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Upon an examination of the apportionment of the territory in question, with its inhabitants and Senate and Assembly districts made by the Consti estates—to quote its exact language: tution of 1894, it will be observed :
“ Is hereby set off from the county of Westches1. That the basis of the apportionment is the ter and annexed to, merged in and made part of county.
the city and county of New York, and of the twen2. That each Senate district is wholly within a ty-fourth ward of said city and county, and shall county or bounded by county lines.
hereafter constitute a part of the city and county 3. That each Assembly district is wholly within of New York and of the twenty-fourth ward of said a Senate district, and wholly within a county. city and county, subject to the same laws, ordi
4. That the apportionment then made is to re nances, regulations, obligations and liabilities, and main unalterable “until after the next enumera
entitled to the same rights, privileges, franchises tion,” viz., 1905.
and immunities, in every respect and to the same These features observed and followed in the con extent as if such territory had been included within stitutional apportionment then made, are, moreover,
said city and county of New York at the time of commanded to be observed by the Legislature in
the grant and adoption of the first charter and or1905 and in all future apportionments.
ganization thereof, and had so remained up to the Section 1 of Article VI of the Constitution of passage of this act.” 1894 provides as follows;
Two views are advanced by our adversaries for your consideration.
On the one hand, the board of “ The existing judicial districts of the State are continued until changed as hereinafter provided. supervisors of Westchester county, represented by * The Legislature may alter the judicial dis
mandamus proceedings, represented by Mr. Horntricts once after every enumeration under the Con
blower, contend that the intention of the Legislature stitution, of the inhabitants of the State, and there
was to annex the territory in question to the county upon reapportion the justices to be thereafter
of New York in every respect and for all purposes, elected in the districts so altered.”
and to make it part of the Senate and Assembly The convention found the judicial districts districts of New York county as well as part of the bounded by county lines (Ch. 24, Laws 1876), and
first judicial district and department. They insist declared its intention to continue them as so con
that the act is not in conflict with the Constitution, stituted.
and is valid in all its aspects. On the other hand, Section 2 of the same article provides:
the corporation counsel of the city of New York “The Legislature shall divide the State into four
agrees with us that the Legislature could not conjudicial departments. The first department shall stitutionally change the county boundaries so as to consist of the county of New York ; the others shall alter the Senate and Assembly districts apportioned be bounded by county lines, and be compact and by the Constitution or the judicial districts and deequal in population as nearly as may be. Once
partments; but he contends that nevertheless the every ten years the Legislature may alter the judi- act of 1895 can be given some force and effect by cial departments, but without increasing the num
considering the territory annexed to and merged in ber thereof,”
the county of New York for all purposes except as In obedience to this mandate of the Constitution, to the boundaries of the Senate and Assembly the Legislature, on the 13th of April, 1895, two districts and of the judicial districts and departmonths prior to the passage of the Act we are now ments. considering, divided the State into judicial depart
According to the contention of the corporation ments (Chap, 376, Laws 1895, amending Sections counsel, the use by the constitutional convention of 219-222, Code Civ. Proc.), and used the following county lines as the boundaries of the Senate districts language :
and judicial departments sprang from no funda“ The State is hereby divided into four judicial | mental principle or public policy, but was merely departments. The first department shall consist of and solely the adoption of convenient measurements the county of New York; the second department and lines of survey upon an apportionment map. shall consist of the counties embraced within the As he conceives it, the strict preservation of the inpresent second judicial district.
tegrity and unity of counties in the division of The counties embraced in the present second ju- political power, found in the present Constitution, dicial district (Chap. 24, Laws 1876) are Richmond, embodies no recognition of any organic or essential Suffolk, Queens, Kings, Westchester, Orange, Rock- characteristic of our form of State governments. land, Putnam and Dutchess.
This argument, if sound, leads to the conclusion that We now come to the act of June 6th, 1895, at the Legislature can at any time change the lines and tacked in these proceedings. The act provides that | boundaries of every county in the State, and read
just the entire county system, even if the result chester and a certain portion of the county of New should be that the majority of senators and assembly- York. men would represent districts composed of parts of Again, further considering this view, the different counties. It logically leads to the conclu- Constitution found the judicial districts of sion that that body can, at its will, destroy the the State bounded by county lines, and counties altogether and erect in their place new directed that they should continue political subdivisions of the State.
bounded until 190.5. Under this new legislation, The other view is more extreme. The contention of
as construed below in the Westchester proceedings, Judge Robertson and Mr. Hornblower seems to be, or the first judicial district no longer consists of the at least it amounts to the proposition, that the Legis
county of New York, but of a portion thereof; the lature was left absolutely free to change the Senate second district is no longer bounded by county districts at its will by simply altering the county
lines. The Constitution of 1894 expressly directs, boundaries, and thus increase or diminish a Senate
in the clearest of language, that the State shall be district at any time according to the existing wishes divided into four judicial departments comprised of or interests of the dominant party. This argument, entire counties. It reads: “ The first department of course, leads necessarily to the conclusion that shall consist of the county of New York; the others the Legislature could have annexed to the county shall be bounded by county lines.” Under the new of New York four-fifths or more of the county of act, if valid, the first department no longer conWestchester, leaving the remaining fifth or less en
sists of the county of New York, but of a portion titled to the senator representing Senate district
thereof; the second department is 10 longer twenty-two, and also entitled to the three assem
bounded by county lines, for it now consists of blymen allotted to Westchester county by the Con- several entire counties and a portion of the county stitution of 1894. Further, if the Constitution
of New York. And so, the constitutional mandate intended to refer to the counties solely as political
can be nullified as to every judicial department of
the State. organizations, leaving power in the Legislature to change the boundaries at its will, then it must fol
The argument will also be submitted to your low that nine-tenths of the county of Westchester
honors by our adversaries that the Constitution could be annexed to the county of New York, leav- simply evidences the purpose to observe county
lines in the formation of Senate and Assembly dising the remaining tenth entitled to one senator and
tricts and judicial departments, and that when this three assemblymen. It would also follow that the county of New York could be divided by the Legis- it has spent its whole force, leaving the Legislature
rule has been once applied and the districts formed, lature and one-half thereof annexed to Westchester county, leaving the remaining half entitled to the
at liberty the next day to change every county line.
It must strike the court that this is mere sophistry, twelve senators allotted to New York county. Then,
and a play upon words. Certainly, if there is any the first half, incorporated into Westchester county,
policy manisested by the Constitution in this prowould be cntitled only to the one senator now al
vision that counties shall not be divided in the lotted to that county! If the Legislature has the
creation or formation of Senate districts and judicial power to change the territory of a Senate district to any extent under the guise or mask of changing of that policy vanish or become exhausted the
departments, it cannot be that the object and aim county boundaries, wlio is to say how far it can or
moment the Senate districts and judicial departcannot go in this process of remodeling and reap
ments have been formed. No reason can possibly portioning the State -- what test is to guide – what exist why there should be any limitation at the principle is to be followed ---what rule of restraint original organization of a Senate district or judicial is to check?
department, and then permit it to be changed at If, however, the view of the corporation counsel the will of the Legislature the next hour. The be approved and sanctioned by this court, the result reason which dictates the observance of county must be that, although the Constitution expressly lines must certainly survive the process of formaprovides that “district number twenty-two shall tion. The objections to a disregard of county lines consist of the county of Westchester,” this district are as actual and manifest, as potent and convincunder the operation of the act of 1895 is now to con- ing, in the one case as they are in the other. sist of the county of Westchester and part of the It was the declared intention of the framers of the county of New York. It will also result that, al- Constitution of 1894 to recognize more emphatically though the Constitution allots to Westchester than ever before and to perpetuate a system of county three assemblymen, the new act practically representation in senate and assembly based upon changes the effect of the Constitution so that three the unity of counties. The great contest in the assemblymen are alloted to the county of West- I convention was as to the apportionment article.
The principal attack during the electoral cam It went far deeper than that. The objections aspaign was upon the apportionment article. The signed to thus dividing a county were that it desavowed purpose of the framers, announced in lan-troyed the unity and integrity of counties, dissociguage which they conceived and which they boasted ated in political action those who were united in would be unmistakable — their purpose was to pre-interest and associated those who were opposed in vent any apportionment by which a Senate district their interests, interfered with fair representation might be made up of parts of two or more counties. by unequal combinations in which the just claims In the Constitutional Convention, the Republican
of the weak fragment might be unheard and dismajority insisted upon the importance of the dis- regarded, and, above all, imposed upon the repretinct and independent recognition of counties as
senting senator or assemblyman the impossible duty such in the distribution of the law-making power.
of acting as the agent of antagonistic and irreconThe Democratic minority urged that such an appor- cilable interests. An your honors will perceive, tionment would result in inequalities of population,
these objections have no relation to the manner in and that an arithmetical division of the State ac
which the division of a county is effected or to the cording to population should be made.
main purpose to be accomplished thereby. The triumphed who contended that the system of coun
objection exists to the thing itself in any form, in ties and the unity of interest and association and
any shape, to accomplish any purpose.
If these obties there found should be rigidly preserved unmo
jections are to be given their weight and we are lested. That basis was adopted, and it has been ap
to read the Constitution in that light, an act of the proved by an overwhelming majority of the people
Legislature must be declared unconstitutional and of the State. The apportionment article was at
void, which imposes upon the senator and one of tacked on the ground, and the attention of the peo- the assemblymen of the twenty-second Senate disple specifically and repeatedly called to the point, trict the duty of representing at once the county of that inequalities resulted from this county appor Westchester and part of the county of New York, tionment as distinguished from a mathematical
It seems to be the idea of our learned adversaries division according to population. But the complete that this court will fail to recognize any sound reason answer was that the fixed habits and customs and
or wise public policy for observing and continuing the best and noblest traditions and sentiments of county lines in the distribution of political power. the people were embodied in and limited to county They imagine that the county system is not organic concerns, to county organization, to representation
or essential ; that the adoption of county lines as by counties in State affairs, and that the mainten
the constitutional basis and standard of division is ance of county lines and of the community of inter- of no particular significance, and that, at any rate, est found therein was of supreme interest to the
you will permit this act to stand because the offense people of the State and of far more importance than
is not great, and may tend to equalize the populamere inequality of population incidental to a
tion in one of the Senate districts, and thus render county apportionment. As Mr. Root said in the de- the apportionment more systematic. But, if your bate: “Destroy these county lines in order that the honors please, those who seek the true principles State may be districted for senators and assembly of the government of this State by exploring the men, and you create new lines and new divisions in
source and origin of our institutions, by going up which the people are to create new friendships and the river of time to the first fountains, discover that which any future convention may destroy.” In the
our race has little regard for scientific arrangement same debate, Mr. Cookingham declared that the
or mathematical classification in the composition of people would not tolerate the breaking down of
their representative governments. They learn to their county lines, and that if the convention should appreciate the truth that human nature is composed divide counties in order to make up the Senate dis- of something more than mere intellect and calculatricts, a constitutional provision submitted to the
tion of present interests and convenience. They voters that proposed any such division for Senator
see that of far more controlling influence are our ial districts would be buried under hundreds of sentiments, our customs, our instincts, our traditions, thousands of votes.
our affection for the soil, our sense of unity of interest Froin examination of the debates in with our neighbors. These are the forces which every Constitutional Convention, it be have guided our destinies before we were born, and
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 mattor or serving some political or partic:in purpose. I post. Custom is of the very essence of our consti
tutional systems, and custom, the Romans tell us, is boundaries of the counties. In other words, that almost a second nature. In our habits and customs, the counties determine the districts merely in the under the surface, where the depths of national sense that their boundaries on a certain day were life and instinct and constitutional organism are used as convenient measurements for the districts. heaving constantly, you will find the true source Under this view there is, therefore, no organic conand explanation of our institutions. Nothing in the nection between the county and the district.” past should be dead to him who would learn how
(2) Construction of relator in New York manthe present comes to be what it is, and who would amus proceedings: trace that continuity of life which runs through “If this is not the meaning of the word 'counthe whole series of political causes and conse ties,' as used in article III, section 4, it must mean as quences a series which seems one mighty and
the only possible alternative: continuous stream of mingled experience, senti “Political organizations, namely, organic historiment and reason, deepening and washing itself cal units whose organization is preserved, irrespecclearer as it runs on to find its flood-gate in the tive of any shifting of their boundaries." written constitutions of the American common
The political division of the State of New York wealths.
has always been based upon the counties. The The county organization existed before the De-colony of New York was so divided, and such was claration of Independence. When, at the sugges- the theory of the first Constitution in 1777.
The tion of the Continental Congress, the first Constitu
wisdom and necessity of preserving the integtion of this State was drafted and submitted to the rity of counties as the local organizations and the people in 1777, they voted for it by counties and as
community of interest and local association therein, residents of counties. From time immemorial,
has always been recognized in every constitution. through many troubled centuries, has come down
The State is not divided partially into one or more to us our system of county governments. The
cities and the remainder into counties; but every framers of the first Constitution in 1777 and those
inch of ground in the State is part of some county. who Giafted the new Constitutions in 1821, in 1846,
It is merely accidental that the boundaries of the and in 1894, knew better than to commit the folly city of New York are co-terminous or identical of breaking with the past. They saw, as Mr. Bryce with the county lines. has so well said in speaking of our system of com
Counties are something more than ordinary mumonwealths, that ' Everything which has the
nicipal corporations, or mere territorial boundaries power to win the obedience and respect of men
for convenient measurement or use in connection must have its roots deep in the past.”.
with an apportionment map. They are of a substanThe statesman who refuses to appreciate and con
tial and fundamental political character, constitutsider the influence of custom and sentiment upon
ing the machinery and the essential agencies which institutions is as blind as the man who concludes
have upheld our free governments derived from and that because he cannot see the north star at noon
modeled upon the popular features of the English day, it has disappeared from the firmament. Yet
constitution. To the remotest period of Anglothat star, obscured temporarily though it be by the
Saxon history do we trace our ideas of government sun, still guides the compass by a force beyond
by means of counties. It may be that our Constianalysis and irresistible. So also, by a power as tution does not expressly provide for the division subtle, as potent, as resistless have custom and sen
of the territory of the State into counties, but that timent ever swayed the destinies of the human division is taken for granted and is assumed to be
necessarily implied. The system of counties exists If your honors please, all these considerations as
in every State, and the idea of counties underlies all to local unity of interest, association and sentiment American constitutions. Our organic laws presupare, according to the views of our adversaries, to be
pose both the existence and the necessity of counwholly disregarded; and one of the following theo ties. Starting from that foundation, the people ries is to be sanctioned to use the exact language proceed to base thereon frames of government in of Mr. Hornblower's brief in this court.
which counties act the all-efficient parts. The local (1) Construction of corporation counsel as to interests, associations and customs of the people are effect of reference to “ counties " in Constitution : centred and united in counties, and through the re
“Fixed territorial areas, namely, areas whose presentatives of counties the Senate and Assembly boundaries are permanently fixed by the lines which have always voiced the will of the people. were boundaries of certain counties at the adoption The legislative power of the State is composed of of the Constitution; the boundaries of these fixed representatives from counties or from Senate districts territorial areas permanently continuing the same, composed of counties, not from towns and cities. irrespective of any change that may be made in the These political county organizations are intimately
connected with popular interests and with our very of government may indeed be said to be essential political existence. Thus, the courts have not hesi- under the Federal Constitution which guarantees tated to assert that the counties cannot be destroyed“ to every State in the Union a republican form of by legislation, and that the importance of preserving government." the character of these political county organizations, In the construction of the Constitution, we must for the common good, is far above any consideration | look to the history of the time and examine the conof private conv
nvenience, or the desires or interests or dition of the people and the state of things as well personal benefit of any class or faction.
as the statutory law existing when it was framed In the case of People, ex rel. Townsend, v. Porter, and adopted. In fact, immemorial usage may be 90 N. Y. 68, 73, Andrews, Ch. J., said:
considered as part of every State constitution. “It requires but a very cursory reading of the
This court has repeatedly recognized that the proConstitution to discover that the separation of the visions of the Constitution are intended to be cerState into counties, towns, cities and villages, for
tain and fixed and to declare the permanent will of the purpose of local government, is an essential part the people as to the policy of the State government. of the framework of the State government, and that
As has been said by you, the very object of constithese were the only divisions for the purpose of local
tional restrictions is to establish a rule of conduct government contemplated by the framers of that in
which cannot be varied according to the passion or strument. The perpetuation of these divisions is caprice of a majority, and to fix an immutable standessential to many of the arrangements of the Con- | ard applicable under all circumstances. If a constitution, and their continued existence, and the stitutional provision is made upon any subject, the expansion of the system, is provided for.”
presumed object and intention, as well as the legal In the case of The People, ex rel. Wood, v. Draper, effect of such provision, are that it shall be perma15 N. Y. 532, 541, the court, per Denio, C. J., speak- nent. No act of the Legislature can be valid which ing of the counties as essential political divisions of is in conflict with a constitutional provision upon the State, used the following language:
the same subject or with its implied or manifested “It cannot be denied that an act of the Legisla- intent or spirit. We need not point to express inbiture which should propose to abolish counties would bitions of legislative action. The affirmative probe hostile to the arrangements of the Constitution. visions themselves sufficiently fruitful of There are a great many provisions of that instru- restraints. Every positive direction contains an ment, to the execution of which counties are indis- | implication in itself against anything contrary to pensable. Members of the Assembly are required it, or which would frustrate or disappoint or nullify to be apportioned among the counties; electors or circumvent the purpose or spirit of that direcmust be inhabitants of counties; county boards are tion. An implied prohibition is as effectual as if it required to form Assembly districts. There are to had been recited, for is not what is implied as much be county judges and county courts. The boards a part of the instrument as what is expressed ? of supervisors, which are county authorities, may be If your honors please, when the framers of the made the recipients of a portion of the legislative Constitution recognized the public policy of fosterpower.”
ing and perpetuating the local unity of interest and The State exists to-day as a commonwealth by associations existing in the counties, and therefore virtue of its Constitution. The Legislature is not adopted the counties as the basis of the apportionomnipotent. It is the creature of and subject to ment of Senate and Assembly districts and judicial de the Constitution, and its power to legislate is departments, they intended the Constitution to speak of rived from a constitutional grant. Beginning with such counties as they were, and dealt with them as perthe very foundation of the State in 1777, through manent divisions of the State in substance and spirit, every change, the people, exercising a sublime act and not as arbitrary lines of survey or measurement of self-restraint, have had the virtue and the wisdom upon an apportionment map. The power certainly to embody in the Constitution certain fundamental cannot exist in the Legislature, by changing county rules of law and policy which they desire shall be lines, to destroy ali the significance of the theory, organic and permanent, and which they decree shall scheme and spirit of the Constitution, and thereby be placed out of their own reach and power to leave the apportionment by counties meaningless hastily or inconsiderately change. They have thus and purposeless. raised a bulwark against the unadvised action and As one of the judges said in the Draper case (15 the uninstructed will of their legislators-a bulwark N. Y. 532, 560) : which saves the people not merely from their ene “ The Constitution of 1846 did not provide a mies; it saves them from themselves. Every State government for a new people, for a community of has its written constitution, embodying and declar men just collected together and without civil ing the organic law. Such a constitution and frame government. It was the amendment and reforma