The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-08-15
THE <PPoRr1oNMnNr <or.
Is II Couatitution.i tan Argument Against
Judge Ruu.sey,s Adxerse Oninien.

read Judge Rumsey's opinion declaring the
Apportionment act unconstitutional. and I
cannot concur In the reasoning By which the
learned Judge reaches his conclusion.
Ho IL OF opinion that the act violates the
Constitution: First because tho enum eration
upon which the act was based was not taken
In tenth year after 1855: secondly. because
the extraordinary session oftho lie Rislature at
which the net was passed was not its FIRST ses-
sion after the enumeration; thirdly. because
In estimating the number Of Inhabitants In
Senate districts persons Of color not taxed
were not excluded. and fourthly. because the
Senate districts are grossly unequal in the
number OF Inhabitants. and members Of As
sembly are not apportioped as nearly as may
be to the number ofinhabitants In the counties
Concededly the correctness OF his conclusion
depends upon tho proper Interpretation OF Sec
tions and 8 OF article III. OF the Constitution
Section 4 provides that IAN enumeration Of
the Inhabitants Of the State shall be taken.
underline direction Of the Legislature. in the
year one thousand eight hundred and ffty.flve.
and at the end OF every ten years thereafter:
and the said districts shall be 40 altered by
tho Legislature. at the first session after the
return OF every enumeration. that each Senate
district shall contain. as nearly as may DO. an
equal mum Der OF inha bitRnts. excluding aliens
and persons OF color not taxed: and shall re-
main unaltered until the return Of another
enumeration"
Section s provides that tho members OF
Assembly shall be apportioned among tho sew.
eral counties OF the State by the Legislature.
as nearly as may be. according to the number
OF their respective inhabitants. excluding
aliens. and shall be chosen by single districts.
The Assembly districts shall remain as at
present organized until after the enumeration
OF tho Inhabitants OF the State in the year
eighteen hundred and seventy five. Tho Leg.
islature at it's first session after the return OF
every enumeration. shall apportion the mem
bers OF Assembly among the several counties
OF the State In manner Aforesaid. and the
Board OF Supervisors shall divide their re-
spective counties into Assembly districts.
specifying the number of each district and
the population thereof. according to the last
preceding enumeration rs near as can be as
certained."
These provisions are to be interpreted by
the ordinary rules Of statutory Interpretation.
and these rules are as absolute as anything
else in the law.
The object OF Interpretation is simply to
ascertain the intent and for that purpose
words are taken in their ordinary significance
unless used in purely technical sense. and
the whole instrument is considered. Consid-
e err! the Constitution as a single instrument.
we lind that the number Of Senators is arbi-
i divided into thirty.two senats districts:
is III the M number Of msmbeEs Of Assembly
not dSded BY the into on ASSUME ssa1e
ply districts: and that the hegislaturs is not
tss sufa es no ratio W popu
y The ,probiom. then. before the trainers Of the
this fixed and limited representation to the
e99nstaptly increasing and varying population
SECTIONS and were intended to provide
the iieGisiaturs with authority to do this las
These sections. from the special nature OF
the case. cannot have practical effect without
They are not a law unto themselve legis-
lative aid Is required at every step,
Acting under the authority OF these sections
ha se the on ISL e 81
April. 1892, at an extraordinary session con-
t yened for that purnose. and following the re-
The learned jud &c is Of the opinion that the
and that consequently no enumeration could
lawfully be taken except In tenth year. and
tSe Of ting
Of the enumeration" within the contempla-
ton OF the Constitution:
not necessarily to be construed as mandatory.
but may he interpreted as merely directory.
ptoGsi'n IKE s"
While it is difficult to lay down exact rules
lor determining when provision should be
it may safely. be said that when no rights will
be Unmarried. PROVISIONS. with no negative
within which thing shall be done. are direc-
tory. A provision, may be construed to be d.
obviously the Important thing in the minds
enumeration Itself: the manner in wh Tss It is
to be taken is left entirely to the direction Of
at the end OF every ten years thereafter"
There are no negative words or implica-
later. in like manner and under the same
direction: can be PEI, saiG to be pr6hi.h;tted
obsea TIT prt "ni he
In intent en-, can no more be disreEarded. eyaded.
from the whole instrument, and when SO
It's w ne Of s't. sW
The, paramount intent Of the trainers being
mat there should be an enumeration taken as
being the essential Thing. the bSs Is Of ali the
TINT their further intent was that il no enu
meration were taken at the precise time men;
1fi9 81, by them none could ever aitesward
, Yet il the learned Judges Interpretation is
70 prevail. this Is the logical limbo into which
tho trainers fell.
Did the trainers actually intend that, an
enumeration taken under Legislative direction
a year later than the designated time should
be absolutely void as ropugnant to the spirit
md intent Of tho Constitrtonf Neither the
Constitution nor any statue should be so in
terpreted as to Illustrate its own design or
work an absurdity.
/ am unable to understand why the extraor-
binary session OF tho Legislature at which tho
act Of apportionmennt was passed was not Its
nrst session after the return OF the enumera-
ton within the very letter and spirit OF the
Constitution.
The Constitution nowhere limits the subjects
upon which tho Legislature may act IN extra
ordinary session. except to such ' as tho Gov
ernor may recommend for consideration"
:, At this session the subject recommended for
their consideration by the Governor was the
passage Of an act OF apportionment
the act
That IL was tho first session after tho return
OF the enumeration nobody will deny.
The learned Judge further says: THE pro-
pendent upon each other that II part Of them
violate the Constitution the whole act must
Promising that there should be no reason