The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-08-06

Ths Opinion Based Mainly Upon the Ground
OF the Inequalities OF Population in tho
senate and Assembly Districts-The
Court overruIes the Objection" that tho
Census Wa. Taken In 1899 Iustcnd OF
1885, and that the Act Could Not no
Passed Mt an Extra Scsston-rhe Cnso
TO He Taken TO the Court of Appeals.
ROCHESTER,, Aug 5.-Justice william Rum
Coy OF the Supreme Court to-day rendered his
: decision in the case Of the people. ex rel.
Charles r. Pond. against tho Board OF Super
yisors OF Monroe county. involving tho
constitutionalty OF the act OF the last
Legislature making reapportionment OF
the Senate and Assembly districts OF the
State. Tho Court holds that the law Is
unconstitutional and for that reason declines
to issue u writ OF mandamus requiring the
Board Of Supervisors to reapportion the As
sembiy districts OF Monroe county as declared
BY tho act. Tho following is an extract from
Judge Rumsey's decision:
ION tho 18th Of April. 1902. at an extraor-
binary session OF the Legislature called for
the purpose. an act was passed to reorganize
the Senate and Assembly districts and to ap
portion the members OF Assembly BY
that act there were allowed to the
scounty OF Monroe three members OF
( Assembly The act required that tho
Boards OF Supervisors OF counties which werc
/ entitled to moro than ono member should
/ meet on the third day Of July and divide their
I respective counties into SO many Assembly
7 districts as they were entitled to. Tho Super
+ visors OF Monroe county met on that day.
, but refused to proceed under the act al
' leging as reason that 1t was not
, constitutional. Thereupon tho relator moves
/ for writ Of mandamus to compel them to act.
It appears that the rolator is n citizen OF Roch-
ester, Monroe county. and an elector thereof.
J. and 1t further appears that the city OF Roch-
ester. with a citizen population OF 120355
F., constitutes one Assembly district. and that the
| remainder Of the county. with q population Of
I 61,875. is divided into two districts. thus
giving 25937 people in the towns the same
representation In the Assembly Us is given to
the population OF this city. In this way the
people OF the city Of Rochester. including
tho relator. are deprived OF their proper repre-
I sentation In the Assembly by the refusal Of
I, the Supervisors to act as the bill directs. II
any act Of the Legislature violates the Constl
tuition It is q nullity. as II 1t had never BEEN
No rights can be acquired by it and no duty
Imposed.
& Boards Of Supervisors are quite as much
bound to regard the Constitution rs are any
other officials. and II law. SO called. socks to
compel them to do some act which the
Euuty. like any other person. to obey the funda-
mental law and pay no attention to the decree
which violates It. In the first place. 1t lis settled
that there can be no presumption that the
sLegislature had any but public and proper
motives in view in the passage Of any
act In the second place. no act OF tho
Legislature can be adiudged unconstitu-
tional unless 1t is other expressly or
BY necessary implication In conflict with the
fundamental law. But while these rules are
lNell settled and always to be followed. be-
seause they only are consistent with the respect
(which the courts must show to coordinate
bower Of the State. still it is also settled as
Itsted by Judge Allen. that the act violating
| Che true intent and meaning OF tho instrp
intsrpretsd and IN derstood. and irustart:
Ing it, general and clearly expressed SdHG and
SRosss' ss !sfli 5SssnoaS5s
people in t their Consultations tta.' when SO SO
less the people fail to chonGe them, or unless
they authorize some one else to do i. The
BY
cised In the manner therein prescribed. The
general, rule is that to, due execution OF a
with evory condition required to precede or
accompany it's exercise.
which allows any provisions or limitations OF
che constitution to be construed as
nicious and nd dangerous. and such CON
Ptruetion is not in accordapce with the
OF vrtus He n hs se as
that the Apportionment act was passed, and
the objections to it. based upon these sections.
II. That the enumeration upon which It
was ba se was made in 1892. and not ten years
That the extraordinary session at which
the act was passed was not the session after
the return OF the enumeration within the
.,"3, That tho appor,tionmr3ent Is unconstitu
In nsw ef
sons OF color not taxed were included.
II That both the SENATE a, ana Assembly ap,
number, OF inhabitants. ana ths members d
coIntIe H as nearly as may be according to the
number Of citizen Inhabitants. but that com,
am quite clear that, the census for the
purpose Of apnortionment cannot be taken un
srr i've %hsthe not then taEon It b
taken at the earliest possible moment after
ward and valid apportionment may t,e based
ifit was an original question. But. i am O
opinion that that question. as. well, as the
at an extraordinary session Of the Legislature
has been decided practically by courts OF high
shsm se Clear @ tbst hi sH
eus. as 1t may DO called. furnishes tho only in
formation for the Legislature to use In reor'
gambling the Senate and Assembly districts: :,
The law directing the census upon which
vision for ascertaining the number Of persons
OF color not taxed. and there il not contained
IN the return to the Legislature any informa-
ton on that subject That there are large
number Of such persons who are eli izens APP
pears by the papers. and IL 1t did not so APP
pear have mo doubt that the court would be
2 fact with regard to tho population Of the
State. The number Of such persons was not
the Senate districts: 1t is clear that the Con-
stitution requires that they shall be excluded
:" 1t is claimed by counsel for the rrlatoI
that this exclusion Of persons Of color is vic,
lation OF the Fourteenth and Fifteenth amend
ments of tho Federal Constitution. As to the
Fifteenth amendment, 1t is sufficient to "a,
Sy the srGv fnt no OF &
Constitution now in qneS ion. Tho -Four
By any State of the privileges or immuni
ties OF citiZens Of the United States. III,
the citiZens Of the Lnilnh StAtes as such. Ant