In re Fay

A challenge to the constitutional validity of the present reapportionment statute of this State (L. 1943, ch. 359) has been sustained at Special Term. That challenge, although varying in minor details, is common to the three proceedings captioned above which have been consolidated and come before us by direct appeal. (Civ. Prac. Act, § 588, subd. 4.)

The question presented is whether the Legislature of 1943 acted within constitutional limitations when it directed the reapportionment of Senate and Assembly districts according to the provisions of chapter 359 of the Laws of 1943.

The inquiry thus required of us must proceed with proper regard for the settled rule that a presumption of constitution

The importance to State government of the apportionment of Senate and Assembly districts has given that controversial subject a prominent place in the constitutional and legislative history of this State. In an effort, however, to confine this opinion to facts which relate themselves to the problem presented, we pass the earlier history of apportionment and come at once to the Constitution of 1846 which divided the State into thirty-two Senate districts, but made no provision to adjust Senate representation either to the future growth of the State or to possible future shifts of population from rural to urban districts. In 1846 the citizen population of the State was 2,450,778; in 1892 it had increased to 5,790,865. Although that increase was reflected to some extent in rural districts, the major portion of the increase had been in the cities. It thus came about in 1894 that a marked increase of population in the metropolitan areas caused the Constitutional Convention of that year to propose amendments to the Constitution which were adopted later and are effective today, the interpretation of which will be determinative of this appeal.

The record of the proceedings of the Constitutional Convention of 1894 gives clear proof that when the subject of reapportionment was under consideration the delegates were often reminded of the disparity in size and population between rural and urban Senate districts. They were also reminded that,

In our search to ascertain the purpose of the framers of the constitutional amendments proposed and adopted in 1894, presently to be considered, we gain accurate information from a portion of the “ Address to the People ” adopted at the close of its session by the Constitutional Convention of that year:

“ We have provided for a new apportionment of Senate and Assembly districts, and for that purpose have fixed the number of the Senate at fifty and that of the Assembly at 150. * * *

“ Since 1846 the great increase of population in the cities, entitling them to additional representation in the Senate, has required a corresponding decrease in the representation of the country districts, so that those districts have been constantly enlarged and their representation in the Senate has been constantly decreased. The object of the proposed increase is to restore the country districts to substantially the same position in which they were in 1846, and to provide for the increased representation of the cities by the increase in number, so that there will be effective representation of the country as well as of the city districts.” (Revised Record, Constitutional Convention of 1894, Yol. IV, pp. 1253-1254.)

After providing in article III, sections 2 and 3, that Senate districts in the State be increased from thirty-two to a minimum of fifty — which later provision, for the purposes of our present consideration, may properly be treated as having fixed in 1894 the basic number of Senate districts — the Constitution, under article III, section 4, then made provision and still provides for future readjustments and reapportionments of Senate districts by the Legislature. Directions are set forth for the enumeration of inhabitants, and those times are specified when Senate districts shall be “ readjusted or altered.” Then follow, under the same section, certain limitations upon the performance by the Legislature of the function of reapportionment — limitations which tend to make impossible the attainment of exactitude in reaching equality of representation in the apportionment of Senate districts on the basis of population:

“ * * * Such districts shall be so readjusted or altered 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 first year of the next decade as above defined, 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.

Finally we reach that paragraph of article III, section 4, the interpretation of which has given rise to the present controversy. That paragraph, as we have seen, is one of the constitutional provisions proposed by the convention of 1894, the “ object ” of which was declared by that convention to be — “ to restore the country districts * * *, and * * * provide for the increased representation of the cities by the increase in number [of districts], so that there will be effective representation of the country as well as of the city districts.” That objective was obtained by the following provision: Article III, section 4. “ * * * The ratio for apportioning Senators shall always be obtained by dividing the .number of inhabitants, excluding aliens, by fifty, and the Senate shall always be composed of fifty members, except that if any county having three or more Senators at the time of any apportionment shall be entitled on such ratio to an additional Senator or Senators, such additional Senator or Senators shall be given to such county in addition to the fifty Senators, and the whole number of Senators shall be increased to that extent.”

By anticipating a further increase in the urban population the convention of 1894 proved to be prophetic. Between 1894 and 1940 the citizen population of the State increased from 5,790,865 to 12,401,329. The major portion of that increase was in the cities — the City of New York alone having attained in 1940 a population of 6,632,398. In the meantime four reapportionment statutes were enacted by the Legislature, the last within that period being in 1917. (L. 1917, ch. 798; State Law, §§ 120-122.)

We come then to the present reapportionment statute (L. 1943, ch. 359), which has been declared unconstitutional at Special Term. By its enactment the Legislature, in an effort to give effect to the constitutional provisions governing reapportionment, has reapportioned the State into fifty-six Senate districts — a gain of six districts over the basic number of fifty fixed by the Constitution of 1894. We must assume that increase in

According to the Federal census of 1940 the citizen population of the State was 12,401,329. Applying to that figure the divisor fifty (being the minimum number of Senate districts fixed by article III, section 2) gave the quotient 248,027. Having thus found the quotient which is commonly termed the first ratio, and after determining that the five most populous counties — Kings, New York, Bronx, Queens and Brie — were entitled to “ three or more Senators,” the next requirement was to ascertain the total number of senators to which each of those five counties was entitled. That requirement was met hy dividing the citizen population of each of the five counties hy the first ratio, thereby producing a quotient in terms of full ratios which, under the Constitution (art. Ill, § 4), represented the total number of senators to which each of the five counties was entitled, plus an excess appropriate to each equation. This formula, when applied to the five counties mentioned above, produced the following results:

1,615,980 (Citizen pop.) New York Co.--=6 full ratios (Senators) +127,818 excess 248.027 (First ratio)

1,241,269 (Citizen pop.) -=5 full ratios (Senators) +1,134 excess 248.027 (First ratio) Bronx Co. —

1,203,752 (Citizen pop.) -=4 full ratios (Senators) +211,644 excess 248.027 (First ratio) Queens Co. —

765,073 (Citizen pop.) Brie Co.--=3 full ratios (Senators)+20,992 excess 248.027 (First ratio)

To determine under article III, section 4, the number of “ additional ” senators, if any, which should be apportioned to each of the five counties “ having three or more Senators at the

The comparison with the basic apportionment of 1894 adopted by the Legislature served to increase by two the number of senators which should be apportioned to Kings County. When applied to the county of New York, which in 1894 included Bronx County, the comparison warranted a decrease in the number of senators from twelve to eleven. That deduction, however, was not made in the reapportionment because the exception clause in article III, section 4, contained no provision for a decrease in the whole number of senators. In the territory comprising Queens County the citizen population, on the basis of four full ratios, entitled that county to four senators. The comparison with conditions dealt with by the convention of 1894 showed that in that year the territory which then comprised Queens County alone and formed a single district with one senator, now includes Queens and Nassau Counties. Nassau County, by the Federal census of 1940, had a population of 383,266. It thus has one full ratio which entitles it to one senator. By comparing the Queens-Nassau territory of 1943, then entitled to five senators, with the same territory in 1894, to which one senator was then apportioned by the Constitution of that year, the Legislature of 1943 apportioned four additional senators to that Queens-Nassau territory. Erie County, which had three senators in 1894, failed to show an increase sufficient to equal four full ratios and, accordingly, the number of senators to which it is entitled remains three. It is by the above method of computation, whereby Kings and Queens Counties are found to have three or more senators and show gains of two and four senators respectively, that the reapportionment of 1943 increased the whole number of senators to fifty-six.

To complete the reapportionment in the entire State the Legislature applied what is known as a second ratio. (See Matter of Sherrill v. O’Brien, supra, pp. 208-209.) By the application of the first ratio to the five larger counties having

In deciding that the reapportionment statute of 1943 is not consonant with the Constitution, Special Term reached the conclusion that a correct reapportionment upon the present record called for an increase of three in the whole number of senators, thus bringing the membership of the Senate to fifty-three. In doing so the court gave one additional senator to Kings County and two to Bronx County. No gain in the senatorial representation of Queens County was deemed legally justified because, it was ruled, that county was not one of those which had three or more senators before the time of reapportionment. In reaching those conclusions the court construed the clause “ any county having three or more Senators at the time of any apportionment ” (art. Ill, § 4), as meaning a county having three or more senators before the reapportionment. The court also ruled that — “ the number of senators which a county in the class of ‘ three or more senators at the time of any apportionment ’ has after the reapportionment should be compared with the number it had before the reapportionment ” ( 179 Misc.

We think the ruling at Special Term failed to heed statements made in the opinion of Matter of Dowling ( 219 N. Y. 44 ), in which proceeding, as we shall point out, there came before this court for consideration problems substantially the same as those in the present case. In the Dowling case cross appeals by all parties had brought to this court an order of the Appellate Division in a proceeding to test the constitutionality of the reapportionment act of 1916. (L. 1916, eh. 373.) For our present purposes it is important to note the text of the order of the Appellate Division, which was then made the subject of review in this court. The Appellate Division order provided:

“It is hereby ordered and adjudged that the order so appealed from be reversed on the law and the apportionment declared invalid in so far as it provides for fifty-one senators and allots two senators instead of one to Westchester County, and valid in all other respects. And it is

“ Further ordered and adjudged that the Secretary of State, in sending out his notice of election for the forthcoming General Election, as required by Section 293 of the Election Law shall include and direct in such notice that but one State Senator shall be elected for and from the County of Westchester; and that as to all other Senatorial districts in the State of New York, the notice so to be sent out shall be in accordance with the provisions of Chapter 373 of the Laws of 1916.”

The Appellate Division’s opinion ( 174 App. Div. 185 ) outlined the principal problem considered, by stating —“ The Apportionment Act provided for fifty-one Senators. The appellants claim that the total number of Senators should be fifty and not fifty-one.” The opinion concludes with the statement — “ The orders appealed from should, therefore, be reversed on the law and the apportionment declared invalid in so far as it provides for fifty-one Senators and allots two instead of one to Westchester county, and valid in all other respects.” Thereafter, upon appeal to this court, the briefs of counsel placed emphasis upon the issue which had been tendered for. decision in the Appellate Division. The brief by the Attorney-General on behalf of the appellants stated — “ The question then presented is whether we are to use the constitutional, appor

True it is that in the Dowling case this court declared the 1916 apportionment unconstitutional because of an error in the formation of certain designated Senate districts in New York County. It did not reach that decision, however, until it had considered and expressly decided the issue which was deter- ' mined by the Appellate Division order and presented to this court for review, and which had been denominated by this court as the first of the questions of law presented by the appeal. A statement made by the Supreme Court of the United States in Railroad Companies v. Schutte ( 103 U. S. 118 , at p. 143), applies here with equal force: “ It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the causé, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued, and elaborately considered in the opinion.” (See, also, Union Pacific R. R. Co. v. Mason City & Fort. Dodge R. R. Co., 199 U. S. 160 , 166; United States v. Chamberlin, 219 U. S 250 , 262; Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47 , 58, 59.)

The following excerpt from the opinion in the Dowling case (supra) states not only this court’s view as to how essential to the issue then sub judice was the construction of article III, section 4, of the Constitution, but also gives the court’s interpretation of those provisions of the Constitution which were followed by the Legislature in 1943 in reapportioning the Senate and are now in controversy before us (pp. 55-56): “It is necessary to determine in connection with the provision in the Constitution for ‘ an additional senator or senators ’ some specific time from which the computation must be made to

“ The words of the Constitution, namely, ‘ time of any apportionment,’ are important to put a limit upon all changes in the number and apportionment of senators. They do not necessarily fix the time from which to compute the number of additional senators, if any, to which a county is entitled. When at the time of any apportionment the number of senators by the ratio, as provided, is determined all the counties then entitled to three or more senators are to have the number of senators to which they are so entitled compared toith the number of senators given to such county by the Constitutiton of 1894, and if by the ratio any county is entitled to an additional senator or senators such additional senator or senators must be given to such county, and the number of senators in the State must be increased accordingly. Such interpretation respects all of the provisions of the Constitution.

. “ We do not think that the Constitution was violated in dividing the State into fifty-one senate districts.” (Emphasis supplied.)

We have not been persuaded that the interpretative statements last quoted above are irrelevant to the decision we are about to make; nor do we agree with counsel for some of the respondents that they contain an erroneous interpretation of provisions of the Constitution which are applicable to the proceeding now before us. We have seen that as an incident to a decision' of issues then presented for review, the court, in

The language employed in article III, section 4, of the Constitution, when considered in the light of constitutional history in this State as it relates to reapportionment, has led us to accept the statement quoted above from the Doivling case as containing an authoritative interpretation of the constitutional provisions .which are involved in the present proceeding. Accordingly we conclude that, in the process of reapportioning Senate districts in 1943, the Legislature acted in conformity with the constitutional purpose. To that end, after a correct application of the constitutional ratio, it computed the “ additional Senator or Senators ’ ’, if any, to which ‘ any county having three or more Senators at the time of [the] apportionment ” was entitled, by comparing the total number to which each such county was so entitled with the number that had been apportioned to that county’s territory by the Constitution of 1894, and by increasing the total number of senators accordingly — any increase over the total Senate membership of 1894 being added to the basic fifty.

Concededly the territories of Queens County and Nassau County in 1894 comprised one district to which one senator was then apportioned. At the time of the 1943 reapportionment the population Avithin that territory, which now comprises Queens and Nassau Counties, had increased to a figure in excess of five full first ratios and thus became entitled to five senators — Queens County having in excess of four full ratios and Nassau having in excess of one full ratio. There Avas thus a gain of four senators in that territory which, under the Constitution of 1894, was a single district. In the determination of the number of senators to which Nassau and Westchester Counties were

We have considered also the criticism directed by one of the petitioners to the reapportionment of members of the Assembly — approved at Special Term — and all other matters to which the briefs of counsel direct our attention. Our conclusion is that the reapportionment act of 1943 is in accord with the Constitution.

It follows that the order of the Special Term should be reversed and the petitions dismissed, without costs.

(concurring). Although the decision in Matter of Dowling ( 219 N. Y. 44 ) was based upon another ground, the rule formulated by Judge Chase and concurred in by a majority of the judges of this court on the subject of the reapportionment of Senate districts on which reliance is placed in the main opinion here was probably intended by the court as a guide for the Legislature in enacting future reapportionment statutes. Under circumstances appearing in this case, it may not be lightly rejected as dictum. Were those circumstances not present, it could have no more force upon later decisions than mere dictum in any case.

Grave difficulties arise in an attempt to reconcile the rule so formulated with the language of the Constitution. It is important to note that no bill or resolution for reapportionment applying that rule as now applied in the present Act reached the floor of the Legislature for twenty-five years after that opinion

Problems arising through the change in the territorial boundaries of New York, Queens and Westchester Counties and the creation of the counties of Queens and Nassau since 1894, were not open for decision nor considered in the Dowling case and are not affected by it. Nor did the framers of the Constitution provide for the situation thus presented in express terms. However, I cannot say that the statute enacted by the Legislature in treating those problems and other problems presented to it conflicted, beyond reasonable doubt, with the fundamental law.

The order appealed from should be reversed, without costs, and the several petitions dismissed.

Lehman, Ch. J., Loughran, Desmond and Thacher, JJ., concur with Lewis, J.; Rippey, J., concurs in separate opinion in which Conway, J., concurs.

Order reversed, etc.