New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-07-04
THE RE4ppORTJOyUENr PUZZLE.


The summaries given of Attorney General
JacksOn's opinion on the apportionment and re-
election problem do not throw much light on a
darkened situation. Evidently the Attorney
General has in view the statute which requires
the Secretary of State to give notice to the
county clerks each year of Offices TO be filed at
the next general election. such notice TO be
+ served AT least three months in advance. Every
body comedies that Assembvmen must be elected
on November . and the Secretary of State must
issue his bulletin on or before August .. If no
new appOrtionment is made before that date the
Assembly apportionment of 1894 must be taken
as a guide in framing the election call So far
Mr.. Jacksons opinion will arouse no dissent.
But in going further and announcing fatty that
Senators as we'll as Assemblymen must be
elected on the basis of the 1894 apportionment
he expresses a view which will be opposed
arbitrary and unwarranted and for which there
seems TO be no very substantial legal support.
The decision of the Court of Appeals upset
ting the apportionment of 1906 left the status
Of the present Senate enveloped in doubt. The
Legislature of 1907 was declared dc fdctO
body, with full powers to legislate. That de-
cision was in line with all legal presidents,
for the law. like nature. abhors a vacuum and
must see to 1t that there are no interregnums in
government. The legislature elected IN accord
ance with an unconstitutional apportionment
must continue 10 act until the way is cleared for
another election on a new and presumably con-
stltutional basis. There seems to be no reason
for holding that if the way is cleared for the
choice of a constitutional body the old uncon-
stitutOnal body should nevertheless go on eXer
cising its functions for the full term for which
it was in good faith but mistakenly chosen. . We
called attention a few weeks ago to a decision
by the Court of Appeals Of Kentucky in a par
allel case. in which it was held that a city and
county administration in Louisville and Jeffer-
son County de fGctG valid, although uncOn-
stitutionally elected but on the first chance 10
operate the legal machinery by which il might
be displaced was TO be treated as functus offciO
on the theory that its members had really never
qualified.
There may be ample justification for believing
that on the first chance TO elect in this state
Senators should be chosen TO fill vacancies for
the term ending December 81. 1908. Governor
Hughes has been trying TO get the Legislature 10
do its duty and make new appOrtiOnment. and
has called extra session 10 secure a division
Of representative power which shall be just TO
all sections of the state. But If the Legislature
/ such act before August s. on what
theory can it be held that the new apporton-
ment should be ignored and Senators and AS
semblymen should be elected on the now unfair
and Anticipated basis Of 1894? We do not think
appOrtionmeDt at the extraordinary session
would be invalid because the constitution says
that reapportionments shall be made at the first
regular session of the Legislature after an
enumeration The Legislature of 1906 obeyed
the mandate of the constitution. burt its work
was faulty. Plainly 1t was not the intent of the
makers of the constitution 10 debar the legisla-
; tive branch from correcting its own errors The
constitutional clause about regular sessions ap-
plies 10 original reapportiOnments. not TO sup
Elementary ones made necessary by a court re
view. Moreover, even though the Secretary OF
State must issue an election summons by August
), that duty is prescribed by statute only and
I the Legislature might by resolution reduce the
length of the interval between the summons and
the election, If it should not agree on a reappor
! tionment within the next three or four weeks.
In the end, Of course, the courts must unravel
the perplexities OF the apportionment problem
and we heartily concur with the Attorney Gen
eral in urging that full opportunity be given
for action in the courts before the election
occurs"