New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-08-06

Q1ire him To &C. (reaple 60 rel sAeT"oou aet boaru
Canvasscis, lx0 y. \. 30v 80 CT scq' same ayt.
Therefore the Board Of supervisors not only had the
right, Tut 1t their duty, II the act OF aPporloh
ulelt was violation Oi the Constitution. 10 refuse 10
obey II. and, If they are rsht IN til't JUDGMENT no
niaIdamus oan lssdo 10 C0ns?ei thc" TO 90 So . -
We are directly and NECESSARILY brought then 10 an
examination Of tie cOisutdlionail u lac Appofuoh-
ment act -,
That question being necessarily involved In tho
case. Is not 10 be o,aoed nor declined
rules which have been adopted by IT, courts
guidance 10 the discussion OF such questions.
In e hfst place, II Is settled that there can be no
presumption that the Legislature had any but public
and proper motives in view in the pa,eaE; OF any att
Ins question OF cOnstitu,onaty scev OF power
In The Legislature C oicy, Consi. Limo ooo
In the second place, no acc of The LEGISLATURE can
be adjudged unconstitutional unless 1t /, either eN
pressly BY necessary imp icauJn in conflict WIN the
fundamental law tfecpic set. Draper. 10 ~ l. o"-'
J13 Cooley CODst Lin 100 ct seq .
spiGging Of this rule is the further principle
act be Unconstitutional sach doubt sh1nld be resolved
i'm favor Of the Raw Ogden act saunders II Wheat,
2l3 20; Cooley, Ccns. Lin. 1872 III, ,
But while these rules axe well settled and viii al.
ways be followed because they only arc consistent
with the respect which the courts must Sow 10 co
ordinate power Of the state still II IS al,o selacd as
ssted by Judge Allen, that an act violating tn te
intent and meaning Of the Instrument ald III evasion
S of isini ns P'py sad an"
necessarily implied purpose Is as Clearly V9iI as II III
express terrs toIIiOdcn lPcOpe OK rel Bolton a!''
1t Will not be denied that the power 70 change It's
own organnation and t. create new Hnls OIL a, #
is one which that body could not exercise unless it had
besn sTannd by the Conin % @e noIt u if ' 10
NOT necessarily involved In the power TO make laws;
If the Constitution did not give 1t no Legislature "oua
presume to exert 1t. 81, -,
TIE composition Of tie Legislature and the bonnd
aries Of the several districts are established IN te se
Instance by the people in their Constitution "aeh
30 established they must continue made unless tne
people lit TO change thcm or unless tey au,horize
else to do It. Tie power theil haNtn Us
origin In the Constitution. Is limited by that nStra-
ment and must be exercised in the manner therein pre-
Ihnc Mo is that
Of power there must be substantial compliance WIN
every cohdilon required 10 prccedc or ACCOMPANY us
exercise (Allen agt. Dewitt, y. y. 276, 215) rs
pecialy is this the where the condition and imila
ilon Of the manner OF executing power IS c'ptHlned
in the Constitution The fundamental law 1T j. sald,
is presumed to be, and indeed Is, p;epaIed WIN he
very greatest dellberaiion. and adopted ouly after
each word has been tad by different Legia1res ana
Sy the people 9 at az e. sGpe eA r'' oi0cr' "S
These limitations upon the manner Of exercising
the power cannot be deemed TO be merely directory
It Is absurd to suppose that the people have care
fully prescribed the manner IN which so I'M m
have eft that body TO follow the directions or not at
its pleasure. If the directions are given respecting
should S s Be o exercised there is SAYS Judge cooley al
least strong presumption that the people designed
II should be exercised In that time and mode only
Cooley Cohst. Lin. 10, aiJ Indeed l am firmly
persuaded That The principle which allows any pro
strued as directory, and not as mandatory, !.
pereon and ds9Eerpns ana such cons%ron IS h
state at least: l'eoplc at PrZ I'M 81 g. 81
fscpS "gt So 80 aC o dT lS p rs'po @
case Of People agt supervisor, OF Chenang1 g n. y
qurements of the Constitution that the yeas and nays
up the final passas. Of BIN should lc entered on
Obitcr. because he had already held that a. matter
Of fact they had been 50 taken and entered n the
fore the case Is no authority on that point.
The Constitution preSerbes TINT an enumeration OF
direction Of the Legislature in The year 500 and at the
end Of ten years thereafter and that the senate
first session after the return of every enumeration.
that each Senate district shall contain nearly as
and persons Of color not taxed II IS provided further
in TIE next section that the Legislature at the first
sppoon the members Of Assembly among tho several
counties as nearly as may be according 10 the mum
But each county shah be entitled to one member Of
Assembly whatever its population. except that Fulton
Ii is BY virtue Of this constitutional provision hsi
the Apportionment act was passed and the objections
l. That the enumeration upon which 1t was based
was taken in 1o0e and not as a tenth year after
?. That the extraordinary session at which the act
Of the enumeration within the Constitutional pro-
tonsi because in estimating the number Of inhabitants
in the nov Senate districts persons of color not taxed
L. that both Senate and Assembly apportlenment arc
unconstitutional because the senate districts are grossly
of Assembly are not appoloned among the counties
as nearly as may lie according to the number Of
stltution Is ignored.
am quite clear that the census for purposes Of
scritcd in the CONSTITUTION has arrived.
Whether. Il not then taken. it may be taken at the
earliest moment aiterward aud valid apportionnent
may be based upon census then made, might be
doubtful II 4 were an original question. But am
of opinion that that question. well the question
whether the apportionnent NAV be made at an extra,
q
shall not consider them. (Rumscy agt People, 10
H. y 74d 4'' State 's' Cunningham 81 n W. Rep
Il quite clear that The constitutional census, as
the Legislature to in recognizing tie senate and
Assembly districts. Rumscy agt. People, 10. Y. s.,
ions Of the iHstices lfa. Mas 6oi Tho arporo Ii
nent Is continuing proc, b'ginnng With The Gnu
districts. (opinions Of the Justices. I42 Mass COL
co., Being one entire act all parts Of are to pc
censs upon which The appoctionnrnt waebased makes
no provision for 9sceIinnne the number Of parsons
return 70 the legislature any information on that
IN he state H Wbo ay a ll rs I I S d
and If It did not 80 appear have doubt that the
notorious fact with regard to the population the
safe (KeInM az. Long Island CITY. 30 Hun, Az :;
Sands los, y. ", e1O) The number Of such persons
was not deducted from other citizens IN pOgganizny
requires that they shall be excluded such is not The
rule in apportlonlDg menlteIs Of Assembly. The poo
StTLch PROVISION eNcluClNg persons OF Color
not taxed from Assembly presentation in 1874 bu
they retained II az 70 senators. Why il
taiilcd does not ap!Sar, nor is II important II Is
sufficient that they have ordained. II has not been
unusual that the senate upper house Ct the Lcglsn-
tuie Of State should Icpr sent different class Of
people than tic other hose. BY tie Constitution Of
I7TT the members Of Assembly were apportioncd upon
the numbers Of electors and the Senators upon the
freeholeis possessing frecholds Of the value Of 100
pounds sterling The idea abandoned IN 1921, and
tie representative population for senators and As.
sembymen remained tho same until ls14. when tho
Constitution TO members of Assembly amended
"a fDpTS al colo ye1n ff(n no
Assembly representative population leaving the sen
ate representative population untouched II may be
that the doing of this oversight, TINT was
done, and that the result o.. such action the appor-
Torment Of senators still Is 10 be based upon tho
number Of citizens excluding persons OF color not
taxed, cannot be denied. II II claimed by counsel
for relstor that this exclusion OF persons Of color is