Matter of Sherrill v. . O'Brien

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 *Page 218

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 *Page 219

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 *Page 220

( 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 *Page 221

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.