New-York tribune., 1874-12-22
MR.. O'CONOR'S OPINION.


shall seem Ia require, ii may be amended. Concur
rent resolutions of the legislative bodies in two
different years, and final approval by the people,
constitute the process. Tho instrument does not
prohibit the employment of different means unless
such negative can bc implied from its having thus
made provision for method which is undcniably
convenient and suitable. l think it is not main
tainabe by any fair reasoning that State COnsti-
tuition which so provides means for its own
amendment cannot be altered or varied from in any
other manner Certainly such negative impllca-
ton is not admissible in Ncw-Iork, for its present
State Government came into being and exists on
precisely an opposite basis. Its Constitution was
foImed and adopted III 1876 by means entirely diff
ferent from those prescribed for its own amendment
by the then preGXisting fundamental law. Were
there not-as there in fact are-other ample prece
dents and controlling authorities to the same effect,
this circumstance alone should compel an acknowl-
edgmcut here that there is no such implied prOhibi-
ton.
The first inquiry, however, should be whether the
amendments recently approved by the people have
been adopted in the method prescribed by the 18th
Article of 1916.
Among u series of amendments to the Sd Article,
the Senate and Assembly of 1873 proposed substi-
tutc for the existing fourth section of that Article
This substitute rejected in the year 1874 and
this difference between the action of the two Legis
laturcs has given rise to doubt whether the other
amendments in the SAME series Were submitted TO
the people in the mode prescribed
The original fourth section, which, of course, re-
mains in force as part of the Constitution. as fol-
lows:
"SECTIoN4 T. An enumeration Of the inhabitants of
the State shell b. dkea unde the direction Of the Leg
stature in the gear one thousand eight hundred and
fGM6re. and at The end of erery ten years there
after ; and the said districts shall be so altered
by the Legislature at the trst session after
tic return of every enumeration, that each Senate
district shall contain, nearly as may be- an equal
number of inhabitants excluding aliens and per;
until the return of another enumeration. and shall
at all times consist Of contiguous territory and no
county shall be divided IN the formation Ol senate
district, except such county shall be equitably
entitled to two OR more Senators
The proposed substitute for this (olD fourth Sec
ton, which was thus dissented from in 1874 and
was consequently lost was identical in effect with
that provision of the old fourth section which is
above italicized The rejection OF the proposed sub
stiute produces other consequence than to leave
the Legislature in possession OF power to alter or
rcadiust the Senate Districts upon the return of
each decennial census The proposed substitute, if
adopted. would have abolished this feature of the
fundamental law, thereby rendering the Senate
districts uualterable by any mere legislative act
The proposed provision concerning census cannot
he REGARDED as Of itself constituting an intended
amendment or alteration. That matter was to stand
on precisely the footing the old fourth
section should remain in force, or the proposed new
one should be adopted. The rest of the old fourth
section, l. e., tho part above set forth and not
italicized was distinct and isolated law. having no
necessary connection with anything else IN the Con-
stituton ms il stood before the other contemplated
amendments or as it would stand after all any of
them should be adopted. The new vision relative
10 the census was framed merely to vary the Ian
euape so as TO adapt things to the Intellectual at
teupt at exclusion. The precise original meaning
remained.
Whether the other amendments to the Sd
Article i'll this series prepared Tor popular ac-
ceptancc In conformity with the directions given In
in tho 18th Article, evidently depends upon the
power of the Houses under that Article to dsaI-
prove some distinct provisions in series OF proposed
amendments referred to them by previous Senate
and Assembly, and yet to approve the rest anu SUBJ
init them to the people, see nothing IN the 18th
Article to Justify doubt of their power. The 18th
A,ticle does not indicate an intent that oil the
amendments which may be agreed to at the first de-
,iberatiye session shall be dealt with as an unit in
the second and adopted OF rejected as an entirety
IL this were 80. all the recent amendments must
fail. for several which were adopted in 1873 were
wholly rejected in 1874, and consequently have not
been submitted TO the people. For this construction
NO one will contend. But it may he suggested that
each set of amendments incorporated at the first
session in single concurrent resolution OF approval
must at the second session be taken up and dealt
with as q whole. This would be attaching undue
importance to a mere mechanical arrangement OF
subjects When several propositions are in their
natnre contemplated effect and necessary operation
senarable their physical union in the record or state
meut of them is merely clerical affair and entitled
IN no consideration. Allowing the circumstance OF
n physical tackipg together thus to control the
peror proceedings on distinct propositions, would
rive the first deliberatlve assemblies more power
than the second, which cannot be the intent, Tor
while the former may act from their own spon-
taneous will the 18th Article contempiates thas
the latter anal always he chosen with express re'er
enc to the consideration Of the proposed amend
ents, and thus bring to their task all requisite In
structious from their constituents. II any difference
in this respect were allowable, would naturally
think the power of the second Legislature should he
greater than that Of the first. The requirements OF
a reference TO the second Legislature and subms-
MON 10 the people are. in this respect. similarly
framed. and neither contemplates that ell the.
amendments referred or submitted should be
treated m constituting single indivisible PROPOSE
ton. One feature of the 18th Article seems suf-
cent Of itself conclusivsly to repel this objection
1t provides that the proposed amendment or amend
ments shall bo submitted to the people in such
manner" es the second "Legisaturo shall pre-
scribe" Surely II will not DO denied that when sub
mitng amendments TO tho people for their ratinca-
ton or rejection tho second Legislature may hight
fully submit each separate subject by itself or
sransc various subjects In Snsh "lass"A "a IN 'ts