St. Paul daily globe., 1892-10-14
UPHELD IN new YORK,
The Empire State Apportion-
ment Law Decided to Be
Valid.
Five Of the Judges Unite in
Sustaining the
Law.
Two Republicans Dissent
From the Majority of the
Court.
For Years Legislatures Failed
to Obey a Constitutional
Mandate.

ALBANY, Oct. Is In the cases of
the people eX rel. Pond, appellant,
against the board of supervisors of
Monroe county, and the people eX rel.
Horn, appellant, versus the supervisors
of Oneida county, better known as the
appOrtiOnment test cases, the court of
appeals today reversed the order in
both cases and motions for mandamus
were granted with costs in all courts.
These were cases in which court was
asked to issue orders for writs of man
damus, compelling the board of super
Visors of Monroe and Oneida counties
to redistrict the assembly district in
those counties in compliance with the
appOrtionment law passed by the last
legislature.
The main opinion upholding the law
is written by Judge Peckham. Justice
Gray also writes an opinion upholding
the law. Judge Andrews wrote a dis
senting opinion, which was concurred
in by Judge Finch. The court is unani-
nous upon all the questions involved
except those discussed in Judge An
drews' opinion. The judges practically
agree on all questions touching the con-
stitutiOnallty 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 frac-
tional ratios. The vote of the court of
appeals sustaining the apportionment
Is practically five to two, the five being
Democratic judges-Earl. Peckham,
Gray, O'Brien and Maynard. Judge
Andrews filed a separate opinion. In
the main and decisive opinion, by Judge
Peckham, these conclusions appear:
"First-lt is cOntended on the part of
those who allege the invalidity of the
law of 1892 that it was passed in viola
tlon of that provision Of the constitution
which directs the alteration to be made
by the Legislation at the first session
after the return of every enumeration.
The act was in truth passed at an extra
ordinary session of the legislature called
by the governor and after the return of
the enumeration of 1892. The point is
made that an extraordinary session is
not such session of the legislature as
Is contemplated by the constitution. To
my mind the objection is
Wholly without Force.
"There is no basis in the language of
the constitution of the claim that a seS-
sion of the legislature referred to in
that instrument is the first session of
legislature which itself first conveneS
after the return of the apportionment.
The constitution does not say SO, and
we fail in finding any reason in princi-
pie or in the nature of subject which
calls for such a construction. Such
construction twists and distorts the
ordinary and plain meaning of the lam
guage actually employed.
Second-The act is alleged to violate
the constitution because based upon an
enumeration taken in 1892 instead of
1885. 1t is true that it was the
duty of the legislature in 1885
to direct an enumeration of the
inhabitants 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 apportion the
districts. The legislature of 1885 omitted
to perform the duty of directing an
enumeration which was cast upon it by
the constitution. Each succeeding leg
1slature up to 1892 also omitted to per-
form this duty, and thus for seven years
the constitutional mandate
Had Been Violated.
And this duty continued and was cast
lDOn each succeeding legislature until
the constitutional obligation was full
filled. We are of opinion that the OBJ
lection made has no color of validity.
''Third-A third objection is raised
to the validity of this act. 1t is stated
that, as to the senate districts, it is not
based upon an equal number of inhab-
itants, excluding persons Of color not
taxed"
The judge here reviews the amend
meuts to the United States constitu-
tions regarding the complete en-
franchiSement of colored citizens, and
holds that the provision regarding an
enumeration on which senate district
appOrtionments shall be based against
the colored man has been abrogated by
these amendments, and says:
I'VE are of the opinion that the OBJ
lection to the validity of the act of 1892,
based upon the failure to exclude per-
sons of color not taxed, cannot prevail.
'FOurth-It is finally objected that
the act is invalid because the senate
districts do not contain an equal mum
Der of Inhabitants as nearly as may be-
This question of inequality contains, in
our judgment, the
Only DebatabIe Proposition
arising in these cases. We think that
the courts have no power in such case
to review the exercise of discretion in
trusted to the legislature by the consti-
tuition, unless 1t is plainly and grossly
abused. The expression 'as nearly as
may be" when used in the constitution
with reference to this subject, does not
mean as nearly as mathematical pro-
cess can be followed. 1t is direction
addressed to the Legislature in the way
of a general statement of the principles
upon which the appOrtiOnment shall be
made.
1--WE are of the opinion that the con-
struction of the senate districts under
the act of 1892 has not violated the legit-
innate and necessary discretion entrust-
ed to it by the legislature. AS to the
assembly districts, the burden of the
complaint rests upon the apportion-
ment of four or five members of the as
Bemply out of 128.
The reason for the particular action
Of the legislature upon this question
must be sought for in some cOnsidera-
tions other than partisan, for think it
Is shown these did not enter into the
question upon this point. The infer
ence is fair that these changes were
Absolutely Necessary
In order to secure the passage of the
bill. Other considerations might be
added to show that the legislature of
1892, in the passage Of the act under
review, did not approach the danger
line of abuse of legislative discretion.
"When we come to the question of