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Upon an examination of the apportionment of Senate and Assembly districts made by the Constitution of 1894, it will be observed:

the territory in question, with its inhabitants and estates-to quote its exact language:

"Is hereby set off from the county of Westches

1. That the basis of the apportionment is the ter and annexed to, merged in and made part of county.

2. That each Senate district is wholly within a county or bounded by county lines.

3. That each Assembly district is wholly within a Senate district, and wholly within a county.

4. That the apportionment then made is to remain unalterable "until after the next enumeration," viz., 1905.

the city and county of New York, and of the twenty-fourth ward of said city and county, and shall hereafter constitute a part of the city and county of New York and of the twenty-fourth ward of said city and county, subject to the same laws, ordinances, regulations, obligations and liabilities, and entitled to the same rights, privileges, franchises and immunities, in every respect and to the same extent as if such territory had been included within said city and county of New York at the time of the grant and adoption of the first charter and organization thereof, and had so remained up to the

These features observed and followed in the constitutional apportionment then made, are, moreover, commanded to be observed by the Legislature in 1905 and in all future apportionments. Section 1 of Article VI of the Constitution of passage of this act." 1894 provides as follows;

"The existing judicial districts of the State are

continued until changed as hereinafter provided. * * *The Legislature may alter the judicial districts once after every enumeration under the Constitution, of the inhabitants of the State, and thereupon reapportion the justices to be thereafter elected in the districts so altered."

The convention found the judicial districts bounded by county lines (Ch. 24, Laws 1876), and declared its intention to continue them as so constituted.

Section 2 of the same article provides:

"The Legislature shall divide the State into four

judicial departments. The first department shall consist of the county of New York; the others shall be bounded by county lines, and be compact and equal in population as nearly as may be. Once every ten years the Legislature may alter the judicial departments, but without increasing the num

ber thereof."

In obedience to this mandate of the Constitution, the Legislature, on the 13th of April, 1895, two months prior to the passage of the Act we are now considering, divided the State into judicial departments (Chap, 376, Laws 1895, amending Sections 219-222, Code Civ. Proc.), and used the following language:

"The State is hereby divided into four judicial departments. The first department shall consist of the county of New York; the second department shall consist of the counties embraced within the present second judicial district.

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The counties embraced in the present second judicial district (Chap. 24, Laws 1876) are Richmond, Suffolk, Queens, Kings, Westchester, Orange, Rockland, Putnam and Dutchess.

We now come to the act of June 6th, 1895, attacked in these proceedings. The act provides that

Two views are advanced by our adversaries for your consideration. On the one hand, the board of supervisors of Westchester county, represented by

Judge Robertson, and the relator in the New York blower, contend that the intention of the Legislature mandamus proceedings, represented by Mr. Hornwas to annex the territory in question to the county of New York in every respect and for all purposes, and to make it part of the Senate and Assembly districts of New York county as well as part of the first judicial district and department. They insist that the act is not in conflict with the Constitution, and is valid in all its aspects. On the other hand, the corporation counsel of the city of New York agrees with us that the Legislature could not constitutionally change the county boundaries so as to alter the Senate and Assembly districts apportioned by the Constitution or the judicial districts and de-. partments; but he contends that nevertheless the act of 1895 can be given some force and effect by considering the territory annexed to and merged in the county of New York for all purposes except as to the boundaries of the Senate and Assembly districts and of the judicial districts and depart

ments.

According to the contention of the corporation counsel, the use by the constitutional convention of county lines as the boundaries of the Senate districts and judicial departments sprang from no fundamental principle or public policy, but was merely and solely the adoption of convenient measurements and lines of survey upon an apportionment map. As he conceives it, the strict preservation of the integrity and unity of counties in the division of political power, found in the present Constitution, embodies no recognition of any organic or essential characteristic of our form of State governments. This argument, if sound, leads to the conclusion that the Legislature can at any time change the lines and boundaries of every county in the State, and read

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just the entire county system, even if the result should be that the majority of senators and assemblymen would represent districts composed of parts of different counties. It logically leads to the conclusion that that body can, at its will, destroy the counties altogether and erect in their place new political subdivisions of the State.

The other view is more extreme. The contention of Judge Robertson and Mr. Hornblower seems to be, or at least it amounts to the proposition, that the Legislature was left absolutely free to change the Senate districts at its will by simply altering the county boundaries, and thus increase or diminish a Senate district at any time according to the existing wishes or interests of the dominant party. This argument, of course, leads necessarily to the conclusion that the Legislature could have annexed to the county of New York four-fifths or more of the county of Westchester, leaving the remaining fifth or less entitled to the senator representing Senate district twenty-two, and also entitled to the three assemblymen allotted to Westchester county by the Constitution of 1894. Further, if the Constitution intended to refer to the counties solely as political organizations, leaving power in the Legislature to change the boundaries at its will, then it must follow that nine-tenths of the county of Westchester could be annexed to the county of New York, leaving the remaining tenth entitled to one senator and three assemblymen. It would also follow that the

county of New York could be divided by the Legis

lature and one-half thereof annexed to Westchester county, leaving the remaining half entitled to the twelve senators allotted to New York county. Then, the first half, incorporated into Westchester county, would be entitled only to the one senator now allotted to that county! If the Legislature has the power to change the territory of a Senate district to any extent under the guise or mask of changing

county boundaries, who is to say how far it can or cannot go in this process of remodeling and reapportioning the State-what test is to guide what principle is to be followed-what rule of restraint is to check?

If, however, the view of the corporation counsel be approved and sanctioned by this court, the result must be that, although the Constitution expressly provides that "district number twenty-two shall consist of the county of Westchester," this district under the operation of the act of 1895 is now to consist of the county of Westchester and part of the county of New York. It will also result that, although the Constitution allots to Westchester county three assemblymen, the new act practically changes the effect of the Constitution so that three assemblymen are alloted to the county of West

chester and a certain portion of the county of New York.

Again, further considering this view, the Constitution found the judicial districts of the State bounded by county lines, and directed that they should continue as SO bounded until 1905. Under this new legislation, as construed below in the Westchester proceedings, the first judicial district no longer consists of the county of New York, but of a portion thereof; the second district is no longer bounded by county lines. The Constitution of 1894 expressly directs, in the clearest of language, that the State shall be divided into four judicial departments comprised of entire counties. It reads: "The first department shall consist of the county of New York; the others Under the new shall be bounded by county lines." act, if valid, the first department no longer consists of the county of New York. but of a portion thereof; the second department is no longer bounded by county lines, for it now consists of several entire counties and a portion of the county of New York. And so, the constitutional mandate can be nullified as to every judicial department of the State.

The argument will also be submitted to your honors by our adversaries that the Constitution simply evidences the purpose to observe county lines in the formation of Senate and Assembly districts and judicial departments, and that when this rule has been once applied and the districts formed,

it has spent its whole force, leaving the Legislature

at liberty the next day to change every county line. It must strike the court that this is mere sophistry, and a play upon words. Certainly, if there is any policy manifested by the Constitution in this pro

vision that counties shall not be divided in the creation or formation of Senate districts and judicial of that policy vanish or become exhausted the departments, it cannot be that the object and aim

moment the Senate districts and judicial departments have been formed. No reason can possibly exist why there should be any limitation at the original organization of a Senate district or judicial department, and then permit it to be changed at the will of the Legislature the next hour. The reason which dictates the observance of county lines must certainly survive the process of formation. The objections to a disregard of county lines are as actual and manifest, as potent and convincing, in the one case as they are in the other.

It was the declared intention of the framers of the Constitution of 1894 to recognize more emphatically than ever before and to perpetuate a system of representation in senate and assembly based upon the unity of counties. The great contest in the convention was as to the apportionment article.

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It went far deeper than that. The objections assigned to thus dividing a county were that it destroyed the unity and integrity of counties, dissociated in political action those who were united in interest and associated those who were opposed in their interests, interfered with fair representation by unequal combinations in which the just claims of the weak fragment might be unheard and disregarded, and, above all, imposed upon the repre

The principal attack during the electoral campaign was upon the apportionment article. The avowed purpose of the framers, announced in language which they conceived and which they boasted would be unmistakable their purpose was to prevent any apportionment by which a Senate district might be made up of parts of two or more counties. In the Constitutional Convention, the Republican majority insisted upon the importance of the distinct and independent recognition of counties assenting senator or assemblyman the impossible duty such in the distribution of the law-making power. The Democratic minority urged that such an apportionment would result in inequalities of population, and that an arithmetical division of the State according to population should be made. Those triumphed who contended that the system of counties and the unity of interest and association and ties there found should be rigidly preserved unmolested. That basis was adopted, and it has been approved by an overwhelming majority of the people of the State. The apportionment article was attacked on the ground, and the attention of the people specifically and repeatedly called to the point, that inequalities resulted from this county apportionment as distinguished from a mathematical division according to population. But the complete

answer was that the fixed habits and customs and

bate: 66

the best and noblest traditions and sentiments of the people were embodied in and limited to county concerns, to county organization, to representation by counties in State affairs, and that the maiutenance of county lines and of the community of interest found therein was of supreme interest to the people of the State and of far more importance than a mere inequality of population incidental to a county apportionment. As Mr. Root said in the deDestroy these county lines in order that the State may be districted for senators and assemblymen, and you create new lines and new divisions in which the people are to create new friendships and which any future convention may destroy." In the same debate, Mr. Cookingham declared that the people would not tolerate the breaking down of their county lines, and that if the convention should divide counties in order to make up the Senate districts, a constitutional provision submitted to the voters that proposed any such division for Senatorial districts would be buried under hundreds of thousands of votes.

of acting as the agent of antagonistic and irreconcilable interests. An your honors will perceive, these objections have no relation to the manner in which the division of a county is effected or to the main purpose to be accomplished thereby. The objection exists to the thing itself in any form, in any shape, to accomplish any purpose. If these objections are to be given their weight and we are to read the Constitution in that light, an act of the Legislature must be declared unconstitutional and void, which imposes upon the senator and one of the assemblymen of the twenty-second Senate district the duty of representing at once the county of Westchester and part of the county of New York,

It seems to be the idea of our learned adversaries that this court will fail to recognize any sound reason or wise public policy for observing and continuing county lines in the distribution of political power. They imagine that the county system is not organic or essential; that the adoption of county lines as the constitutional basis and standard of division is of no particular significance, and that, at any rate, you will permit this act to stand because the offense is not great, and may tend to equalize the popula tion in one of the Senate districts, and thus render

the apportionment more systematic. But, if your honors please, those who seek the true principles of the government of this State by exploring the source and origin of our institutions, by going up the river of time to the first fountains, discover that our race has little regard for scientific arrangement or mathematical classification in the composition of their representative governments. They learn to appreciate the truth that human nature is composed of something more than mere intellect and calculation of present interests and convenience. They see that of far more controlling influence are our sentiments, our customs, our instincts, our traditions, our affection for the soil, our sense of unity of interest From an examination of the debates with our neighbors. These are the forces which every Constitutional Convention, it will be have guided our destinies before we were born, and seen that the framers considered that the which stir all the reverential sentiments of the placing of parts of the same county in differ- heart. These are the ties which really hold States ent Senate districts (as in this case a part of together. They have not sprung from philosophiNew York county in the Westchester Senate district) cal theories. They are the invisibile roots of our was an evil and a vice to be avoided. It was not a institutions, which lie deep in the customs of the matter of serving some political or partisan purpose. I past. Custom is of the very essence of our consti

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tutional systems, and custom, the Romans tell us, is almost a second nature. In our habits and customs, under the surface, where the depths of national life and instinct and constitutional organism are heaving constantly, you will find the true source and explanation of our institutions. Nothing in the past should be dead to him who would learn how the present comes to be what it is, and who would trace that continuity of life which runs through the whole series of political causes and consequences a series which seems one mighty and continuous stream of mingled experience, sentiment and reason, deepening and washing itself clearer as it runs on to find its flood-gate in the written constitutions of the American commonwealths.

The county organization existed before the Declaration of Independence. When, at the suggestion of the Continental Congress, the first Constitution of this State was drafted and submitted to the people in 1777, they voted for it by counties and as residents of counties. From time immemorial, through many troubled centuries, has come down to us our system of county governments. The framers of the first Constitution in 1777 and those who drafted the new Constitutions in 1821, in 1846, and in 1894, knew better than to commit the folly of breaking with the past. They saw, as Mr. Bryce has so well said in speaking of our system of commonwealths, that Everything which has the power to win the obedience and respect of men must have its roots deep in the past."

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boundaries of the counties. In other words, that the counties determine the districts merely in the sense that their boundaries on a certain day were used as convenient measurements for the districts. Under this view there is, therefore, no organic connection between the county and the district."

(2) Construction of relator in New York mandamus proceedings:

"If this is not the meaning of the word counties,' as used in article III, section 4, it must mean as the only possible alternative:

"Political organizations, namely, organic historical units whose organization is preserved, irrespective of any shifting of their boundaries."

The political division of the State of New York has always been based upon the counties. The colony of New York was so divided, and such was the theory of the first Constitution in 1777. The wisdom and necessity of preserving the integrity of counties as the local organizations and the community of interest and local association therein, has always been recognized in every constitution. The State is not divided partially into one or more cities and the remainder into counties; but every

inch of ground in the State is part of some county. It is merely accidental that the boundaries of the city of New York are co-terminous or identical with the county lines.

Counties are something more than ordinary municipal corporations, or mere territorial boundaries for convenient measurement or use in connection with an apportionment map. They are of a substantial and fundamental political character, constitut

The statesman who refuses to appreciate and consider the influence of custom and sentiment uponing the machinery and the essential agencies which

institutions is as blind as the man who concludes that because he cannot see the north star at noonday, it has disappeared from the firmament. Yet that star, obscured temporarily though it be by the sun, still guides the compass by a force beyond analysis and irresistible. So also, by a power as subtle, as potent, as resistless have custom and sentiment ever swayed the destinies of the human

race.

If your honors please, all these considerations as to local unity of interest, association and sentiment are, according to the views of our adversaries, to be wholly disregarded; and one of the following theories is to be sanctioned - to use the exact language of Mr. Hornblower's brief in this court.

(1) Construction of corporation counsel as to effect of reference to "counties" in Constitution: "Fixed territorial areas, namely, areas whose boundaries are permanently fixed by the lines which were boundaries of certain counties at the adoption of the Constitution; the boundaries of these fixed territorial areas permanently continuing the same, irrespective of any change that may be made in the

have upheld our free governments derived from and modeled upon the popular features of the English constitution. To the remotest period of AngloSaxon history do we trace our ideas of government by means of counties. It may be that our Constitution does not expressly provide for the division of the territory of the State into counties, but that division is taken for granted and is assumed to be necessarily implied. The system of counties exists in every State, and the idea of counties underlies all American constitutions. Our organic laws presuppose both the existence and the necessity of counties. Starting from that foundation, the people proceed to base thereon frames of government in which counties act the all-efficient parts. The local interests, associations and customs of the people are centred and united in counties, and through the representatives of counties the Senate and Assembly have always voiced the will of the people.

The legislative power of the State is composed of representatives from counties or from Senate districts composed of counties, not from towns and cities. These political county organizations are intimately

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connected with popular interests and with our very political existence. Thus, the courts have not hesitated to assert that the counties cannot be destroyed by legislation, and that the importance of preserving the character of these political county organizations, for the common good, is far above any consideration of private convenience, or the desires or interests or personal benefit of any class or faction.

In the case of People, ex rel. Townsend, v. Porter, 90 N. Y. 68, 73, Andrews, Ch. J., said:

"It requires but a very cursory reading of the Constitution to discover that the separation of the State into counties, towns, cities and villages, for the purpose of local government, is an essential part of the framework of the State government, and that these were the only divisions for the purpose of local government contemplated by the framers of that instrument. The perpetuation of these divisions is essential to many of the arrangements of the Constitution, and their continued existence, and the expansion of the system, is provided for."

In the case of The People, ex rel. Wood, v. Draper, 15 N. Y. 532, 541, the court, per Denio, C. J., speaking of the counties as essential political divisions of the State, used the following language:

"It cannot be denied that an act of the Legislature which should propose to abolish counties would be hostile to the arrangements of the Constitution. There are a great many provisions of that instrument, to the execution of which counties are indispensable. Members of the Assembly are required to be apportioned among the counties; electors must be inhabitants of counties; county boards are required to form Assembly districts. There are to be county judges and county courts. The boards of supervisors, which are county authorities, may be made the recipients of a portion of the legislative power."

The State exists to-day as a commonwealth by virtue of its Constitution. The Legislature is not omnipotent. It is the creature of and subject to the Constitution, and its power to legislate is derived from a constitutional grant. Beginning with the very foundation of the State in 1777, through every change, the people, exercising a sublime act of self-restraint, have had the virtue and the wisdom to embody in the Constitution certain fundamental rules of law and policy which they desire shall be organic and permanent, and which they decree shall be placed out of their own reach and power to hastily or inconsiderately change. They have thus raised a bulwark against the unadvised action and the uninstructed will of their legislators—a bulwark which saves the people not merely from their enemies; it saves them from themselves. Every State has its written constitution, embodying and declaring the organic law. Such a constitution and frame

of government may indeed be said to be essential under the Federal Constitution which guarantees "to every State in the Union a republican form of government."

In the construction of the Constitution, we must look to the history of the time and examine the condition of the people and the state of things as well as the statutory law existing when it was framed and adopted. In fact, immemorial usage may be considered as part of every State constitution.

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This court has repeatedly recognized that the provisions of the Constitution are intended to be certain and fixed and to declare the permanent will of the people as to the policy of the State government. As has been said by you, the very object of constitional restrictions is to establish a rule of conduct which cannot be varied according to the passion or caprice of a majority, and to fix an immutable standard applicable under all circumstances. stitutional provision is made upon any subject, the presumed object and intention, as well as the legal effect of such provision, are that it shall be permanent. No act of the Legislature can be valid which is in conflict with a constitutional provision upon the same subject or with its implied or manifested intent or spirit. We need not point to express inbibitions of legislative action. The affirmative provisions are themselves sufficiently fruitful of restraints. Every positive direction contains an implication in itself against anything contrary to it, or which would frustrate or disappoint or nullify or circumvent the purpose or spirit of that direction. An implied prohibition is as effectual as if it had been recited, for is not what is implied as much a part of the instrument as what is expressed?

If your honors please, when the framers of the Constitution recognized the public policy of fostering and perpetuating the local unity of interest and associations existing in the counties, and therefore adopted the counties as the basis of the apportionment of Senate and Assembly districts and judicial departments, they intended the Constitution to speak of such counties as they were, and dealt with them as permanent divisions of the State in substance and spirit, and not as arbitrary lines of survey or measurement upon an apportionment map. The power certainly cannot exist in the Legislature, by changing county lines, to destroy all the significance of the theory, scheme and spirit of the Constitution, and thereby leave the apportionment by counties meaningless and purposeless.

As one of the judges said in the Draper case (15 N. Y. 532, 560):

"The Constitution of 1846 did not provide a government for a new people, for a community of men just collected together and without civil government. It was the amendment and reforma

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