In re Dowling

• Decision Date: 25 July 1916
• Citation: 113 N.E. 545,219 N.Y. 44
• Parties: In re DOWLING et al.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 44

113 N.E. 545

In re DOWLING et al.

Court of Appeals of New York.

July 25, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

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, in which Victor F. Kney, intervened. From some parts of an order of the Appellate Division (160 N. Y. Supp. 362), entered July 7, 1916, which reversed an order of the New York Special Term, dated June 30, 1916, dismissing the petition on the merits, and which order of the Appellate Division also declared the apportionment as set forth in chapter 373 of the Laws of 1916 invalid so far as it provides for 51 senators, and declared said apportionment invalid so far as it allots 2 senators, instead of 1, to Westchester county, all the parties to the proceeding, including the intervener, appeal. Order reversed, and apportionment act of 1916 declared unconstitutional and void, and application of the petitioners granted.

D. Cady Herrick and Robert L. Luce, both of New York City, for petitioners.

William B. Carswell, of New York City, for intervener.

Elon R. Brown, of Watertown, for respondents.

CHASE, J.

The Constitution of 1894 divided the state into 50 districts, to be called senate districts numbered from 1 to 50 inclusive. Const. N. Y. art. 3, § 3. It also provides (article 3, § 4):

‘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 be 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 or 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.’

It also provides (article 3, § 5):

‘The members of the Assembly shall be chosen by single districts, and shall be apportioned by the Legislature at the first regular session after the return of every enumeration among the several counties of the state, as nearly as may be according to the number of their respective inhabitants, excluding aliens. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly. * * * The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, entitle it to a member. * * *

‘The quotient obtained by dividing the whole number of inhabitants of the state, excluding aliens, by the number of members of assembly, shall be the ratio for [apportionment], which shall be made as follows: One member of assembly shall be apportioned to every county, including Fulton and Hamilton as one county, containing less than the ratio and one-half over. Two members shall be apportioned to every other county. The remaining members of assembly shall be apportioned to the counties having more than two ratios according to the number of inhabitants, excluding aliens. Members apportioned on remainders shall be apportioned to the counties having the highest remainders on the order thereof respectively. No county shall have more members of assembly that the county having a greater number of inhabitants, excluding aliens.’

In 1906, following the enumeration of the inhabitants of the state in 1905, chapter 431 of the Laws of 1906 was enacted by which the Legislature divided the state into 51 senate districts, and also apportioned the members of assembly among the several counties of the state. The validity of that act was assailed in the courts and the act was declared wholly unconstitutional and void. Matter of Sherrill v. O'Brien, 188 N. Y. 185, 81 N. E. 124,117 Am. St. Rep. 841.

In 1907 the Legislature again reapportioned the state. Laws of 1907, c. 727. Several proceedings were brought to have such apportionment declared unconstitutional and void. The proceedings so brought were either dismissed or the application for relief denied. Matter of Reynolds, 202 N. Y. 430, 96 N. E. 87, 416. The inhabitants of the state were again enumerated in 1915. The Legislature of 1916 passed the act now before us for consideration and it became chapter 373 of the Laws of 1916. It is subject to review at the suit of any citizen. Constitution, article 3, § 5; Laws 1911, c. 773. The constitutional provisions relating to an apportionment are the same now as they were in 1906 and 1907. Most of the questions that can arise under the act now before us were considered in the Sherrill Case. So far as the questions were considered in that case it is unnecessary to restate the conclusions then reached.

Two or more important questions of law are presented on this appeal. The first at least of the following two questions was not considered in the Sherrill Case: (1) Upon the facts disclosed by the record, should the senate be composed of 50, or 51, members? (2) Did the Legislature violate the provisions of the Constitution in forming the senate districts by making one district to ‘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?’

[1][2] The intention of the people to limit by Constitution the number of senators to 50 is expressed in language that cannot be misunderstood as follows: ‘The senate shall always be composed of fifty members.’ That limitation is, however, subject to the exception stated therein. The exception is given for one, and only one, purpose, and that is to prevent counties having 3 or more senators from obtaining a larger number of senators at the expense of the counties of the state not having 3 or more senators. It is, for that purpose, provided that if any county having 3 or more senators at the time of any apportionment, is entitled on the ratio prescribed, ‘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.’

In determining what is intended by an ‘additional’ senator the intent of the people in making an exception to the otherwise clear purpose of always confining the senate to 50 members must be kept in mind and the meaning of ‘additional’ determined in view of such intent. The provisions of the Constitution that (1) no county shall have four or more senators unless it shall have a full ratio for each senator, and (2) no county shall have more than one-third of all the senators, and (3) 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, and (4) the provision making an exception to the prescribed number of senators all show a purpose and intent to prevent an increase in the number of senators from the larger counties of the state at the expense of the smaller counties of the state. The purpose and intent of the people in making the exception to the prescribed number of senators appears not alone from the Constitution itself, as we have stated, but from the proceedings of the convention, the report of its committee on apportionment, and the address of the convention to the people when the Constitution was submitted to the electors for their consideration and vote. Mr. Lincoln, in his Constitutional History or New York (volume 3, p. 222), says:

‘Mr. Root, referring to the action of the Convention of 1846, establishing 32 senate districts, said that ‘since that time increase in population has occurred in the great cities, and the effect of reapportionment, with the number remaining at 32 and giving new senators to the great cities, is to take away senators from the country; so that the country districts have been continually enlarging, until they have reached a point where a senator cannot properly represent the whole people of his district. The main object of fixing 50 as the number of senators is to bring the senatorial districts, widely extending, as they are, in the country, back substantially where they were with 32 under the apportionment...