New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-08-17
rHE GERRYMANDER APPEAL.
MR. SITHERIAND'S ABLE ARGUMENT IN
SUPPORT OF JUDGE RUMSEY'S DECISION.

ALLOW A FORMAL AFFT RMATYON BY THE
GENERAL TERM-NEw AND IMPoRr
rANr POINTS URGED BY THE
REPUBLICAN COUNSEL.
fBY TELEGRAPH TO THE TRIBUNE
RuGalo Aug.16-The fraudulent enumeration OF
me Inhabitants the State, made under the authority
q, the Democratic Legislature OF this year, and the
equally fraudulent apportionment OF the legislative
districts based upon that enumeration, made by the
same Legislature, assalled again In the courts
to-day Recently, 1t well be remembered, Judgo
Rumsev OF the Supreme Court, declared the Legsla-
i've Apportonment act unconstitutional and refused
% grant a request for a mandamus directing the
Board of Supervisors of Monroe County to divide the
fhree Assembly districts OF that county under the
act 1t was this judgment Of Judge Rumsey's which
came I'D on appeal before the General Term OF the
Supreme Court here to-day, and led to argument once
more on the mandamus Judges Dwight,
Macomber Lewis, of the Suprt me Court, occupied
the bench. An argument supporting Judge Rumsey's
opinion and attaching the Apportonment law on new
and strong grounds was made by William A. Suther-
land OF Rochester, the Republican candidate Tor
Attorney General in 1891. c. u. Kehel, City At
torney for Rochester who brought the suit for man.
damus TO compel the Board Of supervisors OF Mon
roe County 10 aot argued that Judge Rumseys
decision should be reversed. Among the prominent
persons present in the courtroom were Senator HIS
cock Judge Albert Haight Of the Second division OF
the Court of Appeals and tx-SenatOr d. H. McMnihn
and Collector Morgan, of Buffalo.
Hitherto the Democratic Attorney -General, simon
". Rosendale, of Albany has refraned from taking
any notice Of suit, although politely Informed OF
Us progress by Mr. Sutherland and courteously 1uiN
nished with all the briefs bearing upon It, But MT
Rosendalee apathetic attitude has suddenly changed
Before the argument the case began to-day Mr..
sutherland received a visit in the courtroom from
Mr. Costswoth of the firm of Tabor, Sheehan, Coats
worth q Cunneen, who said he had just received
Telegram from Attorney General Rosendale declaring
that he Rosendae, would consent TO formal amrma-
ton Of the judgment Of Judge Rumsey, thus making
argument before the General Term unnecessary. But
Mr.. sutherland would not consent to waive his argu
uent. He several additional reasons to give the
(}enersl Torn Judges why Judge Rumsey's opinion
that the legislative Apporaonment law Is uncons itu
t0nl should stand. Mr.. Coatsworh evioefuy
was disappointed but had no submit It is reported
that Attorney General Rosendale will appear before
the Court OF Appeals when that body takes up the
case
Mr. Sutherland made two strong points in his ar
eument. The first That an enumeration OF the
Inhabitants Of the State could be made. according
TO tho Coostitution. only In the years 1888, 1862
1876 1886, 1895 and at the end Of the succeeding
periods of ten years. Midway in these periods II
could not be made If Legislature or Gov
error had neglected its or his constitutional duty to
have an enumeration taken at the regular period
His second point was that the Constitution gave no
authority to the Legislature Of 1892 TO pass a
Legislative AppOrionment act. That action could bs
taken only by the Legislature Of 1898 some sue
cseding legislature for it expressly provided by
the Constitution that an enumeration should be made
tnder the direction of Legislature, and that ts
legislative districts should be made at the next SEES
don" of the Legislature. Mr.. sutherland showed
from the statutes of the State that the ward session
meant, used in the Constitution the yearly period
within which the Legislature meets.
hat
the recent gerrymanders of legislative districts exc
cuted by the Legislatures OF Michigan, Wisconsin and
work, showed that the evil was one of growing
magnitude He quoted at length the hngunge used
by Chief Justice Morse, OF Michigan, q Democratic
audge, in denunciaon OF the recent gerrymander Of
the legislative districts Of that State Plainly, rs
uudge Morse said the time had arrived for courts to
nse some plain language regarding such gerrymander
There higher right than the night TO equal rep
resentatfon. No legislature could legally deprive
voter OF that hight But there was an alarming ten
dency OIL the part OF officials to defy the courts and
the commands Ct the Constitution" have been COM
peled at Albany" said Mr. sutherland, earnestly ito
see State officials acting a State Board OF Can
vsssers defy the commands OF the supreme Court and
even the judgments OF the Court Of Appeals itself.
We cannot shut eyes to the fact that lawessness
"a in the air. and that the judges Of the courts are
called upon to enforce the law
Mr. Sutherland argued that the language OF the
Constitution plainly said that the enumeration Of the
Inhabitants OF the state should have been
taken In 1885 and again In 1895. People
mistakenly argue" he said "that the Constitution
makes the duty OF enumeration continuous duty
upon the part Of Legislature that Is II one Legs
lature fails perform this duty another can assume
H. But II seems 10 me that forefathers agreed
that this power OF taking an enumeration should be
Exercised ct one time, and at no other. why sof
ssecsus< II involves transfer Of political power.
such q transfer always causes irritation and great
,,uhie AGITATION They did not wish II 10 occur fire.
orcrt1y TIE Enumeration bill Is not al act OF
legislation; 1t is certain duty Imposed upon
ce-tain Leedslature. That certain Legislature is the
servant of the Constitution, to do a specified act.
I maintain that, nnce the Constitution says the
enumeration shall be made every ten years, under the
direction OF the Legislature, the Governor has no
rrht TO veto It, It is matter as completely out OF
bis control rs tho election Of United States SENATOR
Of superintendent of Public Instruction. or the pas
sage of an amendment to the Constitution
"The Constitution in this matter OF enumeration Is
s law and the Legislature is the servant who carries
ont the law. In South Carolina 1t Is provided that
II the Legislature fails TO make an enumeration the
Governor shall have made within thirty days a1ef
II has adjourned. Suppose In this Slate the Coh-
ttuton had declared that every ten years an enumer
lion should be made under the direction OF the Sec
retary of stateq Would any question the right
OF the Secretary of state to make II? Would the Gov
error have the right to step In and prevent the Bee
re airy Of State from making it, In 1850 the Legs
ature of New-York State did precisely what 1t oo In
1876 in 1868 and In 1855; II gave directions 10 the
secretary Of State to take an enumeration OF ,ne III
bsb,tsn,s Of the state 1t is true that 1t did not
enforce its authority but that does not matter. IL
the members of the Legislature had examined inc
Constitution at that they would hav discovered
that they had full authority.
at n said that the enumeration not having been
taken In 1855. 1t should be taken In 1so2 -oVo' year,
have
IN 1895? And will there not be d question raseo VI
the power OF the Legislature Of succeedln: years
say Of 1902. to take enumeration under inc Ten
YER period requirement. The partisan maloriN ~