymen at the same session at which the return of the enumeration was made. Though the legislature has not, in its own hands, the power under the constitution to do this act, it by no means follows that, if an extraordinary session is appointed by the governor, such appor-' tionment may not be then made, although it is done in the same year of their previous session.

The constitution (article 4, § 4) declares that “ the governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature (or the senate only) on extraordinary occasions. At extraordinary sessions, no subject shall be acted upon except such as the governor may recommend for consideration. ” Under this provision, if he were of the opinion that the exigencies of legislation required him to do so, the governor had the power, and it was his duty, to call the legislature together to consider the question of apportionment. A session so called is as much a constitutional session as the stated session. For one reason and another, the enumeration had been delayed for seven years. At last it was taken, and if the apportionment, during the decade for which the enumeration was directed by the constitution to be taken, was to be of any efficiency or value, it would seem that the exigency had arisen, requiring the governor to call the legislature in extraordinary session, in order that a year might be saved out of the three years remaining of the constitutional decade. It was a session that the legislature could not themselves have appointed by adjournment or otherwise. The argument made in behalf of the respondent, it seems to me, confounds the expression “at the first session after the return of every enumeration” with the political year and legislative term. Happily, the constitution has not left us in doubt as to the meaning of the legislative year; for section 6 of article 10 declares: “The political year and legislative term shall begin on the first day of January, and the legislature shall, every year, assemble on the first Tuesday of January, unless a different day shall be appointed by law. ” That there may be more than one session of the legislature during the legislative year, and that an extraordinary session may be the next session after the return of the enumeration of the legislature, if the governor interposes his discretionary power so to reconvene that body, though in the same year, is, I venture to think, well shown by the constitution itself, taken as a whole. For these reasons, the first two grounds for declaring the apportionment act unconstitutional cannot be upheld.

But it is contended, and it was so decided by the special term, that the senate apportionment is unconstitutional, because, in estimating the number of its inhabitants in the new senate districts, persons of color not taxed were included. As has already been stated, by the constitution the senate districts shall be so divided as to contain, “as near as may be, an equal number of inhabitants, excluding aliens, and persons of color not taxed,” etc. It is true that each and every provision of the constitution, whether wise or not, must be given force and effect, but, in determining the scope and meaning of the constitution, all of its parts must be regarded. When this provision of the constitution was adopted in the year 1846, persons of color not having a property qualification were not only excluded from the enumeration in both senate and assembly districts, but were also excluded from the right to vote at general elections. In the amendment made to the constitution in the year 1875, this provision, so far. as it related to the assembly districts, was struck out; but, probably by an oversight of the members of the constitutional convention, it was permitted to remain as applicable to the apportionment of senate districts. It was argued by the counsel for the relator that the fourteenth and fifteenth amendments to the federal constitution have abrogated this provision of the state constitution, and rendered it nugatory. The fourteenth amendment, referred to, declares that no state shall make or enforce any law which shall abridge the privileges or immunities of any citizen of the United States. Tne fifteenth amendment merely declares that the right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude. So long as our state constitution does not deprive persons of color, who are citizens, of the privilege of voting, it does not contravene either of these amendments to the federal constitution. The power still remains in it to make any provision, even an arbitrary one, for the apportionment of senators and representatives in its state legislature. Yet this provision of the constitution has been wisely ignored by the legislature and by the common consent of the whole people of the state. The amendments to the federal constitution were adopted, respectively, in the years 1868 and 1870. Prior to the enumeration now in question, there has been but one enumeration taken since that time, namely, that of 1875, and in that instance, too, as well as in this, persons of color, not taxed, were not excluded from the enumeration. Whether this was done under the mistaken notion that the federal constitution had abrogated these state provisions it is not necessary to pause to inquire. Yet, while persuaded that this part of the constitution remains unaltered in words, I am not prepared to say that a failure to observe it can be successfully alleged as a reason for declaring the apportionment unconstitutional. The first reason for not so regarding it as an obstacle in the way of the apportionment act is that the question is forced into this controversy collaterally, and not directly. I do not see that the act of the legislature, if it were just and fair under the actual enumeration as returned to it, can be adjudged to be unconstitutional, because there was a technical defect in the mode in which the enumeration had been made and returned. What proceedings might have been instituted against it, either beiore or after its return to the legislature, by persons who imagined themselves aggrieved, it is not the province of the court now to say; but that an act of the legislature otherwise valid, and of such vast importance as an act of apportionment, shall be declared to be unconstitutional because of some defect in proceedings antedating such legislation, over which, as a legislature, it had no control, as it had nob in this particular, is a proposition so at variance with my conception of the constitutional power of the court, and of their duty as to time and cause for exercising that power, that I cannot consent to it. In order to reach this end, the court is asked without proof to take judicial notice that there exists in this state a- large number of such persons. But, even if it were competent to do so, the assumption would not affect the validity of this act, unless it went a step further, and assumed, also, that the distribution of such persons was so unequal among the counties as to affect rights of localities to representation in the senate. This the court cannot do. We may, perhaps, take judicial notice of the existence and general character of the flora and fauna of the earth, but not of their particular and comparative distribution. We may take judicial notice that roses bloom in summer, but hardly that more of them bloom in a plaintiff’s garden than in a defendant’s garden.

The fourth ground, uamely, that the act is unconstitutional because of the gross inequality in the apportionment of senators and assemblymen, is not so readily and satisfactorily disposed of. It is doubtful whether, under the Code, the record before us presents sufficient information for us to act upon. There has been returned to us the enumeration of. the representative inhabitants, the apportionment of the senators and assemblymen among such inhabitants, and nothing else. The proposition is broadly presented to us, therefore, that, in the exercise of the greatest powers possessed by a court, we should, on examination of those tables, declare that the legislature has committed a gross outrage upon the people. As was stated at the outset, the case comes up, not upon pleadings and findings, but upon an order refusing to direct a peremptory writ of .mandamus to issue to the board of supervisors, compelling it to reconvene. But, by section 2070 of the Code of Civil Procedure, such writ can be issued in the first instance, and without the intervention of an alternative writ, with a right of demurring or answering, only when the applicant’s right to the mandamus depends solely upon questions of law, and not upon questions of fact. Certain inequalities are stated in the briefs, and actually appear by comparison of the number of inhabitants of several senate and assembly districts. Whether these inequalities could have been all remedied and cured by the legislature does not appear, particularly in regard to the apportionment of the senators. The provision of the constitution that no county shall be divided in the formation of a senate district, unless such county is entitled to two or more senators, rendered inequality of distribution inevitable, as well as the other provision that assembly districts should not be divided in the formation of senate districts. I am in some doubt whether the learned justice at special term would have reached the conclusion that the inequalities of the senate districts were such as to warrant the interposition of the court. He says: “There can be no doubt that the apportionment of the several senate districts is so-manifestly and flagrantly unequal as to amount to a clear violation of the constitutional requirement, as is also the undoubted disparity between the number of inhabitants of the county, as distinguished from city, districts.”

But I am unable, from a comparison of the tables before me, and without proof of some facts other than those contained in this record, to say that the legislature did not act, in making such distribution of the senators among the representative inhabitants, within the scope of the constitution. The learned justice further says, in his opinion: “It is clear, too, that the constitution was grossly disregarded by giving to Albany county one more member of assembly than is allotted to Monroe, with over twenty-four thousand more inhabitants, as well as allowing to Dutchess county, with 75,078 people, two members, and to St. Lawrence, with 80,679, only one. These are violations which are clearly utterly unnecessary, and because of them the act is void. The provisions of an act of this kind are so largely dependent upon each other that, if part of them violate the constitution,'the whole act must be declared void.” The total population of the state, according to the last enumeration, for the purposes of representation in the legislature, is 5,790,865. There being 128 assembly districts, if every county had a population sufficient to equal the quotient produced by dividing the number of inhabitants by the number of assembly districts, the distribution of assemblymen would be a comparatively easy matter; but the provision of the constitution that each county shall have at least one member of assembly, however small its population, renders resort to an equitable, rather than to a mathematical, division neces- • sary. The following method of calculation, whether it or some other was in fact pursued by the legislature or not, seems to be fair and equitable, and is one of the methods the propriety of which is not questioned by counsel: There are 30 counties having a population less than the number which would be produced by such division of the population by assembly discricts, but the counties of Hamilton and Fulton are reckoned as one for the purposes of representation in the assembly. There are therefore 29 districts which would be set apart as having the right to 1 assemblyman, though their population be less than that of the average. There remain 99 assemblymen to be divided among a population of 4,831,162, which would give a member of assembly for every 48,799 representative persons. By the act of the legislature, every county of the state was properly divided upon this basis, and the assemblymen mathematically apportioned among them; but from the nature of the case, after dividing the population of the counties by this divisor, there resulted certain remainders of representative persons, so that there were, of the 128 members of assembly, 11 undistributed by such a division. These properly should have been apportioned among the counties having the highest remainders. These counties are as follows, named in the order of their surplus representative population: Orange, 44,472; Onondaga, 44,460; Kings, 39,400; Ulster, 36,593; Monroe, 34,833; Steuben, 32,601; St. Lawrence, 31,880; "Westchester, 31,226; Queens, 26,376; Dutchess, 26,276; Chautauqua, 25,085. The legislature did proceed to add a member of assembly to each of the above first four counties containing the highest number of remainders, but it seemed to falter at such just arithmetic when it came to the county of Monroe, and gave no additional member to that county, but did instead award one to Steuben, thé next highest on the list. It refused to give an additional one to St. Lawrence county, but gave it to the succeeding county, Westchester. It conferred another upon Queens, and another upon Dutchess, but failed to give one to Chautauqua. In place of Monroe, St. Lawrence, and Chautauqua, it gave an additional member to Albany county, which had a remainder of 10,-351; another to Hew York county, which had a remainder of 8,813; and the other to Rensselaer, with a remainder of 24,081,—none of the last-named 3 counties being among the first 11 counties having the greatest remainders.

Though I do not hesitate to say that the legislature should have pursued its original mathematical calculations and countinghouse method clear through, and awarded the 11 additional members to the 11 counties having the highest remainders, yet it does not fojlow that the court should overturn the entire apportionment act for these three discrepancies and errors. The question is not, I apprehend, what we, in our deliberation, may think should have been done by the legislature in this regard. The question is whether or not, in arriving at the results, the legislature has adopted any unconstitutional methods. So far as is ascertainable from these papers, it has observed the command of the constitution that, in carving out senate districts, no county shall be divided unless such county is entitled to two or more senators, and that the territory of each of such districts shall be contiguous; and also the other injunction, that the assembly districts shall not be divided in" making up senatorial districts. Ho county having a full quota is deprived of the additional member. In many cases, such, for instance, as appeals from awards of commissioners in condemnation proceedings, the courts refuse to vacate the reports made by the commissioners, although they do not meet completely the judgment of the court, unless it is made to appear that the commissioners, in arriving at their results, have adopted an erroneous method of calculation. So, in this case, we see that the provisions of the constitution were all observed, and the apportionment made within its lines, until the remainders for assembly districts came to be apportioned; and then, for some cause, unexplained in these papers, but which we are bound to assume, in the absence of proof, was not a bad or corrupt cause, the legislature placed three assemblymen where they should not have been placed, and took away three assemblymen from where they should have been placed, if the highest remainders were to be followed. While this action cannot be approved by the court, nor by honest and reflective legislators who must have for the moment weakly yielded their judgment to the stress of urgent legislation, I am not prepared to say that it affords sufficient ground for wholly setting aside the statute. In the cases of Giddings v. Blacker, (Sup. Ct. Mich., filed July 23, 1892,) 52 N. W. Rep. 944, and Board of Sup’rs v. Blacker, Id. 951, the legislature had palpably violated the constitution of the state in claiming the right, against a provision similar to ours, to dismember a county. The apportionment act of New York state has no such constitutional taint. It is doubtless a piece of legislation, following the precedent of 1879, well up to the line of party aggrandizement beyond which the constitution says it shall not go. But, so long as the legislature pauses at such line.it is beyond the power of the court to interpose. I think the motion for a mandamus should have prevailed, and that, consequently, the order appealed from should be reversed. 
      
       Const. N. Y. art. 3, § 5.
     