New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-10-06
THE GERRYN4NDER AND ITS FAIE


TIE legislative gerrymander is at last in the
hands of the Court of Appeals. That tribunal
will now say whether it is possible, under Il
Constitution which enjons that Senators ana
Assemblymen shall be appOrtoned among the
counties as nearly as possible according 70 the
nonuation. TO give three Assembymen to one
county having population OF $4,000 ana
four TO county having only 10000: ana
whether inequalities and irregularities even
crosser than this are 70 be tolerated on the
theory that when the Constitution says thing
shall be done it means merely that it may be
done. The Court of Appeals Is to decide
whether this express constitutional mandate Is
really mandate or merely recommendation
It does not seem as if there ought to be much
question about the action OF the Court on such
an issue From the practical point OF view that
a layman ordinarily takes the courts do GER
tainly from time to time place incomprehenslole
interpretations upon the law, but 1t is perfectly
Main that the makers OF the Constitution com
manded how an apportionment should be maze
in order to prevent Just those irregularities ana
INEQUALITIES which have rendered the last APP
portionmcnt a scandal and an outrage. TO say
that the performance of the constitutional d.
rection is a matter entirely in the discretion oil
the LEGISLATURE is to say that the Legislature Is
under no obligation to obey the Fundamental
law Of the State unless it feels inclined TO DO
so and to say that the courts have no power
to compel the righting of such wrong as was
done last winter in Albany in the making OF
this gerrymandcr is to say that there Is no
remedy for partisan unfairness, and that the
people arc at all times at the mercy OF an I'M
scr1pulous majority, which can alter legislative
boundaries as often and as unfairly as 1t pleases
If this view of the law is taken by our Court
of Appeals it will be novelty; 1t Will be
utterly without precedent it Will be IN direct
conflict with the unanimous decision OF the Re
publican Supreme Court of Wisconsin and the
Democratic Supreme Courts of Michigan ana
North Carolina These courts have held, with
out dissenting voice. that the direction OF a
Constitution as to how an apportionment must
be made is an absolute command that may not
be violated or avoided, and that the attempt to
violate or avoid it must be prevented by the
courts Chief Judge Earl, during the argument
Of Mr. Sutherland on Tuesday, inquired whether
counsel contended that if a Legislature should
refuse to make a census at the deceDnial period
no census could be legally taken during the ten
wears succeeding, and upon Mr.. SutherlandS
reply that such was his contention, the Chief
Judge remarked 1t seems TO me that such
proceeding of a Legislature would be worse
than any gerrymander act it could pass we
think that public opinion will undoubtedly agree
with Chief Judge Earl but neither the refusal
TO make a census nor the passage OF gerry
mander could be worse than decision OF the
courts that both these subjects were within
The absolute discretion Of the Legislature, and
that the people were without remedy when the
wrongs be describes had been perperatcd.
1t is earnestly TO be hoped that 10 member
of the Court of Appeals will misunderstood
the question before that tribunal. II is not
question of the comparative morals Of partisan
maiorites 1t is not a question whether the
act of 1892 is better or worse than the act Of
1879. 1t is not a question whether the evils
sought to be escaped by a decision annuling
the act of 1892 are less or greater than the
evils that would be inflicted by return 10
the old law. 1t Is purely and simply ques-
ton whether the Constitution shall be obeyed
by the Legislature, and whether, if disobeyed
the people have a remedy in the courts. If the
Court holds that the Constitution means what
it saws. it must hold that the gerrymander Of
1892 is illegal and void, and, unless it is pre-
pared TO abrogate its own functions, it must
hold that it is tribunal competent to defend
the people against the malicious and partisan
conduct of an INSCRIPTIONS legislative majority.