The opinion
W. F. Allen, J.-, (dissenting.)
The parties have agreed to a case and statement of facts, and have submitted the controversy between them to the decision of the court without action, as provided for by the code of procedure. The plaintiff is assessed and taxed by the pommon council of the city of Syracuse, as a resident of the pity, in respect to real property within the hounds of the city as heretofore incorporated, hut which was detached from the city and annexed to the *369 town of Dewitt, by chapter 341 of the laws of 1858. (Session Laws, p. 577.) The question is as to the validity of the act thus altering the bounds of the city of Syracuse and the town of Dewitt respectively, they having been in June, 1857, constituted parts of different assembly districts of the county of Onondaga, by the supervisors of the county, pursuant to the constitution and laws of the state. The change in the boundary lines of the city and town incidentally altered the boundary lines of the two assembly districts.
1. In construing acts of legislative bodies, they must be presumed to have intended only that which is apparent upon the face of the laws enacted by them. Their motives and intents cannot be questioned. If the apparent and well expressed purpose of the act of the legislature is within the legislative power, the validity of the act cannot be drawn in question upon the suggestion that an ulterior object and purpose, not within the scope of the power conferred upon the legislature, was contemplated. In other words, the act having a direct and proper application within the proper exercise of the legislative power, it will not be assumed that the legislature have fraudulently exercised their power and attempted to do that by indirect and circuitous action which they could not do directly. (Supervisors of Niagara v. People, 7 Hill, 505 ,511. People v. Draper, 15 N Y. Rep. 532, 545.)
2. All legislative power is vested in the senate and assembly of the state, and unless its exercise is restrained by express words of the constitution, or by necessary implication, those' bodies are the sole judges of the fitness and propriety of legislative action in a given case; and their acts cannot be questioned or reviewed. (Const, art. 3, § 1. People v. Draper, supra. Arnold v. Rees, 18 N. Y. Rep. 57, 67 .)
3. The incorporation of cities and villages, the erection and division of towns and counties, and the alteration of their boundaries, are legislative acts, and within the grant of power to the legislature. Plenary power is vested in the legislature to create, amend or divide, to define or alter the boundaries *370 of municipal corporations, as cities or villages, or towns and counties, which are mere political bodies and treated as corporations for certain purposes, and which are constituted for the purposes of civil government, unless some restriction or limitation, express or implied, as to the time or manner of the exercise of the power, is found in the constitution. (People v. Morrell, 21 Wend. 563 . Tanner v. Trustees of Albion, 5 Sill, 121.)
4. There is no restriction or limitation, in terms, in the constitution, upon the power of the legislature to alter the boundaries of the political bodies which it may create from time to time, as the public good may seem to require.
5. The restriction by implication, which is urged to avoid the law, rests upon the provisions of section five of article three of the constitution. Provision is first made, by that section, for dividing the several counties in the state into assembly districts, on the first Tuesday of January next after the adoption of the constitution; the clause expressly prohibiting the division of a town in the formation of the assembly districts. The section_then directs the legislature, at its first session after the return of any enumeration of the inhabitants of the state, to reaj>portion the members of assembly among the several counties of the state, and requires the boards of supervisors in such counties as shall be entitled to more than one member to assemble at such time as the legislature making the apportionment shall prescribe, and divide such counties into assembly districts in the manner before prescribed. And then follows the clause upon which stress is here laid : “ And the apportionment and districts so to be made shall remain unaltered until another enumeration shall be taken under the provisions of” section four of the same article. The legisla^ ture is prohibited from reapportioning members of assembly among the counties, except at the decennial periods mentioned, and the boards of supervisors are placed under a similar disability in regard to dividing the counties into assembly districts. This is the extent of the prohibitory clause, applying *371 it to each body in reference to the duties devolving upon it. As the legislature has no power to constitute and form the assembly districts, the prohibition against altering them does not apply to it. The duty of forming the assembly districts being expressly by the constitution cast upon the board of supervisors, it is necessarily excepted from the grant of legislative powers. And the legislature is prohibited from either performing the same acts itself, or conferring the power upon any other body to do them. As the legislature has no power to form the assembly districts, it necessarily follows that it has no jurisdiction over them to alter or change their boundaries; and without the prohibition referred to, the legislature would have had no authority to reorganize by law the assembly districts as formed by the boards of supervisors, or to alter their boundaries. The act of the boards of supervisors thus charged with the duty would have been final as well upon the legislature as every other part of the government and the public. The prohibitory clause does not therefore detract in the least from, or touch, the power of the legislature over assembly districts. But it does not follow that the legislature may not do what is clearly and confessedly within its power, because it may incidentally and in some of its details affect the work of the board of supervisors; as by changing the actual boundaries of the assembly districts formed by them. It may safely be assumed that the legislature will proceed neither rashly nor recklessly so as either by design or inadvertence, to interfere substantially with the divisions of counties into assembly districts and affect the equality of the representation. If this should be done, the error would doubtless be corrected as soon discovered. But that the legislature may do wrong, is no no ground for depriving it of power, by implication. The powers vested in the two bodies are not repugnant to each other; neither is the prohibition upon boards of supervisors, restraining them from altering the assembly districts, inconsistent with the power in the legislature to alter the boundaries of towns or other civil divisions of the state for the public *372 good. The power lodged with the supervisors having been executed, is functus officio until another census has been taken and another apportionment made; but the legislative power of the senate and assembly may be exercised at any time. It is no alteration of the districts, within the prohibition, so to alter the boundaries of towns or counties, that the territorial limits, the area, or population of an assembly district may be a little greater or less than as fixed by the supervisors. Towns cannot be divided in the formation of assembly districts, and if by addition of territory a town is made larger, the town as enlarged makes a part of the district, and that remains unaltered. It is the same district formed by the supervisors. The legislature cannot by direct enactment oust an individual from office before his constitutional timé of office expires; but if in the exercise of the legislative powers of legislation, as by the division of a town or county, a party is ejected from office, the law is nevertheless constitutional. (People v. Morrell, supra.) Probably the legislature could not have directed.that, notwithstanding the alteration of the boundaries of the city of Syracuse and town of Dewitt, the inhabitants of that part set off and annexed to Dewitt should, until the next census and apportionment, be deemed electors within the assembly district to which but for the alteration of boundaries they would have belonged. That would have divided a town, in the formation of assembly districts, which is forbidden by the constitution. It is incumbent on those alleging a want of power in the legislature to enact the law, to show that it is not within, or is excepted from, the grant of power. A prohibition to exprpjse a particular power is an exception to the general grant of power; and I look in vain, in the constitution, for an exception or prohibition, express or implied, which would reach this case. The cases cited from Massachusetts, as well, as thp opinions of the very able judges of the supreme judicial court of that state, in answer to interrogatories of the legislature, ( 6 Cush. 578 , and 2 Gray, 84 ,) do not aid us, essentially, in the construction of our own constitution. The two systems *373 of state government, including the civil and municipal divisions of the states for election and other purposes, are arbitrary, and so entirely dissimilar in their essential features, that one cannot well be elucidated by reference to the other. The constitutional provisions of Massachusetts are peculiar, and in many respects, if not more stringent than our own, regulate more in detail the action of the legislature over the civil divisions of the state.
[Onondaga General Term,
October 4, 1859.
I am of the opinion that the act setting off a part of the city of Syracuse and annexing it to Dewitt was constitutional, and that judgment should be given for the plaintiff.
Judgment for the defendant.
Pratt, Bacon, W. F. Allen, and Mullin, Justices.]