People ex rel. Carter v. Rice

• Decision Date: 13 October 1892
• Citation: 135 N.Y. 473,31 N.E. 921
• Parties: PEOPLE et rel. CARTER v. RICE, Secretary of State. PEOPLE ex rel. POND v. BOARD OF SUP'RS OF MONROE COUNTY. In re HORN v. BOARD OF SUP'RS OF ONEIDA COUNTY.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 473

31 N.E. 921

PEOPLE et rel. CARTER

v.RICE, Secretary of State.

PEOPLE ex rel. POND

v.BOARD OF SUP'RS OF MONROE COUNTY.

In re HORN

v.BOARD OF SUP'RS OF ONEIDA COUNTY.

Court of Appeals of New York.

Oct. 13, 1892.

Application by the people, on the relation of George C. Carter, for a writ of mandamus to compel Frank Rice, secretary of state, to issue election notices under the apportionment law of 1879, and to enjoin him from filing election returns, or performing any act, under the apportionment law of 1892. From an order of the general term of the supreme court, third department, (20 N. Y. Supp. 293,) denying the application, relator appeals. Affirmed.

Application by the people, on the relation of Charles F. Pond, for a writ of mandamus to compel the board of supervisors of Monroe county to divide the county into three assembly districts, in accordance with the apportionment act of 1892. From an order of the general term of the supreme court, fifth department, (20 N. Y. Supp. 97,) affirming an order of the special term denying the motion, (19 N. Y. Supp. 978,) relator appeals. Reversed, and motion granted.

Application by Hartley V. D. Horn for a writ of mandamus to compel the board of supervisors of Oneida county to divide the county into assembly districts under the apportionment act of 1892. From an order of the general term of the supreme court, fourth department, (20 N. Y. Supp. 293,) affirming an order of the special term, which denied the motion, Horn appeals. Reversed, and motion granted.

E. H. Risley and Henry M. Love, for appellant Carter.

C. D. Kiehel and S. W. osendale, for appellant Pond.

H. J. Cookinham, for appellant Horn.

S. W. Rosendale, Atty. Gen., for respondent Rice.

William A. Sutherland, for respondent Board of Sup'rs of Monroe county.

J. I. Sayles, W. E. Scripture, and B. F. Searle, for respondent Board of Sup'rs of Oneida County.

PECKHAM, J.

The first above-entitled proceeding is an appeal from an order of the general term of the supreme court, third department, denying the application of the relator made to it for a mandamus against the secretary of state, directing him to issue election notices under the apportionment law of 1879, and enjoining him from filing election returns, etc., under the apportionment law of 1892, or performing any act under that law. The second proceeding is an appeal from an order of the general term, fifth department, affirming an order of the special term denying a motion for a mandamus to compel the supervisors of Monroe county to forth with commence and to immediately divide the county into three assembly districts, in accordance with the apportionment act of 1892. The third proceeding is an appeal from an order of the general term, fourth department, affirming an order of the special term, which denied a motion for a mandamusto compel the Oneida county board of supervisors to meet and proceed to divide Oneida county into assembly districts under the apportionment act of 1892. All the proceedings have for their object the decision of the question as to the validity of the apportionmentact of 1892. The boards of supervisors of the counties of Monroe and Oneida are the only boards in the state which have refused to make a division of their counties into assembly districts for the purpose of carrying out the provisions of the act of 1892. The secretary of state has issued and delivered to the clerk of Oneida county an election notice in which provision is made for the election of but two members of assembly therein, and the supervisors claim the right of the electors of the county to elect three members under the apportionment act of 1879, and therefore it is specially asked that the secretary be compelled to issue notices for the election of three members of asembly in the county of Oneida, pursuant to the apportionment contained in the law of 1879, and that the secretary be commanded to desist from doing any act or thing under chapter 379, Laws 1892, or to in any way recognize that act as valid or binding. This apportionment of 1892,¹ it is alleged, violates the provisions of the constitution in several particulars, which are set forth; and the court is called upon, at the instance of all parties to these litigations, to decide the questions involved at the earliest practicable moment, in order that the supervisors and the election officers may be guided in the discharge of their duties by the opinion of this court as to the validity of the act of 1892. We have given all the consideration possible to these cases since the argument thereof, and, while the questions are in themselves most important and far reaching, yet we are compelled by the necessities of the case to decide them at the earlist moment. We, however, feel more competent to do this because, however important the questions may be, we think the proper and correct answers are quite plain and clear.

The rule which has governed courts ever since the adoption of our constitutions, both federal and state, in relation to the exercise of the power to declare an enactment of the legislative body unconstitutional, has been plainly laid down in many reported cases, and has been rigidly adhered to by both the federal and state courts. Before courts will deem it their duty to declare an act of the legislature void, as in violation of some provision of the constitution, a case must be presented in which there can be no rational doubt. The incompatibility of the legislative enactment with the constitution must be manifest and unequivocal. Judge DENIO in People v. Draper, 15 N. Y. 546, expressed the rule in substantially the above language. There is no doubt of its correctness, and I have heard no counsel who have challenged it.

We must proceed to the examination of the constitutionality of the act of 1892, guided by the rule above set forth. Section 4 of article 3 of our state constitution reads as follows: ‘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; and the said districts shall be so altered by the legislature at the first 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 persons of color not taxed; 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 such county shall be equitably entitled to two or more senators.’

Section 5 of the same article, after providing for 128 members of assembly, continues: ‘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 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,’ etc. The apportionment and districts must remain unaltered until another enumeration shall be made, as provided in the constitution.

1. It is contended on the part of those who allege the invalidity of the law of 1892 that it was passed in violation of that provision of the constitution which directs the alteration to be made by the legislature at the ‘first session after the return of every enumeration.’ The act was in truth passed at an extraordinary session of the legislature called by the governor, and after the return of the enumeration of 1892. The point is made that an extraordinary session is not such a session of the legislature as is contemplated by the constitution. To my mind the objection is wholly without force. An extraordinary session is, nevertheless, a session of the legislature. The governor by the terms of the constitution has ‘power to convene the legislature (or the senate only) on extraordinary occasions.’ When thus convened, is not the legislature in session? And can it be for a moment correctly contended that a session thus convened is the same session which had already terminated by an adjournment without day? It is not a regular session, it is true; it is what the constitution describes it,-an extraordinary session,-but yet a session of the legislature. The constitution does not say that the session which is to deal with the question must be a regular one. All it directs is that the legislature at the first session after the return shall proceed to make the alterations. The constitution provides for the assembling of the legislature on the first Tuesday in January in each year. When it adjourns sine die, has not the session of the legislature ended? The term of office of its members may not have ended, but the legislative session has certainly terminated by an adjournment without day. It could not again assemble and perform any valid act unless the governor, under the special power given him by the constitution, should convene it. When thus convened, the legislature is in session, and it is clearly not the same session which was ended by a prior adjournment thereof without day. The constitution does not provide that the next legislature after the return of the enumeration at its first session shall make this apportionment. It is directed to be made by the legislature at the first session after such return. Wherein does this extraordinary session fail to fill that description? It was a session of the legislature, and it was the first which was held after the return of the enumeration, and it was competent to deal with that subject because of the recommendation of the governor.

There is no basis in the language of the constitution for the claim that the session of the legislature referred to in that instrument is the first session...