
    The People ex rel. Andrew D. Baird et al., App’lts, v. G. Cochran Broome et al., Members of the Board of Supervisors of' Kings Co., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September, 1892.)
    
    1 Election—Apportionment op assembly districts.
    The board of supervisors of a county is invested with full power to make the division of the county into assembly districts in the exercise of their discretion and clothed with full authority for that purpose, and their action is final and cannot be reviewed by the courts or controlled by mandamus.
    
    2. Same—City wards.
    The wards of a city are not towns within the meaning of the provision of the constitution prohibiting the division of towns in the formation of assembly districts.
    Appeal from order denying motion for a writ of -'eremotory mandamus.
    
    
      Jesse Johnson, for app’lts; M. Meyenburgh and W. C. De Witt, for resp’ts.
   Dykman, J.

This is an appeal from an order of the special term which denied an application for a peremptory writ of mandamus commanding the members of the board of supervisors to convene and divide the county of Kings into assembly districts in the manner required by the constitution and the statutes of the state.

It appears from the papers presented by the relators that the defendants met on the nineteenth day of July, and divided the county of Kings into eighteen assembly districts, but their action is challenged because the assembly districts made by them are unequal in population and are not in accordance with the requirements of the constitution and partially disfranchise a portion of the electors, and that towns were divided in the formation of the districts.

No attack is made upon the enumeration or the statute making the apportionment of assemblymen to the county of Kings.

The provision of the constitution involved is as follows: “The assembly shall consist of one hundred and twenty-eight members, elected for one year. 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. The assembly districts shall remain as at present organized until after the enumeration of the inhabitants of the state in the year eighteen hundred and seventy-five.

“ 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 in manner aforesaid, and the board of supervisors in such counties as maybe entitled under such apportionment to more than one member, except the city and county of New York, and in said city and county the board of aldermen of said city, shall assemble at such times as the legislature making such apportionment 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, and shall cause to be filed in the offices of the secretary of state, and the clerks of their respective counties, a description of such-districts, specifying the number of each district, and the population thereof, according to the last preceding enumeration, as near as can be ascertained, and the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. No town shall be divided in the formation of assembly districts.”

There is no requirement for an arrangement of assembly districts which shall contain an equal number of inhabitants, and the silence upon that subject is more significant because the section as it stood previous to amendment did contain such a requirement in the following language :

“ Each assembly district shall contain as nearly as may be an equal number of inhabitants.”

The reason of the omission obviously was that the board of supervisors were invested with full power to make the divisions in the exercise of their discretion, and clothed with full authority for that purpose, and it would not be assumed that they would fail to secure equality.

The appellants claim also that towns have been divided in the construction of the election districts in violation of the constitutional interdiction, but the position is sought to be sustained by inference drawn from the contention that the wards of the city are towns of the county, and so fall within the inhibition against division.

Further, in this same connection, it may as well be stated that the boundaries of the city wards were changed by the common council on the 11th day of July, 1892, pursuant to chapter 455 of the Laws of 1892, and in the construction of the assembly districts-none of the wards as so changed and constituted were divided.

As to that, however, the appellant maintains that the statute of 1892 did not confer upon the common council the power to change the wards because they were towns of the county, and the power to alter them could not be delegated to the common council.

It will conduce to brevity and perspicuity to determine, first, whether the wards of the city are towns of the county within the meaning of the constitutional prohibition against division, for, if they are not such, then both arguments are faulty and will not prevail.

The argument of the appellant is based upon the provision of the constitution which forbids the division of towns in the formation of election districts, Section 5, article 3, and the provision of the statute that “ the said wards shall be considered and are hereby declared to be towns of the county of Kings.” Laws of 1892, ch. 57, § 30.

Towns, as political organizations, were formed early in the New England settlement with governments vested in a town meeting, and when that method became cumbrous, officers were chosen to administer the affairs of the town, and that was the mode from the first in the state of New York, and now they are practically corporations.

The people of the town elect their own officers to administer their own affairs independently of all other jurisdiction.

The towns and their town meetings have ever been deemed of paramount importance in the preservation of local self-government, and the great safeguard against centralized despotism, because they maintain inviolability in the parts without a sacrifice to the centre.

The legislature has clothed the wards with no powers of local self-government which are possessed and exercised by towns. They can neither incur corporate obligations, nor sue or be sued, nor exercise any of the' functions of a corporation.

Excepting supervisor and constable, they elect no officer whose duties are analogous to those of town officers. They possess none of the powers, and are subject to none of the liabilities of towns.

Perhaps the most distinguishing feature is the absence of the town meeting, which is essential to the autonomy of the town.

None of the statutes pertaining to towns have force or application to city wards.

We think, therefore, the wards of the city are not towns within the purview of the constitution and statutes under consideration, and that consequently there is no prohibition against the division of wards in the formation of assembly districts in Kings county.

If it had been the intention of the legislature to transfigure the wards of the city into towns in all that term implies, and clothe them with the powers and bestow upon them the privileges of county towns, it would have been easy to do so by the use of appropriate language, and in the absence of words indicative of such design we cannot infer such intention.

For what purpose a city ward is to be deemed a town except for the election of a supervisor and constables we cannot determine, but it is quite plainly a town in a very' limited sense, and not within the constitutional provision invoked by the relators.

We conclude, therefore, that the wards are not towns in any sense which exempts them from division.

Let us pause for a moment to examine the contention of the relator that the electors are partially disfranchised by the action of the defendants.

The exercise of the elective franchise has been called a right by some and a privilege by others, but whichever it may be it accrues in this way.

In this country all political power is vested in the people, but as the exercise of that power by the people themselves is impracticable, it must be exerted by representatives, under an organized government representing the collected will of the people, and as they are the agents of the people, the right to a voice in their selection is the right of every qualified elector and is his portion of political power.

It is the mode by which power eminates from its source, and is delegated to agents ; that delegation of power is called suffrage, and if the right of suffrage is ensured to every qualified elector, his rights are protected, because they have that extent and no more.

The right of suffrage is limited because the people limit themselves by their constitution, which regulates and restricts the right. It must be exercised at a specified time and place, and in a particular manner by certain persons, and the enforcement of such limitations and restrictions is not disfranchisement in any legal or constitutional sense.

If more electors vote for a representative in one district than in another, that impairs no right of suffrage. The aggregate number is chosen, and that seems the important aim.

In the formation of government it is important that all should be represented, and that end is secured by the constitution.

This view discloses no disfranchisement by the action under review.

Beyond the questions discussed, however, there is another view. The board of supervisors was required to assemble and divide the county of Kings into eighteen assembly districts of convenient and contiguous territory, and file a description of the same. The performance of the duty so imposed upon the board required the exercise of large discretion, bordering upon judicial power.

The duty has been performed, and the discretion has been exerted, and it is not made subject to any judicial control.

It is the office of a writ of mandamus to compel action by inferior bodies and tribunes, but it cannot be sent to dictate any particular action. It is not a remedy for erroneous determinations or decisions.

“ Where a subordinate body is vested with the power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamus to decide in any particular way, however clearly it may be made to appear what the decision ought to be.” People ex rel. Francis v. Common Council of Troy, 78 N. Y., 33.

Where, as in this case, a particular duty is addressed to the discretion and judgment of a particular body, in a case where the decision when made must be conclusive, and subject to no appeal or review, the rule must prevail which makes the decision final. Cooley Constitutional Lim., 5 ed., 52; Abrams v. Town Auditors, 10 St. Rep., 378; Talcott v. City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871.

Finality must be reached somewhere. The machinery of government will not be arrested by the courts until all possible errors are subjected to judicial review. Its exigencies will admit of no such delay, and the writ of mandamus cannot be allowed to obstruct the movement of governmental action.

The board of supervisors has discharged the duties imposed upon it by the fundamental law; and as if to insure finality to such action, and as an admonition against judicial interference, the same great law which directs the action declares in the same section that “ the apportionment and enumeration and districts shall remain unaltered until another enumeration shall be made as provided.” Any other course would subject the discretionary action of all local officers and bodies to judicial review against well settled principles.

The constitution requires the members of assembly to be apportioned among the counties “as nearly as may be” according to their inhabitants, excluding aliens, and where a county is entitled to more than one member under such apportionment, the board of supervisors is required to divide their counties into assembly districts, to consist of convenient and contiguous territory equal to the number of members to which the county is entitled.

In such division contiguity and convenience are to be attained, and irregularity in territory and inequality in numbers are unavoidable. It cannot be made according to mathematical rules.

The constitutional requirement obviously implies the exercise of discretion by the boards of supervisors and not by the courts. If the courts can interfere and set aside the work of the boards because they have exerted their discretion unwisely, then they must exercise their own discretion and substitute their judgment for that of the boards in determining the division to be made, and so in effect wrest the authority from the body to which it was delegated by the fundamental law.

In the division of power among^the great departments of government in this state the legislative power is vested in the senate and assembly and the executive power is vested in the governor; and although it is not so expressly declared by the constitution, it is yet a well recognized principle that the judicial power has .been committed to the judiciary.

Each of these powers is independent of the other; a legislative discretion is no more subject to judicial review or control than a judicial discretion ts subject to legislative control. Both are independent in their sphere, and responsible to the people only for the manner in which they discharge their duties. It is important, therefore, that each should confine itself within the bounds of its legitimate authority.

In no view, therefore, can the relators succeed on this appeal, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.  