New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-04-04
UPSET
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discloses the varying inequalities IN population
caused by the effort OF the LEGISLATURE to OBJ
hicting constitutional requirements as 70 con-
tiguity, eompactness and county lines. These
inequalities, so far from evincing the legislative
disregard Of the constitutional command that
equality Of population shall be produced as
nearly as may be. are a demonstration OF the
necessity Tor compromise between coordinate
and conflicting requirements Of the constitution.
When We consider that twenty-three Of the
nIty-One senate districts must be assigned 10
three counties before there can be any attempt
to appOrtiOn the rest Of the state. and that an
other group Of eleven counties must as inev-
itably be divided into nine Of the districts now
appearing upon the map. as though they were
specifically named in the constitution il Becomes
apparent that there were great difficulties IN
the division OF this vast remaining domain. en-
bracing nearly fifty thousand square miles. into
the remaining nineteen districts, which had to
be erected with due regard not merely 20 ap-
proximate equality OF population. but ia Obe-
dtence 70 the other and even more positive COM
mandS of the constitution.
II is only when consider that there Is a
legal presumption that the lawmaking power
has performed its duty in the enactment OF this
statute. and that If there Is any doubt uDon tire
subject ii is the duty of our courts. as a CO.
ordinate branch of government, to resolve Il In
favor Of the validity Of the work OF the I.eg-
isature, that we can fully realize how utterly
indefensible the creation Of a particular dis
trict must be in order to justify the judicial
overthrow Of the whole plan Of appOrtioument
Edward B. Whitney. who successfully argued
the appeal before the Court OF Appeals. after an
examination Of the opinion said:
The courts wisely do not pass upon questions
raised which were not necessary to a decision OF
these cases. and which would probably not come
up under another appurtiOnment act. In my
opinion the Legislature, to be safe. win have TO
divide WestChester County into two districts
and Join Richmond with ROckland The new
CONSTITUTIONAL provision as to equality OF adj
joining districts is very specific and rigid and 7
think that the Legislature will find that this has
the effect Of restricting IL to very narrow Fang8
Of possible plans as to the rural districts In fact
/ had this carefully gone over last autumn. and
was Informed that there were only three possible
schemes of appOrtiOnment that were open to the
Legislature for adoption. except as the division
Of districts in the counties entitled to more than
one Senator. One OF these three IS set forth IN
Senator Browns printed brief.
The Legislature will have to seriously con-
slider whether 1t Is not important for It to per-
form the long neglected constitutional duty %
enacttng a statute providing a method Of OBJ
tanning judicial review Of an appOrtiOnment.
The absence Of such statute requires the over
throw OF the entire appOrtiOnment. IL IN any
particular II IS invalid think that probably
the Legislature could add power 70 modify,
which in some cases would avoid the necessity
Of recanvassing and adopting an entirely new
plan. For instance. the Livingston and ALE
gany districts, which we claimed to be q ques-
ton not passed upon by the court, II repeated IN
a new apportiOnment and then held invalid,
could be modified by exchange OF counties
without Upsetting the general scheme OF az
The fight against the reapportiOnment made BY
the Legislature OF 1876 challenged first By
George E. Payne and Harry z. Perley. OF Queens
County. and Walter Pendletou. Of Richmond COul-
ty. who got writ requiring the Secretary Of state
to show cause why he should not send out election
notices under the reappOrtiOnment, on the ground
that the act OF 1896 was unconstitutional The ac-
ton came before JAstice Howard. OF ths supreme
Court IN Troy on August Of last year. D B.
Whitney. OF MacFarlane. Whitney & Monroe aD-
peared for Queens and Westchestsr applicants. and
W. L. Short for Mr.. Feldleton- Ex-senator Zion
r. Brown. who drew the provisions OF the Reap
poFtiOnment act OF 1904. made the principal aFgu-
ment against the consttutionality Of the reaDpOr-
tiOnment OF 1906. Attorney General Mayer and his
deputy, Mr.. Graham. represented the Secretary Oe
State. Senator Merton z. Lewis. Of Rochester,
who called the father OF the reappOrtionment
Of 1S06. made one OF the arguments before Justice
Howard. who on August Is confirmed the 1913 act
The case was appealed TO the Appellate Division
and the lower court was sustained Counsel for the
applicants in Queens and Richmond said that the
act was in violation OF the constitution. inasmUeh
as the constitution OF Queens and Richmond coun-
ties. as one Senate district. gave the district q
population Of 1170OO IN excess OF the ratio, and
also the two counties were not contiguous terri
tory. Later William L. Sheriff.. Of Sandy Hin.
Washington County. also brought an action be-
Of the alleged unconstitutional lines Of tho
32d District Ex-senator Brown was his counsel.
Several actions were begun. Involving the nth.
18th. 2lst and 22d districts Ia New York County
and the Clinton Essex and Washington district
an on the ground that the apportonment had not
been made according % quota and COntiguity OF
territory. The Appellate Division Affirmed Justice
Towards decision. The reversal Of the lovrDr
courts yesterday came as a great surprise % the
politicians.
Thirty-four Of the old Senate districts ana a larQ,
number OF Assembly districts within the Several
counties are directly affected. Only sixteen OF tbs
Senate districts represented in the present senate
are the same as under the former appOrtiOumeut.l
And while the laying out OF Assembly Districts IN
detail is done BY the local boards OF aldermen and
supervisors. tnasrnUch each Assembly DISTRICT
must lie entirely within boundaries OF q Senef,i
district, and the districts represented IA ira
present Assembly were laid out within the Senafsi
districts now declared invalid. they cannot stands
and the result Is that the next Assembly must -
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