Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1892-10-14
HILL IS SUSTAINED.
His Apportionment of New York Is
Called Proper and Legal
BY ALL THE DEMOCRATIC JUDGES,
fut the Two Republican Members Of the
Court of Appeals
DISSENT FLATLY WITH THE DECISION

the people eX rel Horn, appeal against
the Board of Supervisors of Monroe county
and the people ex rel Horn, appellant, YER
sus the Board of Supervisors of Oneida
county, better known as ''the apportion-
ment test cases." the Court of Appeals to-
day reversed the order in both cases, and
motions for mandamus were granted, with
costs in all courts These were cases in
which the court was asked to issue orders
for writs of mandamus compelling the
Board of Supervisors of Monroe and Oneida
counties to redistrict the assembly districts
in those counties in compliance with the
apportionment law passed by the last Leg
islature.
The order of the lower court was affirmed,
with costs in. all courts in the case of the
people ex rel George E. Carter, of Utica,
appellant, against Frank Rice, Secretary of
State. In this case the court was asked to
grant an injunc ion order restraining the
Secretary of State from recognizing the
new apportionment law or sending out
notices of election of members of Assembly
TO county clerks except under the appor-
tionment law of 1889, the lower court
having refused to grant such an order
Two Judges on the Minority Side
The main opinion upholding the law is
written by Judge Peckham. Justice Gray
also writes an opinion upholding the law.
Judge Andrews wrote dissenting opinion,
which was concurred in by Jadge Finch
The court is unanimous upon all the ques-
tions involved except those discussed in
Judge Andrews opinion. The Judges prac-
tically agree on all questions touching the
constitutionality of the apportionment law
except on the question of the discretion
used by the Legislature in apportioning the
remaining members of Assembly among the
counties having the fractional ratios
The vote of the Court of Appeals sustain
ing the apportionment is practically to 2,
the being Democratic judges-Earl, Peck
ham, Gray, O'Brien and Maynard. Judge
Andrews files a separate opinion.
To elec a United States Senator requires
81 votes on Joint ballot of the two branches
of the Legislature. The Democrats will
have IL votes next winter, when the time
comes Tor electing a successor to Frank His
cock. assuming that the majority in that
body holds together till that time. The Re-
publicans will have 13 votes, and one-Ed-
wards, of the Thirty-second district-may
not be cast for either regular party candi-
date.
The Republicans Still Have a Show.
To elect the Senator the Democrats must
have "a votes in the Assembly and the Re-
publicans 81. While, therefore, the Re
publicans will be able to control legislation
if they elect 65 members, they will need
three more to control the United States
Senatorship. There are 81 Democrats and
81 Republicans in the Assembly of
1892. Three of the Republicans were from
New York and three from Kings. If the
Republicans can elect 4 out of 80, which
this new apportionment assigns to New
York, and out of the Is which it gives to
Kings, they can secure not onl Y the control
of the Assembly, but also the Senate.
In the main and decisive opinion by
Judge Peckham these conclusions appear.
First-It is contended on the part of those
who allege the invaidity of the law of 1892
that 1t was passed in violation OF that pro-
vision o. the Constitution, which directs
the alteration to be made by the Legislature
a. the first session after the return of every
enumeraIio The act was in truth passed |
al al extraordinary session of the Lesisla-
ture called by the Governor, and after
the return OF the enumeration of 1892
Tue point is made that an ex-
sion OF the Legislature as is contemplated
by the Constitution. To my mind the OBJ
lection is wholly without force. There is no
basis in the language of the Constitution for
the claim that session of the Legislature
referred 10 in that instrument is the first
session of the Legislature which itself first
convenes a ter the return of the apportion-
ment. The Constitution does not say so,
and / fail in finding any reason, in principle
or in the nature of the subject, which calls
Tor such a construction. Such construction
twists and distorts the ordinary and plain
meaning of the language actually employed
A Duty That Was Long Neglected.
Second-The act is alleged to violate the
Constitution because based upon an emu
meration taken in 1892 instead of 1886. 1t is
true that it was the duty of the Legislature |
in 1885 direct enumeration of the in
habitants of the State in that year. and If it |
had discharged that duty it would have |
been the duty of the Legislature at the first |
session after the return of that enumeration |
to proceed to apDrrtion the districts. The |
Legislature of 1855 omitted TO perform the |
duty OF directing an enumeration which |
was cast upon it by the Constitution. Each |
succeeding Legislature up to 1892 also |
omitted to perform this duty, and thus for |
seven years tine Constitutional mandate had \
been violated. And this duty continued |
and was cast upon each succeeding Legisa-
ture until the constitutional obligation was |
fulfilled. We are of opinion that the objec- |
tion made has no color of validity
Third-The third objection is raised to the /
validity OF this act. 1t is stated that as to 1
the Senate districts 1t is not based upon an /
equal number of inhabitants excluding
persons OF color not taxed"
The Judge here reviews the amendments
TO the United States and State Constitu-
tions regarding the complete enfranchise-
ment of colored citizens, and holds that the |
provision regarding an enumeration on |
which Senate district appointments shall /
be used against the colored man has been |
abrogated by these amendments and says: |
"We are of the opinion that the objection |
to the validity of the act of 1892 based upon |
the failure to exclude persons of color not |
taxed cannot prevail
As to the Inequality of Districts.
Fourth-It is finally objected that the act |
is invalid because the Senate districts do not |
contain an equal number of Inhabitants as |
nearly as may be. This question of Unequal |
ity contains, in my Judgment, the only de- |
batable proposition arising in these cases. |
We think that the courts have no power in 1
such case to review the exercise of a discre-
tion intrusted to the Legislature by the /
Constitution. unless it is plainly and grossly
abused The expression ''as nearly as NAV
be-" when used in the Constitution with
reference to this subject, does not mean as |
nearly as mathematical process can be
followed. 1t is q direction addressed to the |
Legislature in the way OF general state |
ment of the principles upon which the ap-
portionment shall be made. We are or |
the opinion that the Legislature. bv
the alteration of the Senate dis |
tricts under the act of 1892 has NOT |
violated the legitimate and necessary dis
cretion intrusted to it by the Legislature.
AS to the Assembly districts the burden of l.
complaint rests upon the apportionment OF
four or five members of the Assembly out
OF l2S The reason ior the particular action
OF the Legislature upon this question must
be sought for in some considerations other 1
than partisan, for / think 1t is shown these
did not enter into the question upon this
point The inference is lair that these
changes We're absolutely necessary in order
siderations might be added to show that
the Legislature of 1892 in the passage OF the |