De Camp v. Eveland , 1854 N.Y. App. Div. LEXIS 123 ( 1854 )

Welles, J.

The decision of this case depends upon the validity of the act of the last session of the legislature, by which the new county of Schuyler was erected. (Laws of 1854, ch. 386.) If that act was constitutional, the plaintiffs in the court below were entitled to recover. That court rendered judgment in favor of the defendant, upon the ground that the act was in violation of certain provisions of the constitution. .

According to our republican theory, the whole power of 'government resides, primarily, in the people of the state. This power is usually denominated legislative, judicial, and executive or administrative; the power to make laws, to interpret them and judge of their application, and to execute or administer them when thus made and interpreted. The people, by their organic or fundamental law, have transferred these powers, and distributed them into three departments, corresponding with the above mentioned division. By this organism of government, each department has annexed to the exercise of its functions certain restraints and limitations, a violation of which renders their acts, to the extent of the violation, inoperative and void. But, in each department,' the power, circumscribed by the prescribed limitation, is supreme and absolute. The people have relinquished it altogether, and, for the time being, it is irrevocable. If the agents, to whom its exercise is committed, prove unequal to the task they have undertaken, or unworthy of the confidence reposed in them, the remedy óf the people lies in a sort of reserved power of periodical elections and appointments. The power to make laws is manifestly superior to that of interpreting or executing them ; and hence the legislative must, in theory, at least, be paramount in dignity and efficiency to the other two departments. The two latter occupy positions subordinate to that of the former.

In the consideration of the case now before us, we are to set out with, the presumption that every state statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional; and that such presumption is not to be overcome, unless the contrary is clearly demonstrated. (Fletcher v. Peck, 6 Cranch, 87. Ex parte M’Collum, 1 Cowen, 564, Morris v. The People, 3 Denio, 381; and per Edmonds, J. in The People v. Newell, 3 Seld. 109.) With the foregoing considerations in view, we will proceed to the examination of the objections urged against the law in question, which are founded upon its supposed incompatibility with the constitution. The first of these is, that the act, being á local bill, embraces in its title and provisions more than one subject, and is therefore in violation of the sixteenth section of the third article of the constitution. This objection was properly overruled by the county court. The several matters to which the act relates, and the provisions which it contains, are all clearly upon one and the same subject, within the meaning of the section referred to. Their object was the erection of the new county, and they are all subordinate and auxiliary to that. The reasons of the county judge, in his opinion which is furnished us with the case, are satisfactory upon this point.

The next two objections may be considered together. They are, that the territory embraced in the act erecting the county of Schuyler does not contain, according to the last state census, sufficient population to entitle it to a member of assembly ; and also, that the act reduces the representative population of Che-mung county, by the same census, below the required ratio for a member; and is therefore a violation of the 5th section of the 3d article of the constitution. That section, near its close, contains the following provisions; “ Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to a member of assembly, and no new county shall be hereafter erected, unless its population shall entitle it to a member.” Both objections are founded upon the assumption that the legislature, in determining the question of population, are necessarily Confined to the last state census, which was taken in 1845. Was that the only basis upon which they had the right to proceed 1 Upon the correct solution of this question, the validity of the act erecting the new county very much depends. If the assumption is unwarranted, the principal objection to the act is disposed of. The prohibitory clause of the constitution above recited refers, as it seems to us, to the population at the time of the erection of a new county. The language is, “ No new county shall be hereafter erected, unless its population shall entitle it to a member.” This is manifestly prospective, not only in respect to the act forbidden, but also in relation to the state or condition of things, of which the. prohibition is predicated. To justify the construction contended for by the defendant’s counsel, it is necessary, after the word ■"population,” to interpolate the words, “ according to the last enumeration.” This would be unauthorized, and is not required to make the provision harmonize with any other part of the instrument; and would, moreover, violate a well settled rule of interpretation, which requires us to gather the intention from the language used, and to understand the language according to the natural, ordinary and popular import. (1 Story on Const. §§ 400, 401 and 402.) Unless, therefore, there is some other section or provision of the constitution, or something obvious in its plan or scheme, inconsistent with the idea that the legislature may act, in the erection of a county, upon the amount of population existing at the time of their action, that view must prevail in the present case; and, upon that subject, we have not been able to discover any difficulty in the way, It is not claimed that the legislature are in terms forbidden to proceed upon the actual state of the population for the time being. Has it been, or can it be clearly shown that, by doing so, the spirit or meaning of the instrument is frustrated ? It is not sufficient for those who question the power, to make out a probable case. Every reasonable doubt is to go in support of the action of the legislature. They may have acted unwisely, but it is not for the courts to inquire into the wisdom or expediency of their conduct. It is a simple question of power, which power is to be presumed, and unless clearly shown to be wanting, its exercise, no matter how objectionable, is to be upheld.

It has been urged, among other objections to the law under consideration, that the consequence may be, if it should be sustained, that at the next enumeration of inhabitants under the constitution, the territory embraced in the new county, as well as that of Chemung, may, one or both of them, be found so deficient in population as not to be entitled to a member of assembly according to the ratio of representation to be established by the legislature upon such enumeration, and the inequality of representation be thereby unnecessarily increased. To this it is a sufficient answer, that the same thing is liable to happen in respect to many of the other counties of the state. In this age of change, locomotion and emigration, it would not be surprising, if long established counties, whose population at the last census afforded a large fraction of representative population, should, by means of the arrangements and mutations of business, or the promptings of fancy or caprice, be reduced in population below the required ratio for a member of assembly. A great increase in one portion of the state, while other portions remained stationary, would tend to such a result. But the argument is an unfortunate one for the objector, as it proceeds upon the hypothesis that there has been, or will be, a decrease in the population of the territories embraced in the new county and in that of Chemung; while it is apparent that by adopting the census of 1845, if the hypothesis be true, the deficiency and consequent inequality would be greater than by proceeding upon the actual population, as it existed at the time of the passage of the act. If, on the other hand, the population of the proposed new county, or that of the counties from which it is to be taken, has increased since the census of 1845, it is equally obvious that its lines of boundary could be adjusted upon the basis of the present population, with less danger of encountering the difficulty apprehended, than upon any other basis. If it has remained stationary in respect to numbers, it is just as safe and wise a basis to proceed upon in the one case as in the other. When a new county is to be erected, its population shall be sufficient to entitle it to a member of assembly. If not sufficient, then the constitution forbids the act. The population of 1845 was not, in all probability, the same as that of 1854. In 1845, it might have.been sufficient, and in 1854, reduced below the ■ representative ratio ; and the converse of the supposed proposition is equally true. The objection, however, is founded entirely in conjecture, and scarcely deserves a serious answer.

It is also contended that the plan and structure of the constitution contemplates the decennial enumerations therein directed, as the bases of all erections and divisions of counties thereafter to take place. But this is nowhere declared in the instrument, nor can it be shown by just inference or intendment, and the assertion must be regarded as gratuitous. Assuming that the legislature may adopt that basis, we are of the opinion they are not bound to do so. The county judge, in his opinion, which is certainly able and ingenious, adopts it as an undeniable proposition, and builds his strongest argument upon that assumption. Therein, as we conceive, consists the fallacy of his reasoning. His premises being wrong, the conclusions are necessarily erroneous. The original and primary object -of the division of the state into counties was for judicial and municipal rather than political purposes. The mode of arranging practically the representation in the two branches of the state legislature and in the national congress, is secondary and subordinate, and has varied from time to time to suit the actual or supposed necessities or convenience of the people; at one time the state having- but four senate districts, afterwards increasing them to eight, and finally to thirty-two; formerly electing members of assembly by counties, and now by single districts ; and the same instability is predicable of the arrangement of judicial districts.

Ho one will deny that the erection and division of towns and counties, and the alteration of the boundaries thereof, are among the acknowledged and appropriate subjects of legislation. This new county has been erected in the regular exercise of legislative power; and it does not appear that its territory is now, or that it was when the act was passed, deficient in representative population to entitle it to a member of assembly, nor that the population of the county of Chemung is thereby reduced below the required ratio for that purpose. It will be seen, by an examination of the act in question, that one new town is erected and the boundary lines of others are changed, thereby increasing the territory and population of some, and diminishing them in others. And although the new county does not divide towns as so erected and changed in their boundary lines, the boundary lines of the county do not follow the lines of towns as they existed at the last state census. If the legislature had the right to do this, as we think is undeniable, it follows that the last state census cannot show the amount of population of either Chemung or Schuyler, at the time such census was taken, nor at any subsequent date. And, independent of these considerations, it is obvious that it cannot show the population of any portion of the state, at the time of the passage of the act.

That it is competent, in establishing the boundaries of a new county, to follow the lines of towns as they are found at the time of its erection, must be true; as, otherwise the result will be liable to follow, that the lines of the county will cross and intersect town lines as they exist at the time, leaving towns lying partly in one county and partly in another. There is no escaping the force of this view, but by holding the power ■ of the legislature over the subject, limited to the first session after an enumeration, and before any further changes are made in' town lines. We cannot agree that the power is to be thus circumscribed by construction and inference.

It is also contended that there is no legitimate means by which- the legislature can ascertain the actual present population of the territory to be embraced in a proposed new county, or of that of the counties from which it is to be taken. This objection supposes the legislature a subordinate tribunal holding jurisdiction under a superior power, and governed by established rules of proceeding and evidence. Such a supposition, we think, is radically and fundamentally erroneous. The constitution declares that the legislative power of the state is vested in the senate and assembly. This legislative power is the very highest attribute of sovereignty, and its depositary the embodiment and concentration of the whole political force of the body politic, with such restraints only as the charter of government has imposed. It is the law-making power, and, as heretofore remarked, superior to either of the other departments of government. The legislature are nowhere restrained, directed or limited in regard to the nature, grade or character of evidence which they must have as the basis of their action, or to guide them in their decisions. In some specified cases their power is limited, and in others conditional, depending upon the existence of certain facts. But they must necessarily decide whether such facts exist. Their general power to prescribe and regulate evidence for every other tribunal in the state has never been questioned, and it would present a singular anomaly if they were wanting in power to do the same for themselves, or to alter and change the same at pleasure; and it would be equally strange if any judicial tribunal in the state were permitted to review their decision upon the question of fact, on the existence of which their power to legislate in a particular case is made to depend. If such a thing were to be tolerated, it is not perceived why the existence of the fact in question may not, and in many cases must not, be proper to be submitted to a jury. It is believed that but few would be bold enough to contend for a principle pregnant with such absurd results. In the present case it is contended that the legislature have assumed the existence of the fact, in reference to population, without evidence. But this does not appear, and is not to be presumed. On the contrary, we are bound to presume they acted upon good and sufficient evidence ; and this presumption, from the nature of the case, must be conclusive. That we are not in possession of the facts or the evidence of them, which the legislature had, amounts to nothing in the argument. It is rare, if ever, that a statute contains a recital of them, and is not necessary in any case.

Several objections were raised upon the argument, to the effect that the erection of the new county interferes with the present constitutional arrangement of judicial, senatorial and assembly districts. These objections, we think, are unfounded in fact. Those districts as now established are to remain the same as at present until after the next decennial state enumeration of inhabitants, when the legislature are required by the constitution to rearrange and reapportion them. (Art. 3, §§ 4 and 5 of the Const., and §7 of the act in question.) This we think relieves the case from all constitutional difficulty of this description. We can perceive no objection to the erection and organization of a county for municipal and judicial purposes only, until the next political arrangement and apportionment of representation can be constitutionally made, with provisions securing to the electors, in the mean time, the full enjoyment of the right of suffrage; which we think the act in question has made. A principle analogous to this has been expressly held in the state of Massachusetts, and has been recognized in the state of Maine. In Massachusetts, as in this state, the constitution requires a census to be taken at the expiration of every ten years. In that state, members of the house of representatives are chosen by towns, and senators by counties. In March, 1851, the senate proposed to the supreme judicial court certain questions, to which an answer was returned, in which all the members of the court concurred; to the effect, that the legislature have constitutional power to change the boundary line of counties, by transferring or setting off any number of entire towns for all purposes for which counties are established, except that of constituting senatorial districts. That they also have the constitutional power to change the boundary lines of towns for all purposes other than those incident to the election of senators and representatives, although, by so doing, they change the boundary lines ofcounties; and in changing the boundary lines of towns by annexing part of one town to another, or by constituting a new town from one or more existing towns, the legislature may reserve and secure to the inhabitants residing in each portion or portions, a right to vote, in the election of representatives, with the town or towns from which such portions are taken, until the expiration of the next preceding apportionment of representatives. (6 Cush. R. 578 to 583.) The opinion of the court fully sustains the foregoing abstract, and is here referred to, as a clear and convincing illustration of the power of the legislature upon the subject under consideration.

In an opinion of the supreme judicial court of the state of Maine, given in answer to questions submitted by the house of representatives of that state upon a kindred subject, the court, in conclusion, say: “ The right of the legislature to incorporate a town, composed of parts of several other towns, is not intended to be denied or questioned. If not done at the time of a general apportionment, provision may be made that such inhabitants as are entitled to vote for a representative shall remain united to their respective districts for the election of a representative, until the next general apportionment.” (33 Maine R. by Reddington, 587, 8.)

The 7th section of the act erecting the county of Schuyler, declares that the electors embraced within the new county, until after the next state census, shall continue to vote for members of the legislature and justices of the supreme court, as electors of the respective counties to which they have heretofore belonged, the same as if the act had not been passed. • If it should be objected that here is provision made for voting, only until after the next census, which may be completed before the general election of 1855, and if so, the electors of the new county may, to a certain extent, be disfranchised at that election ; the answer obviously is, that by a reasonable and fair construction of the section, the provision is to continue as long after the census shall be taken, as may be necessary to enable the legislature of 1856 to alter and rearrange the senate districts under section 4 of article 3, the judicial districts under section 16 of article 6, and to reapportion the members of assembly under section 5 of article 3 of the constitution. Such construction does not violate the letter, and is plainly the meaning of the section.

In section 4 of ai'ticle 3 of the constitution, it is provided that no county shall be divided, in the formation of a senate district, except such county shall be equitably entitled to two or more senators; and section 4 of article 6 provides that judicial districts shall be bounded by county lines, &c. And it is contended that, as a necessary inference, the legislature are equally forbidden to divide senate or judicial districts, in the erection of counties. But this is a non sequitur. At the first session after the return of each enumeration, the legislature are to establish the districts; and in doing so, they are not to divide counties previously erected, as they shall then find them. This is all that is intended by the sections referred to. The argument of the defendant’s counsel, if sound, would prohibit the erection of a- county, unless under very limited restrictions, at any other time than at the formation of the districts.

For the foregoing reasons we are of the opinion that the law, erecting the new county of Schuyler, is valid and constitutional; and that the. judgment of the county court holding otherwise should be reversed, and a new trial granted, with costs to abide the event.

T. B. Strong, J., concurred.