Peckham, J.
The first question which arises on this appeal is as to the proper construction of section 5 of article 3 of the Constitution, where it provides for dividing counties by the boards of supervisors into assembly districts in those cases where the county is entitled to more than one member of assembly. The learned judge who heard and decided the case at Special Term said he did not see how the motion for a mandamus could be granted without writing into the Constitution a provision which the people struck out of that instrument in 1874. The General Term followed in an affirmance upon substantially the same ground.
It is clear that if the Constitution do not in terms, or by necessary implication, provide for a reasonably equal division by population as near as may be, then the subject of a division by the supervisiors, so long as towns are not divided and the districts are composed of convenient and contiguous territory, is left wholly to their absolute and uncontrolled discretion. In such a case as this, where the county is entitled to eighteen members of assembly, there is nothing to control the discretion of the board, even though it should so divide the county that seventeen of tbe districts should have each a population of a hundred or less, while the balance of the population should be represented by one member of assembly only. This is an extreme case, I know, and such extreme illustrations are not always proof of error in a construction which admits their possibility. But long before an extreme case like this should be reached, it is apparent that gross injustice might -be practiced in constituting assembly districts, and no redress would be possible until after the completion of another census, at which time a fresh opportunity for another act of injustice would also arise. While it may be impossible always to pre
vent injustice in matters of government, yet it is manifestly not the policy of this state to commit irresponsible power to local administrative bodies, and nothing but the plainest language of the Constitution ought to be regarded as sufficient to remove such bodies from the supervising power of com*ts of justice, acting themselves in obedience to the Constitution and the law.
It must be admitted that inequality of members in representative districts is not incompatible with most advanced ideas and practices in a republican form of government, as witness the representation of the towns, instead of the people, in some portions of Hew England. That policy of representation by towns has never been adopted or practiced in this state. From the earliest period of our state history, the leading idea has been that the legislature was to directly represent the people, and not the towns or other ^«¿m'-political corporations contained within the state itself. In cases of representation by towns, the principle was equality among them. Each town was represented, and the number of the population upon such principle was not important. In this state, however, the principle was never adopted. Here we have always had, as a state, the principle of the direct representation of the citizen, and not a representation of him through a corporate body, of which, by his residence, he might happen to be a member. With the exception of some slight property qualification as to the right to vote, the great body of the white citizens of the state have always enjoyed precisely the same rights and have been subject to the same laws. There were no privileged classes among them, no class which enjoyed special civil rights or immunities, and, therefore, when representatives were to be apportioned among the population represented, the fundamental and natural idea was, in this state, that such apportionment should be equal. It is true that in carrying such idea into practice, certain conditions have been made. Under the Constitution of 1846, it is provided that a county should have at least one member of assembly. This is not in the slightest degree inconsistent with the theory of citizen instead of
corporate representation. There was then, with one exception, ho county in the state so small as not to furnish a constituency respectable in numbers as compared with the number necessary to entitle it to a representative on the basis of 128 members for the whole state. The exception was the county of Hamilton, which was to elect a member with Fulton county until the population of Hamilton should, according to the ratio, be entitled to a member. This is another proof that it was the population contained in the county, and not the county itself, which was to be represented.
There was too, a certain community of interest among the inhabitants of a county. They met together through their representatives in the local legislature constituting the board of supervisors ; courts of justice were held for each county and many officers were elected by county constituencies to perform official duties within the county borders. It was eminently proper that such a constituency should have in any event one representative in the more popular branch of the legislature. It was not the county, however, which was thus represented. It was the inhabitants thereof and it is certain they obtained this right to at least one representative, not because the county, as a corporation, was entitled to it, but because of the reasons above given. In no case was a county to be thereafter erected unless with a population sufficient to entitle it to one member of assembly. It is impossible to give éven a cursory reading to the Constitution of 1846, upon the subject of representation,'without seeing, that a representation of the people, as nearly as might be in an equal manner was contemplated and provided for. When, therefore, a county already was or thereafter became entitled to more than one member and a division into two or more assembly districts became necessary, equality of population would naturally be the basis upon which the division would be made. I say naturally, because the policy of the state, as we have seen, has plainly been in that direction, and as each man or citizen was equal before the law and entitled to the same privileges as any other citizen, it is also plain that the basis of a division would
naturally be according to numbers, and thus each citizen would obtain or retain an equal weight in the affairs of the state so far as his civil rights or privileges were concerned. It was, however, provided that in the division of counties .into assembly districts, no town should be divided and the districts should be formed of convenient and contiguous territory.
There is nothing in the provisions of the Constitution of 1777 or of 1821, which in any way advances the theory that the counties as such were originally represented in this state. Those Constitutions simply provided for representation of electors by county lines, and the members of assembly were to be apportioned among the counties as nearly as might be according to the number of electors which were found in the county. In this way each county contained a proper number of representatives as compared with the number in any other county, and each elector in the county voted for all the members. So the privilege was preserved, and no one elector of a county had any greater or other right to vote for members that any other elector, and the whole number of electors of the state were as nearly as might be equally represented in the legislature. By the Constitution of 1846, the ■choice of members of assembly by single districts was introduced and provision was made for equality of members in each such district.
Under this provision it is agreed that there was a duty laid upon the boards of supervisors of a county to make the assembly districts as nearly as might be equal in the number of inhabitants. In 1874 the fifth section of the 3d article of the- Constitution as adopted in 1846, was recast under the supervision of a "constitutional commission, and the language of the section was altered to a considerable extent, and yet the general'idea of both sections (with the exception as to persons of color) is substantially the same.
We had occasion in
People ex rel. Carter
v.
Rice
(135 N. Y. 473, 494), to state somewhat in detail that the circumstances attending the termination of the civil war and the abolition of slavery throughout the country, furnished reasons
for recasting our Constitution in relation to the colored citizen and his right to vote and to be counted as part of the population of the state. And it was undoubtedly owing to these circumstances that the language of the fifth section of article third was recast. In the original section of the Constitution of 1846, the provision in regard to the equality of the assembly districts stood at the foot of the first paragraph of the section, and it was as follows:
‘Each assembly distt'ict shall contain, as necurly as may be, cm equal number of inhabitants, excluding aliens cmd persons of color not taxed,
and shall consist of convenient and contiguous territory; but no town shall be diyided in the formation of assembly districts.”
The amendment of 1874 distributes the provisions of the section in a different order and as to the division into assembly districts the section now provides that the board of supervisors shall assemble as directed by the legislature “and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled, and shall cause to be filed in the offices of the secretary of state and the clerks of their respective counties a description of such districts, specifying the number of each district and the population thereof, according to the last preceding enumeration, as near as can be ascertained, and the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. ' lío town shall be divided in the formation of assembly districts.”
It is now argued that Decause of the simple omission of- the fl.-ffirmfl.tivp. provision that the assembly districts shall contain, as nearly as may be, an equal number of inhabitants, the whole subject is within the jurisdiction of the supervisors, and that such board is granted absolute, uncontrolled and entire discretion over this matter.
In this view we find ourselves unable to concur. We can perceive no reason for reversing, in the case "of counties
entitled to more than one member, the general principle upon which representation in the legislature is governed by the Constitution of 1846. We recognize the fact already adverted to that there is in the Constitution a special direction to the legislature in so many words, and upon certain conditions not here material, to form the senate districts so that they shall contain, as nearly as may he, an equal number of inhabitants, and there is also a like direction to apportion members of assembly among the several counties of the state as nearly as may be, according to their respective inhabitants, and that the direction in specific terms contained in the 5th section of article 3, as originally adopted in 1846, to so divide assembly districts as that they shall contain an equal number of inhabitants, is omitted in the section as amended and adopted by the people in 1874. Notwithstanding all this, however, we still think that the language of the amendment does not substantially alter the meaning of the section before the amendment, except in the case of persons of color. By the amendment they are no longer to be excluded from the count in making-up the number of inhabitants.
We must bear in mind when construing the meaning of the section as it now stands that the policy of the state ever since it has existed as a state, has been in the line of a direct representation of inhabitants as distinguished from then- representation through corporations of a ^wasi-political character.
In carrying out this idea of representation by population, we see that specific directions are given the legislature in the Constitution, and we can never believe that it was the intention of the people that absolute discretion should be confided to an inferior body like the board of supervisors, while the legislature itself was to be bound in set terms to make divisions upon a recognized basis of population. Bower to make a division being granted to the legislature, it might be claimed that in the absence of any limitation it would have the power to divide according to its discretion: But in the case of inferior bodies like boards of supervisors, who have no legislative power excepting what is specifically granted, the
power to divide being given, the implication would be strong that it was only a power to divide equally, and if power to divide in the discretion of such a board were claimed, the grant would have to include such power in express terms, for it would not be implied from a general power to divide or from the absence of some express limitation. This difference of construction would arise because of the difference in the nature of the powers of such different bodies as the legislature of this state and the board of supervisors of a county. The one has all legislative power not limited or denied to it by the Constitution, while the other has no power whatever except such as is specially granted to it. In regard to a body like the board of supervisors it would depend upon the proper and reasonable construction to be given the language of the grant of power, rather than upon the absence of some specific language of restraint or limitation. In adverting to the effect of the amendment of 1874, we think some weight is due to the fact that the amendment does not purely consist of an omission of the words that each assembly district shall contain as nearly as may be an equal number of inhabitants. The whole section was recast and the words omitted formed part of the sentence providing for the excluding of aliens and persons of color not taxed. There is no doubt the amendment was. in fact proposed and adopted in order to do away with the exclusion of persons of color. If, however, the meaning of the section were thereby altered to the extent of abrogating the necessity of dividing assembly districts as nearly as might be equally with regard to population, it would be our duty to follow the Constitution and to make no merely judicial amendment to it.
"We do not think this was the effect of the amendment. Upon an examination of the whole section we think that a construction of it which requires the board of supervisors to divide the assembly districts so that they shall contain as nearly as may be an equal number of inhabitants, to be composed of convenient and contiguous territory and in the formation of which no town shall be divided, is not only authorized but
required by the general sense of the language of the section. The section commences with these words:
“
The assembly shall consist of one hundred and twenty-eight members, elected for one year. The members of assembly shall be apportioned among the several counties of the state, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts.”
Stopping here the meaning would seem to be reasonably plain. As the members of assembly were, to be apportioned among the several counties as nearly as may be according to their population, and were to be chosen by single districts, those districts, in the absence of language making some other provision, would by force of the language actually used be subject to a division upon the principle of equality of population as nearly as might be, so as to conform to the evident intent to be gathered from the language thus far contained in the section. This would be, as we think, the natural and plain implication, and in the absence of any other language qualifying or affecting it, we think it would be just as effectual as if stated in so many words. Considering the manner in which our state has provided for representation in the past and its continued adherence to the plan of representation by population, this implication becomes still stronger and clearer. The reading of the rest of the article confirms this view and renders the implication a necessity. The assembly districts are to remain as then (1874) organized until after the census of 1875, when the legislature is to apportion the members of assembly in the manner already stated, and the boards of supervisors shall assemble on a day named by the legislature, and shall then
“
divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory equal to the number of members of assembly to which such counties shall be entitled,” etc.
Starting with the view that up to the point just quoted, the article in effect implies that these districts are to be as nearly as may be equal, we find here no word which gives color for a
different conclusion. All its inhabitants having equal rights, a direction to divide a county into the number of districts to which it was entitled, an equal division as to population would be implied from the prior language of the Constitution, and in order to carry out a perfectly well-known and recognized policy of the state.
It would require special language granting in terms the right to unequally divide the districts before we should feel that in giving effect to such a division we did not run counter to the true meaning of the Constitution. In addition to this, however, the section provides for the making and filing by the board of supervisors of a description of the districts made by the board, specifying its number and the population thereof ■according to the last-preceding enumeration as near as can be ascertained, and as thus constituted they are to remain unaltered until another enumeration shall be made, and no town is to be divided in the formation of a district. This last condition might and probably would have the effect of preventing the equality in inhabitants which might otherwise be reached in these districts. There is nothing in the language thus far quoted which clothes the board with the right to ■divide these districts without the slightest reference to the question of population. And it would seem that by the provision for filing a description of the districts as divided, with ■a statement of the population of each district, an official and conclusive species of evidence were furnished by which to •determine how in fact the constitutional mandate had been complied with. The opinion of the learned judges of the Supreme Court of Massachusetts, contained in a communication addressed by them to the House of Representatives of that state, and reported in 10
Gray,
613, has been referred to ■as an authority for the absolute discretion of the body forming the districts. The opinion does not include such a case as this. The question there was whether the House could question the election and return of members from districts divided by the proper authority and it was stated that it could not and that the action of the board making the division was ■conclusive.
The question there raised would exist in this state if the assembly should question the conclusive character of a division made by the supervisors and under which members were elected to the assembly by questioning the proper election and qualification of a member so elected. A very different question indeed from that under consideration, and one which if before us might readily be decided as the learned judges of Massachusetts decided it. Persons elected under an apportionment such as appears in this case and while such apportionment stands unvacated, we have no doubt are legally-elected members of the assembly and as such entitled to participate in all the business of that body. In any event the House is-the judge of the election returns and qualifications of its own members and those whom the House receives as duly elected must be regarded as rightfully elected and entitled to take part in the business of the House.
We construe the present language of the section for the reasons already given, as calling for a division into districts as nearly as may be of an equal number of inhabitants, regard being had to other provisions of the section.
In redrawing the section for the purpose of making a different provision in regard to persons of color not taxed, the special provision as to the division of districts so that they should contain as nearly as may be an equal number of inhabitants, was omitted because as we have no doubt it was thought to be unnecessary in consideration of the language of the rest of the section, and we agree in that conclusion. The omission remains, therefore, wholly without significance.
We are unable to believe that there was any intention by the adoption of the amendment of 1874, to inaugurate either a new theory of representation by counties or to leave an uncontrolled discretion in these local boards to form assembly districts as they should choose, so long as they did not divide a town and constituted a district of convenient and contiguous territory. We do not think this is the effect of the amendment as adopted.
What the people really struck out in 1874, was the neces
sity of excluding from the number of inhabitants, persons' of color not taxed, when forming assembly districts, and the omission of the language only affected that question. We have no doubt that the boards of supervisors in the different counties are still bound to make divisions with reference to the question of population of the respective assembly districts in their counties.
Second.
Assuming that we have reached a correct conclusion as to the duty of the board to divide the county into assembly districts in the manner just stated, the true meaning of the section still remains somewhat of a problem. It is very plain that a division simply by an arithmetical process is not contemplated, because the injunction to refrain from dividing a town would in many cases render such a process wholly impracticable. The further injunction, to make the districts of convenient and contiguous territory, might render it still more impracticable to divide with relation merely to inhabitancy. The main duty which is imposed upon the board is to make the division equal as to population, so far as that is attainable, while making each district of convenient and contiguous. territory and keeping the town undivided. Perfect equality of population cannot, under these conditions, be attained. The proper discharge of the duty of division by the board implies considerable discretion in the formation of the various districts. The discretion exercised must be an honest and a fair discretion, arising out of the circumstances of the case, and reasonably affecting the exercise of the power of equal division. Before examining any division, it would be a
prima facie
presumption that the division actually made in any case was a proper one, and a full compliance with the duty imposed upon the board which made it. This would be in accordance with the presumption in favor of the due and proper discharge of official duty. TSTor would the mere fact that the districts were to some extent unequal in population necessarily rebut this presumption. The necessity of considering the other facts provided for by the section and already alluded to, might reasonably account for many and even somewhat
large aberrations from the initial point of equal representation. While it is impossible, in the nature of the case, to accurately describe and closely limit the amount of deviation from an equal representation that the practical working of the Constitution may in this respect permit, it is on the other hand sometimes quite possible to say of a particular example that it does or does not violate the constitutional mandate.
We have no trouble whatever in detecting the difference between noon and midnight, but the exact line of separation between the dusk of the evening and the darkness of advancing night is not so easily drawn.
A question of a somewhat similar nature was before us in
People ex rel. Carter
v.
Rice
(cited
supra).
The question . there related to the amount of discretion reposed in the legislature in the creation of senate districts and in the apportioning of members of assembly among the several counties. It was there stated that it was not intended to intimate by the decision then made that in no case could the action of the legislature be reviewed by the courts, and that cases might easily be imagined where the action of the legislature would be so gross a violation of the Constitution that it was plain that instrument had been entirely lost sight of or intentional disregard of its commands both in the letter and in the spirit had been indulged in. If there were an abuse of the discretion so as to clearly show an open and intended violation of the Constitution, we held in that case that the courts might interfere. We did hold that the facts as presented contained no such features and although there was no mathematical division, the court refused to interfere with the discretion that had actually been exercised by the legislature.
We think in the case of assembly districts the duty is at least as plain which governs the boards o'f supervisors as that which rests upon the legislature in the case mentioned. It is not every departure from equality in the number of inhabitants that can be interfered with or that ought to be the subject of review by the courts.
If the division with reference to the facts of convenience
and contiguity of territory, the indivisibility of the town and the number of inhabitants in the various districts as compared with each other, do not lead most inevitably to the belief that the board has intentionally disregarded the constitutional provision, we think in such case its action should be upheld;
We do not intend by this decision to hold that every trifling deviation from equality of population would justify or warrant an application to a court for redress. Such, we think, is not the meaning of the provision. It must be a grave, palpable and unreasonable deviation from the standard, so that when the facts are presented argument would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for. This is as near an exact definition of the meaning of this section in this regard as I am able to now give.
Thwd.
Tried by the rule just stated, we have no difficulty in coming to the conclusion that the action of the defendants in dividing Kings county into assembly districts cannot be regarded as' a compliance with the Constitution.
It is unnecessary to refer to the division in detail. It is plain that if the constitutional provision were not in this case intentionally ignored, it was at least not regarded as an existing rale requiring attention and obedience. fSTo such division could have been made by any public body that intended to be guided by the commands of the Constitution in this particular. The variation in districts from a population of 31,000, to that of 102,000, is entirely too great to sustain the claim, if it were made, that there was any attempt to comply with the Constitution. Between these two extremes there are many other and great variations. The whole division is so plainly in violation of the Constitution as here interpreted, that we feel justified in the belief that no body of public officials would have made such a division if they had thought that in respect to population there was any constitutional provision which would bind their action. They evidently proceeded upon a mistaken theory as to their power, and so thinking, their
action is explicable upon grounds consistent with their integrity and intention to perform a public duty.
Fourth.
It is urged that even if the defendants were bound to divide the assembly districts with reference to the question of population, yet as they have met and performed the duty of division and have filed their certificate, such action is in its nature judicial'or at any rate it is one which requires large discretion in its performance, and for these reasons it cannot be reviewed by the courts. Undoubtedly there is a discretion to be exercised in the division by the board, and with the exercise thereof this court has as little inclination as right to interfere. By the action already taken the relators in these proceedings have been aggrieved. It is' true they have suffered no more than any other citizen and resident in the fifth assembly district. But the interest of the relators in the question at issue, although common to all the residents of that district, is nevertheless sufficient to enable them to have a standing in court and to invoke its aid in this behalf. Mandamus is the only remedy in such a case. Where the thing to be done does not rest in discretion and is to be performed by a public body or officer, and the act is of a public nature, in the execution of which the public is interested, its performance may be compelled by mandamus sued out upon the relation of any citizen of the community having an interest in the performance of the act. This has been the law of this state for many years.
(People
v. Halsey, 37 N. Y. 344.) The thing to be done in this case is to make a valid division of the county of Kings into assembly districts. All the citizens are interested in the performance of that duty. Its performance does not involve any discretion. It must be done. The manner of its performance is to a large extent discretionary. The court only interferes to compel the performance. In this case, we hold that the defendants have failed thus far to perform their duty to legally divide the county of Kings into eighteen assembly districts. That duty still rests upon them just the same as if they had never attempted its performance. What they have done is utterly void and of no effect. We can only
interfere so far as to direct them to come together and perform their duty, and make a constitutional division of their county.
We are not impressed with the correctness of the claim made by the counsel for the appellants, that the present division is void because of the alleged division of towns. They claim that certain wards in the city of Brooklyn must still be regarded as towns in the county of Kings, and cannot be divided.«, We do not think, in this respect, there is just ground for the claim, yet, inasmuch as the question need not now be decided, because we hold the division void on other grounds, we do not further discuss the subject.
The orders of the General and Special Terms must be reversed, and the motion for a mandamus must be granted, without costs against the defendants. The terms of the order, if not agreed upon, will be settled by this court upon motion.
All concur.
Ordered accordingly.