New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-04-04
APP0RTIONMENT UPSET
EFFECT MOST IMPORTANT.
Court of appeals Hands Do5cn De-
cision-This Legislature Unaffected.
IBy Telegraph 20 The Tribune. !

! history or the state an appOrtionment has been
| overturned by the decision and the consequences
are so vast and the possibilities so sweeping
that even experienced legislators here have
hardly ventured to predict what the result will
| be.
| In no sense does this decision affect the pres
| ent Legislature, which expressly Is declared a
"de facto" body, but unless this Legislature
! passes a new apportionment act the election Of
! Assemblymen next fall must be held under the
apportionmcnt OF 1895; and what that would
mean in the readjustment of party lines and
! the dissolving and forming anew of political
! combinations is small even to the political
| man9uvrng which will grow out of the efforts
OF political chiefs in both parties to effect salts
! factory districts in the new state division.
by the decision to-day men virtually 'Hegis-
Iated out of office" may regain ground sufficient
| ~ TO come back into public life. or at least
strength enough TO take up factional strife anew.
ohe typical case may be cited. The old 2Sth
Senate District represented by ex-senator
! Bracket. consisted of Saratoga. Schenectady
and Washington counties. BY the appor-
tionment Washington added another dis
trict. and I'm the Saratoga Schenectady district
the present 1st-ex-Assemblyman Wemple
able after bitter fight. to defeat the Bracket
! delegates and get the nomination for Senator.
ANOTHER ACT ALMOST CERTAIN.
It seems almost certain that another appor-
/ tionment act will be passed by this Legislature
1 Influential Legislators think that the adoption
/ OF new apportionment as as possible
would be best for every reason.
| Governor Hughes declined tonight to express
any opinion the subject. 1t is believed.
| though that he would favor redistrcting of
the state this year rather than have it go over
! TO a special session of the new Legislature If
this course is followed the present session Of the
! Legislature must be prolonged well into May,
possibly into June
The decision is by a divided court. voting FIVE
TO two. and there are five opinions three sup
| porting the decision and two dissenting. Judge
Chase writes the controlling opinion. and there
are concurring opinions by Chief Judge Cullen
and Judge Gray. Judges Werner and Haight
filed dissenting opinions. the former. however.
concurring with Judge Cullen far as regards
! the effect of the decision.
! The apportionment OF two Senate districts Is
made the particular Illustration upon which the
act of 1906 is overthrown These are the
| Queens Richmond district. represented by SEN
ator Harte. and the 18th. OF New York. repre-
sented by Christopher Sullivan
Judge Chase holds that the Legislature did
not violate tho constitution by Joining the coun-
/ ~ of Richmond the county Of Queens but
''the rights OF Queens County under the consti-
tuition. because OF its having a citizen popula-
1 tion above the ratio. and also by reason Of in
cqualites in the number of citizens in the 1st
/ and ID Senate districts. required that Queens
! County be given Senator without Joining it
with another county"
OPINION OF JUDGE CHASE.
! AS to the making Of the 18th District in New
| York County. Judge Chase says:
| reference to the diagram will show how
| grossly the provision OF the constitution, In re-
gard to compactness. has been violated in the
10Th senatorial District Within the limits OF
city enutled 10 many senators. the requirements
/ for compactness would seem to exclude all pos
si6ility OF a district in the shape OF the 18th.
| The disregard Of constitutional provisions in
forming the I'd and 18th Senate districts is clear
and they so affect the entire apportionment as
TO make II necessary 10 declare the act wholly
unconstitutional and void. II is not necessary
| or wise 10 discuss the provisions OF the act re-
| latng TO other Senate districts. excep. 10 say
that differences arising from necessity and slight
| GiHerences In the citizen population of Senate
| districts and the relative weight OF slight DIFF
ferences in population in comparison with
| Slderations of compaCtness the reverse. upon
| which men Of Judgment and discretion may
fairly differ. matters belonging distinctly to
| the Legislature and not to the judicial branch OF
| the government. and with which this court has
no disposition or Jurisdiction to interfere.
Every apportionment must stand upon its own
particular facts. The rules and principles which
we have stated general. and result from
examination of the constitution and a study of
It's development They are applied to the facts
on this appeal so far as stated and only so far
as stated
1t is difficult and perhaps impossible to state
| rules by which future apportionnent3 can be
measured This court has ALREADY said by Peck
! ham, j., In Baird ct al. agt Supervisors. Supra,
| that I'VE have trouble whatever in detecting
! the difference between noon and midnight. but
| the exact line of separation between the dusk
| Of evening and the darkness Of advancing night
| is not so easily drawn"
| ! concur in the views expressed by Chief
Judge Cullen as TO the effect of the acts of
| de facto Legislature long as its members re-
! main actual incumbents Of their offices, re-
! spectively.
| The orders should ne reversed with costs to
appellants In all courts. but since the insti-
tuition Of the proceedings the several respondents
! have gone out OF office and the election itself
| has been held, no order should be made direct
| Ing the issue of a writ of mandamus
On the other hand. as Chief Judge Cullen
pressly points out in his opinion. the personnel
and acts Of the present Legislature are in no.
wise affected The Senate and Assembly elected
under the appOrtionment act and already as
sembed constitute in any aspect a de facto
legislature. Not only is IT a valid legls-
lature. but each member thereof. so long as the
particular house to which he belongs does not
GUST him. is to all the world not only de facto
! but do jure member" After emphasizing the
fact that each member is entitled TO all the
rights of a member Of his house. Judge Cullen
| adds:
cision is mere brutum fulmen and of no prac-
1 teal effect. While the courts cannot pass on
| the title OF any present member of the Legis-
lature. IL control the action of administrative
officers in the conduct of the next election that
| takes place. II the present Legislature should
pass a new apportionment bill in compliance
with the provisions OF the constitution, the next
general election at which members or either
house are 20 be elected will be held under the
new statute II the Legislature fails 20 discharge
/ this duty then the election must be held in
| accordance with the apportiOnment under the