New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-09-14
TEXT OF THE DECISION.
JUSTICE LEWIS SCORES THE DEMOCRATIC LE6ls
tATURE-THE CONSTITUTION FLA

JUSTICE LEWIS SCORES THE DEMOCRATIC LEGIs
tATURE-THE CONSTITUTION FLA
GRAVITY VIOLATED.
Buffalo. Sept l3-The full text Of the opin-
lon of the General Term in the Monroe County
epportionment case, written by Justice Lewis
Is as follows:
STATEMENT OF THE CASE.
BY Section ., Article III of the Constitution 1t IS
made the duty of the Boards OF supervisors Oh such
counties may be entitled under an apporuohmen''
70 more than one member of Assembly. to assemoic
NJ such times as the Legislature mailing the appor
t6nmcnt shall prescribe and divide their respecNe
ceuNes into Assembly Districts s1a 10. 10 s csunty T0i
entitled. BY Chapter 39s Of the l%s q 1SSI
entitled @ ASi 1 9ss 81 The 9S ssaf Of
OF this SAFE three members were a16ttcd TO the
cn Of 10 meet dhe On S hc' Td tuesday IN July
1spa and proceed to divide their respective counties
10 respectively, and make and hle the proper Ger
,iecates ou
vencd on the day designated. but refused to divide
their county as required BY The act 10Y the reason
aforesaid is unconstitutional and void upon various
grounds stated in resolutions adopted 6y the @ hoaIai
Ihcreupcn i motion made at the Monroe special
Term rel. Charles F. Pond resident ciozei ci Ing
sectr Of Rochester for manGan , fGITnaIo5 a diYio
n e the lo"r% Gonny H as directed b. the act The motion
n T%s eSnr Genfd from dn' e an saa a order The
nf The Is ass:ed for reasons which VIII hereafter
section D. Article H., of the Constitution provided
that an enumeration OF the Inhabitants OF lhe S,l,e
in The wear 1855. and at the end Of every ten year
thereafter, and that The senatorial Districts shall DC
the return Of every enumeration tina, each senate
District shall contain as ncaTy as NAV ", an cPn,l
OF color not taxed, and shall main unaltecd utl ihr
OF another enumeration ,e ,Ion , pr,o',cs %
that the LEGISLATURE AT il first S'Scn aitcr tic r.
turn Of every enumeration shall app0ru0n ~" mem,
bers Of the Assembly among the several countries VI
The Legislature of ls5 rsssd act providing .i an
and nothing further was done looking to an elmera-
ton until The session Of l792-,even ycaIS ai'cr ins
provided for the taking Of a census. and required NE
Secretary Of state TO tabrate and arrange me rtuIS
Of the enumeratOrs and report me same 20 tne d,
lature An enumeration wa made, ana on the Isl
day Of April the secretary Of state made report 90 80
the Legislature Of The result OF such cnnmeratlGn On Vh
the day of the Opc ing OF this report. ana wme 'he
Legislature was siill in seson, me ,on Uove.n" ~ pe
legislature 10 convene on the following Mol"a.V,
April %, lso2 The Icsla,arr adv as sins AZ or
hated and the Both day o. said month passed ana
892, Aforesaid.
THE QUESTION At ISSUE
1t Is the contention Of the respondent that there
was no power in the Legislature to pass this act
In the year loJ2. as that is not decennial year
that the act unconstitutional and void because
It was passed at the sc>!on and oy the 'a"'
Legislature under whose direction the "humerauo"
taken, ana tr the lufthcf Tcd>oh iHa' H''" -"
traorclniry session session OF the Legs
ature within the meaning Of the Constitution, hay
Ing the power under the Constitution to make ,he
apportonment and the further ground that the
apportonmcnt was unequal and unjust .a, Cha
IL is the contention Of the appellant that the
provisions concerning the enumeration ana aP
portionn.ent simply directory and that, Therefore
II Is discretionary with the Legislature wheh ui'
enumeration and apporonmcnt shall be made: 49,.
Th co%t0n 81 = S has ssn 'e% ., m Pro'uSs hssemby 1
Shall BE- made at the first session after the return
First then. are these provisions of the Constitu
ton madaory; or advisory' simply That th. Pen
mandatory language no one Will question They are
the source Of power the Constitutlog cmanates from
tions and restrictions upon powers they confer upon
their servant, as they choose If important inter
iansraeo be held 10 be simply advisory, 1t must he
nsslncd that its authors incnl TO speak Ia nalda
tory terms II the # poHlo oloWs that ae' e apporonmcm
may he made at any tlTIc that suits the wishes or
plans OF the party In power, ,,. o., =. .,.., o,.o
q tabuiatcd statement Of ne rcSmh delivered to The
legislature TO be immdaIcy rGcT@ oq py an apPop
tion by the people. and The people may tAeIcpY pc
,arnon pmrnoses 50 manipulate and alSify an emu
mcraion and follow II bv 50 arran9lng lnc af'@hor,sI @
districts and apportlolng ,he % nenip" oY ,hr election
Of members thereafter of bo'h nous,H unoer Ths rs
control Of small m minority Iclec,ed 81 and arranged thn
majority OF the Legislature conla ,herr.i'ei WITH
elected by electors who's pmnn, and who compos.
but a small minority Of the electors 0l lhe Sualr
and the majority would be praclcaX o'slrnn. M Wv 60
and as amendments Of the CONSTITUTION can pe y
rJrcd only through and by the consent 9t thc Lepe
nire II would be- practically impos1me 10 r'u.us IL,
Is no necessity for calling an extra session. IA "a
.numcrsop and apporonment may be comsu''ithhse tho
L one sitting OF the Legislature. Hold'ng mes
provisions be mandatory. not only does no yoieneS
70 the language OF the Constitution. bit accorns WI
Inc common Understanding OF the people.
Courts tread upon vefy dangerous gro,hn Wiz,
hey venture 10 apply the rules which asuneasn a.e
Hrectory ana mandatory statutes to the provisions
M Constitution. Constitutions do not . usuuIN
Undertake to prescribe rules OF proceedins ea
kept when such rules looked upop ms essehu.u
" the thing 10 he done. and they must then De