
    In the Matter of the Petition of Robert E. Dowling and Others to Review Chapter 373 of the Laws of 1916, Being the Present Apportionment of the State into Senate and Assembly Districts, Petitioners, Appellants; Hon. Charles S. Whitman and Others, Respondents. In the Matter of the Petition of Richard C. Patterson, Jr., to Review Chapter 373 of the Laws of 1916, Being the Present Apportionment of the State into Senate and Assembly Districts.
    First Department,
    July 7, 1916.
    Constitutional law — apportionment of senatorial districts — Constitution construed — increase "of Senators at any particular apportionment as permitted by Constitution is not permanent—apportionment of 1916 unconstitutional in certain respects — allotment of senators to Westchester county.
    The provision of the State Constitution that “ The Senate shall always be composed of fifty members,” with the exception that “ if any county having three or more senators at the time of any apportionment shall be entitled on such ratio [obtained by dividing the total number of inhabitants of the State, excluding aliens, by fifty] to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators and the whole number of senators shall be increased to that extent,” should not be construed to mean that an additional Senator given to a county under said exception permanently increáses the number of Senators. On the contrary, such additional Senator is eliminated upon a new apportionment of the State, unless the facts existing again call into existence the exception provided for in the Constitution.
    Hence, the fact that the apportionment of 1907 called for fifty-one Senators did not permanently increase the Senate to that number, and on the apportionment of 1916 the Legislature had no power to increase the representation of Westchester county from one to two Senators, making the total number of Senators again fifty-one, where the population of Westchester county on said apportionment lacked the number required to entitle it to two Senators.
    But the unconstitutionality of the apportionment of 1916 in the matter aforesaid does not require the condemnation of the whole apportionment as unconstitutional, as the general scheme will not be destroyed if the unconstitutional element be eliminated.
    The apportionment of 1916 declared to be invalid, in so far as it provides for fifty-one Senators, and allots two instead of one to Westchester county, and to be valid in all other respects.
    Appeals by Robert E. Dowling and others from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York dismissing the petitions herein upon the merits on the question of law only.
    
      D-Cady Herrick of counsel [Edgar M. Cullen, Robert L. Luce, James A. Foley with him on the brief], William A. McQuaid, attorney, for the appellants.
    
      Ellwood M. Rabinold, for the petitioner Patterson.
    
      William B. Carswell, for the petitioner, intervenor.
    
      Eton R. Brown of counsel [Merton E. Lewis, Leonard J. Obermeier with him on the brief], Egburt E. Woodbury, Attorney-General, for the respondents.
   Per Curiam:

The proceeding was instituted by an order to show cause upon a petition attacking the apportionment made by chapter 373 of the Laws of 1916 (adding to State Law [Consol. Laws, chap. 57; Laws of 1909, chap. 59], art. 8), asking that the same be reviewed and that the said apportionment be adjudged unconstitutional and void. Jurisdiction is conferred upon this court by section 5 of article 3 of the Constitution. “ An apportionment by the Legislature, or other body, shall be subject to review by the Supreme Court, at the suit of any citizen, under such reasonable regulations as the Legislature may prescribe.” The Apportionment Act provided for fifty-one Senators. The appellants claim that the total number of Senators should be fifty and not fifty-one. By the Constitution of 1894, in section 3 of article 3, it was provided: “The State shall be divided into" fifty districts to be called senate districts, each of which shall choose one senator.” And it proceeded to define the fifty Senate districts. Section 4 of article 3 provided: “An enumeration' of the inhabitants of the State shall be taken under the direction of the Secretary of State, during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter; and the said districts shall he so altered by the Legislature at the first regular session after the return of every enumeration, that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the return of another enumeration, and shall, at all times, consist of contiguous" territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county. No town,, and no block in a city inclosed by streets or public ways, shall be divided in the formation of senate districts; nor shall any district contain a greater excess in population ‘over an adjoining district in the same county, than the population of a town or block therein adjoining such district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.

“No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have more than one-third of all the senators; and no two counties or the territory thereof as now organized, which are adjoining counties, or which are separated only by public waters, shall have more than one-half of all the senators.

“ The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty, and the senate shall always be composed of fifty members, except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole number of senators shall be increased to that extent.”

By the apportionment of 1907 (Laws of 1907, chap. 727) the county of Kings having more than three Senators, to wit, seven, had in addition the full ratio for another Senator, and, under the provision of the section quoted, an additional Senator was given to such county and the whole number of Senators was thereby increased to fifty-one. It is the claim of the respondents that thereby the number of Senators was permanently increased to fifty-one, although it is admitted the senatorial ratio was still to be obtained by dividing the whole number of inhabitants of the State, excluding aliens, by the number 50. The ratio obtained according to the constitutional formula by dividing the whole number of inhabitants of the State, excluding aliens, namely, 8,059,515 by 50, results in the senatorial ratio of 161,190. Upon that ratio the county of Kings, having a citizen population of 1,441,221, is entitled to eight Senators, the same number it had under the apportionment of 1907. Brie, Kings and New York counties were the only counties having -under the 1907 apportionment three or more Senators. Hone of those counties have the requisite citizen population to support the number of Senators allotted in 1907, and in addition a full ratio thereby entitling it to an additional Senator under the apportionment of 1916. nevertheless, the act provides for fifty-one Senators and has increased the Senate representation of Westchester county from one, as it was under the apportionment of 1907, to two, although its population is only 273,069, or 49,311 less than would be required to authorize two Senators. The claim is: Kings county was entitled to an additional Senator in 1907, making eight in all; while it is by its population entitled this year to eight under the full ratio formula, one of those eight is the additional Senator permanently added to the number of Senators in 1907; the Legislature, therefore, had the right to apportion forty-three other Senators to the rest of the State, one of whom it determined to gllot to Westchester county. We find no warrant in the Constitution for such contention. The ratio is fixed. “ The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty.” It is then provided: “And the senate shall always be composed of fifty members.” Then comes the exception: “Except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators.” “At the time of any apportionment” means precisely what it says. Such apportionment, applied to the facts of this case, was this year, 1916, and at this time no county having three or more Senators had population enough to furnish a full ratio for an additional Senator.

The ratio necessarily changes from one decade to another as the population of the State increases. Permanency in the number of Senators, to wit, fifty, was provided for, but in order to prevent a cutting down of senatorial representation in the smaller counties the exception was inserted in order to prevent a denial of representation to a full senatorial ratio at any apportionment by providing for an additional Senator so as not to interfere with the general scheme of the senatorial plan. Any reading of this clause, as it seems to us, which would make the additional Senator a permanence might increase the number of Senators to fifty-two, fifty-three, fifty-four or fifty-five, or more, as the case may be, and so would be in conflict with the emphatic provision that the ratio shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty and the Senate shall always be composed of fifty members.

As it seems to us we start with the flat proposition that there shall be fifty Senators. As the enumeration of inhabitants is to take place at each ten years’ interval and as the apportionment is to be based upon • that enumeration at the end of each decade, then, if any county with three or more Senators shall have a full ratio of inhabitants left over they are to be represented by the additional Senator. But that additional Senator was not permanent and would be eliminated upon a new apportionment if the facts then existing did not call into existence the constitutional provision. It seems to us, therefore, that the apportionment was clearly unconstitutional in providing for fifty-one instead of fifty Senators and in increasing the representation of Westchester county from one to two. But we do not think that this requires the condemnation of the whole apportionment as the unconstitutional provision is not so connected with the whole scheme as to destroy it if eliminated. Nor will the county of Westchester fail of senatorial representation because by article 3, section 3, of the Constitution it is entitled to one Senator. As the provision of the act under consideration providing for two Senators is invalid, that constitutional provision is unaffected and ex proprio vigore will still be in force and effect.

The appellants further object that certain senatorial districts in the county of Kings and in the county of New York do not comply with the constitutional provisions as to contiguous territory. In view of the approval by the Court of Appeals (Matter of Sherrill v. O'Brien, 188 N. Y. 185) of the apportionment of 1907 (Laws of 1907, chap. 727) while the apportionment of 1906 (Laws of 1906, chap. 431) was under consideration, and again in Matter of Reynolds (202 id. 430, 442, 443), we think there is no such violation of the constitutional provision in that regard as requires us to declare the whole apportionment null and void.

It is further objected that because the twelfth senatorial district has a population of 164,103, which is 1,377 more than the thirteenth, while a marginal block contains 636 inhabitants, and the fourteenth district has 1,059 more inhabitants than the sixteenth, while a marginal block contains 530, and the fifteenth district has 516 more inhabitants than the thirteenth, while a marginal block contains 333, and the twelfth district has 236 more inhabitants than the fourteenth, while a marginal block has 131, and the fifteenth district has 1,016 more inhabitants than the fifteenth, while a marginal block has 654, therefore, the provision that blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants ” has been violated.

While we regret that the provision should not have been more closely observed yet we do not think that for such discrepancies the whole apportionment should be declared void.

Appellants further object to the apportionment of Members of Assembly. We have carefully considered this matter and have reached the conclusion that the result reached by the Legislature was in strict accordance with the constitutional provisions. (Const, art. 3, § 5.)

The orders appealed from should, therefore, be reversed on the law and the apportionment declared invalid in so far as it provides for fifty-one Senators and allots two instead of one to Westchester county, and valid in all other respects.

Present—Clarke, P. J., Scott, Dowling, Smith and Page, JJ.

Orders reversed on the law and the apportionment declared invalid in so far as it provides for fifty-one Senators and allots two instead of one to Westchester county, and valid in all other respects. Orders to be settled on notice.  