New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-10-14

stances
then there Is nothing left TO the court but 10 De
clare the appOrtiOnmcnt VUid
OBJECT OF CONSTITUTIONAL RESTRICTIONS
The suggestion that the circumstances u'u'
which Legislatures act in such matters give OPP
t,nity for the play Of passion and pTejudlce, ana
therefore ,hi, muet be considered In determining ue
Validity of an Apportlohhct act s, ,irrt 81
have no place In IN, GS'Io'Q ga iaHiih n rule q
conduct which cannot be varied according 10 ~ tro
passion or caprice Of a majority and to hS an I'M
iontnIe standard applicable under all circumstances
III departure from the luMHauloltal "a" ~ .,
iareS can i'm one ease be justified by the iralitlcs OF
numnn nature and the cOnolut'naity Of an act may
he nlade 10 depend In one case upon such cousluIi
Slon' the consutona!ty OF ali legislation may DC
have sad thc very OBJECT Of imposing restraints
IN the Constitution is TO protect great pil,p,c
and Interests against the operation oi SuSh eV0iltn
and disturbing forces The discretion OF ,ie rTs.
iature. If any. in arporuoning members ehoS W5an
certainty begins ana that point WAS lraci,'u wni
The coi..tles having largest remainder We're
ascertained. The attempt to Justly NE "p l"s 70
be trlel that the apport!ormcnt OF 1873 was SUP,
ject to great greater objection Oh ,nc tS fact
INEQUALITY than the later act. fails because lhe ~
is irrelevant. 1t is one thing that L,Il'atutc ~, h
dsregardcd It's duty on former occasion hn" and
quite a different and a much more serious thihe u
such a disregard Of constitutional Limitation sho"u
receive judicial sanction. J.. A..
Reference was made on the argument to the
Senate districts constituted by thG I'hS snnH IN"
1916 and by the convention WllCh ran n. wy
Instrument Tho tables presented by the Attorh'y
General show that tn radio Tor u'Urc WI, XCw
York. which. Win four Senators. had remaining
surplus Of ahou, $1,000, niue Eore VIII ne ~;
enough for another Senator. and In thc NNN,h lis
trict, which consisted OF the counties Of AiIemnS
and Wyoming. and in which tL'Fe W." ,r cyfrem"
The problem TO he solved had three inheXlhlc ele
ments preventing equality ana c3mp S
a Senate OF hirtytwo members. elected in each dis
hn cbanccG Y from ccht 10 trty-two each contain
Inc single senator. That was "" nr>l coiuI.l,Il
The next was thai county should BE- cNde9
II w entitled two more ScnNlorS, anu
the third. That the districts should ne c"po.u ="
o"no,sS ,.it va ',o, nsarrr onnrCacn 10 equality
could only Ic reached by charging the number OF
The districts which the convention unwilling 10
do and no different md better apportonmcnt con
SiStcnt with the CONDITION was formuatcu by "i!
body or shown to he reasonably possible.
PRECEDENT THAT l. NOT APPLICABLE.
1t was the opinion Of members Of the convention
as shown by debates that nearer approach TO The
equality for which they struggled could be reasonably
attained: To cite necessary inequality a, a c pr"
pcllcd by neXorable conditions for one wlch terc was
perfect freedom to AVOID. The compui'oi Of an III,
needless, constitutes no answer 70 the lneqHaileS ~
the Assembly appprti Dnnl"ut. II IN -" lh".o hdl
been additional senator to be allotted to s2nS one
the first district with surplus of about 1.oOo. ~
would have been precedent ior "iL' WAS g"g' ,i
the case at bar The convention, III PrrpnI thc
new scheme. was ueadinS on unfamiliar grluhd
LegshtureS Should bc governed. IIe i'liIinre FROM
the constitutional method in the act OF lo!'3 IS sub
stantial and its validity having been challenged III inc
courts. It cannot De upheld without establishing
dangerous precedent for The future.
The claim that the LesisaiIre in mailing an aI>
portion. may take into consideration thc pfopam'
growth of population las no support In the ConSu
luton Inc Is 70 pc r" ,G leGad inc
enumeratlo1. The decenniai enumeration and apror
temporary inequalities; II tie Legislature was pr
mted TO act upon the ground suggested, 1t would
Introduce most uncsrah eleeh, ana ns tna 9f ' e
the present the inequalities are
not attributable to any such consideration.
TIE ACT MUST STAND or FALL A. 4 WHOLE.
The act must stand or fall a whole; and If. in
respect TO branch Of the legislature the act Is
unconstitutional ii cannot be upheld. As to the Othe?
shall not undertake 10 show that tho question pre-
scented Is OF judicial coguizancc That II is judicial
question cannot under thc authorities be denied The
Legislature and the conrS are aAke bound TO obey te
CONSTITUTIONS; and If the legislature transgrc~es the
fundamental law, and overseps In legislation the bar
of the people that the judicial department shall have
end exercise the pnwer OF protecting the Constitution
TO set aside an unconstitutional apportonment has
quite recently been asserted and exercised by the
courts Of Wisconsin and Michigan. state aet Gun
bingham. - S. Rep. Vol. Ii. No. :; Geddinss as
Glaeer d VOL 1c ILL., NS S"psySrs Of i, loufh,on
consider with much ability tic question Of
judicial power And d'en4G 'aai S no sta de
equality renders 1t void l recognize the gravity Of
the question now pre.ened nor % iail to appreciate
temporary Inconvenience, bat The evils which may
c NOV p iS are v np' 10 viii Ge c,PaFs @ @ MIN
disregard Of the vital principles Of icples nta;ive
eminent.
POINTS MADE BY JUDGE rECKHAM
Judge Pechham, in Lis majority opinion,
says:
Al tbs, proceedings have for their object the de
csiOn OF the question The validity OF the App0r
ilonment lact Of lS92 The E9aid, OF Supervisors OF
boards OF the only counties In The state which have
refused TO make division OF their counte, into As
semhly districts for the purpose Of carrying out The
deem It their duty to declare an Of the LEGISLATURE
void rs IN '~toh Of some provision o! The Consu-
tuition n case must be presented in which there can
be mo rational doubt. The incomrtiLilty Of the
legislative enactment with the Constitution must be
1t is contended that it was passed in violation Of
that provision OF the Constitution wdich directs the
alteration TO be male by the LesiaI'ur AZ the "iTst
session after the return O. every enumeration" The
act was IN ir9,h In,i e, an "Srolclmary session n
the return Of the enumeration Of 1oO2 The poin; e.
mace mat an oNCaodlhUN session. i i"i suc s,seio
on tho Legislature a, Is contemplated by IN" C0n'u
tuition. To my mind the objection is wholly without
force. Tho Constitution doe, not say that the session
which IS 10 de'h win the question mgSt b" regular
one. All II directs Is Lat the legislature. # the first
session after the return shall proceed TO make the
The Constitution provides for III, assembling OF the
Legislature on the hr-t Tuesday in January in each
Of the Legislature ended The term Of ONCE OF i,s
members may not have ended. but the legislative
sion lies certainly terminated b. an dournment with
out day: II could not again assemble and perform
any valid act unless the Governor. under the special
power given him Icy In" Constitutions shOuld convene
Il. When hgs convened the Leei>Iturc Is In session
and il Is clearly not the session which ended
by u piOr adjournment thereof without day. thinh
that under the constitutional provision the Lceisla
tuTe which ordered the enumeration might IemGin in
session until ate. It's return and then Itself proceed
to the alteration made necessary by the results u
surh enumeration. W. think tier, j. no force In the
several objections made - the extraordinary ses-
sion not beng the first session OF the LEGISLATURE
OBJECTIONS III -CUSsEE AND DISMISSED.
Judge Pcckham discusses briefly the allegation
that tie apportiOnmcnt act Violates the CoEstitn-
ton because based upon an enumeration taken in
1892, instead OF lSsj, and he reaches the conclu-
sion that tie objection has no color or validity
Then he reviews the amendments TO the United
States and State Constitutions regarding the com
plcte acknowledgements Of cOlOrcd citizens; holds
that the provision regarding an enumeration or