Kinney v. City of Syracuse

30 Barb. 349, 1859 N.Y. App. Div. LEXIS 30

• Court: New York Supreme Court
• Decided: October 4, 1859
• Status: Published

Opinions

Bacon, J.

This is a case agreed upon by the parties, for the purpose of presenting for adjudication the question of the constitutionality of the 9 th section of the act passed by the legislature on the 17th of April, 1858. This act, by its title, purported to be “ An act to amend the act, to revise the charter of the city of Syracuse.” The facts necessary to be stated, in order to present this question, are, that in 1857 the board of supervisors of the county of Onondaga, pursuant to the act passed in April of that year, requiring the formation of assembly districts, duly met and divided the county of Onondaga into three assembly districts. By this division the city of Syracuse formed a part of the second, and the town of Dewitt a part of the third, assembly district; that town never having been at any time within the second district.

By the 9th section of the act of 1858, above alluded to, a portion of the city of Syracuse' upon the easterly line of the city, and adjoining the town of Dewitt, was taken from the city of Syracuse and annexed to the town of Dewitt; or, in other words, the easterly boundary of Syracuse was changed by running a line which cut off from the city a territory about two miles in length, and one in breadth, embracing from twelve to fifteen hundred acres of land, on which some two hundred and fifty persons resided, of whom fifty were voters, and annexed this territory to the town of Dewitt. This is the whole scope and purport of the section; and neither in the section, nor in any part of the act, is any provision made in respect to the political status of the inhabitants of the ex-scinded and annexed territory; nor how, if at all, they shall be reckoned in regard to any assembly district, or in what manner participate in the election of a representative for such district.

The plaintiff in this suit, at the time of the passage of the act, resided, and still resides, within the territory thus set off, and owned real estate therein, subject to taxation. The authorities of Syracuse, subsequent to the passage of the act of 1858, caused a tax to be assessed upon his property within this district; issued a warrant for its collection, and levied upon and sold some property of the plaintiff to satisfy the tax. The ground assumed by them is that the law, by which ibis territory was attempted to be set off to another town and assembly district,- was unconstitutional and void, and that consequently the territory still remained a part of the city of Syracuse, and liable to contribution toward its public burdens ; and that is the precise point presented in this case. The defendant claims that the 9th section of the act in question is in direct conflict with section 5 of the third article of the constitution. This section, after providing that members of assembly shall be apportioned among the several counties of the state as nearly as may be according to the number of-their respective inhabitants, directs that the supervisors of the several counties shall meet on a specified day, and divide their counties into as many assembly districts as they shall be entitled to by law, each assembly district to contain, as nearly as may be, an equal number of inhabitants, and to consist of convenient and contiguous territory. It is further provided in this section that the legislature, at its first session after the decennial enumeration, shall reapportion the members of assembly, and the boards of supervisors shall meet and divide their counties into districts as before, and then it is added, “the apportionment and districts so to he made shall remain unaltered until another enumeration shall he taken under the provisions of the preceding section.”

It may be remarked, preliminarily, that it is not claimed that there is any specific power given, in the constitution, to the legislature to create, or change, the boundaries of cities or towns within this state. But it is claimed that the authority necessarily results from the grant to, and investiture of, the senate and assembly with all legislative power. The power being plenary, no restrictions can be imposed upon its exercise save such as are in terms specified in the constitution, or are necessarily implied therefrom. The power to create towns, or to change their boundaries, is not only legislative in its character, but has been frequently exercised by the legislature; and, irrespective of any provision which would control or circumscribe it, must rest in the discretion of the legislature as to the "time and manner of its exercise. All this may be readily conceded ; but being so, the question recurs, is not this power, thus claimed and assumed, controlled and restricted in its exercise by a precise constitutional provision, which the action attempted in this case contravenes ?

The counsel for the plaintiff, in his very learned and ingenious argument, insists that the act in question is not in conflict with the injunction of the constitution that assembly districts, when organized pursuant to its provisions, “shall remain unaltered until another enumeration,” and'bases the argument, substantially, upon two propositions : 1st. That the incidental alteration of the boundaries of an assembly district, resulting from an act changing such boundaries, is not , an alteration of an assembly district, within the prohibition of fhe constitution ; and 2d. That the provision that secures such districts from alteration was intended to be, and is, only a prohibition upon the board of supervisors, and not a restriction upon the legislative power to alter and change the boundaries of towns.

I. In support of the first proposition, it is claimed that the act does not, in its terms, purport to alter an assembly district, and that the purpose of the legislature, as indicated by the title of the act, being to exercise an acknowledged legislative power, it cannot be pronounced void, on the ground that another intent in fact existed, and that it incidentally and indirectly accomplishes an object that could not, without a breach of the constitution, be directly effected. In answer to this suggestion, it might not perhaps be impertinent to remark, that it is sometimes quite unsafe to assume the intent of the law-makers, either from the object apparently avowed, and seemingly patent on the face of the statute, or the language in which they have clothed their enactments. But it seems to me quite clear that if a particular thing is forbidden, in the constitution, and therefore, placed beyond the legitimate pale of legislation, the legislature has no more power to override and nullify the provision, although they accomplish it incidentally by attempting to use in a given way another conceded power, than they have to reach the same end by a specific act avowedly for the very purpose itself. If the doctrine contended for is to prevail, then there is no protection to any constitutional provision in its integrity, and all restriction upon the legislative power is practically annulled. If the consequences—the necessary results—of an act are to alter an assembly district, then the constitutional prohibition is as fairly and as indispensably applicable to it as if in terms and by express language it altered the district, and was enacted with that plain and avowed object.

Now it will not be denied that the main scope and purpose of the section of the act we are considering, was to effect the annexation of a portion of the territory of Syracuse to the town of Dewitt, and to transfer the inhabitants of the district from the former to the latter. There could have been no object in the enactment if it did not accomplish this end. In securing this result, it necessarily follows that both the assembly districts Nos. 2 and 3 are altered. They are altered both in respect to the territory embraced by them, and the number of inhabitants of which they were composed at the time the districts were designated by the supervisors. And.it seems to me there is no escape from the conclusion that this is a violation of the constitutional requirement that the districts, when once fixed and determined, should remain, until the next decennial enumeration, unaltered.

What was the object intended to be effected by the mode provided in the constitution for the formation of assembly districts ? It was, among other things, to secure as nearly as might be, an equality of representation, as between the several districts into which a county might be divided. This is provided for, in terms, in the section of the constitution in question, by the injunction upon the supervisors, that they shall so divide the districts that they shall contain “as nearly as may be an equal number of inhabitants.” And in the division and apportionment made by the supervisors of Onondaga county, in this case, it will be seen that they conformed to this injunction with a very remarkable approach to that enjoined equality. Thus, Onondaga county was divided into three assembly districts, the first containing a population of 24,184, the second 23,851, and the third 24,710.

But the effect of this act, to the extent that it reached, was to impair that equality, and it did so by taking away from the population of the smallest of the districts 250 inhabitants, and annexing them to the district that already had a preponderance of population over either of the others. Thus it trenched upon the representative equality which it was the object of the division to secure. If it be said that this was only so small a division of the population that it did not essentially destroy the balance of the districts, I ask, in reply, where shall the line be drawn ? If 1500 acres and 250 people may be set oif from the city of Syracuse, and from the assembly district to which they had been assigned, what is to prevent the exscinding process from being extended until half the city has been set over, and thus while one district has been deprived of 10,000 inhabitants, another has been increased to the same extent, and instead of a representative population nearly equal, one has 13,000 and the other 34,000 inhabitants, each having but a single member to represent them in the assembly. And thus the process might go on until practically all but the merest fraction of a town might be set off, and the substantial body of its population transferred to another district.

There were doubtless, also, political reasons which entered into the consideration of the framers of the constitution, when' the section we are considering was adopted. It was important to provide for such a construction of the districts that not only the population, jper se, should be fairly represented, but the political preferences of those residing in the separate districts should have an opportunity to be expressed. In arriving at such a result, the supervisors would naturally, and very properly, group together in a district such a number of towns as would secure to them the election of such candidates as would represent the prevailing and preponderating Sentiment of the district; and this being done, this division was to have a degree of permanency attached to it by remaining for a series of years unaltered. But it is easy to see that if this arrangement is to be subject to legislative interference, the whole object and purpose of the division may be entirely circumvented. The political balance of a county might thus tie wholly destroyed, and in the foresight or apprehension of a closely contested election, and when a few electors, taken from a strong district where they can easily be spared, and thrown into one so nearly balanced that a small importation will turn the scale, the whole state might become the subject of such legislative gerrymandering as to change the entire complexion of the popular branch, and practically defeat the whole design and operation of the single district system.

II. The second consideration urged by the counsel for the plaintiffs to uphold this act is, that the prohibition against the alteration of assembly districts, when once fixed, until the period arrives for another designation, is a prohibition upon the boards of supervisors, and not a restriction of the legislative power to alter the boundaries of towns. If this be so, then it results that the constitutional inhibition is utterly worthless. If it was deemed so important to preserve these districts in their integrity when once formed, that a shield was thrown around them in the organic law, for the very purpose of their protection, and this can be nullified by a simple legislative act, then the paper upon which the section was written might as well have been saved, for the clause is worth less than the rags of which that paper was composed. The section contains no language which points to the board of supervisors as the body on whom the .restraint was to act, but it manifestly was intended to cover the whole ground, and prevent as well legislative as any other kind of interference. It will be seen that it preserves not only the districts, but the “apportionment,” from alteration; and this was a subject exclusively of legislative cognizance, and the same clause which prevents the legislative authority from tampering with the one, equally places the other beyond their jurisdiction. The counsel for the plaintiff very frankly concedes that a law purporting to form or alter an assembly district would be clearly unconstitutional, because that power is reposed exclusively in the local legislatures of the several counties. I have endeavored to show, that what the legislative power could not by a direct act of legislation accomplish, cannot be effected by an indirect and incidental exertion of that power, even upon a subject confessedly within its general and acknowledged powérs. In order to secure the good sought to he effected by the permanency of the single district system, and avoid the evils it was designed to cure, it was just as necessary to preserve it from legislative interference, as from any tampering with the districts by the boards of supervisors. Once exercised, their power was exhausted, and their work was to remain untouched, for the period prescribed by the constitution, by any other hands. These considerations lead me to the conclusion that the 9th section of the act of April, 1858, being an attempt to alter an election district contrary to the prohibition of the constitution, was unauthorized and void.

But if mistaken in the result to which the discussion thus far has led me, there is another ground which is equally fatal -to the plaintiff. Granting that the act is so far valid as that it legally transfers the territory in question from the city of Syracuse, and incorporates it with the town of Dewitt for all other purposes, I think it must be conceded that so far as relates to the election of a member of assembly, the voters residing in the district are, for the time being at least, disfranchised. Where could the inhabitants exercise the privilege of voting ? Hot in Syracuse, for they are no longer residents of the city; and not in Dewitt, for when that assembly district was formed, this territory was within no election district in that town. The right secured to them by the 1st section of the 2d article of the constitution would thus be violated, and the deprivation or suspension of the right of a voter otherwise competent, by such an act would be, in my judgment, the alteration of an assembly district, within the spirit and meaning of the constitution. This difficulty could in no way be remedied but by a provision in the act itself, securing the right of the inhabitants to vote in the election district from which they had been taken, until the next decennial enumeration. Such a provision was incorporated into the act organizing the county of Schuyler, and was one among the other considerations which was relied upon to secure that act from judicial condemnation. The absence of any such provision in the act in question here, is a fatal objection to its validity.

Upon this point we have two' well considered authorities in a neighboring state, which cover the whole ground, and are, to my mind, conclusive. I may premise by remarking, that under the constitution of Massachusetts, the power to create and to change the boundaries of towns is derived not from any specific grant on that subject, but from the general power of the legislature to pass all useful and wholesome laws. Their scheme of government also contemplates and provides for an equal representation of the people by a distribution of representatives among the towns, according to the number of taxable inhabitants, at fixed periods of ten years. In the year 1851, the opinion of the judges of the supreme court of Massachusetts was asked by the legislature upon the question of their power to alter the boundary lines of counties and towns. In reply, the judges announced their unanimous opinion to be, that the legislature had that power, but that in exercising it, by annexing a part of one town to another, or by erecting a new town from one or more existing towns, it was necessary to reserve and secure to the inhabitants residing in such portion or portions, a right to vote in the election of representatives with the town or towns from which such portions were taken, until the expiration of the next preceding apportionment of representatives. (See opinion of the Judges, 6 Cush. 578.) In another opinion, to be found at page 575 of the same volume, upon a very similar question, it is remarked by the judges, that the constitution declares that the number of representatives for each city, town and representative district, shall remain fixed and unalterable for the period of ten years. “ That which the constitution declares unalterable,” say-they, “ cannot be changed by law.”

The case of Warren v. Mayor &c. of Charlestown (2 Gray, 84 and onwards) is a still more decisive adjudication upon the same point. An act of the legislature had undertaken to transfer the town of Charlestown to the city of Boston, and incorporate it with, that municipality. The act also attempted to obviate the constitutional objections by various provisions to preserve the right of the people to vote, and securing them a proper representation in the councils of the state. The opinion of the court was delivered by Chief Justice Shaw, and has all the characteristics of his good sense and clear judicial mind. He held the act to be unconstitutional and void, by failing to secure to the inhabitants of the transferred territory the rights which the constitution and laws had guarantied to them. The town of Charlestown and the city of Boston were in separate representative districts. The inhabitants of the former could not vote in Charlestown, for the town as an organized corporation was annihilated, nor in Boston, because its territory was distributed into other districts. Ho provision was made for uniting them with any other corporation for the purpose of voting, and none that ■was adequate to enable them to vote in the district from which they had been taken. The inhabitants, therefore, for the time being and for an indefinite term of time, were, in that respect, wholly disfranchised.

The counsel for the plaintiff, pressed by this difficulty, puts forth the proposition, in one of his points, that if the legislature had expressly provided in the act that the territory added to Dewitt should remain a part of the second assembly district of Qnondaga county, and of the district to which it was attached at the time the act was passed, no constitutional objection could have arisen. And he adds, that if an express provision would have avoided the constitutional objection, the provision may be implied, in order to sustain the statute; or the remedy may be supplied by future legislation. In answer to this, I say that no case ever has carried, or, in my judgment, ever will carry the doctrine of implication, as applied to a legislative act, to such a length as to incorporate into a statute an entire provision—no vestige, nor shadow, nor intimation of which is to be found there. And to the latter branch of the proposition I reply, ip the words of Ch. J. Shaw in fi^e case above cited: “It is no answer to say that this is a defect which may be amended by the legislature. It would depend wholly on the will of a future legislature whether to amend it or not; whereas the act within itself should make provision for all the changes which it seeks to effect in the rights and condition of the inhabitants.”

I will not farther pursue this discussion, nor allude to other considerations which were presented, and forcibly argued, by the counsel for the defendant. Upon the points already passed in review, my conviction is clear that the section of the act of April, 1858, which we have been considering, is a manifest violation of that provision of the constitution which secured the permanency of the assembly districts; and that the action of the defendant in assessing and levying the tax upon the property of the plaintiff, within the territory thus attempted to be set off from the city of Syracuse, was only the exercise on its part of an authority it rightfully possessed.

I ought to add, however, that the case of Rumsey v. The People, (19 N. Y. Rep. 41,) which was cited and commented upon by the plaintiff’s counsel, is no authority upon the controlling propositions involved in this case. It presented many other questions, and the clause of the constitution which is considered vital and decisive here, is not even alluded to in that case. The reasoning of Judge Strong, however convincing and satisfactory it may be, is not to be taken as the opinion of the court; since, when we come to scrutinize the' decision as finally made, it will be perceived that the real ground on which the act, the validity of which was in question there, was sustained, was that the existence of Schuyler county had for years been recognized by all departments of the government except the judicial. Successive sessions of the legislature had been organized and had acted upon the assumption of its constitutional existence, and it had entered into the whole structure and organization of the government. These acts, in the language of the judges who really made the decision, removed the subject from that region of doubt within which it is competent and suitable for a court to declare legislative acts void as conflicting with the constitution. In this connection, also, the suggestion may be repeated, that the Schuyler county act contained a provision postponing the operation of the act in respect to the representation of the existing senate and assembly districts, and the election of incumbents to those offices, until the next decennial census; thus seeking to obviate the difficulty which the act we have been considering makes not even an attempt to surmount.

With regard to this point, the court of appeals, in the case of Rumsey v. The People, go no farther in their decision than to say-—if indeed they say thus much—that “ it seems” the legislature have the constitutional power to create a new county by the insertion of such a provision in the act. The case itself, so far as it can he deemed to decide any thing upon this point, would appear by implication to he an authority sustaining the view I have taken of the consequences of the failure of the act in question to provide a mode by which the electors in the exscinded territory could exercise the privilege of voting in any assembly election district, and thus, by this omission, for an indefinite period, practically disfranchising them.

Judgment in conformity with the stipulation- in the case must be given for the defendant. '

Mullin, J., concurred.

Pratt, J., took no part in the decision.