The Monmouth inquirer., 1922-09-14
LAW TO CHANGE
HOUSE MAKEUP
In ReappOrtionment Hudson and
Morris Each Lose One, Bergen
and Union Gain One.
DUTY IS CONTINUOUS ONE
Act Rearranging Representation in
Assembly Upheld. Court Finds 1922
Legislation Valid Despite 1921
Neglect-Gist of Opinion.

Trenton. - Hudson county's loss Of
assemblyman under the re-apportion-
ment act of the 1922 legislature was
sustained in decision by the suprem,.
court. An appeal to the court of errors
and appeals Is considered unlikely a.
this time because Friday was the last
day for filing petition for the primary
election and the court is not in session
The decision means that Hudson
county will now have eleven repre-
sentatives in the assembly instead Of
twelve; Morris will have one instead
of two Bergen will have four instead
of three and Union will likewise have
four where it heretofore had three.
Chief Justice Gummere and Associ-
ate Justices Trenchard, Bergen, Min
turn and Katzenbach, in denying the
application for mandamus made by
John Milton of Jersey City for Anthony
lsotti against County Clerk John J.
McGovern of Hudson to compel him to
accept the petitions of twelve candi-
dates for the assembly under the ap
apportionmert of 1911, held that
''The Constitution provides for rep
resentation In the assembly on the
basis of population" Failure of leg
islature to perform its duty can not
defeat the object of the Constitution.
The duty placed upon the legislature is
a continuous one until 1t Is performed.
If one fails it is the duty of the next
and so on until the intended result Is
accomplished.
Milton had argued that because the
legislature Immediately following the
1920 census had failed to pass the re-
apportionment act, this re-apporti0n-
ment was impossible under the Consti-
tuition until the year following the next
national census. To test the act of
1922. the Hudson Democratic organiza-
ton had filed with the county clerk the
petitions of twelve candidates. County
Clerk McGovern refused to accept
them on the ground that the law speci-
fed Hudson's representation as eleven.
Then the application was made for d
writ Of mandamus. Assistant Attorney
General Newcorn represented the state
in the action.
Gist of the Opinion
In the opinion handed down, Chief
Justice Gummere quoted the constitu-
tional provisions governing the appor-
tionment of assemblymen among sew
eral counties based upon the Federal
census promulgated every ten years.
Remarking the failure of the legisla-
ture last year to make new appor-
tionment based on the 1920 census, the
;oe 20
son not made apparent the legislature
last year failed in the performance Of
that duty.
Taking up the contention that the
apportionment made this year is null
and void, because not authorized by the
constitutional provisions requiring that
the power of apportionment shall be
exercised: within the time limit speci-
fed or not at all, Chief Justice Gum
mere outlined the general scheme Of
representation providing for one sena-
tor from each county and assemblymen
based upon the population.
This being the governmental
scheme provided by the trainers of the.
Constitution and adopted by the peo-
ple," continued the chief Justice, ''the
question presented for decision is
whether the legislature sitting in ,the
next year succeeding the PRONUNCIATION
of Federal census can defeat that
scheme so far as it deals with the
manner of the distribution of members
of the General Assembly among several
counties of the state by refusing or
neglecting to make the apportionment
required by Article 4 Section 3.
'sIn our opinion the right of the in
habitants of the several counties Of
the state to be accorded representation
in the lower house, provided by the
Constitution, can not be defeated by
such nen-action of the legislature 1t
is true that the clause requiring legis-
1ature sitting next after the promulga-
tion of the Federal census to make
apportionment is mandatory, but dis
0bedince of that mandate can not pro-
duce the results claimed by the re-
.1ators. The failure to perform the
duty can not cancel legislative obliga-
tion."
Quotes From Similar Cases
Chief Justice Gummere quoted from
a decision by Justice Peckham in New
York, holding in similar case that the
legislative duty was a continuous one,
east in rurn upon the legislature sue
ceeding that which defaulted in the
performance of the obligation, until the
obligation is fulfilled Justice Peckham
said ii can not be tolerated that a
legislature, by mere omission TO per-
form its constitutional duty at a par
ticular session, can thereby prevent,
! for ten wears, the apportionment pro-
vided for by the Constitutions
Chief Justice Gummere held this TO
be not only sound in reason bug the
logical result and universal rule ofkcon-
struction to- be applied in deternllAins
the scope and meaning, not only Of
statutory but Of constitutional pEoyi-
sions.
Quoting from New Jersey case DE-
cided by the late Justice Scudder, ChieA
Justice Gummere nOinted out that aIW