Matter of Sherrill v. . O'Brien

81 N.E. 124, 188 N.Y. 185, 1907 N.Y. LEXIS 1119

• Court: New York Court of Appeals
• Decided: April 3, 1907
• Status: Published

Opinions

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The validity of the so-called Apportionment Act of 1906 is assailed, and it is claimed that some of its provisions relating to the division of the state into senatorial districts are contrary to express constitutional provision, and that other provisions thereof constitute such an arbitrary use of alleged discretionary power as to be wholly invalid and void. The power of this court to review the questions involved in the relator's claim should be first considered.

In the United States the general power and authority of the judicial department of the Federal and of the State governments to determine the constitutional validity of legislative acts applicable to and involved in a pending controversy is not now open to question. It is also expressly provided by section 5 of article 3 of our State Constitution of 1894 that an apportionment by the Legislature or other body "Shall be subject to review by the Supreme Court, at the suit of any citizen, under such reasonable regulations as the Legislature may prescribe; and any court before which a cause may be pending involving an apportionment shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same."

This constitutional provision is new, and it was intended to and does set at rest any further claim that the legislature in passing an act reapportioning the state for legislative purposes is so far exercising a political, as distinguished from a legislative power, that its action cannot be reviewed by the courts. The jurisdiction of the Supreme Court of this state toreview an apportionment by the legislature or other body is now express, but the jurisdiction to review such an act of apportionment is not expressly given by Constitution to this court. The jurisdiction of this court to review the orders appealed from is the general jurisdiction of the court to review actual determinations made by the Appellate Division of the Supreme Court of orders finally determining special proceedings (Constitution, art. 6, sec. 9; Code Civ. Pro. sec. 190) and the jurisdiction of the court is limited to the review of questions of law. (Constitution, art. 6, sec. 9; Code Civ. Pro. sec. 191, sub. 3.) The determination of every question of law involved in the appeals is within the jurisdiction of this court.

In the opinion of Judge ANDREWS in People ex rel. Carter v.Rice (135 N.Y. 473, 521), referring to the jurisdiction of this court in determining the constitutionality of the Apportionment Act of 1892 (Laws of 1892, chap. 397) he said: "I shall not undertake to show that the question presented is of judicial cognizance. That it is a judicial question cannot under the authorities be denied. The legislature and the courts are alike bound to obey the Constitution, and if the legislature transgresses the fundamental law and oversteps in legislation the barriers of the Constitution, it is a part of the liberties of the people that the judicial department shall have and exercise the power of protecting the Constitution itself against infringement. The power of the courts to set aside an unconstitutional apportionment has quite recently been asserted and exercised by the courts of Wisconsin and Michigan. (State exrel. Raymer v. Cunningham, 51 N.W. Rep. 1133; Giddings v.Blacker, 52 id. 944; Supervisors of Houghton County v.Blacker, Secretary of State, id. 951.)"

Although the language quoted is taken from a dissenting opinion, the opinion of the court by Judge PECKHAM does not deny the power of the court to review an act of apportionment, but it says (page 501): "We think that the courts have no power in such case to review the exercise of a discretion entrusted to the legislature by the Constitution unless it is plainly and grossly abused. * * * We do not intimate that in no case could the action of the legislature be reviewed by the courts. Cases may easily be imagined where the action of that body would be so gross a violation of the Constitution that it could be seen that it had been entirely lost sight of and an intentional disregard of its commands both in the letter and in the spirit had been indulged in."

And Judge GRAY in his concurring opinion in the same case (page 510) says: "But if any provision of the fundamental law of the state intended to secure the equal representation of its citizens in the legislative department has been violated by the act in question, it is then properly the duty of the judicial department of power to declare it unconstitutional and, therefore, void. The judiciary has a duty to pronounce all legislative acts null which are contrary to the manifest tenor of the Constitution of the state."

The jurisdiction of this court was again considered in Matterof the Application of Baird v. Board of Supervisors of theCounty of Kings (138 N.Y. 95), which involved the division of the county of Kings into assembly districts as provided by said chapter 397 of the Laws of 1892, and this court held that the division that had been made was not a constitutional division, and the court, among other things said: "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."

Since the Constitution of 1894 the case of Matter of Smith v.Board of Supervisors, St. Lawrence Co. (148 N.Y. 187) has been before this court, and it was said that "Each case must be decided on its peculiar facts, and the courts can be relied upon at all times to enforce the Constitution in its letter and spirit."

The courts have jurisdiction to determine whether or not an act of apportionment is in conflict with the limitations fixed by the Constitution, and if such conflict is found to exist, to declare the act void. (American English Ency. of Law [2nd ed.], vol. 2, page 485 and cases cited.) It appears, therefore, that the courts can review legislative action in reapportioning the state and that on an appeal to this court jurisdiction should be entertained.

1. Where the question to be determined on the appeal is as to whether the legislature has obeyed a mandatory provision of the Constitution, in which case a question of law is presented for the determination of this court.

2. Where by the Constitution some discretion is vested in the legislature this court cannot inquire into the motives of the legislators in exercising such discretion and voting for a particular plan of apportionment and it cannot inquire into the relative merits of several plans to choose from which requires the exercise of sound judgment and judicial discretion. But if the legislature under the assumption of an exercise of discretion does a thing which is a mere assumption of arbitrary power, and which, in view of the provisions of the Constitution, is beyond all reasonable controversy, a gross and deliberate violation of the plain intent of the Constitution and a disregard of its spirit and the purpose for which express limitations are included therein, such act is not the exercise of discretion but a reckless disregard of that discretion which is intended by the Constitution. Such an exercise of arbitrary power is not by authority of the People. It is an assumption, and when it is claimed that an act is thus in violation of the Constitution a question of law is presented for the determination of this court.

A legislative apportionment act cannot stand as a valid exercise of discretionary power by the legislature when it is manifest that the constitutional provisions have been disregarded any more than an order of the Appellate Division can create a question of fact by declaring that there is one when no question of fact exists. (See Matter of Totten, 179 N.Y. 112, andPenryhn Slate Co. v. Granville Elec. Light Power Co.,181 N.Y. 80.) Any other determination by the courts might result in the constitutional standards being broken down and wholly disregarded.

We have seen that an apportionment may be such as to require that the act be declared invalid and void as a matter of law. Let us look then to the authority of the legislature.

The People are vested with the supreme and sovereign authority. The Constitution is the voice of the People speaking in their sovereign capacity. (Matter of N.Y. Elevated R.R. Co.,70 N.Y. 327, 342.)

An act of the legislature is the voice of the People speaking through their representatives. The authority of the representatives in the legislature is a delegated authority and it is wholly derived from and dependent upon the Constitution.

By our first Constitution, adopted April 20, 1777, it is provided "That the supreme legislative power within this state, shall be vested in two separate and distinct bodies of men; the one to be called the Assembly of the state of New York; and the other to be called the Senate of the state of New York; who, together, shall form the legislature, * * *." (Section 2.)

Our Constitution, adopted November 6, 1894, provides that "The legislative power of this State shall be vested in the Senate and Assembly." (Article III, section 1.) The general legislative power is absolute and unlimited except as restrained by Constitution. (Bank of Chenango v. Brown, 26 N.Y. 467;People ex rel. McLean v. Flagg, 46 N.Y. 401.) It will be observed, however, that no general power is by the Constitution vested in the legislature, to change or modify the number of its members or the districts from which they are to be elected. The Constitution has always included special provisions relating thereto and such special provisions constitute the full authority of the legislature. It is the authority of the legislature over itself that we must examine and study to aid in determining the questions before us.

By the Constitution of 1777 it was provided that the senate should consist of twenty-four freeholders. Section 12 provided "That the election of senators shall be after this manner: That so much of this state as is now parcelled into counties, be divided into four great districts: the southern district to comprehend * * *. That the senators shall be elected by the freeholders of the said districts, qualified as aforesaid, in the proportions following, to wit: In the southern district, nine. * * * And be it ordained, that a census shall be taken as soon as may be after the expiration of seven years from the termination of the present war, under the direction of the legislature; and if, on such census, it shall appear that the number of senators is not justly proportioned to the several districts, that the legislature adjust the proportion, as near as may be, to the number of freeholders, qualified as aforesaid, in each district. * * * And be it ordained, that it shall be in the power of the future legislatures of this state, for the convenience and advantage of the good people thereof, to divide the same into such further and other counties and districts, as shall to them appear necessary."

In the section of the Constitution (Section 5) relating to assemblymen, after providing for the census, it further provides: "And if on such census it shall appear, that the number of representatives in assembly from the said counties is not justly proportioned to the number of electors in the said counties respectively, that the legislature do adjust and apportion the same by that rule."

The constitutional amendments of 1801 retained directions that senators and assemblymen should be apportioned "As nearly as may be according to the number of electors," but no further general limitations were placed upon the legislative power of apportionment.

By the Constitution of 1821 the state was divided into eight senate districts. It was therein further provided (Article I, section 6) that "An enumeration of the inhabitants of the state, shall be taken, under the direction of the legislature, in the year one thousand eight hundred and twenty-five, and at the end of every ten years thereafter; and the said districts shall be so altered by the legislature, at the first session after the return of every enumeration, that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens, paupers and persons of colour not taxed; and shall remain unaltered, until the return of another enumeration, and shall at all times consist of contiguous territory; and no county shall be divided in the formation of a senate district."

By the Constitution of 1846 the state was divided into thirty-two senate districts to correspond with the number of senators to be elected. And it was therein further provided (Art. 3, sec. 4) that "An enumeration of the inhabitants of the state shall be taken, under the direction of the legislature, in the year one thousand eight hundred and fifty-five, and at the end of every ten years thereafter; and the said districts shall be so altered by the legislature, at the first session after the return of every enumeration, that each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens, and persons of color not taxed; and shall remain unaltered until the return of another enumeration, and shall at all times consist of contiguous territory; and no county shall be divided in the formation of a senate district, except such county shall be equitably entitled to two or more senators."

The Constitution adopted November 6, 1894, divided the state into fifty districts and it further provided by article 3, section 4, as follows:

"An enumeration of the inhabitants of the State shall be taken under the direction of the Secretary of State during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter; and the said districts shall be so altered by the Legislature at the first regular session after the return of every enumeration, that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the return of another enumeration, and shall at all times, consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein adjoining such district. Counties, towns or blocks which, from their location may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.

"No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have more than one-third of all the senators; and no two counties or the territory thereof as now organized, which are adjoining counties, or which are separated only by public waters, shall have more than one-half of all the senators. * * *."

In a true representative government every person should be equally represented in its legislative bodies. Exact representation requires that every senator and every assemblyman shall represent the same number of people. The maintenance of county, town and block lines and other practical considerations, recognized by and provided for in the Constitution, makes mathematical exactness in the division of the state into senate and assembly districts impossible. Because of the necessity of slight variations in the number of inhabitants in districts formed in accordance with the directions of the Constitution, it has always provided in substance for a division as nearly as may be in accordance with the number of inhabitants. The quotations that we have made from our first Constitution, and from the subsequent amendments thereto and changes therein, show that equal representation in proportion to population has been the cardinal and underlying principle to which it has always pointed in directing and authorizing the legislature to reapportion the state.

The direction to the legislature that the senators be apportioned "as near as may be to the number of freeholders" is the only limitation on the power of apportionment contained in the first Constitution and the amendment of 1801. The very purpose of a decennial census provided for in the several Constitutions of the state has been to adjust differences in population which arise from changes in places of abode or increase in the number of inhabitants, and thus from time to time to make representation in the legislature more nearly ideal.

By the second Constitution of 1821 a new limitation was placed upon the power of the legislature in the matter of apportionment by which it is provided that senatorial districts "shall at all times consist of contiguous territory." Substantially the same limitations were included in the third Constitution of 1846. Prior to the constitutional convention of 1894 much controversy had arisen in the state about the possibility of unfair divisions of the state into senate and assembly districts, so as to result in party or individual advantage. The apportionment of 1879 (Laws of 1879, chap. 208) was criticized; the enumeration of the inhabitants provided for in 1885 was delayed; and the apportionment of the state in 1892 (Laws of 1892, chapter 397), which was carried by vote of a majority of the legislature representing a different political party than the majority in 1879, was also criticized, and the act was challenged in the courts as not being in accordance with the letter and spirit of the Constitution. At least three proceedings were commenced which had for their purpose a judicial determination of the constitutionality of the act of 1892. The decisions in the General Term of the Supreme Court in such proceedings were conflicting. From orders in each of the proceedings an appeal was taken to this court and the decisions are reported under the title of People ex rel. Carter v. Rice (supra), in which case the question before the court was summed up in the prevailing opinion in these words, "The sole question now is whether the legislative discretion has been so far abused as to render the act liable to an overthrow by the courts." The conclusion of a majority of the court was that the "Act of 1892 successfully withstands all assaults upon it and is a valid and effective law." A dissenting opinion by Judge ANDREWS was concurred in by Judge FINCH. Thereafter and before the constitutional convention of 1894 another proceeding came before this court (Matter of Baird v. Supervisors, supra) and it was held that the division of the county of Kings into assembly districts had been made in disregard of the principles of equal representation and contrary to the Constitution. The decision in the Baird case was an exercise of jurisdiction by this court and a determination that the constitutional provisions in regard to equality of representation had been disobeyed, although section 5 of article 3 of the Constitution at that time, as amended by a vote of the people November 3, 1874, provided for a division of the "respective counties into assembly districts each of which districts shall consist of convenient and contiguous territory."

In Lincoln's Constitutional History of New York (Volume 3, page 135) he calls attention to the opening address of the president of the convention, and commenting thereon he says: "The subject was doubtless given this precedence both on account of its intrinsic importance and also because of the unsatisfactory results of the apportionment of 1892 and the evident necessity of formulating rules which would prevent a repetition of inequitable apportionments and insure proportionate representation of population according to strict mathematical computation so far as consistent with other rules of limitation based on specified territorial divisions."

Referring again to the apportionment of 1892 he says (page 203): "Like many other events which have been noticed in these studies, it was a history-making statute and was the immediate occasion of important constitutional changes."

Again he says (page 218): "The apportionment of 1892 was frequently referred to in the course of the debate. Its inequalities and the possibilities under the existing Constitution, as shown by a decision in the Carter Case (135 N.Y. 473), were considered a sufficient reason for including in the Constitution rules which would make impossible a repetition of that statute."

These statements are fully justified by a perusal of the proceedings of the convention relating to the subject of apportionment, to which proceedings we can look when judicially construing the Constitution. (People ex rel. Henderson v.Supervisors of Westchester Co., 147 N.Y. 1; Matter of Keymer,148 N.Y. 219.)

This court, in Matter of Smith v. Board of Supervisors, St.Lawrence Co. (148 N.Y. 187), said: "The evil sought to be remedied by the new Constitution was to prevent those gross discrepancies in apportionment and representation that had long been a public scandal and a reproach to the good name of the state." With that end in view, the Constitution of 1894 includes the following mandatory provisions in regard to senate districts:

1. Shall at all times consist of contiguous territory.

2. No county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county.

3. No town and no block in a city inclosed by streets or public ways shall be divided in the formation of senate districts.

4. Nor shall any district contain a greater excess in population over an adjoining district in the same county than the population of a town or block therein adjoining such district.

5. No county shall have four or more senators unless it shall have full ratio for each senator.

6. No county shall have more than one-third of all the senators.

7. No two counties or the territory thereof as now organized, which are adjoining counties or which are separated only by public waters, shall have more than one-half of all the senators.

In addition to these mandatory provisions it directs:

1. Each senate district shall contain, as nearly as may be, anequal number of inhabitants, excluding aliens.

2. Be in as compact form as practicable.

3. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens. (Matter of Smith v. Board of Supervisors,St. Lawrence Co., 148 N.Y. 187, 193.)

In view of these limitations this court, in In re Smith v.Board of Supervisors (supra), said: "We feel assured that the People of the state can never again be subjected to those inequalities of apportionment and representation which gave rise to some of the present constitutional provisions so long as the maximum excess in the population of the district is limited by mandatory provision to the population of a town adjoining such assembly district and the discretion exercised within that narrow limit is subject to the supervision of the courts." These words were used with reference to a division of counties into assembly districts.

Can it be doubted that in view of the history of constitutional changes in regard to legislative apportionment which shows a gradual withdrawal from the legislature of discretionary power and a continued adding of limitations upon their power relating thereto, and in view of the clear intention of the constitutional convention of 1894 and of the People in adopting the Constitution that this court should now hold that the minimum of discretion necessary to preserve county and other lines and to give reasonable consideration to the other provisions of the Constitution, is left to the legislature?

As the discretion of the legislature relating to the relative number of inhabitants in senate districts arises from necessity it should cease where the necessity for discretion ends. In the section of the Constitution relating to assemblymen (Article 3, section 5) it is provided that in any county entitled to more than one member of assembly the board of supervisors and in any city embracing an entire county and having no board of supervisors, the common council, shall "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."

The word "convenient" is omitted in directing the legislature in regard to a division of the state into senate districts. We must assume that it was intentionally omitted. (Roosevelt v.Godard, 52 Barb. 533.)

Every provision of the Constitution which allows any discretion by the legislature in apportionment must to some extent be affected and controlled by every other provision of the Constitution, but in the division of the state into senate districts matters of mere convenience and individual taste are not subjects for consideration.

While we recognize the binding force of the Carter case as applied to the facts then before the court, and in the construction of the Constitution as it then existed, we are of the opinion that the Constitution as it now exists should be construed so as to require that the legislature in dividing the state into senate districts make as close an approximation to exactness in number of inhabitants as reasonably possible in view of the other constitutional provisions, and that such approximation is the limit of legislative discretion.

In construing the language of the Constitution as in construing the language of a statute, the courts should look for the intention of the People and give to the language used its ordinary meaning. The ordinary and plain meaning of the words "contiguous territory" is not territory near by, in the neighborhood or locality of, but territory touching, adjoining and connected, as distinguished from territory separated by other territory.

Richmond county is not contiguous to Queens county within the meaning of contiguous as thus defined. Although Richmond county by its statutory boundaries adjoins the county of Kings, the latter county by its statutory boundaries intervenes between the county of Richmond and the county of Queens. Richmond county, never having had a population sufficient to entitle it to a senator, has by reason of its insular situation been peculiarly situated. The People, by Constitution and by acts of the legislature, have treated it as an exception to the mandatory provision of the Constitution in regard to contiguity, and because it has been necessary it has been joined in senate districts with counties whose actual and statutory boundaries do not touch or adjoin it.

The mandatory provision in regard to contiguity of territory comprising a senate district has been in the Constitution since 1821. By the Constitution of 1846 the county of Richmond was joined with the counties of Suffolk and Queens to constitute the first senate district. By chapter 339 of the Laws of 1857, by which the senate districts of the state were changed by the legislature, said counties were joined to constitute the first senate district. By chapter 805 of the Laws of 1866 the legislature again joined these counties to make the first senate district. Although in 1879 Richmond county was joined with a part of the county of New York and in 1892 with a part of the county of Kings, the Constitution of 1894 joined the counties of Richmond and Suffolk to make the first senate district. By reason of a new constitutional provision the county of Richmond cannot now be joined to a part of either New York or Kings counties to make a senate district. In view of the construction placed on the Constitution by constitutional and legislative provisions, it should be held that the county of Richmond is exempt from the constitutional provision requiring that senate districts be composed of contiguous territory. The exception, however, should not be made more general than is required from the constitutional and legislative precedents. It nowhere appears by the Constitution of 1846 or 1894 that it was intended that the county of Richmond should be so generally exempt from its provision in regard to contiguity of territory that it could be by statute joined with any of the other counties of the state to make a senate district. The absurdity of joining Richmond county with some of the interior counties of the state to make a senate district is apparent upon a mere suggestion of such possibility. It should not be joined with a county other than one like itself bounded on the Atlantic ocean or with a county bounded on the Hudson river which is sufficiently near to Richmond county so that a senate district so formed would be as far as possible within the letter and spirit of the constitutional provision requiring that senate districts shall "be in as compact form as practicable."

We do not think that the legislature violated the mandatory provision of the Constitution relating to contiguity of territory by joining the county of Richmond with the county of Queens.

The citizen population of the state as shown by the enumeration of 1905 was 7,062,988. Dividing this number by 50, as provided by the Constitution, gives a ratio of 141,259 for apportioning senators. With such ratio it appears that the county of New York was entitled to 12 senators; the county of Kings to 8, and the county of Erie to 3, in which counties the average citizen population to a district would be respectively 150,024, 147,347 and 146,192, and the county of Kings was entitled to one senator more than the number specifically provided therefor by the Constitution as adopted in 1894, and under the new constitutional provision it increased the full number of senators in the state from 50 to 51. Deducting from the entire citizen population of the state the citizen population of the counties of New York, Kings and Erie, there remains a citizen population in the other counties of the state of 3,645,337, which divided by 28, the number of senators outside of the counties of New York, Kings and Erie, gives a ratio for each senatorial district of 130,190. The counties other than New York, Kings and Erie having a citizen population in excess of the ratio for apportioning senators are Queens, Westchester, Albany, Rensselaer, Oneida, Onondaga and Monroe. Each of these counties having a citizen population in excess of the ratio is entitled by any just and reasonable construction of the Constitution to at least one senator. (State ex rel. Atty.-Gen. v. Cunningham,81 Wis. 440; Parker v. State, 133 Ind. 178.)

The minimum rights of such counties were determined by the enumeration and they could not be taken away by an exercise of discretion by the legislature at least unless the geographical position of some small county was such as to make it absolutely necessary that it be joined with some one of such counties. No such absolute necessity required that Richmond county be joined to Queens county or to any other county having its full ratio. Joining Richmond county to Queens county to make the second senatorial district was an exercise by the legislature of arbitrary power not authorized by the Constitution. If Richmond county should be joined to Nassau county it would not make a citizen population equal to the ratio, and even if the peculiar position of those island counties would allow the legislature in its discretion to join the counties of Richmond, Nassau and Suffolk in one senate district the combined citizen population of such counties would be but 203,616. The relative citizen population of the first and second senate districts as provided by the act is 137,175 to 246,187, and between the first and second districts, if the first was composed of the three counties stated and the second of Queens county alone, would be 203,616 to 179,746 or a difference in favor of equality between the first and second senatorial districts of 85,142. The rights of Queens county under the Constitution because of its having a citizen population above the ratio and also by reason of inequalities in the number of citizens in the first and second senate districts required that Queens county be given a senator without joining with it any other county.

A reference to the diagram will show how grossly the provision of the Constitution in regard to compactness has been violated in the thirteenth senatorial district which is within the county of New York. All of the territory of the county of New York comprising that portion of Manhattan island shown on the diagram is comparatively level and fully covered by blocks bounded by streets on which blocks buildings have been erected for business or residential purposes, and no possible purpose for the exercise of discretion to make a district that is not reasonably compact has been shown, and no effort whatever seems to have been made to make the district mentioned in as compact form as practicable.

The reasons alleged for the rambling territory comprising the thirteenth senate district with its boundaries of many sides and various angles are wholly immaterial and not recognized by the Constitution in the apportionment of senate districts. A reference to the boundaries of the senate districts in said county as made by the constitutional convention shows that the county can be divided into districts which are reasonably compact, each having comparatively few sides and angles. Within the limits of a city entitled to many senators the requirements for compactness would seem to exclude all possibility of a district in the shape of the thirteenth senatorial district as shown on the diagram. (In re Timmerman, 100 N.Y. Supp. 57.)

The disregard of constitutional provisions in forming the second and thirteenth senate districts is clear, and they so affect the entire apportionment as to make it necessary to declare the act wholly unconstitutional and void. It is not necessary or wise to discuss the provisions of the act relating to other senate districts except to say that differences arising from necessity and slight differences in the citizen population of senate districts and the relative weight of slight differences in population in comparison with considerations of compactness or the reverse, upon which men of judgment and discretion may fairly differ, are matters belonging distinctly to the legislature and not to the judicial branch of the government, and with which this court has no disposition or jurisdiction to interfere.

Every apportionment must stand upon its own particular facts. The rules and principles which we have stated are general, and result from an examination of the Constitution and a study of its development. They are applied to the facts on this appeal so far as stated and only so far as stated.

It is difficult and perhaps impossible to state rules by which future apportionments can be measured. This court has already said by PECKHAM, J., in Matter of Baird v. Supervisors (supra), that "We have no trouble whatever in detecting the difference between noon and midnight, but the exact line of separation between the dusk of evening and the darkness of advancing night is not so easily drawn." (See People ex rel.Schau v. McWilliams, 185 N.Y. 92, 100.)

I concur in the views expressed by CULLEN, Ch. J., as to the effect of the acts of a de facto legislature so long as its members remain actual incumbents of their offices respectively.

The orders should be reversed, with costs to appellants in all courts, but as since the institution of the proceedings the several respondents have gone out of office and the election itself has been held, no order should be made directing the issue of a writ of mandamus.