New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-07-03
EXTRA SESSION CALLED.
TO MEET NEXT MONDAY.
Jackson 4d1ises Senate Election
Under 1924 4pportionment.
~ TsIsgraPh % " TrL6une.l

BY Telegraph 10 The Tribune
Albany. July 2-COinCident with the calling
by Governor Hughes of an extra session of the
Legislature for July and presumably TO take up
the reapportionment problem, Attorney General
Jackson tonight rendered to John :, Whalen.
Secretary of State, formal opinion that the
latter should issue a call for a special election
CT Senator'S to serve out the Unexpired terms
of the present de facto Senators. He holds. also.
that this call should specify that the election
be held according 10 the apportionment of 1894.
The opinion turns the fact that Senate
must be elected this fall not at all the ques-
tion as to whether a new apportionment. if made.
would supersede the apportionment Of 1894. Ths
constitutionaHty Of an appOrtionment at an ex-
ira session is not discussed.
Secretary Whalen is expected TO follow the
advice Of his Democratic colleague. who in law
is his legal adviser. and with the Legislature
at work on apportionment while the law
officer of the state has declared for a special
election under the old apportionment. legislators
and politicians alike will find themselves con-
fronted with a vexirg problem. which only hasty
excursions 10 the Court of Appeals can settle.
Governor Hughes issued the call for the ex-
traordinary session of the Legislature this even-
ing before he went 10 jamestown. where he is
to deliver an address on July l. The call says:
Pursuant 10 the power vested in me by Section
T. Article of the constitution I hereby convene
the Legislature in extraordinary session at the
Capitol in the City OF Albany, Monday. the sta
day of July l$01 at hall past o'clock.
MAY ASK FOR OTHER LEGISLATION.
The Governor has declined to discuss the SUBJ
jects which he will present to the special ses-
sion. but it is practically an open secret that
at least the apportionment problem will be laid
before the legislators. Many people here think
that before this extraordinary session is ended
the Governor may call to the attention of the
lawmakers a few things left unfinished at the
regular session. such the Travis direct nonli-
nations bill. which was killed and the insurance
bill which amended in fashion Objectionable
TO its introduCers This. though. Will not be
known until his message TO the Legislature is
read next Monday night, or possibly Tuesday.
But the practical certainty that the Governor
will ask 10 have a new appOrtiOnment made.
taken in conjunction with the Attorney Gen.
erals action tonight, furnishes a complication
which is providing much hot weather gossip for
the few politicians who are here. They are
specuating 70 which Of the TWO at issue the
Governor or the Attorney General will find most
favor with the Legislature. and some even Won
der if this may not add fresh fuel TO The Senate
Assembly appOrtionment fire.
THE ATTORNEY GENERALS OPINION
In the course OF his opinion TO the Secretary
of State. Attorney General Jackson refers to the
members of the present Senate as de tacto off,
GERS. and says:
Necessity for government by law requires that de
faCtO officers be superseded by de jU-e officers as
soon as possible This Is the general rule in cases
analogous % that Of the Senate and runs through
the whole body OF statute law in providing for
custer and supersedure of incunbents who are In
tentiOnally otherwise UsUrpers OF Offices created
by legislative action This rule should guide adj
ministrative officials charged with the conduct OF
elections and it is not qualified by any discretion
lodged with them
The courts apply the rule in the exercise Of their
implied powers, when invoked. in order TO
troll officers charged with the conduct OF elections
to restore or provide government in harmony
with constitutional designs. In the case OF the
legislature such restoration can only he accom-
plshed through the machinery OF election Tha
necessity for having the office Of Senator exercised
cannot uphold the tenure Of the present Senate be-
chosen, and the next election affords that oppor-
tunftv our courts have held that the occasion
Of a general election in intervening year may b
seized to choose de jure officer 70 serve out ths
current term Of an elective office
The Attorney General cites the opinions of
the Court OF Appeals IN support OF his conten-
ton. and continues:
Under The constitution. Senate and Assembly
districts are correlated II the tenure OF the pres
ent Senate continues through the year 1s0S there
would arise the anomaly of It's Coexistence with a
Assembly chosen upon the basis Of diTersns
apportioument.
The opinion holds that the elections should bs
for the unexpired term OF one year. until Janu-
airy l. 1909 and should be according TO the
apportionment of the constitution OF 1894" IN
conclusion. it says:
In view OF the unusual nature and importanca
of the matter. advise that you the earliest
day possible in order 70 invite and afford full op-
tion occurs.