The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-09-23
NEW YORK APPORTIONMENT
An Opinion Directly in Conflict with
One Delivered at Buffalo Recently.
Third Department of the Supreme Court Sit
ting al Saratoga Upholds the Constitu-
tionality of the Act of 1892.

SARATOGA. n. Y, Sept. 22.-The general term
of the Third Department this morning handed
down decision in the legislative apportion-
ment case of the People ex rel. George O. Car
ter, of Utica. against Frank Rice, Secretary of
State. The motion OF the application for man.
damus and injunction was denied, and the ap-
p0rtionment by the extra session was declared
constitutional. The opinion was by Nayham. p.
j., and Justice Herrick. Justice Putnam ex-
pressed no opinion. not having had time to ex-
anime into the case.
Judge Mayham, in his opinion, says tina the
objections to the constitution ality of the act of
1892 four. The first ia, the enumer-
alton upon which the apportioument was
based was not taken in a. decennial
year. that the Legislature failed to pro-
could oe taken until i s95. Judge Mayham holds
that the provision of the Constitution IL direc-
tory. not mandatory; that the Legislature, hav-
ing failed to make provision for enumeration In
the year directed by the Constitution, may law
fully do 80 in any year thereafter.
The second objection was that the enumera-
Judge Mayhnm calls attention to the fact
that the provision In relation to persons
of color not taxed relate. only TO the
based population of senatorial districts.
and that the case under consideration
only pertains 10 the Assembly districts OF the
state and the constitutional provisions in rela-
TO Assembly districts. and consequently is not In
volved In the consideration Of this case.
The third objection was that the act was not
passed at the next session OF the Legislature
after the one providing for the enumeration
within the meaning of the Constitution. Judge
Mayham calls attention 10 the fact that more
than session OF the same Legislature is
recognized by the Constitution IN the pro-
vision that is made for extraordinary sessions,
thus making IL evident that there may be moro
than one session during year by the Legisla-
ture elected 10 serve during that year. BE fur
ther considers that when IL was intended by
the Constitution that an act should ba done
by another Legislature subsequently chosen,
1t is expressly so provided. as in the provision
that is made in relation to tho constitutional
amendments where it is expressly provided that
they shall be adopted by two different legirla-
lures. not by two sessions Of the Legislature, be-
fore being submitted to the people for their
action
The fourth objection was that the distribution
or apportionment of members OF Assembly
among the different counties Of the State II in
equitable and contrary to thelConstitutoni In that
they have not been 'app0rtioned'' among the
several counties Of the State as nearly es
may pe according to the number of their respect
i've inhabitants. The opinion holds that the Con-
stitutiOn leaves the matter TO the discretion Of
the Legislature. that the act of the Legis-
lature must control. and the court cannot
reverse it. II the distribution is UNEQUAL
and inequitable the courts cannot with propri-
ETY. compel the Secretary OF State TO issue no.
tces of elections under the apportionment act of
1879. for the reason that. under that act, IL is
much more unequal and inequitable than pro-
vided in the apportionment aot Of 1892.