New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-07-28


elementary principle of construction that when
the statute requires that something shall be Gone
in a particular manner form. without expressly
declaring what shall be consequence Of non-com-
pliance. the statute becomes merely directory.
THE EXTRAORDINARY SESSION.
Fourth-Tle further objection j. Uadc that
Chapter 397 was not passed at the first session
after the return of the enumeration out was passed
at the same session during which the enumeration
was returned. The language in Section 4, Article
III of the Constitution, upon the subject, reads as
follows:
And the said districts shall be so altered by
the Legislature at the first session after the re-
turn of every enumeration 1t does not deino
any particular kind Of session. Section l, hue
g Chap. Z, of the Revised Statutes, preserves
the time Of the regular session of the Legislature
as follows: The Legislature shall assemble at
the Capitol, in the city of Albany, on the nrst
Tuesday of January in every year In addi'ioh
to this section, Section a. Article W. OF ''''
Constitution provides for the extraordinary ses-
sion of the Legislature Tor the Senate only, winch
the Governor has power TO convene, ana section
3. Title /. Chap 8, of the Revised Statutes, pur-
suant TO this provision of the Constitution, rec
ognizes this extraordinary session by declaring
that the Governor has power to convene the Leg
islature Tor the Senate OnyJ on extraordinary
occasion The decision of the Governor, 80
far as it relates TO the CONVEYING Oh uic
Legislature or Senate in extraordinary sessions, Is
final.
Another objection urged against the constitu-
tionality Of the Rcapportonment act Is that inc
Secretary of State did not report 10 the Legislature
and the Legislature did not have before II, ID
enacting said REINFORCEMENT act. any enumcId-
tion report tabulated or other information OF the
number of inhabitants of the State who are per-
sons of color not taxed his with the Iurtner
and Aagrant inequalities exist in the apporton-
ment Of members of Assembly and senators is not
tenable thought Mr.. KiehcL LEGISLATIVE podies
inbab itants and of the itSess and proprety OF
legislative action IN a given case Iheir ac,s III
this respect cannot be questioned or reviewed
Judge Rumsey agreed with MI. hRhei III HIS
argument that the question as 10 the non-cnumeriI
ton of the persons of color not taxed wouid
have no effect, as all coiored men had Deeh maue
citizens and were citizens, whether taxed or not.
The Judge therefore, told him TO pass over that
point, but Mr.. Sutherland asked that this be not
done. as he would press that particular point
strongly.
JUDGE RUMsEY CREATES 4 COMMOTloN'
Judge Rumsey took issue. however. with Mr..
Kiehes abatement that If the extraordinary session
of the Legislature was the next session IN the
meaning Of the Constitution. a reappcrtonment act
could be passed at any session which The Governor
might call. Judge Rumsey held that II this were
true. a Governor could defeat reapportonmeht
simply by calling an extraordinary session ai'et
an Enumeration had been made for the purpose OF
having il act upon some matter entlrely Iorcsn
IN tho reapportionment. The Constitution pre-
scribes" he added. that the reapportlonnent NUS
be made at tie next ext S Sr oaiilir, the
Legislature together in an eN'raT h;an,
session for action upon some other subject, u
reapportionment would be put on Tor ten years as,
At an extraordinary session the Legislature can
ACT only upon such questions as the Governor
submits to IT,. ..s
Judge Rumseys words in this connection created ,,i
sometliinc of a commotion, for he showed clearly
by them that il undoubtedly was not tne lhten-
ffon of the trainers of the Constitution 10 put
into the hand of Governor any such autocranc
power. VIII, III
In closing his argument Mr.. Kiehel said
"The wilful violation of the Constitution by tne
majority Of those who have solemny sworn 70
wei stated by the Court of Appeals of this state
that palpabe disregard of the constitutional
provision would seon work It's own cuie Ill q
country where there are frequent elections ana
the conduct of public men is, as it should BE-
subjected to severe scrutiny" tRumsey vs. Peo-
pie, supra AS. If the legislators have been
remedy is at the polls. That such remedy is
effective can be forcibly illustrated
by the recent municipal election OF .oo,1a5
leading citizens taxpayers and lawyers TOOK
npon themselves through the instrumentallty or
foreign Senator TO enact statute which nS
reason of it's reckless changes of the numbers and
boundaries of the wards OF this city 1or partisan
purposes, regarded by conservative MINDS
as a fragrant abuse of home rule. While II was
apparent that the prerogative OF the Legislature
was exercised to benefit the so-caed leading clti-
zens taxpayers and lawyers and further their
personal interests, it was not within the province
of the court to review the action of the Legs
lature This remedy, under laws OF the State
was left to the citizens of Rochester. and II was
administered with drastic effect. IL the Legs
lature has been equally remiss in its duty In The
enactment of the Apportionment act, the remedy
will be at the polls at the coming election"
This denuncation Of the Democratic gerryman-
der of this city last spring by the Democratic
Legislature created much excitement In the court
room. and il was not at all relished by those
Democrats who heard MIR. keheIs remarks ana
who had hand in IL.
Mr.. sUTHERLAND's ARGUMENT.
The main points on which Mr.. Sutherland
based his argument against the issue of a man
damus to compel the Board of Supervisors TO meet
again and redstrct this county in accordance
with the new law have already been given in tins
paper. There are four main points, as follows :
First that the Legislature could not constitutions
ally enumerate the inhabitants in the year 1882 !;
second that the enumeration which was made did
not comply with that provision OF the COnstltu-
ton which requires that the Legislature shall
know how many persons of color not taxed there
are in each of the counties O1 the St%te third,
that the so-called ReappOrtIon!nelt act was NOT
passed at the first session of the Legislature after
the enumeration was returned fourth. that gross
and fagran neq uaiies exist III the appoTtonlnent
OF members of Assembly and Senator'S whereas The
Constitution provides that leach Senate district
shall contain. us nearly may be. an equal mum
Der of inhabitants, excluding aliens and persons
of color not taxed" and that members of Assembly
shall be apportioned among the counties as nearly
as may be according 10 the number OF their re-
spective inhabitants, excluding aliens"
Mr. Sutherland took up each point and at con-
siderable length, showing clearly wherein the
Democratic Legislature had violated the provs-
ions of the Constitution in each of the four cases.
lie spoke for over two hours and he was followed
closely by every one in the
Judge Rumsey will probably not hand down
his decision with his accompanying opinion until
the latter part of next week. Iie took the papers
and the briefs in the and will examine them
carefully before he makes decision.