Art. III, § 5

Assembly Apportionment

In re Baird, (1894) 142 N. Y. 523, 37 N. E. 619, affirming 75 Hun 545, 27 N. Y. S. 535. The court there considered the extent to which an appor tionment made by the board of supervisors in full recognition of the limited nature of their discretion and not in reckless disregard thereof will be reviewed. The court held that such an apportionment would not be reviewed unless it worked a grave, palpable and unreasonable infraction of the rule of numerical equality. The two cases last discussed were decided prior to the adoption of the mandatory provision that no district shall contain a greater excess in population over an adjoining district in the same senate district than the population of a town in the former and adjacent to the latter district. The effect of that provision is therefore not considered by them.

66

Effect of inclusion of aliens in apportionment.— Though this section provides that the assembly districts shall be as nearly equal in number of inhabitants, excluding aliens, as may be," an apportionment of a county is not necessarily invalid because aliens were not excluded in determining the basis therefor. The court will not presume a material disproportion in the distribution of aliens throughout the county and apparently the apportionment will not be set aside unless it is shown that the inclusion of the aliens caused serious inequality between the respective districts in the number of their citizen inhabitants. In re Whitney, (1894) 142 N. Y. 531, 37 N. E. 621, affirming 75 Hun 581, 27 N. Y. S. 657. Similar reasoning was employed by the court on an analogous point 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, and reversing 65 Hun 263, 20 N. Y. S. 97.

City ward as town.- Although a ward is sometimes treated as a town for the purposes of municipal government, it is not a town within the meaning of the clause prohibiting the division of a town or block in the formation of assembly districts. "The constitution forbids the division of towns, but not the division of wards in the formation of assembly districts. The town is a municipal division of the state of very ancient origin. The wards into which cities are divided have no resemblance to it unless it be in the circumstance that they are represented in the board of supervisors. The indivisibility of wards in the creation of assembly districts cannot be implied from the provision against dividing towns. A ward is not a town, though it may be treated as a town for some purposes of municipal government. The framers of the constitution in prohibiting the division of towns, had no intention to include the wards of a city within the provision. If they had they would have said so." In re Baird, (1894) 142 N. Y. 523, 37 N. E. 619.

Members of body exercising powers of common council as constitutional officers. The city of New York is a "city embracing an entire county and having no board of supervisors." Under the Greater New York charter the board of aldermen exercises the powers of a common council and discharges the duty of apportioning the counties of which the city is composed into assembly districts. "The board of aldermen of the city of New York, thus being the body upon which the constitution has devolved this most responsible duty, so far as assembly districts are concerned, is a constitutional body, so long as it remains vested with this power of apportionment, and the aldermen who constitute the board are necessarily constitutional officers. The fact that they may cease to be such if the legislature should transfer the powers of a common council from them to some other body does not affect the question." Being constitutional officers the New York city aldermen fall within the purview of section 5 of article 10, which provides that in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy, and no vacancy in the office can be filled for a longer period than the interval between the occurrence of the vacancy and the beginning of the

Assembly Apportionment

Art. III, § 5

next political year. People v. Hogan, (1914) 214 N. Y. 216, 108 N. E. 459, affirming 165 App. Div. 298, 151 N. Y. S. 261, 166 App. Div. 895, mem., 151 N. Y. S. 270. (Seabury, J., and Collins, J., though reaching the same conclusion on the case as the majority of the court, differed with the majority on the point set out above. The Appellate Division agreed with those two justices in its argument.)

Sufficiency of population of new county. The requirement that no county shall be erected unless its population shall entitle it to a representative in the assembly has reference to the time of erection of the new county, not to any earlier or later date. The county must have the requisite population when created. The legislature is presumed, however, where it has created a new county to have acted only after a determination that the population thereof satisfies this requirement. Its conclusion on that question is not open to judicial review. Thus, Mr. Judge Strong, speaking for the court in Rumsey v. People, (1859) 19 N. Y. 41, said: "My conclusions upon the questions as to the requisite population are, first, that the constitutional provision as to that had reference to the time when a new county should be erected, and not to any time antecedent or subsequent; second, that it is to be presumed that the legislature obtained and acted upon sufficient evidence; third, that there is no power in our judicial tribunals to review the conclusion of that body upon a question of fact.”

Erection of town. The clause providing that "nothing in this section shall prevent the division at any time of counties and towns, and the erection of new towns by the legislature," is almost if not quite an express grant of the power to create a new town. Fort v. Cummings, (1895) 90 Hun 481, 36 N. Y. S. 36.

Division and erection of county.- By virtue of the provision that nothing in this section shall prevent the legislature from dividing counties, a town may at any time be taken from one county and added to another. "Towns belonging to one assembly district may be divided, and the part taken away may be added to a town in another assembly district. Such changes would not violate the prohibitions that 'no town shall be divided in the formation of assembly districts,' and that assembly districts once formed 'shall remain unaltered until another enumeration,' on the construction that the assembly districts existing when a division is made remain territorially the same, notwithstanding the division. 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.'

But we think the insertion of this clause indicates 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 the permitting its exercise in the case of the smaller unit." And the power is not inhibited where its exercise would affect judicial districts and departments, People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74. See also Zeimer v. Rafferty, (1897) 18 App. Div. 397, 46 N. Y. S. 345. Apparently the first case cited above overrules the doctrine of Lanning v. Carpenter, (1859) 20 N. Y. 447, decided before the adoption of the above mentioned clause to the effect that the legislature cannot erect a new county in the interval between apportionments. Similarly, the decision overrules Kinne v. Supervisors, 3 Keyes 110, holding that the legislature cannot alter the boundaries of cities or towns intermediate apportionments if the alteration affects the boundaries of assembly districts.

Effect of division of county.-- Territory taken from a county in one senate district and annexed to a county in another remains in the former county for the purpose of the formation of assembly districts until the legislature reapportions the members of the assembly among the respective counties in

accordance with this section. This rule is seemingly inimical to the provision of this section requiring boards of supervisors in counties entitled to more than one member of the assembly to “divide such counties" into assembly districts. To avoid that repugnancy, the word “counties" must be con strued as meaning the territorial divisions existing when the current apportionment was made. 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. See also Lanning v. Carpenter, (1859) 20 N. Y. 447, affirming 23 Barb. 402.

§ 6. Compensation of members of legislature.

Each member of the Legislature shall receive for his services an annual salary of one thousand five hundred dollars. The members of either house shall also receive the sum of one dollar for every ten miles they shall travel in going to and returning from their place of meeting, once in each session on the most usual route. Senators, when the Senate alone is convened in extraordinary session, or when serving as members of the Court for the Trial of Impeachments, and such members of the Assembly, not exceeding nine in number, as shall be appointed managers of an impeachment, shall receive an additional allowance of ten dollars a day.

Const. 1821, Art. I, § 9; amended, Const. 1846, Art. III, § 6; amended 1874.

§ 7. Member of legislature not to hold other civil office.

No member of the Legislature shall receive any civil appointment within this State, or the Senate of the United States, from the Governor, the Governor and Senate, or from the Legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void.

Const. 1821, Art. I, § 10; amended, Const. 1846, Art. III, § 7; amended 1874.

66

Appointment by justice as civil appointment.— This section does not prohibit the appointment of a member of the assembly to the clerk of the District Court of the city of New York by a justice of that court, as such justice is not an officer of the city government. The evil which this section sought to remedy and prevent was the corruption of the appointing power and the member of assembly, rather than to exclude the member of assembly from participation in the civil service of the state; and the reason appears quite plain in the fact that between the several sources of the power of appointment mentioned in the constitution, and a member of assembly, there exists a relation by which the one or the other might be influenced in their official action. The appointing power might, in consideration of a

vote for a particular measure, hold out as an inducement thereto a promise of appointment to a particular office. So, on the other hand, a member of assembly might withhold a vote for a particular measure in order to coerce the appointing power into a compliance with his demand for civil appointment. In other words, if the power existed to give and the right existed to receive, it could be made the basis of traffic for official action, and this evidently was the evil at which the amendment was aimed. No such reason exists as applied to the appointing power in the present case." Stewart v. New York, (1897) 15 App. Div. 548, 44 N. Y. S. 575.

88. Certain officers disqualified as members.

No person shall be eligible to the Legislature, who at the time of his election, is, or within one hundred days previous thereto has been, a member of Congress, a civil or military officer under the United States, or an officer under any city government. And if any person shall, after his election as a member of the Legislature, be elected to Congress, or appointed to any office, civil or military, under the government of the United States, or under any city government, his acceptance thereof shall vacate his seat.

Const. 1821, Art. I, § 11; amended, Const. 1846, Art. III, § 8; amended in 1874.

A member of the board of park commissioners, appointed under and in pursuance of the Act of 1891 (ch. 308, Laws of 1891), providing for a public park in the city of Hornellsville, is an officer under the city government within the meaning of this provision. People v. Canvassers, (1891) 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646. In that case it was said: "It is of course possible that park commissioners could be so constituted by the legislature as not to become city officers, but such is plainly not the effect of this act. So we reach the conclusion that the relator was not eligible under the constitution to the senate. The term eligible relates to the capacity of holding, as well as to the capacity of being elected to the office. Therefore, he could not be elected to or hold office of senator. He violated the constitutional provision in seeking the votes of the electors, and they violated it in voting for him.”

89. Time of elections of members of legislature.

The elections of senators and members of assembly, pursuant to the provisions of this Constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the Legislature.

Const. 1821, Art. I, § 15; amended, Const. 1846, Art. III, § 9.

This section is imperative with respect to the day on which the elections shall be held. "Should the legislature direct it to be held on a different day, as they are empowered by that instrument to do, such day would be imperative also. The constitution is silent with respect to the hour of the day at which the poll shall be opened and closed; the regulation of that matter is thus left to the legislature, and, when they do not interfere, to the common law." People v. Cook, (1853) 8 N. Y. 67, 59 Am. Dec. 451, affirming 14 Barb. 259.

A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the Senate shall choose a temporary president to preside in case of the absence or impeachment of the Lieutenant-Governor, or when he shall refuse to act as president, or shall act as Governor.

Const. 1821, Art. I, § 3; amended, Const. 1846, Art. III, § 10; amended, Const. 1894, Art. III, § 10. See also Const. 1777, Art. IX.

Nature of powers conferred. With reference to this section, it has been said that "the power thus given to the houses of the legislature is a judicial power, and each house acts in a judicial capacity when it exerts it." People v. Hall, (1880) 80 N. Y. 117. Accordingly, under this section, "each house of the legislature has jurisdiction to determine whether or not a person who has been duly declared elected a member of that house has been properly elected." People v. Fornes, (1903) 79 App. Div. 618, 80 N. Y. S. 385. See also People v. Canvassers, (1891) 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646. Issuance of mandamus.- The denial of a writ of mandamus to compel the board of state canvassers to issue a certificate of election as state senator to a person whose election to that office contravened section 8 of this article was not an interference with the jurisdiction of the senate given by this section as it in no way affected the right of that body, when it convened, to determine whether the claimant was entitled to the office. People v. Canvassers, (1891) 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646. In that case the court said: "It is undoubtedly true that the courts cannot by quo warranto try the title to a legislative office. But this is not such a case. Here the relator comes into court and asks its aid to clothe him with apparent title to an office, and by its affirmative action, to remove obstacles which stand in his pathway in his proposed intrusion into the office; and upon the undisputed facts, the court is able to see that he is ineligible, and it simply determines that it will not aid him; and in making such determination, it in no way infringes upon the jurisdiction confided to the senate. It simply exercises a jurisdiction which he has invoked."

Effect of adoption of rules. Apparently, a house is bound by its duly established rules of procedure. It cannot arbitrarily depart therefrom, and conduct its proceedings according to other rules unknown to the system adopted. Thus, the assembly can reconsider its vote on a bill only according to the rules prescribed by it for such action. People v. Devlin, (1865) 33 N. Y. 269, 88 Am. Dec. 377.

Punishment of crime by disqualification to hold office generally. The infliction of a disqualification to hold office, as a punishment, is not incompatible with this section. Thus, the act to suppress dueling, passed November 5, 1816, (sess. 40, ch. 1,) which declares that any person convicted of challenging another to fight a duel, etc., "shall be incapable of holding or being elected to any post of profit, trust or emolument, civil or military, under this state," is constitutional. Barker v. People, (1824) 3 Cow. 686, 15 Am. Dec. 322. The court said: "The sense of this provision is, that each house shall decide upon the qualifications of its own members without interference or control from any other authority; but this part of the constitution