Art. III, § 4 Census and Senatorial Apportionment 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. 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. Const. 1821, Art. I, § 6; Const. 1894, Art. III, § 4. of 1801, Art. IV. amended, Const. 1846, Art. III, § 4; amended, See also Const. 1777, Art. V, and amendments 66 Continuance of power to direct enumeration. Where the first legislature, convened at the expiration of a ten years' period, fails to perform the duty imposed upon it of directing an enumeration, the power to direct the enumeration is not lost until the recurrence of another ten years' period, but that duty devolves upon the next and each succeeding legislature until the constitutional mandate is obeyed. People v. Rice, (1892) 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, affirming 65 Hun 236, 20 N. Y. S. 293, and reversing 65 Hun 263, 20 N. Y. S. 97. Referring to the act under consideration there, the court said: "The act is alleged to violate the constitution because based upon an enumeration taken in 1892, instead of 1885. It is true that it was the duty of the legislature in 1885 to direct an enumeration of the inhabitants of the state in that year, and if it had discharged that duty it would have been the duty of the legislature at the first session after the return of that enumeration to proceed to apportion the members of assembly and to alter the senate districts. The legislature of 1885 omitted to perform the duty of directing an enumeration which was cast upon it by the constitution. Each succeeding legislature up to 1892 also omitted to perform this duty, and thus for several years the constitutional mandate had been violated. It is wholly immaterial to discuss the reason for such omission. It is clear that it should not prevent the performance of the duty by the next succeeding legislature. The provision of the constitution is so far mandatory that we can say the legislature of 1885 ought to have complied with it by directing the enumeration, yet as it did not, the duty continued and the power of the next legislature to deal with the subject cannot be disputed upon any well founded principle. And this duty continued and was cast upon each succeeding legislature until the constitutional obligation was fulfilled." Continuance of power to apportion. The power vested in and imposed on the legislature after an enumeration to pass a constitutional apportionment bill is continuing and does not expire until exercised and discharged. "First regular' merely prescribes when the legislature is first empowered to alter the districts for legislative representation." In re Reynolds, (1911) 202 N. Y. 430, 96 N. E. 87, 416, affirming 144 App. Div. 458, 129 N. Y. S. 629; Matter of Porter v. Whalen, 128 App. Div. 881, 115 N. Y. S. 1141; People v. Rice, (1892) 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, affirming 65 Hun 236, 20 N. Y. S. 293, and reversing 65 Hun 263, 20 N. Y. S. 97; Rumsey v. People, (1859) 19 N. Y. 41. Census and Senatorial Apportionment Art. III, § 4 Validity of apportionment made at special sessions. The legislature is not required to make apportionments at regular sessions only, and an apportionment is not unconstitutional because made at a special session. "The suggestion that the legislature at an extraordinary session would be under the domination of the governor and thus be induced to pass an unfair statute, and that the constitutional provisions were intended to guard against such an evil, is wholly fanciful. Such a thought might occur to a recluse whose knowledge of the world is exclusively gathered from the books in his library, but would not be considered seriously by any one whose familiarity with government was acquired by participation in public affairs. The governor would have no personal interest in an apportionment, and if he and the legislature were in accord, he would have no reason for resorting to an extraordinary session. On the other hand, no one can imagine that any governor could force a hostile legislature to enact an apportionment bill unfair to the party of the legislative majority either at a regular session or at an extraordinary session, unless possibly by the exercise of the veto power, which is equally great at either session." In re Reynolds, (1911) 202 N. Y. 430, 96 N. E. 87, 416, affirming 144 App. Div. 458, 129 N. Y. S. 629; Matter of Porter v. Whalen, 128 App. Div. 881, 115 N. Y. S. 1141. The same conclusion was reached in People v. Rice, (1892) 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, modifying 65 Hun 236, 20 N. Y. S. 293, where the court, construing a direction of the legislature to reapportion the state “at the first session" after an enumeration, disposed of several objections to making the apportionment at an extraordinary session Review of apportionment. The courts can review the action of the legislature in making senate apportionments, the right of review being recognized by article 3, section 5. Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. See also Sherrill v. O'Brien, (1906) 186 N. Y. 1, 79 N. E. 7, affirming 114 App. Div. 890, 101 N. Y. S. 858. Mode of review. The provision in article 3, section 5, that an apportionment by the legislature shall be subject to judicial review does not of its own force confer on citizens the right of direct appeal from the legislature to the court. The validity of an apportionment becomes a judicial question only when it arises in the regular course of some known judicial proceeding and until it so arises will not be decided. In re Reynolds, (1911) 144 App. Div. 458, 129 N. Y. S. 629, affirmed 202 N. Y. 430, 96 N. E. 87, 416. Laches in seeking review. Objections to the constitutionality of an apportionment must be pressed with due diligence or they will not be entertained by the court. In re Reynolds, (1911) 202 N. Y. 430, 96 N. E. 87, 416, affirming 144 App. Div. 458, 129 N. Y. S. 629; Matter of Porter v. Whalen, 128 App. Div. 881, 115 N. Y. S. 1141. Legislative discretion.- Undoubtedly this section contemplates an apportionment of senators and a division of the state into senate districts according to the cardinal principle of representative government, that every person shall be equally represented in the legislative body. In recognition of the practical difficulties attendant on the full realization of that end much is left to the legislative discretion. But an examination of the constitutions of the state from the first, adopted in 1777, to the last, adopted in 1894, together with the proceedings of the constitutional convention of 1894, shows an intentional and gradual withdrawal from the legislature of discretionary power and a continued adding of limitations upon its power in the matter of apportionment. "The constitution as it now exists should be construed so as to require that the legislature in dividing the state into senate districts make as close an approximation to exactness in number of inhabitants as reasonably possible in view of the other constitutional provisions, and that such approximation is the limit of legislative discretion." Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. That case overrules the doctrine of People v. Art. III, § 4 Census and Senatorial Apportionment Rice, (1892) 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, affirming 65 Hun 236, 20 N. Y. S. 293, and reversing 65 Hun 263, 20 N. Y. S. 97, to the effect that the fullest discretion is vested in the legislature in making apportionments. Compactness of senate district in city. The requirements for compactness would seem to exclude all possibility of irregular and rambling districts within the limits of a city entitled to several senators and an act (ch. 431, Laws 1906) laying out a district within a city is unconstitutional where that district is not reasonably compact. Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. The "meaning of the words 'contiguous territory' is not territory near by, in the neighborhood or locality of, but territory touching, adjoining and connected, as distinguished from territory separated by other territory." Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. ... Union of Richmond county with county not contiguous thereto.—“ Richmond county, never having had a population sufficient to entitle it to a senator, has by reason of its insular situation been peculiarly situated. The people, by constitution and by acts of the legislature, have treated it as an excepttion to the mandatory provision of the constitution in regard to contiguity, and because it has been necessary it has been joined in senate districts with counties whose actual and statutory boundaries do not touch or adjoin it." Therefore, "it should be held that the county of Richmond is exempt from the constitutional provision requiring that senate districts be composed of contiguous territory. The exception, however, should not be made more general than is required from the constitutional and legislative precedence. . . . The absurdity of joining Richmond county with some of the interior counties of the state to make a senate district is apparent upon a mere suggestion of such possibility. It should not be joined with a county other than one like itself bounded on the Atlantic ocean or with a county bounded on the Hudson river which is sufficiently near to Richmond county so that a senate district so formed would be as far as possible within the letter and spirit of the constitutional provision requiring that senate districts shall be in as compact form as practical.' We do think that the legislature violated the mandatory provision of the constitution relating to contiguity of territory by joining the county of Richmond with the county of Queens." Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. On the authority of Matter of Sherrill v. O'Brien, supra, it has been held that the Constitution was not violated by an act including Richmond and Rockland counties in one senate district. In re Reynolds, (1911) 202 N. Y. 430, 96 N. E. 87, 416, affirming 144 App. Div. 458, 129 N. Y. S. 629; Matter of Porter v. Whalen, 128 App. Div. 881, 115 N. Y. S. 1141. Purpose and origin of prohibition of division of county in formation of district. The general principle that the apportionment of representatives in the legislature is to be made upon the basis of population has been modified to preserve the autonomy of counties and their relation to representative senate districts. There could doubtless be a more exact mathematical division of population for the purpose of legislative representation, if the boundaries of counties were disregarded. But the principle of equality in representation is to some extent subordinated to the purpose of making counties the representative territorial units in the apportionment of senators. It is not difficult to trace the origin of this system embodied in our state constitution. It has its root in the prominence given to county government and to county organizations from the earliest period of our history and to the habits and associations of the people formed under the county system. The territory of the state in colonial times was divided into counties. Under the state constitution the county has been the agency of local government and administration in county affairs. Through the counties the state collects its taxes, and through Census and Senatorial Apportionment Art. III, § 4 county officers the judgments of its courts have been executed. Powers of local legislation from the beginning have to a greater or less extent been exercised by county boards, and the inhabitants of a county have been accustomed to act together in public affairs and in the promotion of local interests. It was not for mere convenience, therefore, that senate districts established by the constitution were made to consist of counties." People v. Westchester county, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74. Division of county intermediate apportionments. Prior to 1873 the rule had prevailed that the legislature had no power in the interval between apportionments to erect a new county or to change the boundaries of existing counties if its action in so doing involved the division of any county by a senate or judicial district inasmuch as those districts must consist of entire counties. Subsequent to that date, however, a clause was inserted in article 3, section 5 of the present constitution providing that nothing in that section should prevent the division at any time of counties and towns or the erection of new towns by the legislature. That clause is given a liberal construction by the court, and though found in a section relating to the formation of assembly districts, it is construed to authorize a change in county boundaries involving the division of a county by a senate district. "It is true that the clause is inserted in the section relating to the apportionment of assemblymen and the creation of assembly districts, and declares that nothing in this section shall prevent,' etc. But we think the insertion of this clause indicated an intention to leave the legislature free to exercise the power to change the boundaries of counties and towns and to erect new towns at any time in its discretion. It is difficult to see any reason for denying this power when its exercise would affect a senate district, and for permitting its exercise in the case of the smaller unit. There is another clause of some significance in the legislative article of the new constitution, taken from the amendments of 1874; but the legislature may abolish the county of Hamilton and annex the territory thereof to some other county or counties.' This power could not be exercised between two apportionments without changing the lines of the 27th senate district, since after the division that district would cease to be bounded by county lines." People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74; Zeimer v. Rafferty, (1897) 18 App. Div. 397, 46 N. Y. S. 345. Compare Lanning v. Carpenter, (1859) 20 N. Y. 447, affirming 23 Barb. 402, to the effect that the legislature cannot erect a new county in the interval between apportionments since a county erected at such a time is necessarily divided by senate and judicia districts until a new apportionment of the state is made. Effect of division intermediate apportionments.— Apparently, senate districts once organized in pursuance of the provisions of this section must remain unchanged territorially until after the next succeeding enumeration. A change in the boundaries of the counties of which they are composed does not automatically effect a change in their boundaries. This would seem to follow logically from the holding of People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74, with respects to districts created by section 2 of this article. It was there held that chapter 934, Laws of 1895, providing for the annexation of certain portions of Westchester county to the county of New York did not operate to transfer the territory so annexed from the senate districts wherein Westchester county lay to the district in which New York county was located. The court said that there is a broad objection to an interpretation of the constitution which would permit the legislature to take territory from one county and senate district and annex it to another senate district. "It would interfere with the basis of apportionment founded upon population, upon which the convention acted, and enable the legislature at any time, by changing the boundaries of counties, to subvert the approximate equality in population of the senate districts which it was the aim of the constitution to establish. It would place it in power of the legislature to undo and defeat the work of the convention under guise of changing county boundaries. The constitution gave to the county Art. III, § 5 Assembly Apportionment of Westchester one senator and three members of assembly, and the apportionment was fixed on the basis of its then existing population. The argument assumes that Westchester county would continue until another enumeration entitled to one senator and three members of assembly, although the greater share of its population may, by an act of annexaton, be transferred to another county, and although the county to which it is annexed will gain no additional representation. The consequences which might flow from the interpretation of the constitution just considered forbid its adoption. It would open the door for legislative interference with representative districts for partisan purposes under the guise of changing the boundaries of counties, the prevention of which was the object of several provisions of the constitution." See also Zeimer v. Rafferty, (1897) 18 App. Div. 397, 46 N. Y. S. 345. Similar conclusions were reached by the court in Lanning v. Carpenter, (1859) 20 N. Y. 447, affirming 23 Barb. 402, with reference to like apportionments found in the Constitution of 1846. Right to senator of county with requisite population.-A county having a citizen population in excess of the ratio established in accordance with this section for the apportionments of senators after a decennial enumeration is entitled to at least one senator. The legislature cannot abridge its right in that respect by uniting it with some other county in one judicial district unless at least that course is rendered imperative by the geographical position of the latter county. Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858. Legality of acts of legislature elected under unconstitutional apportionment. -A legislature elected under an Apportionment Act declared invalid after the election is a de facto body and its acts are in all respects valid. 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. Whomever either house receives as its legally elected member, becomes by virtue of his reception a de jure member of that house; so that each member thereof, so long as the particular house to which he has been elected does not oust him, is not only a de facto but a de jure officer, entitled to all the privileges and emoluments of his office, and his title thereto cannot be challenged before any tribunal except the house itself. But 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." Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 144 App. Div. 890, 101 N. Y. S. 858. See also Sherrill v. O'Brien, (1906) 186 N. Y. 1, dismissing appeal from 114 App. Div. 890, 101 N. Y. S. 858. § 5. Assembly apportionment. Ratio for apportionment. Number of assemblymen in each county. The members of the Assembly shall be chosen by single districts and shall be apportioned by the Legislature at the first regular |