New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-05-02

was constituted, pass a valid apportionment act,
II would seem to follow that II has no com
potency TO legislate on any subject For 1t can
not De said to be valid Legislature for the pur-
pose OF passing statutes affecting the general
interests OF the people and in making appro-
pIlttuons or money received from the people
ana not be valid Legislature for the purpose of
performing the constitutional duty of making an
equitable apportionment.
IT is needless to say that the greatest con-
Iusion would result from the decision of the
court OF Appeals If the corollary were that the
present Legislature has no effective existence
and is without authority to exercise the iegis-
tauve power Of the state. This foreseen
oy tne Court OF Appeals and the matter is clear
~ discussed in the opinion of Chief Judge Gull
len. With this opinion six Of the seven judges
OF the court concurred.
JUDGE CULLENs OPINION QUOTED.
The message then quotes the opinion of Judge
Cullen, holding this to be a de facto" Legis
lature, and its members, therefore, not only "de
facto" but "de jure" members; also pointing out
that unless this Legislature shall enact ap
portionment the elections this fall must be held
under the apportionment OF 1885 set forth in the
constitution The Governor then continues:
This is clear statement of the power of the
present Legislature to pass valid apportion
ment act, under which the next general election,
at which members of either house are TO be
elected, will be held" and 1t is further pointed
out that the exercise of this power Is duty on
/ sary to hold elections in accordance with the
1 1R9' A0nnsn' contained IN the constitution OF
It would be obvious injustice. the Governor
argues. for another Legislature to be elected
under the old apportionment in view OF the
changes in the population Of the old districts,
| and such a course could find excuse only In
necessity. Referring to the 1906 apportionmert.
overthrown by the court. the Governor says:
The court mentions specifically two districts
| where the disregard of the constitutional provi-
sions was so clear that the whole apportionment
| was rendered invalid The court expressed
opinion as TO the other districts, contenting
ltself with definition Of the principles of
portfonment established by the constitution.
The message goes on TO say:
II is, of course, impossible to divide the state
win mathematical exactness. The recognition,
III the manner required by the constitution, of
county, town and block lines, prevents an ap
poruonment which would result in absolute
equality of representation. But. Judge Chase
says: AS the discretion of the Legislature re-
IatlIg 10 the relative number of inhabitants in
senate districts arises from necessity. it should
cease where the necessity for discretion ends"
The conclusion Is inevitable, that the mini
mum Of discretion necessary 10 preserve county
ana other lines and to give reasonable considsr'
atlon 10 the other provisions of the constitution
is left TO the Legislature"
The matter is not one Of personal preference
or OF individual interests, does 1t rest IN
large political discretion It was wholly to
eliminate such considerations that the people, in
adopting the constitution, SO strictly limited
the legislative power.
The people entitled to have a perfectly
fair apportionment in accordance with the letter
and the spirit Of the constitution No considera-
tons are paramount to this just requirement.
L therefore recommend to the Legislature the
passage or new apportionrnent act which will
reustrlct the state so as TO provide such equal
lily or representation as can be had under the
constitutional provisions, and of such char
acter as TO be of unquestioned validity and COM
mend itself to the Intelligent judgment of the
people.
Senator Raines moved that the message be
printed and lie on the table Senator Page asked
that it be sent to the judiciary Committee. but
Senator Raines said it should be held pending
decision TO the appointment of a committee
on apportionment- The appointment of such a
committee rests practically with him as leader
Of the Senate.
Out of all the furry a few facts stand salient
and must dominate the future situation Gov
ernor Hughes Is determined TO save the Repub-
lican party he views its needs even from
the leaders and faithful followers Of that organ
iZatfon who at present seem to be in the party
If defeated in the Kelsey affair his friends be-
lieve he will redOubie his efforts to prevent any
action on the utilities bill which would permit
the charge to be made in the next campaign that
Republicans had joined hands with Democrats
in selling out to corrupt corporation interests.
His action in sending in the apportionment mes
sage to-day means TO his friends determina-
ton 10 bring about by all the legitimate methods
compliance with his desires. Any fight with
Republicans as individuals or an organization
would have to be forced him, but it would
not find him, in his present frame of mind
yielding retracting or abandoning one jot OF
his beliefs as to the party's best service to the
public.
One Of group Of newspaper correspondents
who saw the Governor at p. asked him:
Was there any special reason, Governor, why
the apportionment message was sent in this
afternoon?"
"I have nothing to say on that subject" re-
piled the Governor THE message speaks for
itself"