
    People ex rel. Carter v. Rice, Secretary of State.
    
      (Supreme Court, General Term, Third Department.
    
    September 22, 1892.)
    1. State Legislature—Apportionment—Enumerating Inhabitants.
    Where the legislature neglects, at the end of a decade, to provide for the enumeration of the inhabitants of the state for the purpose of equalizing representation in the state legislature, as provided by Const, art. 3, § 4, such enumeration may be made by a subsequent legislature, at any time before the expiration of the decade for which it was to be made.
    2. Same—“Persons op Color not Taxed. ”
    Const, art. 3, § 4, provides that “each senate district shall contain * * * an equal number of inhabitants, excluding aliens, and persons of color not taxed; ” and section 5 provides that “members of assembly shall be apportioned among the several counties, * * * as nearly as may be, according to the number of their respective inhabitants, excluding aliens. ” Held, that an enumeration which did not state the number of “persons of color not taxed, ” though it might be unconstitutional as to the formation of senate districts, was constitutional as to the apportionment of members of assembly.
    3. Same—Discretion op Legislature.
    In section 5 the words “as nearly as may be” confer a discretion on the legislature in making such apportionment, which will not be reviewed by the courts.
    4. Same—Extra Session.
    An apportionment of members of assembly made at an extra session of the legislature, if such session is the next after the enumeration, is within Const, art. 3, § 5, providing 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. ”
    Appeal from special term, Oneida county.
    Application for mandamus by the people, on the relation of George 0. Carter, against Frank Rice, secretary of state. From an order denying the application, plaintiff appeals.. Affirmed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    
      Risley & Robinson, (Edwin H. Risley, of counsel,) for appellant. Simon W. Rosendale, Atty. Gen., for respondent.
   Mayham, P. J.

This was a motion for a peremptory mandamus requirng the secretary of state to immediately issue notices to the several county clerks of the state, stating the facts required by section 5 of chapter 680 of the Laws of 1892, and directing him to include in such notices the number of members of assembly from each county, directed, required, and allowed by the apportionment law as contained in chapter 208 of the Laws of 1879. The motion further asks to restrain the secretary of state from receiving, filing, or recognizing certificates of the division of the counties into assembly districts, as prescribed by chapter 396 of the Laws of 1892, and also restraining, him from Canvassing election returns from assembly districts other than those created in pursuance of the apportionment made by chapter 208 of the Laws ■of 1879. This application is based chiefly upon the affidavits of the relator, wherein it is alleged that the secretary of state is about to and has issued notices of election to the county clerks of the several counties of the state for the election of members of assembly at the general election to be held in November, 1892, in pursuance of the provisions of chapter 397 of the Laws of 1892, by which the number of members of assembly to be chosen in some of the counties in the state were changed from that provided by chapter 208 of the Laws of 1879. The alleged ground upon which the application is made is that the enumeration of inhabitants upon which the apportionment of 1892 was made was unconstitutional, and that the apportionment based upon such enumeration was therefore unconstitutional and void, and that the apportionment was unequal, and therefore not in conformity with the requirements of that instrument, and is for that reason unconstitutional and void.

The main points urged against the unconstitutionality of this enumeration and apportionment are: First. That the time of making the enumeration was unauthorized by the constitution. Second. That the enumeration itself was unconstitutional, in that it did not contain a statement of the number of persons of color not taxed. Third. That the time of making the redistricting or apportioning of the assembly districts was not that prescribed by the state constitution. Fourth. That the assembly apportionment designated by the act of 1892 was not so arranged as to contain as nearly as may be an equal number of inhabitants.

The first ground of objection above specified, viz., that the enumeration was not taken at the termination of the first decadal period after the enumeration of 1875, does not seem to be strenuously urged by the learned counsel for the relator, and it seems to be conceded that as the legislature of 1885 failed to perform the duty imposed upon them by section 4 of article 3 of the constitution, in neglecting to provide for the enumeration of the inhabitants in that year, that duty might be performed by a subsequent legislature at any time before the expiration of the decade for which it was to be taken. The manifest object of the constitutional provisions in providing for frequent enumeration of the people being for the purpose of equalizing representation between different localities and political divisions of the state presents a strong argument in favor of the performance of that duty by a subsequent legislature when the body upon which the duty was directly charged failed in its performance. This principle has been established and sustained by a uniform current of judicial decisions. People v. Supervisors of Ulster County, 34 N. Y. 271; Rumsey v. People, 19 N. Y. 50; Smith v. Jones, 1 Barn. & Adol. 328-334; Ex parte Heath, 3 Hill, 42. In the case last cited Cowen, J., at page 47, says: “Nothing is better settled as a general rule than that, when a statute requires an act to be done by an officer within a certain time for a public purpose, the statute shall be taken to be merely directory, and though he neglect his duty by allowing the time to go by, if he afterwards perform, the public shall not suffer by the delay.”

In People v. Supervisors of Chenango County, 8 N. Y. 330, the question was whether a board of supervisors which had neglected to perform a duty which they were required to perform at the annual meeting could be compelled to perform it at a later period, and, in the discussion of that question, Judge Willard says: “Their neglect to perform their duty at the time, required cannot nullify the statute. They or their successors are bound to do what was required, and on failure to perform it may be compelled by mandamus. ”

In People v. Board of Police, 46 Hun, 296, it was held that when the statute directed that the board of police should make appointments of inspectors of election in the months of August and September in each year, their failure to do so did not invalidate an appointment made after that time. The principle above enunciated seems so well settled that further citation of authorities is unnecessary. The same rule of construction which applies to statutes is equally applicable to constitutional provisions of similar character.

In People v. Fancher, 50 N. Y. 288, Allen, J., says: “The same general rules which govern the constitution and interpretation of statutes and written instruments generally apply to and control the interpretation of written constitutions. ”

Within the above principles and authorities, it would' seem that the legislature of 1892 might lawfully perform the constitutional duty of providing for an enumeration of the inhabitants of the state which the legislature of 1885 neglected and refused to do, and that the law authorizing the enumeration io 1892 was constitutional.

The second objection taken to the unconstitutionality of the enumeration is that it failed to enumerate and tabulate persons of color not taxed. The constitution of the state relating to senate districts provides that “ each senate district shall contain, as nearly as may be,'an equal number of inhabitants, excluding aliens, and persons of color not taxed.” Article 3, § 4, ConstSection 5 of the same article provides that “ 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, and shall be chosen by single districts.” It will be seen by this provision that persons of color not taxed are not to be excluded from the enumeration in the designation of assembly districts, but the enumeration for the apportionment is to embrace all except aliens, and it is difficult to see how an apportionment of members of assembly can be made to conform to that provision of the constitution, without embracing all the inhabitants except aliens. This, the petition expressly alleges, was done by the legislature-in making the apportionment by chapter 680 of the Laws of 1892.

No question is raised in the notice of motion in this case as to the formation of senate districts, and we are only called upon in this proceeding to examine the constitutionality of the law as applied to assembly districts. By the theory of the constitution the formation of senate and assembly districts are entirely distinct. Senate districts are formed by the legislature, while only the legislature apportions the number of assemblymen to which counties are entitled, where entitled to more than one, between the different counties, leaving the districts to be formed by the boprds of supervisors. The formation.' of the assembly districts is in no way dependent upon the population or boundaries of the senate districts, and it would seem from the different constitutional provisions, as to the persons to be excluded from the enumeration, if the color line is still in force, that they are composed of different classes of persons, to wit, persons of color not taxed to be included in assembly enumerations, and excluded in senatorial enumerations. As the senate and assembly districts are in no way identical, and the formation and erection of one in no way depend upon the other, it would follow that if the apportionment as to senate districts was unconstitutional by reason of the failure to exclude from the apportionment persons of color not taxed, because that class of persons is excluded in senatorial apportionment by the constitution, that fact could not render the formation of assembly districts unconstitutional, when the constitution in express terms requires that class of persons to be included in the enumeration.

If the enumeration is constitutional as to the assembly districts and unconstitutional as to the senate, the former will be upheld, while on a proper application the other might be set aside. Where parts of an act of the legislature not dependent upon each other are held, one to be constitutional and! another unconstitutional, the part held to be constitutional will be upheld, while the part unconstitutional will be overthrown. In Wynehamer v. People, 13 N. Y. 442, Selden, J., says: “ When part of a law is in conflict with the-constitution, and that part is entirely separable from the residue, so that other-portions of the law can be enforced without reference to it, then the unconstitutional part only will be condemned.” In Presser v. State of Illinois, 116 U. S. 252, 6 Sup. Ct. Rep. 580, the court say “that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the constitution, providing the allowed and prohibited parts are separable.”' And a similar doctrine is laid down in Packet Co. v. Keokuk, 95 U. S. 80; Penniman’s Case, 103 U. S. 714; Unity v. Burrage, Id. 459; Baldwin v. Franks, 120 U. S. 679, 7 Sup. Ct. Rep. 656, 763.

It is urged with great force by the learned attorney general that by the effect of the 13th and 14th amendments of the federal constitution, and the legislation in this state arising out of the provisions of those amendments, there no longer exists in this state a class of persons known as “persons of «olor not taxed.” That by the enfranchisement of persons of color without regard to property qualifications, all that class became citizens, and taxable, —at least subject to poll tax; and the color line was expunged from our constitution by force of the provisions of the federal constitution. But the views we have taken of this question would seem to uphold the constitutionality of the assembly district apportionment, and that, as we read the notice of motion, is the only question now before us, and we are not called upon to consider that question on this motion.

The next question for consideration is whether the apportionment can constitutionally be made at an extraordinary session of the legislature, during the same year that the enumeration is taken, and by the same legislative body. The only constitutional restriction or limitation on the time for making the apportionment is that it is required to be made at “the first session after the return of every enumeration.” There is no direct requirement in the constitution that it shall be at a regular session of the legislature, nor is there any constitutional prohibition against its occurrence at an extraordinary session of the legislature, providéd such session is the first one occurring after the enumeration. It is true that it has been held that the provisions of the constitution as to the time of making the apportionment are not mandatory, and the failure of the legislature to make the same at the first succeeding session would not render an apportionment at a later period void. In Rumsey v. People, 19 N. Y. 41, Strong, J., in delivering the opinion of the court, uses.this language: “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 1885 according to the direction in the constitution. Articles 3 and 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 when such apportionment of assembly districts and formation of senate districts would be established.” In the case Johnson, C. J., uses this language: “Now, as to senate districts and assembly apportionment, they had power to act in 1857, as the neglect of their imperative duty in 1856 would not make void the apportionment of 1857.” From this case it appears that the constitutional provision is not mandatory that the apportionment shall be made at the next regular session of the legislature chosen at the succeeding election, as is strenuously contended by the counsel for the relator.

That being so, if the extraordinary session at which this apportionment was made was a legal and constitutional session of the legislature, then it could properly make this apportionment. The governor, by his proclamation, assumed to convene the legislature in extra session under the provisions of section 4 of article 4 of the constitution. This article gave the governor power to convene the legislature in extraordinary session, and from the very nature of this provision he must be the judge as to what constitutes the extraordinary occasion. But if we are to look for facts constituting an extraordinary occasion, it can be found in the neglect of previous legislatures to provide for an enumeration upon which an apportionment could be made, and the gross inequality of representation of the different portions of the state in the legislature, which was not only a matter of public notoriety, but abundantly appears in the papers on this motion.

But it is urged that the proclamation did not set forth the object for which the legislature was convened, and that for that reason it was irregular, and did not authorize the legislature to make an apportionment. The constitution provides that “at extraordinary sessions no subject shall be acted upon except such as the governor may recommend for consideration. ” Article 4, § 4. There is nothing in this constitutional provision that requires the governor to recommend any subject to the legislature in the proclamation convening the legislature in extraordinary session. But, under this provision, the legislature, after convened, would be powerless to act if the governor failed to recommend a subject for their action. This, however, the governor did, on the convening of the legislature, by a message addressed to them, in which they were specifically limited to the making of an apportionment. It cannot, therefore, be said that the legislature acted without the authority upon which alone the constitution empowers them to act. They, therefore, in fact legislated upon the subject recommended by the governor, and the objection to their acts upon that ground necessarily falls.

The only remaining question upon this point is, was the extraordinary session a session of the legislature? If it was, then it was clearly the first session after the enumeration, and one at which the apportionment could constitutionally be made. Most undoubtedly it was a session of the legislature, and came within the language of the constitution. This was clearly shown by Justice Macomber in his opinion lately handed down in People v. Board of Sup’rs of Monroe Co., 20 N. Y. Supp. 97. He says, (page 107:) “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 legislative"year, is, I venture to think, well shown by the constitution itself, taken as a whole.” This view is strengthened when we find that where the constitution requires that any act shall be submitted to a legislature subsequently chosen, as in proposing amendments to the constitution, it is expressly provided that the proposed amendment must be submitted to a legislature subsequently to be chosen by the people. It is fair to argue and infer, therefore, that, if the apportionment was required to be passed by a legislature subsequently chosen, the constitution would have so expressly provided. I am therefore clearly of the opinion that it was competent, within the constitution, for the legislature to make this apportionment at the session at which it was made.

It remains to consider whether the assembly apportionment in the act under consideration is such as to authorize the court to set the act aside- as unconstitutional and void. Section 5 of article 3 of the constitution provides that “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 the respective inhabitants.” It is clear that the words “as nearly as may be” are words conferring a discretion upon the legislature. They were not in the original constitution, and first became a part of the fundamental law by the amendment of 1801. That amendment could have had no other purpose than that of conferring a discretion on the legislature in making the apportionment. But we are not without judicial guide in determining what this phrase, “as nearly as may be,” signifies. In Railroad Co. v. Horst, 93 U. S. 300, 301, Judge Swayne, in speaking as to the conformity of the pleadings and practice of that court to the practice of the state court when the action is prosecuted in the United States courts in a state, in construing the statute of the United States containing these words, says: “The conformity is required to be as near as may be, not as near as may be possible, or as near as may be practicable.” This indefiniteness may have been suggested by a purpose. It devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as congress doubtless expected they would do, any subordinate provision in such state statutes which in their judgment would incumber the administration of the law, or tend to defeat the ends of justice in this tribunal. ”

The constitution of the state of Maine provides that “the districts shall conform as near as may be to county lines, and be apportioned according to the number of inhabitants.” And Judge Whitman, in construing that language, says: “The words, ‘as near as may be',’ showed that something was left to the discretion of the legislature, and are to be regarded as in some measure discretionary, and not containing a mandate of a nature so explicit as that obedience must follow without consideration. ” The language of the constitution in that state is even more explicit than in the New York constitution, for it provides that the apportionment shall be made “according to the number of inhabitants;” and yet the court in 18 Me. 460, in declining to interfere with an apportionment, say: “If such power should be abused in any case, the remedy is with the people. Those guilty of any such outrage will be likely to become in time the victims of their own misconduct. In popular governments, this, and the right which it may be believed the people will exercise of displacing bad servants, are great checks upon the abuse of power.” In Prouty v. Stover, 11 Kan. 261, the court, in discussing this question, say: “An apportionment cannot be overthrown, because the representatives are not distributed with mathematical accuracy according to the population. Something must be left to the discretion of the legislature, and it may, without invalidating the apportionment, make one district of a larger population than another. It may rightly consider the compactness of territory, the density of population, and we think the probable changes of the future, in making the distribution of representatives.”

It will be seen that, in construing constitutional provisions like the one under consideration, where the legislature have a discretion in making the apportionment, the courts have not regarded themselves as authorized to review that discretion. Any other construction would make the apportionment to depend upon the discretion of the courts which have not been invested by the constitution with any discretionary power upon this subject, and take the same from the legislature, where the constitution has so plainly lodged it.

Again, this discretion has always heretofore been exercised by the legislature without interference from the judicial department of the state, which furnishes a strong reason for holding that the people, by universal consent, have considered that that power is lodged with the legislature, and that, too, when the enumeration showed greater inequalities of representation than any of which the relator in this case complains. In the apportionment of 1875, Orange county, with a population of 82,225, was awarded two members of assembly, while St. Lawrence county, with a population of 78,014, was awarded three members, Suffolk county, having a population of 50,350, was given one member, while Cattaraugus, having only 45,737, was given two members, and Washington, with a population of 46,-330, was given two members, and Niagara, with 47,620, Otsego, with 48,987, and Wayne, with 47,-567, were each given two members; so the list might be multiplied.

From these figures it will be seen that the legislature has uniformly exercised this discretion, and that, too, without their acts being questioned in the courts as unconstitutional. Reference to these inequalities are not made for the purpose of offsetting one wrong against another, but rather to show that such Irregularities have not been regarded as such an abuse of the discretionary power vested in the legislature as to render their apportionment unconstitutional and void. I am not unmindful of the fact that a different conclusion has been reached by a majority of the judges of the general term of the fifth department upon some of the questions involved in this motion. But that decision did not involve the restraining of a state officer from the discharge of a statutory duty imposed upon him, the performance of which is a necessary prerequisite to the holding of an annual election in the state for the election of members of assembly. It is true that the motion before us asks the mandatory process of this court, compelling the secretary of state to issue notices of election of members of assembly in pursuance of the provisions of chapter 208 of the Laws of 1879; but we have already seen that, if chapter 397 of the Laws of 1892 is unconstitutional by reason of the inequalities of representation, the provisions of chapter 208 of the Laws of 1879, based upon the enumeration of 1875, as the population of the state then was, would be subject to the same criticism and condemnation. In a matter of such grave importance, so far-reaching in its consequences, the court should not resort to this extraordinary power of injunction and mandamus against a co-ordinate department of the government, except in a case where the unconstitutionality of the law under which the administrative officer is required to act is free from reasonable doubt.

In Ex parte McCollum, 1 Cow. 550, Savage, J., says: “Before the courts will deem it their duty to declare an act of the legislature void, a case must be presented in which there can he 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 People v. Draper, 15 N. Y. 532-545, the court say: “There is no room for much bad legislation within the pale of the constitution, but whenever this happens the remedy which the constitution provides, by the opportunity of frequent election of legislative bodies, is far more efficient than any which can be afforded by the judiciary. The courts cannot impute to the legislature any other than public motives for their acts. ” In People v. Supervisors, 17 N. Y. 235, the court uses this language: “Some respect is due to the opinions of a co-ordinate power of the government. A legislative act is not to be declared void upon mere conflict of interpretation between the legislature and the judicial power. Before proceeding to annul, by judicial sentence, what has been enacted by the lawmaking power, it should clearly appear that the act cannot he supported by any reasonable intendment or allowable presumption.” Within these rules of interpretation it is difficult to see how this act can be declared unconstitutional and void by this court. I am therefore of the opinion that this motion should be denied. Motion denied, with costs and printing disbursements.

Herrick, J.

The relator asks that a mandamus be issued by this court directing the defendant to issue election notice to the clerks of the respective counties of the state, and that he embrace in said election notice the number of members of assembly required and allowed to be voted for under the apportionment act of 1879, known as chapter 208 of the Laws of 1879, and that he be restrained from accepting and filing certificates of the division of counties into assembly districts under the apportionment act of 1892, known as chapter 397 of the Laws of 1892, and restraining him from doing anything to carry into effect said chapter 397 of the Laws of 1892, upon the ground that said act is unconstitutional and void. The defendant, by the attorney general of the state, maintains the constitutionality of the act of 1892, and calls attention to the fact that the act of 1879 is subject in some respect to the same criticism that is passed upon the act of 1892. It will be seen at once that the questions involved are of grave moment and of great public importance. The public interests imperatively demand a final determination of this controversy by the court of last resort at as early a date as is consistent with due and proper deliberation. The election is to be held November 8th; the court of appeals meets October 3d. This court is now in session, engaged in hearing cases, and will be so engaged for some time to come. To wait until it adjourns, and then take up this case for examination and determination, will postpone the decision until too late a date to permit of its being taken to the court of appeals in time to have it heard and decided before election. Neither can I during the term of the court make such an examination of the case as its importance demands, or, in justice to the court of which I am a member, attempt, during the session, to formulate an opinion upon questions of law so grave as are here involved.

The general term of the fifth department, in the case of People v. Board of Sup’rs of Monroe Co., 20 N. Y. Supp. 97, by a divided court, has decided some, but not all, of the questions involved in this proceeding. I have read the very able and learned opinions by the several members of the court in that case, but am not prepared, without further examination and reflection, to either concur in or dissent from the determination arrived at in that case. But, if the court is correct in its reasons for its decision in that cage, it seems to me that it must necessarily dispose of this, because, as was pointed out by the attorney general, the same vice, as to inequality in the apportionment of members of assembly, exists in the apportionment act of 1879 as is alleged in regard to the act of 1892. If the act of 1892 is void because the members of assembly have not been “apportioned among the several counties of the state, * * * as nearly as may be, according to the number of their respective inhabitants,” (section 5, art. 3, Const.,) then the act of 1879 is void for the same cause, and there is no reason why the court should command the secretary of state to proceed under that act instead of the one passed in 1892. Without, then, at this time expressing any opinion as to the constitutionality of either law, and for the purpose of expediting the final determination of the questions involved, I unite with Mr. Justice Mayham in deciding against the application for a mandamus. Let a decree be entered accordingly.

Putnam, J.

Since the submission of this case I have been in constant attendance at general term, and unable to consider the important questions involved, or even read the elaborate briefs presented, or the opinions of justices Rumsey, Lewis, Dwight, and Macomber on the Monroe Case, 20 N. Y. Supp. 97. My associates, comprising a majority of the court, have reached the conclusion that the motion for a mandamus should not be granted. Counsel suggest that an early decision of the ease by this court is necessary, in order that the opinion of the court of appeals may be seasonably taken upon the question submitted to us. Without an opportunity to examine the case, I am 'neither able to concur with, or dissent from, the conclusion of my associates. Inasmuch as my opinion, concurring or dissenting, would not change the result, and in order that the matter may be at once, submitted to the court of appeals, I deem it advisable not to retain the case for examination. 
      
       Const, art. 3, § 4, provides that “ an enumeration of the inhabitants of the state shall be taken, under the direction of the legislature, in the year one thousand eight hundred and fifty-five, and at the end of every ten years thereafter. ”
     
      
       Const, art. 3, § 5.
     