New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-07-27
EAPP0RT|ONNENT LEGAL
Court of Appeals Declares Act
Of 1907 Constitutional.
RACETRACK BILLS VALID
Court Sustains Right of Legisla-
ture to Pass Law in Special SEES
sion-Cullen Writes Opinion.

Albany. July 26.-The constitutionality
Of the legislative reapportionment act.
passed at the extraordinary session Of the
Legislature in 1877. was upheld by the
Court OF Appeals IN a unanimous decision
to-day The court sustained the right uf
the Legislature to pass such a law az the
sreciaI session called by former Governor
Hughes.
The validity Of the Hart-Agnew anti
racetrack gambling laws was Indirectly In
VOWED I'm the actions. three in number.
which were heard by tho court at a special
session. r. was avowed by the racing in
forests that 81 the reapp0rtionmeut act
was set aside. the Hart-Agnew laws were
unconstitutional. on the ground that they
were passed by Legislature elected under
an Illegal reapportionment
Some OF the Democratic leaders were
hopeful that the reapportionment law
would be declared Illegal. so that the
present Democratic Legislature could pass
such a measure.
In deciding against the action brought
IN Albany County. IN July. 1905. by Alex
ander r. Porter for a writ Of nandamus
directing John s. Whalen. as Secretary OF
State. 20 issue the election notices under
the authority OF the reapportionment IN
force before the passage Of the act n
1907. Chief Judge Cullen. writing the opin-
ION for the court. says:
The objection that the appor-ionmenr OF
'sf was made at an extraordinary session
is not well founded. The constitution pro-
vides as 20 the apportionment. and said
district shall be so altered by the Legis-
lature AZ the first regular session after the
return Of every enumeration, The ques-
ton is whether the provision as 10 a regrl-
lar session is a qualification of the char
acter Of the session ar which an apportion-
ment bin can be enacted or whether II is
part Of the definition of the time or period
at which the duty ig first imposed upon the
Legislature 20 make new apportionment
We think il Is clearly the latter. and that
FIRST regular merely prescribes the time
when the Legislature Is first empowered 10
alter the districts OF course II this view
is correct. the power and duty was con-
tinuing one. until exercised and dis
charged. and the Legislature ar any time
after the time prescribed by the constitu-
ton and AT any character Of session might
discharge the duty which was still undis-
charged"
Touching on the contention that the 1907
act did not include contiguous territory
because OF the union or Rockland and
Richmond counties. Chief Judge Cullen
SAYS.
1T is impossible in the case of Richmond
County 70 comply with all the provisions
n the constitution. The Constitutional
Convention itself did not attempt TO make
q,
and suffolk counties in Senatorial dis
trict. The junction II Richmond and Rock
land counties complies as nearly with the
letter OF the constitution as is physically
possible. and II probably complies nearer
70 the spirit and intention Of the consti-
tuition than any other that could be sug-
gested.'
In deciding against the petition Of Will
lam s Reynolds and others OF New York
for review Of the act, Chief Judge Cul-
len saws that the court agrees with Su-
prome court Justice Miller. as this pro-
ceeding was not authorized BY lsw. and
also holds that the lower courts should
b4 sustained on the ground OF lacnes. He
criticised those back OF the action for the
delay IN bringing the appeal before the
Court II Appeals He pointed ont that the
NcCIelland bin. signed 1y Governor Dix
to-day. permitting a legislative spporton-
ment 10 BE- reviewed by the Supreme Court
upon the suit Of any citizen, did not affect
this proceeding.
In the third action. which was brought
this year by David q Miller and others
against the city 81 New York and the
Board of Elections. ana known A. a tax
rsver's action. chief Judge cullen holds
hat the questions involved cannot be- Uti-
. Gated I'm tbas. proceeding