tion of a scheme already existing; the substantial and material institutions and forms of which had come down to us from our English ancestors. They embodied the reason, the wisdom and experience of many generations. They were consecrated by time, by habit, by long usage, by tradition and the noblest historical associations. It was the object of the organic instrument to preserve them, to perpetuate them, to improve and perfect them by the knowledge and the suggestions of later times; not to impair their strength or deform their fair proportions.'

Y. 41, and that the earlier case had declared the act creating Schuyler county constitutional while the later decision held it unconstitutional. The facts do not warrant this statement. If sound, it would only tend to emphasize the importance of the later decision. But reference to the Rumsey case will show that it was the opinion of Johnson, Ch. J., and Denio, J., concurred in by Comstock and Grover, JJ., that controlled. The decision was not based upon the ground that the act was originally constitutional, but that it had been validated by the subsequent enumeration and legis

case did not overrule, and is entirely consistent with, the true ground of decision of the Rumsey

case.

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careers.

If your honors please, we may now consider the

cases which we assert are decisive in our favor.

In Lanning v. Carpenter, 20 N. Y. 447, the court held that the Constitution then in force required each judicial and Senate district at all times to be composed of entire counties, and that no new county could be organized so as to include fractions of two or more judicial, Senate and Assembly districts.

The following extract from the opinion of Denio, J. will show how pertinent the case is, viz. :

"The Senate districts, being established by the Constitution, could only be changed in pursuance of its provisions; and the only authority to make any change in them is that found in the provision allowing them to be so altered at the first session after the return of every enumeration, so that each district shall have an equal number of inhabitants, as near as may be. So with the judicial districts, the Legislature were to form them, by dividing the State into eight portions, of contiguous counties, and then leave was given to re-organize them at the first session after the return of every enumeration, and at no other time. * * * If we bear in mind that it is established by the Constitution that no county shall be divided in the formation of a Senate district, and that the judicial districts are always to be bounded by county lines, that is, to consist of whole counties, and never of fractional parts of counties, we shall have a view of all the constitutional provisions bearing directly upon the case" (pp. 452, 453).

It was claimed below and is repeated here that the Lanning case overruled and was inconsistent with the decision in Rumsey v. The People, 19 N.

The case of Lanning v. Carpenter, decided in 1866, has remained without challenge or criticism for nearly thirty years. It was the opinion of the court, binding and authoritative as such, notwithstanding the fact that three of the judges dissented. It has never been questioned, much less criticised. During that period, the Constitution has been

amended ten times and a new Constitution framed.

The rule of the Lanning case has not been changed. The Constitution should, therefore, now be interpretated as adopting and approving the doctrine announced in that decision and in the light of which it was framed.

Then, seven years later, came the case of Kinne v. City of Syracuse, 3 Keyes, 110, 111, which involved the provisions of the Coustitution of 1846 as to Assembly districts. Chapter 341, of the Laws of 1858, provided, among other things, that the boundary of the city of Syracuse should be changed so as to set off from the city and annex to the adjacent town of De Witt a strip of land about a mile wide and two miles long, containing two hundred and fifty inhabitants, of whom fifty were voters. The act was held unconstitutional by a unanimous court. There was absolutely no reference in the act itself to Assembly districts, and on its face it did not purport to change any such districts, but simply to alter the boundary of a city. Prior to such legislation, as appears from the record on file in the clerk's office of this court, the board of supervisors of the county of Onondaga, in 1857, had divided that county into three Assembly districts. The city of Syracuse and the towns of Salina and Cicero were constituted as the second Assembly district under such division; and the town of De Witt and eight other towns were constituted the third district. As I have stated, the case was argued and decided seven years after the Rumsey and Lanning cases, which were discussed at length in the briefs of counsels. It was urged in the Kinne case that the changing of

the boundaries of a city did not affect the Assembly districts, because the lines of the old city could be continued in theory for Assembly district purposes. So, in the case at bar, it is urged by our adversaries, that for Senate district purposes as well as for judicial departments, the physical lines of the old boundaries may be considered to continue. It is true that the record in the Kinne case shows that the board of supervisors of Onondaga county had specifically constituted the city of Syracuse and the adjacent towns of Salina and Cicero as the second Assembly district; but in the case at bar, the Constitution has specifically constituted the county of Westchester as the twenty-second Senate district. If the Assembly districts were necessarily altered in the Kinne case so as to violate the Constitution of 1846, because of the change of the boundaries of the city of Syracuse, so also must the boundaries of the twenty-second Senate district be altered by the legislation of 1895, changing the lines of the two counties.

After the Kinne case, and in view of the rule there laid down, section 5 of article 3 of the Constitution of 1846 was amended in 1874 so as to provide as follows: "Nothing in this section shall prevent division at any time of counties and towns, and the erection of new towns and counties by the Legislature." Thus, the rule as to Assembly districts was changed by constitutional amendment, but the rule as to Senate and judicial districts previously announced in the Lanning case was left unamended and in full force. Expressio unius est exclusio alterius.

The court will observe that this amendment was inserted in the section which applies to Assembly districts. No such provision is made with regard to the Senate districts or the judicial departments. If the framers of the amendment or of the new Constitution had intended that the provision as to Senate districts and judicial departments should not limit the power of the Legislature to change the boundaries of counties, broader language would have been used. The provision would have been: "Nothing in this article or in this Constitution shall prevent," instead of the language carefully chosen so as to be confined to the section on Assembly districts, namely: "Nothing in this section."

The true construction of this provision is that, so far as respects Assembly districts, the Legislature may divide existing counties and change the boundary lines thereof within Senate districts or judicial departments; in other words, provided the attempted alteration of a county line does not clash with the boundary of the Senate district or the judicial district or department within which that county lies. Under this view, the Legislature can divide the greater portion of the boundary lines of fifty out of

the sixty counties of the State without interfering with the boundaries of the Senate districts, and can divide the greater portion of the boundaries of fiftynine counties (every county except New York) without necessarily conflicting with the mandate of the Constitution, that the judicial departments shall be "bounded by county lines." For example, let us take Senate district No. 24, consisting of the counties of Dutchess, Columbia and Putnam, or district No. 27, consisting of the counties of Montgomery, Fulton, Hamilton and Schoharie. The county lines dividing the respective counties within these Senate districts may be changed by the Legislature in any way it sees fit, provided the line of the Senate district and those portions of the county lines which are coincident with it be not changed. The second judicial department consists of nine counties. The greater portion of the boundaries of these counties may be changed without in any way crossing the boundary line of the second departIn a word, the purpose of the Constitutional Convention to preserve the integrity and unity of interest of Senate districts and judicial departments as formed of counties, or bounded by county lines, can remain inviolate and unmolested, leaving power to change county lines within such districts or judicial departments even if this change of line crosses the boundary lines of towns or Assembly districts.

ment.

It is perfectly feasible, therefore, to give the Constitution a practical and a sensible interpretation which shall grant to the Legislature full power to change county lines within Senate districts, and preserve the spirit and intention of the Constitution as to Assembly districts, viz., "each of which shall be wholly within a Senate district formed under the same apportionment." Any other construction would leave the whole county system of the State entirely at the mercy of the Legislature. It is only therefore, when the attempted alteration conflicts with the integrity and unity of interest of the Senate and judicial departments that it must be delayed until the period of re-enumeration and apportionment, as shown in the Lanning case. In this view, no provision or arrangment of the Constitution is inconsistent with any other, and the language of each section is given adequate scope and effect. The amendment of 1874 would stand as effective as it ever has been since its adoption, limited, however, by the new provisions requiring an Assembly district to be wholly within a Senate district, and requiring that county lines should bound the Senate districts and the judicial departments.

If your honors please, I shall briefly review the history of the constitutional provisions in question, as this may aid the court in considering our argument and brief.

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The Constitution of 1777 apportioned seventy Assemblymen among the various counties as such, and divided the State into four Senate districts bounded by county lines from which a Senate of twenty-four members was elected. No county was divided in the formation of a Senate district. The amendment of 1801 made the number of Assemblymen 100 and not to exceed 150, and provided for 32 Senators. Twenty years later the Constitution COM of 1821 provided for 128 Assemblymen and 32 Senators. The State was then divided into eight Senate districts consisting of entire counties. Again, no county was divided in the formation of a Senate district. It was expressly provided that the same rule should be observed in future apportionments, the words being, "and no county shall be divided in the formation of a Senate district." This was the first time this language was inserted in the Constitution, and it has continued there for over seventy years. The Constitution of 1846 divided the State into thirty-two Senate districts. No county was divided in the formation of a Senate district, but the direction for the future was amended so as to read: "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." The members of Assembly were apportioned among the several counties as such.

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We now come to the Constitution of 1894. It will be important to note that in no instance was a county divided in the formation of a Senate district except where two or more Senate districts were contained wholly within one county. So also as to the Assembly districts. The fifty Senators and the 150 Assemblymen were divided not according to population, but among the counties, and the counties were recognized as the political units of representation. The command as to the future was again changed so as to go back substantially to the inflexible and unbending rule of 1821, namely: “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."

after the next enumeration, namely, 1905, among the several counties of the State as such, the county of Westchester getting three members and the county of New York thirty-five members. The same rule was prescribed as to the future coupled with what had then been observed, namely, that the counties should be divided into Assembly districts, "each of which shall be wholly within a Senate district formed under the same apportion

As to Assembly districts, the Constitution of 1777 provided that in case of an increase of population the number of representatives for such county shall be increased or diminished accordingly." The Constitution of 1821 provided that "the members of the Assembly shall be chosen by counties," and the apportionment of assemblymen according to counties was to remain unaltered until the next enumeration. The Constitution of 1846 again provided that the assemblymen should be divided among the counties as such, and that the apportionment so made should remain unalterable until another enumeration. The Constitution of 1894 specifically apportions members of assembly until

ment."

The first division of the State for judicial purposes was in 1821, when the State was directed to 'be divided by law into a convenient number of circuits, not less than four, nor exceeding eight." The Constitution of 1846 provided that the State should be divided into eight judicial districts, "of which the city of New York shall be one, the others shall be divided by county lines." This was the first time that the word "district" appeared in our Constitution. The judiciary article, framed by the Constitutional Convention of 1867, was the only portion of their work accepted by the people, and it was adopted at the general election held November 2d, 1869. The language used was: "The existing judicial districts of the State are continued." The convention found them divided and bounded by county lines, and continued them so. It is true that in the amended judiciary article of 1869, the provision as to bounding the districts by county lines omitted; but as the Constitution continued the existing districts bounded by county lines, it was evidently assumed that when a change was made, the same rule which had always been observed would be followed. In 1876, the Legislature. divided the judicial districts as they now stand, constituting the city of New York as the first district, and bounding all the other districts by county

was

lines. The Constitutional Convention of 1894 found the districts bounded by county lines, and continued them so bounded.

In the meantime, however, there had grown up in the State a system of general terms and depart

ments.

The Constitution of 1846 had provided for four general terms within the several districts. The amendment of 1869 specified that "provision shall be made for organizing in the Supreme Court not more than four general terms." The Legislature, in 1870, divided the State into departments, as follows:

"The State is hereby divided into four departments. The first department shall consist of the first judicial district; the second department of the second judicial district," etc.

The act of 1870 is apparently the first instance of the use of the word " department." Such departments were bounded by county lines, for all the districts were so bounded. After the amendment

trict where the land continues to be, or in New York county which, as extended, includes the premises?

There are other points which are sufficiently stated in our brief, and having been thus indicated to our adversaries, may be reserved for our reply to their answer.

If your honors please, my learned brother Hornblower will tell you that the breach of the Constitution and the offense in this case is small; that it involves the transferring of only 13,000 inhabitants from one county to another, and that he thinks it is within the spirit of the Constitution because it may eke out a deficiency of population in the twentyfirst Senate district. When such an argument was once addressed to Chief Justice Marshall in a famous case in the Supreme Court of the United States, he at once sternly reminded counsel that he was discussing a constitutional question, and that no matter how small the violation might be shown to be, it could not be tolerated. Your honors will remember how insignificant the question was in this aspect in the Kinne case; it involved 250 inhabitants and barely fifty voters. Yet counsel could not there argue that the degree of violation was relevant, and a unanimous court condemned and declared void this infraction of the Constitution there found. It is in slight and apparently insignificant instances and by silent approaches, that unconstitutional measures get their footing. Though small at first, like a crevasse in the Mississippi, they grow until the whole stream of arbitrary power exercised by the Legislature goes rushing through, carrying

the whole structure to ruin.

Our motto must be obsta principiis.

If your honors please, in conclusion, may we not recall the warning of Junius to the people of England, uttered seven years before the American Revolution?

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"Let me exhort and conjure you never to suffer an invasion of your political Constitution, however minute the instance may appear, to pass by without a determined, persevering resistance. dent creates another; they soon accumulate, and constitute law. What yesterday was fact, to-day is doctrine. Examples are supposed to justify the most dangerous measures, and where they do not suit exactly, the defect is supplied by analogy. Be assured that the laws, which protect us in our civil rights, grow out of the Constitution, and that they must fall or flourish with it. This is not the cause of faction or party, or of any individual, but the common interest of every man in Britain."

The historian, Grote, whom so many think the most learned and thoughtful of modern writers, has shown by many examples that fidelity to the fundamental law - which he terms constitutional moral

ity-is the one indispensable condition upon which the safety and success of every free government must depend. The high career of Athens in her glory was due to the faithful practice of this aupreme virtue. When her people took legislation into their own hands and became destitute of all attachment to their Constitution, which had guided them to their prosperity by the very checks and restraints which it imposed when they refused to recognize or give obedience to any rule clashing with their present convenience and the momentary will of the majority, then the government of Athens was shattered and dissolved - not by the spears of her conquerors, but by the folly of her capricious majority. Who will sincerely plead that we can safely place all our time-honored institutions and immemorial customs at the mercy of our annual legislators? The thirst for tinkering with the Constitution and for experimenting with new institutions is an appetite which grows by what it feeds Is it not safer to anchor by the teachings of the past and to insist upon the preservation of our institutions in all their integrity? By every rule of interpretation that ever was invented by every principle of law and logic by that good faith which holds the moral world together by that constitutional morality by that decent respect which every man is bound to feel for the traditions and the sentiments of his neighbors, we invoke the conservative influence of this high tribunal, and we pray you to adjudge again that no act of the Legislature shall stand which seeks in the slightest degree to nullify or to circumvent the letter or the spirit of our Constitution.

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