Matter of Richardson (Stark)

121 N.E.2d 217, 307 N.Y. 269, 1954 N.Y. LEXIS 982

• Court: New York Court of Appeals
• Decided: June 28, 1954
• Status: Published

Opinions

Lewis, Ch. J.

In the proceeding before us, instituted pursuant to sections 1-5 of chapter 773 of the Laws of 1911, the four petitioners-appellants — citizens of Kings County — have challenged the constitutionality of procedure by the city counoil of the City of New York, respondents herein, acting as a board of apportionment, in reapportioning four Assembly districts in Kings County in accord with section 5 of article III of the Constitution of the State of New York, and chapter 893 of the Laws of 1953, as amended by chapters 2 and 497 of the Laws of 1954.

At Special Term, Supreme Court, Kings County, the apportionment by the city council was declared void as violative of section 5 of article III of the State Constitution, and certain of the respondents herein were enjoined from certifying the apportionment to the Secretary of State and to the Clerk of Kings County. At the Appellate Division the order of Special Term was reversed on the law, two Justices dissenting, and the informal findings of fact were affirmed.

The apportionment thus challenged was authorized by legislation (L. 1953, ch. 893) which altered the boundary' lines of certain Senate districts within Kings County and reduced from twenty-four to twenty-two the number of Assembly districts comprised within that county. The particular reapportionment to which petitioners’ challenge is directed involves the third, fourth, fifth and seventeenth Assembly districts, located respectively in the thirteenth, eighteenth, tenth and eleventh Senatorial districts.

The provision of the Constitution (art. Ill, § 5), which governs the apportionment of Assembly districts, is in part as follows: “ § 5. * * * In any county entitled to more than one member * * * the body exercising the powers of a common council * * * shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable * * (Italics added.)

Upon this appeal our inquiry goes to the question whether, in reapportioning the four Assembly districts here involved, the respondents, acting as a board of apportionment, complied with the italicized portions of the constitutional provision quoted above.

At the outset it is important to note that the petitioners do not charge a failure by the board of apportionment to reapportian the four Assembly districts “ * * * as nearly equal in number of inhabitants, excluding aliens, as may be * * Indeed, as to that first and fundamental requirement, it was conceded upon the argument that no challenge is made.

The question for our decision, therefore, is whether there is evidence of record, sufficient as a matter of law, to serve as a basis for the Special Term order which declared the challenged reapportionment void upon the ground that —as indicated by that court’s opinion — the irregular boundary lines of the four reapportioned Assembly districts render those districts neither convenient nor in as compact form as practicable.

The burden of establishing that the reapportionment accomplished by the respondents is unconstitutional rests upon the petitioners-appellants who are the parties asserting its unconstitutionality. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1, 15-16; People ex rel. Carter v. Rice, 135 N. Y. 473, 483-484, 500-501; Matter of Sherrill v. O’Brien, 188 N. Y. 185, 196-199; Matter of Fay, 291 N. Y. 198, 206-207.) As to whether in this proceeding the petitioners have met that burden, we note that the answers interposed by the respondents — after denying allegations of the petition which asserted the invalidity of the four reapportioned Assembly districts — pleaded affirmative defenses including allegations and supporting factual data from which it appears that the changes made in the pre-existing Assembly district lines were dictated not only by changes made by the Reapportionment Act in the territorial content of Senate districts but also by the reduction from twenty-four to twenty-two in the number of Assembly districts in Kings County. According to the allegations and data thus pleaded by the respondents as affirmative defenses, the four Assembly districts as reapportioned by the city council fulfilled in each instance the first constitutional requirement of equality in number of inhabitants and, insofar as is practicable — consistent with that first constitutional requirement — paid due regard to the factors of convenience, contiguity and compactness.

When the proceeding came on for trial at Special Term, the denials and allegations contained in the answers tendered sharp issues of fact which, in our view, made proof essential to decision. In this record there is a total lack of such proof.

In Matter of Dowling (219 N. Y. 44) —a case in which the constitutionality of an apportionment of Senate districts was challenged — districts were laid out not substantially unlike those with which we are here concerned (see petitioners’ Exhibits D, H, I and 11 in Dowling case). There Judge Chase, who nine years earlier had also written for the court in the Sherrill case (supra), had occasion to note (p. 58) that a similar constitutional provision as here involved “ * * * does not provide unqualifiedly for compactness. Senatorial districts are not required to be in the form of geometric figures, as a square or perhaps a circle. Such a provision would be impractical and impossible to carry out. It is expressly provided that the districts shall be as compact as practicable. This permits of a consideration in good faith of existing lines, topography, means of transportation, etc.” (Italics — are in original text.)

Significant to our consideration of the present case — where the record indicates that, at Special Term, the decision rested primarily on a visual examination of maps of the area involved — is the further statement by this court in its opinion in the Dowling case (supra, p. 59): “ While some of the districts in the counties named may be subject tó criticism with respect to compactness, we are unable to say from a mere inspection of the maps that, the constitutional provision in regard -to- compactness has been violated.”

As in the Dowling case (supra) — where the shape of each Senate district depended in some measure upon surrounding county boundaries — so in the case at hand — where Assembly districts are involved — the shape of each of the four reapportioned Assembly districts depends in some measure upon the shape of the Senate district of which it is a part. Here the shifting of Senate district lines in accord with the Reapportionment Act served to alter the boundaries of each of the integrated Assembly districts; here new Assembly district lines — thus altered to conform with the new Senate district boundaries — which must enclose territory wherein are inhabitants “ * * * as nearly equal in number * * * excluding aliens, as may be ”, could not be fixed without some resulting irregularity, and without affecting to some degree — favorably or unfavorably — the factors of convenience and compactness.

In the absence of proof before the court at Special Term that the reapportionment here challenged was — as alleged in the petition and denied by the respondents in their answers — u arbitrary and based on personal and political considerations and not on the convenience of the voters * * * or any factor relating to the public interest, and the lines thereof were drawn with the purpose of assuring the continuous election of the candidates of one particular political party and the control of such respective districts by particular political leaders ’ ’; ‘ and in the absence of proof that territory within the Assembly districts as reapportioned is not convenient, contiguous and in as compact form as practicable, we conclude, in the circumstances disclosed by this record, that there was no basis, suffi-cient in law, to support the order made at Special Term.

■, Accordingly, the order of the Appellate Division, reversing on the law the order of Special Term, should be affirmed.