People ex rel. Baird v. Bd. of Sup'rs of Kings Cnty.

Citation33 N.E. 827,138 N.Y. 95
PartiesPEOPLE ex rel. BAIRD et al. v. BOARD OF SUP'RS OF KINGS COUNTY.
Decision Date11 April 1893
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, general term, second department.

Petition by Andrew D. Baird and others for mandamus to compel G. Cochran Broom and others, constituting the board of supervisors of the county of Kings, to divide Kings county into assembly districts according to the constitution and laws of the state. From a judgment of the general term (20 N. Y. Supp. 470) affirming an order denying the writ, relators appeal. Reversed.

The other facts fully appear in the following statement by PECKHAM, J.:

The relators, upon affidavits, moved before the special term of the supreme court held in Brooklyn in August, 1892, for a writ of mandamus against the defendants, commanding them to forthwith convene, and divide the county of Kings into assembly districts in the manner and form as required and contemplated by the constitution and statutes of the state. The affidavits upon which the motion was founded showed, among other facts, that the relators were citizens of the United States, and for more than a year then past had been residents of the city of Brooklyn and of the county of Kings, designated as the Fifth Assembly District,’ as thereinafter set forth, and that each was a duly-qualified elector in that district, and had been duly registered and voted at the general election held in November, 1891. The moving papers further showed that the defendants on or about the third Tuesday in July, 1892, had filed a certificate in the office of the secretary of state, and in that of the county clerk of the county of Kings, as provided for by the terms of the act chapter 397 of the Laws of 1892, by which certificate it appeared they had divided the county of Kings into 18 assembly districts, as provided for in that act; but it was alleged that the defendants had not further done or performed the obligations imposed upon them by that act and the constitution of the state, than to make a division as already stated. The papers further showed that the fifth assembly district, of which relators were residents, had been so constituted by the defendants as to contain 102,805 inhabitants, and entitled to but one member of assembly, whereas other citizens, by action of the defendants, were made electors in other assembly districts in Kings county, having a much smaller population,-one of the districts having only 31,685, and another, only 33,416, and that the first, sixth, and ninth assembly districts formed and constituted by defendants had an aggregate population of but 99,868, or 2,937 less than the fifth assembly district, in which the relators resided. A copy of the certificate filed by the defendants in the office of the secretary of state and in the clerk's office of Kings county was annexed to the invoing papers. The following is an abstract thereof, as to districts and population:

+--------------------------------------------------+
                ¦                         ¦ ¦Population.¦          ¦
                +-------------------------+-+-----------+----------¦
                ¦12th ward                ¦ ¦31,685     ¦9th dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦1st and 2d wards         ¦ ¦33,416     ¦1st dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦8th ward                 ¦ ¦34,767     ¦6th dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦9th ward                 ¦ ¦36,258     ¦7th dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦24th ward                ¦)¦           ¦          ¦
                +-------------------------+-+-----------+----------¦
                ¦                         ¦)¦37,902     ¦17th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦Flatbush and New Utrecht ¦)¦           ¦          ¦
                +-------------------------+-+-----------+----------¦
                ¦3d and 4th wards         ¦ ¦39,921     ¦2d dist.  ¦
                +-------------------------+-+-----------+----------¦
                ¦5th and 11th wards       ¦ ¦44,443     ¦3d dist.  ¦
                +-------------------------+-+-----------+----------¦
                ¦17th ward                ¦ ¦46,134     ¦13th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦6th ward                 ¦ ¦48,944     ¦4th dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦10th ward                ¦ ¦50,331     ¦8th dist. ¦
                +-------------------------+-+-----------+----------¦
                ¦22d ward                 ¦ ¦50,493     ¦15th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦16th ward                ¦ ¦50,616     ¦12th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦15th and 18th wards      ¦ ¦53,090     ¦11th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦13th and 14th wards      ¦ ¦58,264     ¦10th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦23d and 25th wards       ¦ ¦88,555     ¦16th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦26th and 28th wards      ¦)¦           ¦          ¦
                +-------------------------+-+-----------+----------¦
                ¦                         ¦)¦88,703     ¦18th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦Flatlands and Gravesend  ¦)¦           ¦          ¦
                +-------------------------+-+-----------+----------¦
                ¦21st and 27th wards      ¦ ¦91,751     ¦14th dist.¦
                +-------------------------+-+-----------+----------¦
                ¦7th, 19th, and 20th wards¦ ¦102,805    ¦5th dist. ¦
                +--------------------------------------------------+
                

There were other allegations in the moving papers, relating to certain proceedings of the supervisors and of the common council as to changing boundaries of wards, which it is not necessary to here repeat. The population of Kings county appeared by the last census (1892) to have been 995,276, and the total citizen population 868,983. The defendants admitted that they filed in the office of the secretary of state, and in that of the clerk of the county of Kings, a certificate provided for by the constitution and the statute, wherein they certified that they had divided the county of Kings into 18 assembly districts, giving the number, description, and population of each district, and that a correct copy thereof was attached to relators' moving papers. They also admitted that the population of the various wards in the city of Brooklyn, and of the various towns in the county of Kings, was correctly set forth in a document described as bearing date April 1, 1892, and marked Senate Document No. 60,’ and that a correct copy thereof, so far as it related to the population of Kings county and the city of Brooklyn, was also attached to the moving papers of the relators. The defendants denied any wrongdoing, or any failure to comply with all the provisions of the constitution and the statutes of the state, and they alleged that they had properly and legally divided the county of Kings into the proper number of assembly districts, and they asked that the motion for the writ be denied, with costs. After hearing the respective parties, the special term denied the motion of the relators for the writ of mandamus, but without costs, upon the ground stated in the opinion of the court. An appeal, was taken by the relators to the general term of the supreme court, and after argument that court affirmed the order denying the motion for the writ. From the order of affirmance the relators have appealed to this court.

F. E. Barnard,(Jesse Johnson, B. F. Blair, and E. H. Hobbs, of counsel,) for appellants.

John B. Meyenborg,(Almet F. Jenks, Thomas E. Pearsall, Richard B. Greenwood, Jr., and William T. Gilbert, of counsel,) for respondents.

PECKHAM, J., (after stating the facts.)

The first question which arises on this appeal is as to the proper construction of section 5 of article 3 of the constitution, where it provides for dividing counties by the boards of supervisors into assembly districts in those cases where the county is entitled to more than one member of assembly. The learned judge who heard and decided the case at special term said he did not see how the motion for a mandamus could be granted without writing into the constitution a provision which the people struck out of that instrument in 1874. The general term followed in an affirmance upon substantially the same ground. It is clear that if the constitution do not in terms, or by necessary implication, provide for a reasonably equal division by population, as near as may be, then the subject of a division by the supervisors, so long as towns are not divided, and the districts are composed of convenient and contiguous territory, is left wholly to their absolute and uncontrolled discretion. In such a case as this, where the county is entitled to 18 members of assembly, there is nothing to control the discretion of the board, even though it should so divide the county that 17 of the districts should have each a population of a hundred or less, while the balance of the population should be represented by one member of assembly, only. This is an extreme case, i know, and such extreme illustrations are not always proof of error in a construction which admits their possibility. But, long before an extreme case like this should be reached, it is apparent that gross injustice might be practiced in constituting assembly districts, and no redress would be possible until after the completion of another census, at which time a fresh opportunity for another act of injustice would also arise. While it may be impossible always to preventinjustice in matters of government, yet it is manifestly not the policy of this state to commit irresponsible power to local administrative bodies; and nothing but the plainest language of the constitution ought to be regarded as sufficient to remove such bodies from the supervising power of courts of justice, acting themselves in obedience to the constitution and the law.

It must be admitted that inequality of members in representative districts is not incompatible with most advanced ideas...

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