MATTER OF SHERRILL v. O'BRIEN

CULLEN, Ch. J.

In reaching the conclusion which we have announced in the opinion of Judge CHASE, we have not by any means failed to fully weigh and consider the results that may follow from our decision. While our supreme duty is to enforce the provisions of the Constitution, upon which, as a foundation, the whole fabric of the government of this state rests, we fully appreciate that government is or should be pre-eminently a practical thing and that courts should long hesitate to throw the government into confusion and disorder by declaring an act of the legislature invalid, and so declare only when the violation of the constitutional mandate is clear and certain. That the violation of the Constitution is too plain to be disregarded is the conclusion to which we have been forced by the reasons stated by my brother CHASE; but at the same time we think it not only proper but our duty to say that in our opinion the fear that our decision may throw the government of the state into confusion is unfounded. When this appeal was before us immediately prior to the general election last year, in dismissing that appeal we unanimously said that whether the Apportionment Act of 1906 was constitutional or not, the legislature which might be actually chosen by the electors of the state under that apportionment would be a de facto legislature, whose acts would, in all respects, be binding. To that declaration we still adhere, and we understand no one to gainsay it. It is now, however, suggested that when our decision that the Apportionment Act is unconstitutional is announced, from that time the present legislature will no longer be a de facto body. This suggestion is without force either in principle or under the authorities. An act of the legislature if invalid, as violating the Constitution, is invalid from the time of its enactment, not merely from the declaration of its character by the courts. But though the appointment or election of a public officer may be illegal, it is elementary law that his official acts while he is an actual incumbent of the office are valid and binding on the public and on third parties. (2 Kent's Comm. 295; People ex rel. Bush v. Collins, 7 Johns. 549; Wilcox v. Smith, 5 Wend. 231; People ex rel. Sinkler v. Terry, 108 N.Y. 1; State v. Carroll, 38 Conn. 449.) In the case last cited there is one of the best expositions of the doctrine of de facto officers to be found in the reports. The doctrine is not one of convenience merely but of necessity. In State ex rel. Knowlton v. Williams ( 5 Wis. 308) it was contended that a statute of the state was invalid because approved by a governor whom the courts subsequently declared not to be entitled to the office. Nevertheless, it was held that as the statute was approved by an actual incumbent of the office of governor, it was in all respects valid and effective. Of course, an officer who, though de facto, is not such de jure, may be ousted from the office he illegally holds by proceedings instituted to try his title to the office, and when adjudged a usurper he ceases from that time to be an officer de facto. But to have this effect the judgment must be rendered in a proceeding to oust him from office; it is not sufficient for the purpose that his title to office be declared bad in a collateral proceeding. A notable example of this principle is the case of People ex rel. Smith v. Schiellein ( 95 N.Y. 124), which was an application for mandamus against the town board of New Lots to canvass the vote and award a certificate to the relator, who claimed to have been elected a justice of the peace at the town meeting. The right of the relator depended on his claim that a statute directing justices of the peace of the town of New Lots to be chosen at the general election was unconstitutional and void, and so the courts held. It happened, however, that one of the defendants in the proceeding was a justice of the peace elected and holding office under the very statute declared invalid. He insisted that if the statute was invalid he was not a justice of the peace nor a member of the town board, and, therefore, the writ should not run against him. This court overruled the objection, saying it was sufficient that Watson, the defendant, who raised the objection, was actually in office, and it also said that the decision in the mandamus suit of itself did not oust him. Judge RUGER wrote for the court: "It may be that one of the results following the determination of this appeal will be his removal from office, but that will not be the direct result of our adjudication. Title to his office is not triable in this proceeding and, therefore, cannot be here adjudicated." It was, therefore, entirely possible that had no proceedings been taken against Watson, or had he not voluntarily relinquished office, he might have remained therein despite the adverse decision of the court, and his acts would have been valid. The position of the members of the present legislature is much stronger. The proceeding before us is not to try the title of any member of the legislature to his office, but against certain administrative officers as to the conduct of an election. Therefore, were it possible for the courts to try the title of members of the legislature this decision would not directly affect that title. But, under the Constitution, each house of the legislature is the exclusive judge of the election and qualification of members. The courts have no jurisdiction to determine the title of any member. In the case of People ex rel. Sherwood v. State Board of Canvassers ( 129 N.Y. 360) by a divided court it was held that the relator being disqualified under the Constitution from election as a senator the courts would not compel a board of canvassers to give a certificate of his election, but even the majority opinion conceded that the ruling of the court would in no way bind the senate, when convened, on the question of the relator's rights. As already said, the senate and assembly elected under the Apportionment Act and actually assembled constitute in any aspect a de facto legislature. As a de facto body each house has, under the Constitution, not only the exclusive power but the exclusive right to judge of the title of any of its members to a seat therein. Whoever either house receives as its legally elected member and entitled to a seat becomes thereby a de jure member of that house, even though the courts, were such a question triable before them, might be of a different opinion. It follows, therefore, that not only is the present legislature a valid legislature, but that each member thereof, so long as the particular house to which he belongs does not oust him, is as to all the world not only a de facto but a de jure member, and is entitled to all the privileges of a member, the exemption of his person, the right to his salary and the like, and his title to office cannot be challenged before any tribunal except the house itself. Thus there can be no vacancy in any particular district which the governor or other officer can call upon the electors to fill, unless the house ousts the member and declares him not entitled to his seat. All this, however, does not show that our decision is a mere brutum fulmen and of no practical effect. While the court cannot pass on the title of any present member of the legislature, it can control the action of administrative officers in the conduct of the next election that takes place. If the present legislature should pass a new apportionment bill in compliance with the provisions of the Constitution, the next general election at which members of either house are to be elected will be held under the new statute. If the legislature fails to discharge this duty, then the election must be held in accordance with the apportionment under the Constitution of 1895. In other words, while the courts cannot interfere with the present legislature, they can compel future elections to be held in compliance with the Constitution.

GRAY, J.

I should hesitate to agree with the opinion of my brother CHASE, as to the unconstitutionality of the Apportionment Act, if I were not convinced that the amendment of the State Constitution, in 1894, had materially changed the rules, which should govern the apportionment by the legislature of the representatives of the citizens of the State.

In the case of People ex rel. Carter v. Rice, ( 135 N.Y. 473), which involved the Apportionment Act of 1892 and in the decision of which I took part, I was of the opinion that the then existing constitutional provision vested a certain discretion in the legislative body in exercising its power, with which the court should not interfere; when there had been neither a flagrant disregard, nor an unmistakable violation, of the constitutional injunction that the apportionment should be "as nearly as may be" according to the number of citizens.

As may be discovered from the debates in the constitutional convention of 1894, the decision in the Rice case moved that body to recommend new provisions, or rules, for an apportionment. They were intended to remedy whatever defectiveness in the old rules made possible the inequalities, observed in the preceding apportionment act.

It is of great significance and it, necessarily, has a most important bearing upon the attitude of the court towards the legislative action, that the article of the Constitution, (Art. III, sec. 5), expressly provides for a judicial review of any apportionment by the legislature. The legislature, now, exercises its power subject to a review by the court of its act, which any citizen may invoke. The article, in its present form, as Judge CHASE well points out, reduces the discretionary power of the legislature to a minimum. The limitations upon its exercise are relaxed, practically, only with respect to the preservation of county, town and block lines. It is the intention of the People of the State, as declared by the recent amendment of the article of the Constitution, that, in the apportionment of districts, there shall be as near to an exact equality in the number of inhabitants, as is possible from a consideration of nothing else than the constitutional provisions upon the subject; that the districts shall consist of contiguous territory; that they shall be in as compact form as possible and that divisions of counties, towns or blocks shall only be made in the cases specified. It was to insure that such an apportionment should be governed by no considerations of convenience, nor rest in a large political discretion, that a review by the court was expressly provided for. That has been made mandatory, which before was discretionary. In my opinion, before this amendment of the Constitution, it was a grave and a doubtful question whether, in the absence of a gross and plain violation of the Constitution, the court was justified in interfering with the execution by the legislative department of the government of its duty of apportionment. But, by the amendment, the matter is placed upon a different basis and the duty is devolved upon the court to review an apportionment, when complained of, and, thereby, to enforce the constitutional mandates as they are expressed.

For these reasons, I shall concur with Judge CHASE'S opinion that this Apportionment Act is violative of the constitutional provisions.

I am, also, in agreement with the Chief Judge that no serious, or real, embarrassment can arise with respect to governmental, or legislative, acts. However the lay mind may apprehend confusion as the result of our decision, the legal situation, in my opinion, is clear and is correctly stated by Judge CULLEN.

HAIGHT, J. (dissenting).

While it has been held that the courts have the power to review the acts of the legislature in apportioning senatorial districts for the purpose of determining whether such acts are in compliance with the requirements of the Constitution, it has been the subject of considerable discussion as to how, or when, the question can be raised, and as to the extent of the power that should be exercised by the court in such review. It was, doubtless, because of such discussion and uncertainty that a new provision was inserted in the Constitution of 1894, which provides as follows: "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." (Art. 3, § 5.) Unfortunately, the legislature has not, as yet, adopted any regulations or prescribed the practice that should be followed in such a review. I, however, am of the opinion that the provision is self-executing, and, in the absence of legislation providing a practice to be followed, the courts will adopt such practice as will secure to all parties their rights to the review provided for. It will be observed that the door has been thrown wide open, and any citizen of the state is given the right to have a review. It is "at the suit of any citizen." The word "suit," as defined by Bouvier, is of comprehensive signification, and applies to any proceeding in a court of justice in which a person pursues a remedy which the law affords him for the redress of an injury or the recovery of a right. It includes both actions and proceedings. "At the suit of any citizen" may be by a proceeding, and the practice to be adopted should be of the simplest form. Any citizen, therefore, may move the court upon a petition or affidavit setting forth the grounds upon which he claims that the Apportionment Act violates the provisions of the Constitution, upon such notice as the court may require, which, doubtless, should be served upon the attorney-general and possibly the presiding officers of the two branches of the legislature, and thereupon, the court, before which the motion may be pending, must give precedence thereto over all other causes and proceedings, and if not in session it shall promptly convene and dispose of the same. I entertain the view that this provision of the Constitution was intended to give to every citizen of the state, who so desired, an opportunity to review the constitutionality of an apportionment act, and that the citizen first instituting the proceeding gives the court jurisdiction, and all other citizens desiring to move should come in and join with him, so that there may be one determination of the question, which will be final and conclusive upon all persons, and that the remedy thus given takes the place of and is exclusive of all other remedies for review which may have heretofore existed. Otherwise the door must remain open for any citizen, at any time during the ten years for which the apportionment runs, to bring up for review questions which may arise in different parts of the state with reference to the validity of the act, thus involving in doubt the de jure existence of every legislature that may be elected by the people. Under the Constitution and the statutes senatorial districts are required to be divided into assembly districts and assembly districts into election districts. This is followed by our primary and general election laws providing for the nominations of candidates and the manner of their election. A statute is presumed to be valid until its invalidity is adjudged by a court having jurisdiction so to do. If it is adjudged to be violative of the provisions of the Constitution, the previous existing law remains as if the statute had not been passed. In this case the effect would be to restore the senatorial and assembly districts as they previously existed. ( People ex rel. Farrington v. Mensching, 187 N.Y. 8.)

Under the new Apportionment Act sixteen of the old senatorial districts remain unchanged. The remaining thirty-four districts are divided and united with other territory. By restoring the old districts it would follow that sixteen senatorial districts only would be represented in the present senate and the other thirty-four districts would not be represented; and that in the assembly the only de jure members would be those who represent the old districts which have remained unchanged. In that event we should be confronted with questions of grave importance which ought not to be determined by dictum or without the aid of argument, as to whether vacancies would exist in the unrepresented districts and whether it would be the duty of the governor to issue his proclamation calling special elections in such districts; or whether the present legislature, being a de facto body, could continue its existence during the time for which the individual members composing it were elected, notwithstanding the fact that they were elected to represent districts which were created in violation of the Constitution. It can readily be seen that such a situation would not only disarrange the machinery of the legislative branch of the government, but would create confusion and chaos in all of the other branches thereof dependent thereon; as was said by PECKHAM, J., in the case of People ex rel. Carter v. Rice ( 135 N.Y. 473): "What is the result which would follow? In the first place we should have every enumeration and every apportionment act brought before the courts for review, and as it would not be necessary to act immediately any citizen, at any time during the running of the decennial period, would have the right to invoke the aid of the court to set aside as void any such act and leave the People to suddenly confront such a situation as is now presented. This, in itself, is sufficient to induce a court to say that only in a case of plain and gross violation of the spirit and letter of the Constitution should such a power be exercised. * * * The greatest confusion and disorder would result from a holding that this act is invalid. Whether any members of assembly could actually be elected under another law at this late day is quite problematical. The spectacle of a legislature elected under an unconstitutional law or part of the members elected under it and part under another, is one which ought not to be contemplated without the greatest anxiety by all honest citizens." I have thus called attention to the situation that confronts us for the purpose of aiding us in determining the meaning of the new provision of the Constitution under consideration as to the time when the proceeding should be instituted. As we have seen any citizen may institute the proceeding. The time within which the proceeding is to be instituted is not specifically stated, but the court is required to give the case precedence over all other causes, and if it is not in session it shall convene promptly and dispose of the same. If a citizen may take his own time for instituting the proceedings the command of the Constitution for a speedy determination by the courts would seem to be unnecessary. To my mind, the spirit and intent are apparent. If the court is to act speedily the suitor should also. While the door is thrown open to every citizen to institute the proceeding, he must act promptly so that the questions raised by him may be speedily determined and thus avoid the annulment of the other proceedings required by the Constitution and the statute with reference to the division of senatorial districts into assembly districts and other acts and proceedings dependent thereon and prevent the disarrangement of the machinery of the government and the confusion and chaos that are liable to follow. The Apportionment Act became a law on the 14th day of May, 1906. The first proceeding that was instituted to have it annulled was commenced on the 27th day of July thereafter. The first appeal taken to this court is dated December 6, 1906, long after the division of the senatorial districts into assembly districts and their division into election districts and after the election of senators and assemblymen had been made thereunder. This delay was through no fault of the courts. Each court assembled speedily and at once determined the question presented to it. It is true that in this court upon the former appeals taken the orders appealed from were found not to be in form to give us jurisdiction to review; but this fact should not operate to relieve the moving parties from the situation now confronting us, which is the result of their own fault. I, therefore, favor dismissal of the proceedings upon the ground of laches.

WERNER, J. (dissenting).

This court is about to annul an act of the legislature (Laws 1906, chap. 431) apportioning the state into fifty-one senate districts, and fixing the number of assemblymen to be elected in each county of the state. Against that decision I desire to record my dissent, because I deem it unnecessary in fact and unwarranted in law. Of the fifty-one senate districts into which the state has been divided, two have been selected by this court as presenting such inherent and controlling elements of invalidity as to justify the demolition of the whole of the existing legislative structure. It needs no argument that to avert such a consummation, with its inevitable train of confusion and uncertainty, the judicial department as one of the co-ordinate branches of the government should invoke every means within its power. As briefly as possible I shall attempt to convince my associates that the apportionment of 1906 was a valid exercise of legislative power, both as regards the element of legislative discretion and compliance with constitutional mandates. In this effort I shall not go into the constitutional history of the state, for that has been most admirably done by my brother CHASE, but will confine the discussion to those questions of immediate and practical importance that arise out of the Constitution of 1894 and the Apportionment Act of 1906.

The Constitution provides that "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." (Art. 3, sec. 4.)

It will be noted that this section of the Constitution imposes upon the legislature seven limitations in the making of an apportionment, four of which are mandatory and imperative, and three of which are coupled with discretionary powers. The mandatory limitations are (1) that senate districts "shall at all times consist of contiguous territory;" (2) that "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) that "no town and no block in a city inclosed by streets or public ways shall be divided in the formation of senate districts;" (4) that no district shall "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." The discretionary limitations are, (1) "each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens;" (2) "and be in as compact form as practicable;" (3) "counties, towns and blocks which, form 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."

Pursuant to the above-quoted constitutional provisions an enumeration of the inhabitants of the state was made in the year 1905, and this was followed in 1906 by the enactment of the statute, colloquially referred to as the Apportionment Law, by which the state was divided into fifty-one senate districts, and the number of assemblymen was fixed at one hundred and fifty to be apportioned among as many districts to be created by the several boards of supervisors of the counties of the state.

Under the enumeration of 1905 the citizen population of the state was 7,062,988 which, divided by 50 as directed by the Constitution, gives a ratio of 141,259 upon which to apportion senate districts. This simple sum in arithmetic revealed the cogent and immutable fact that at least twenty-three of the fifty-one senators must be allotted to the counties of New York, Kings and Erie, leaving but twenty-eight senate districts for all the rest of the state. After deducting from the total citizen population of the state that portion which was centered in the counties of New York, Kings and Erie, there was left for the other counties a total of 3,645,337 which, when divided by twenty eight, made a ratio of 130,190 for each of twenty-eight senatorial districts to be erected in the territory extending from the Harlem to Lake Erie and from the St. Lawrence to the Pennsylvania line. Of these remaining twenty-eight districts at least nine are quite as arbitrarily fixed as the twenty-three in New York, Kings and Erie, either on account of population or geographical location. These are the districts composed of Monroe, Onondaga, Oneida, Rensselaer, Westchester, Chautauqua and Cattaraugus, Rockland and Orange, Orleans and Niagara. Thus there were really only nineteen districts the formation of which had not been practically prearranged by the express commands of the Constitution. A mere glance at the map of the state is sufficient to convince one that these districts must necessarily differ in varying degrees, in the character and number of inhabitants, configuration and topography of territory, defined avenues of travel, means of intercommunication, and legislative needs. When the apportionment of 1906 is studied in the light of these potential considerations, and of the four imperative constitutional limitations above adverted to, it seems to me to present to the judicial mind abundant reason for the differences in size, shape and population that characterize the districts which are not arbitrarily confined to the fifteen enumerated counties by the express commands of the Constitution. Since these general propositions are so obviously true as to remove them from the realm of dispute, they are alluded to only for the purpose of showing that in selecting for criticism the two particular senate districts upon which the fate of this appeal now depends, my brethren seem to have lost sight of some of the just and broad considerations that have been influential if not controlling factors in securing judicial approval of other districts no less vulnerable. These general observations sufficiently pave the way for the discussion of the two districts as to which we differ.

It is said that in the erection of the second senate district, composed of the counties of Queens and Richmond, the legislature has violated several of the express commands of the Constitution, and has so palpably transcended the limits of legislative discretion as to compel the courts to declare the Apportionment Law invalid. It is true that in the creation of this district the legislature did not obey the constitutional mandate that each senate district "shall at all times consist of contiguous territory." And why? Because compliance with that mandate was impossible. Richmond county, with a population of 66,441, is an island literally contiguous to no other territory in the state. It is practically contiguous to New York and Kings counties, but cannot be joined with either of them because the Constitution also provides that "no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county." As the population of Richmond is scarcely more than one-half of the ratio which is the basis of the apportionment, it is obvious that the legislature adopted the only alternative in joining it to the territory most contiguous, which is the county of Queens. It is said that in joining together the counties of Queens and Richmond the legislature has violated that other constitutional requirement, "that each senate district shall contain as nearly as may be an equal number of inhabitants." The appellants call attention to the fact that, although the ratio is 130,190, the county of Queens has alone a population of 179,746, or an excess of 49,556, while the addition of Richmond gives the district a population of 246,187, which makes it the largest in the state and gives it an excess of 115,977 over the ratio. For the purpose of emphasizing the alleged legislative violation of the Constitution the appellants set these figures over against the 97,717 of population credited to the district composed of the counties of Wayne and Ontario, which is the smallest in the state. This is manifestly not a fair comparison. A scrutiny of the whole list of districts clearly discloses the varying inequalities in population caused by the effort of the legislature to observe, as nearly as possible, all the other conflicting constitutional requirements as to contiguity, compactness and county lines. These inequalities, so far from evincing the legislative disregard of the constitutional command that equality of population shall be produced "as nearly as may be," are a demonstration of the necessity for compromises between co-ordinate and conflicting requirements of the Constitution. When we consider that twenty-three of the fifty-one senate districts must be assigned to three counties before there can be any attempt to apportion the rest of the state, and that another group of eleven counties must as inevitably be divided into nine of the districts now appearing upon the map as though they were specifically named in the Constitution, it becomes apparent that there were great difficulties in the division of this vast remaining domain, embracing nearly 50,000 square miles, into the remaining nineteen districts, which had to be erected with due regard, not merely to approximate equality of population, but in obedience to the other and even more positive commands of the Constitution. The smallest district as well as the largest one may have been fixed by conditions from which there was no escape. Two districts at opposite ends of the state, the one wholly urban and the other almost entirely rural, cannot fairly be compared to test the validity of either, for each may be hedged about by peculiar conditions which render it impossible to avoid inequality in population. This is well illustrated in the case of the Queens-Richmond district. The geographical location of Richmond county is such that, within the limitations of the Constitution, it cannot be joined to any territory except that on Long Island outside of Kings county. To say that it may be joined to Rockland, Putnam or any other of the so-called Hudson river counties, which are from twenty-five miles to forty miles distant, is to annihilate every constitutional command save that which relates to equality of population. Such a solution of the problem would be as unreasonable as unjust. When we turn from such an impossible alternative to the only possible one, namely, that of a union of Richmond with one or more of the Long Island counties outside of Kings, we perceive that it presents nothing more than a choice of evils; on the one hand, Nassau and Suffolk which, when joined to Richmond, would have a population of 203,616, or 73,426 above the ratio; on the other hand, the Queens-Richmond district as now constituted with an excess of 115,997. It must be admitted that the difference of 42,571 is a very substantial one which, other things being equal, would be conclusive in favor of the Richmond-Nassau-Suffolk district, as against the Queens-Richmond district. But other things are not equal. Nassau and Suffolk counties are not as "contiguous" to Richmond as Queens. The two former are practically suburban counties, stretching along the shore of Long Island to a remote distance, while the two latter are distinctly urban, both being boroughs of the greater city and having an identity of interest that far outweighs the difference of a few thousand in population. These and other kindred considerations were probably influential in leading the legislature to decide upon the second district as it now stands. In Matter of Smith v. Board of Supervisors, St. Lawrence Co. ( 148 N.Y. 191) the petitioner urged that there should have been a transposition of two towns in St. Lawrence county, which were on the dividing line between two assembly districts, because that would have resulted in reducing the disparity in population from 716 to 144, or a gain in favor of equality amounting to 572. In the discussion in that case of the constitutional commands to the effect that assembly districts shall be as nearly equal in number of inhabitants as may be, and that they shall be of convenient and contiguous territory, in as compact form as practicable, this court clearly recognized the ample discretionary powers delegated to legislative bodies charged with the important duties of making apportionment. In speaking of those qualified clauses of the Constitution relating to equality of population and compactness, which not infrequently conflict with the unqualified clauses relating to contiguity of territory and the division of counties, towns and city blocks, this court said: "These qualifying words indicate the clear intention of the framers of the Constitution to permit the exercise of a reasonable and honest discretion on the part of the supervisors, provided that in no case should there be a greater excess in population over an adjoining district than the population of a town therein adjoining such assembly district. In the exercise of this discretion they are to lay out the districts so as to be of convenient and contiguous territory, in as compact form as possible."

In view of the unique physical situation of Richmond county, which renders impossible a literal compliance with all or any of the constitutional mandates relating to apportionment, I think it cannot fairly be said that a difference in population of 42,571 in favor of some other arrangement than that adopted by the legislature is sufficient to nullify the plan for the whole state. This is especially true when we consider the decision of this court in People ex rel. Carter v. Rice ( 135 N.Y. 482), where it was held that an inequality of 135, 418 between two districts in New York city was not enough to condemn the apportionment then under review. That decision, moreover, was under the act of 1892, which was bitterly impugned for partisan unfairness, while the contest at bar, so far as appears, is entirely devoid of all partisan interest.

The validity of the apportionment is further assailed in so far as it relates to the thirteenth district, which is one of the districts in the borough of Manhattan in the city of New York, and the attack is made upon the ground that it is in violation of the constitutional mandate that senate districts shall "be in as compact form as practicable." This provision as to compactness was not in the Constitutions which preceded the one adopted in 1894, and has, therefore, not been the subject of judicial construction in our courts. The noun "compactness" is defined in the Century Dictionary as "the state or quality of being compact; firmness; close union of parts." The noun "form" is defined as "the external shape or configuration of a body; the figure as defined by lines and surfaces." These two definitions clearly disclose the possibility of confounding "form" and "compactness" in cases where there is reason for preserving the distinction between them. To the ordinary observer a first glance at the map showing the thirteenth senatorial district would seem to suggest a plain absence of compactness when in fact it is nothing more than irregularity in form. Close union of territory does not depend upon any particular shape. In the physical world the most compact body is the complete sphere in which the center is at the same distance from every part of the surface. Next in order of compactness, perhaps, would be the perfect square, and then the parallelogram. For obvious reasons these arbitrary symbols cannot be applied to the demarkation of lands into political divisions. The rarity with which they are even approximated is shown by every geographical map ever made. It is to be observed, moreover, that the command as to compactness is qualified by the test of practicability. The senatorial districts shall "be in as compact form as practicable." In other words, they shall be as compact as feasible; as compact as may be, within the bounds of actual execution as distinguished from theoretical discussion. Compactness as applied to one situation may have a clear meaning that would be wholly inapplicable to a different situation. It may be one thing as applied to the Adirondack region and quite another as to a tenement-house district in New York city. I think it may also be fairly argued that the term "compact" as used in our Constitution has reference not merely to territorial compression, but to density of population and such considerations as convenience of access and unity of interest, as well as those constitutional limitations inhibiting the division of certain city blocks and enjoining the placing of others so as to produce the most approximate equality of population. When the matter is viewed in the light of these suggestions, it seems to me that a court cannot pass upon the compactness of a given district without critically going over the entire territory of which it forms a part, so as to be able to see what effect a different subdivision would have upon the whole. The most practical test of the question is to draw a rough sketch of an island of irregular shape and divide the interior into absolute squares each of which theoretically contains an equal number of inhabitants excluding aliens. The outer edge or fringe of the island would, in the nature of things, have to be divided into spaces of irregular shape, having a greater or lesser area than the squares, and representing corresponding differences in population. By dividing the total population of the island by the number of senate districts to be erected, the ratio for each district would be obtained. It will readily be seen that even under such an arbitrary arrangement the senate districts would necessarily have to be of irregular shapes and different sizes, thus embracing varying numbers of the squares or irregular spaces. The actual problem which confronted the legislature in the apportionment of Manhattan island was infinitely more difficult than is the illustration given above, for the reason that the population of the city blocks varies all the way from a single inhabitant in some cases, to three thousand and upwards in others, and when this situation is applied to the constitutional inhibition against the division of city blocks, it is apparent that in the effort to make districts "as compact as practicable" the legislature must be given great latitude. The question is not to be decided upon the form of one district; nor as though the courts were a second legislature with powers of revision. It must be met upon the broad ground that the courts shall not invoke the judicial power unless, after giving due heed to every practical difficulty with which the legislature has had to deal in the apportionment of a whole state, they shall regard the legislative discretion as having been so far transcended that annulment of the legislative enactment is unavoidable. The inability of courts to deal satisfactorily with questions involving the exercise of legislative discretion is very aptly expressed in Smith v. Board of Supervisors ( supra) in the following language: "It is quite impossible that the carving out of these districts with a due regard to convenience, contiguity and compactness could be accomplished in a satisfactory manner except by a board of officers thoroughly familiar with the territory and having an intimate knowledge of its towns, topography and means of communication by land and water. We should not feel justified in interfering unless convinced that there had been a clear abuse of discretion."

It is only when we consider that there is a legal presumption that the law-making power has performed its duty in the enactment of this statute, and that if there is any doubt upon the subject it is the duty of our courts, as a co-ordinate branch of government, to resolve it in favor of the validity of the work of the legislature, that we can fully realize how utterly indefensible the creation of a particular district must be, in order to justify the judicial overthrow of the whole plan of apportionment. In this connection the language of the Supreme Court of Illinois in a similar proceeding is singularly apposite. "Absolute exactness in that respect is not attainable. The requirement of contiguity of territory has been observed in every instance, but in the formation of one, at least, of the districts it might well have been urged in the General Assembly that the requirement of compactness had not been observed and complied with as fully, fairly and justly as might be done, and that a nearer approximation to compactness was attainable. How much nearer an approximation to compactness might have been made in this district could not, necessarily, be determined in view, alone, of the territory of that district and of the other districts adjoining it, but possibly only upon a view of all the districts of the state. A change in that district might have made necessary a readjustment of the entire apportionment, and this involved the exercise of judgment and discretion of the law-making body." ( People ex rel. Heffernan v. Carlock, 198 Ill. 150.) The only possible difference between the situation described in the case just cited and that in the case at bar, is that our legislature could have re-arranged the districts of New York city without affecting the districts in the state at large. Our courts, however, cannot do that. They must either support the whole structure or destroy it absolutely. Taking into account all the various elements that enter into a practical scheme of apportionment, I do not believe the courts should annul this act of 1906 because it is thought that the outlines of a particular district indicate that it is not as compact as it might have been made.

Having said all that I deem necessary about the two specific districts upon which the decision of this court is to depend, I will simply add a few general observations that may be quite as useful in pointing out the limitations upon the jurisdiction of the judicial department as in defining the extensive scope of legislative power. Under our theory of government all power is primarily lodged in the people. For practical purposes this power has been delegated to three departments, which are co-ordinate, but not necessarily in all respects co-equal. The legislative, executive and judicial departments, respectively, have powers as to which each is supreme. The power to make laws is manifestly superior to that of interpreting or executing them. Therefore, the legislative function is to that extent, and at least theoretically, paramount in dignity and efficiency to the executive and judicial functions. This I conceive to be one of the underlying principles which support the legal presumption that every statute pertaining to matters that are within the acknowledged powers of the legislature is valid and constitutional. This presumption can only be overcome by contrary proof that amounts to a demonstration. ( Fletcher v. Peck, 6 Cranch, 87; Ex parte M'Collum, 1 Cow. 564; Morris v. People, 3 Denio, 381.) "Before courts will deem it their duty to declare an act of the legislature void as in violation of some provision of the Constitution, a case must be presented in which there can be no rational doubt. The incompatibility of the legislative enactment with the Constitution must be manifest and unequivocal." ( People ex rel. Carter v. Rice, supra.) This general rule as to the presumptive validity of legislative action is accentuated when applied to a statute providing for a reapportionment of the inhabitants of the state, because the power to adjust and readjust the political divisions of a sovereignty is as purely political when exercised by the legislature as when exercised by the people. The mere fact that this power, when exercised by the legislature, is a delegated one, does not change its nature; it is always political, as distinguished from executive or judicial. Nor is it even strictly legislative. The adoption of the statute in which the power finds expression is doubtless a legislative act, but behind and beneath that act is the exercise of a power which is essentially political; the power to form and create subdivisions of the state. When the limitations upon that power are positive and arbitrary, so that the commands of the Constitution can be obeyed with mathematical precision, it follows that any substantial deviation therefrom must be fatal. But when the power is conveyed in language that not only implies but commands the exercise of discretion, it must be deemed a discretion adapted to the practical end sought to be attained; and the execution of such a power pursuant to several co-ordinate but conflicting constitutional commands, some of which are not arbitrary, but are qualified by expressions importing a grant of discretion to the legislature, is clearly beyond the reach of judicial interference unless the abuse of this political discretion is so gross and palpable that there can be no just dispute about it. Any other rule would necessarily involve the usurpation by the courts of the powers granted to the legislature. Upon that particular phase of the question before us, this court has spoken in no uncertain tone. Speaking through PECKHAM, J., it had said: "We do not believe in the propriety or necessity of any such rule. On the contrary, we think the courts have no power in such a case to review the discretion intrusted to the legislature by the Constitution, unless it is plainly and grossly abused." ( People ex rel. Carter v. Rice, supra.) In the same case the same learned jurist shows how plain and gross must be the legislative violation of the Constitution before the courts can interfere with the work of the legislature in making apportionment, and with his very apt words I close this discussion: "There are some inequalities which any one individual intrusted with the power might at once remedy, but which might be very hard to alter when brought under the review of one hundred and twenty-eight assemblymen and thirty-two senators. Local pride, commercial jealousies and rivalries, diverse interests among the people, together with a difference of views as to the true interests of the localities to be affected, all these things and many others might have weight among the representatives upon the question of apportionment, so that, in order to accomplish any result at all, compromise and conciliation would have to be exercised. Looking to the act as a result of such circumstances, and it seems clear that it cannot be said to be so far a violation of legislative discretion as to cause its complete overthrow by the courts." ( People ex rel. Carter v. Rice, supra.)

For these reasons I vote for the affirmance of the orders made by the courts below.

VANN, WILLARD BARTLETT, JJ. (and GRAY, J., in opinion) concur with CHASE, J., and CULLEN, Ch. J.; HAIGHT and WERNER, JJ., read dissenting opinions; WERNER, J., how ever, concurs in so much of Chief Judge CULLEN'S opinion as deals with the effect of the decision made.

Orders reversed, etc.