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other counties having more than three senators showed no increase. Kings county was given an additional senator and the whole number of senators was increased to fifty-one.

The enumeration for 1915 showed 8,059,515 citizen population, giving a ratio of 161,190. Under this Kings county is entitled to eight senators with a reminder of 151,701, only 10,000 short of another full ratio. There is no change in the representation of New York, Bronx or Erie, the only other counties having three or more senators. "addi

In 1905 the eighth senator in Kings county was an tional" senator, but it has been contended, as there was no increase in that county on the present Apportionment over the Apportionment of 1905, that the eighth senator ceased to be an "additional" senator.

The provision for an increase in the number of senators was intended to protect the rural counties.

Under the present apportionment the counties of Westchester and Queens must each have two senators when they only had one each and those two senators, gained by the urban counties, must be taken away from the forty-eight rural counties which had nineteen senators under the apportionment of 1905 and can have but seventeen of the fifty-one senators under the present apportionment and only sixteen if the total number be reduced to fifty. These forty-eight counties contain an area of 41,286 square miles out of 50,326 square miles in the entire State.

If the apportionment of 1925 increases the number of senators by seven and maintains the rural districts intact by increasing the total number to fifty-seven, the reduction to fifty senators in 1935 would reduce the number of senators representing the forty-eight rural counties to nine. The Constitutional Convention in 1894 had no such intent. It is submitted that the safeguard provided against such a contingency was permanent and not for a ten year period.

It is further urged that a construction which permanently increases the number of senators with the increase of the urban population makes for equality of representation and serves to protect the city of New York as well as the country.

In 1865 Monroe county and what is now Greater New York had a population of 1,279,189 including aliens as compared

with 3,808,735 for the whole State, or 33 per cent. In 1875 the same cities had 1,867,149 as compared with 4,698,958 for the whole State of 39 per cent. In 1892 the population of these urban counties had increased to 51 per cent of the whole State, in 1905 it was 56 per cent and in 1915, 60 per cent.

The debates of the Constitutional Convention and particularly the remarks of Mr. Bush, found at Volume 4 of the Proceedings of the Convention, page 648, indicate that the framers of the Constitution had these considerations in view when they provided for an increase in the number of senators, and that they intended the increase to be permanent and not merely for ten year periods. The Committee, therefore, concluded that the apportionment of senatorial districts should be based upon fifty-one senators.

A problem was also presented by Section 5 of Article 3 of the Constitution which regulates the method of apportioning members of Assembly to the several counties.

The section seems to provide in plain language for four distinct steps as follows:

First. One member of Assembly to every county having less than a ratio and one-half over.

Second. Two members to every other county.

Third. All remaining members on a new ratio to counties having more than two ratios.

Fourth. Remaining members to be apportioned to these counties upon remainders in numerical order.

There could scarcely be room for difference of opinion as to the rules laid down were it not for the fact that the Constitutional Convention which prescribed these rules for future apportionment adopted a method slightly different in computing the apportionment of members of the Assembly.

The paragraph to be construed as originally reported by the Committee on Legislative Apportionment (August 27th. Volume 3, page 343, Proceedings of Constitutional Convention), read as follows:

"The quotient, from dividing the total population excluding aliens, by the number of members of Assembly, shall be the ratio for apportionment; which shall be made as follows: "First. One member of Assembly shall be apportioned

to every county (including Fulton and Hamilton), containing less than the ratio and one-half over.

"Second. Two members shall be apportioned to every county (including Fulton and Hamilton), containing such ratio and one-half over, but less than twice said ratio and one-half over.

"Third. The total population excluding aliens, of the remaining counties of the State shall be divided by the number of remaining members of the Assembly, and the quotient shall be the ratio for the Apportionment of said remaining members.

"Members apportioned on less than the ratio shall go to the counties having the highest remainder, in the order thereof, respectively.

"No county shall, in any case, have more members of the Assembly than a county having a greater population."

The method prescribed as above varies only slightly from the method as finally adopted, so slightly that the practical difference in 1894 would have been to give New York county thirty-four members instead of thirty-five and Monroe county five members instead of four. The computation was made upon the rules just stated, and was submitted to the people separately from the rest of the Constitution and without change.

But on September 11, 1894, less than three weeks before adjournment, an amendment was introduced which changed the language to read as at present (Proceedings of Convention, Volume 4, page 368).

By chapter 431 of the Laws of 1906, the Legislature made an apportionment based upon the enumeration of 1905, and followed the plain meaning of the language of the section as amended and not the method prescribed by the language of the section as it stood when the apportionment was made by the Constitutional Convention.

Where the language is as plain as it is here, there is no room for construction for statutes which are plain and explicit cannot be qualified.

Hyatt v. Taylor, 42 N. Y. 258.

Johnson v. H. R. R. R. Co., 49 N. Y., 455.

Under the method adopted in 1906 Monroe received five members and New York county thirty-five members. If the method prescribed prior to the final amendment and followed by the Constitutional Convention had been adopted, New York county would have had thirty-six members, and Monroe county four members, the only difference being in the apportionment on the remainders and the only actual variation in the number of assemblymen alloted to the several counties being respectively in New York and Monroe.

This apportionment was set aside by the Court of Appeals in Sherrill v. O'Brien, 188 N. Y., 185, after a prolonged contest in which every objection to the apportionment was raised that the ingenuity of counsel could devise, but nowhere in any of the briefs either in the Appellate Division or before the Court of Appeals was the suggestion made that in allotting the assemblymen to New York and Monroe counties the Legislature had not correctly construed the meaning and intent of Section 5, Article III of the Constitution.

The apportionment having been set aside, the Legislature of 1907 made another apportionment, which said apportionment is that now in force. Under this apportionment, New York county was given thirty-five members, and Monroe county five members. Had the method of computation employed by the Constitutional Convention, under the former reading of the paragraph, been adopted, New York county would have been entitled to thirty-six members and Monroe county to four members. But chapter 727 of the Laws of 1907 fixed the number of representatives upon the basis of the plan as set forth in the Constitution subsequent to amendment.

Under the enumeration of 1915, the plan of apportionment followed by the Constitutional Convention would give New York county twenty-four members, Kings county twenty-four members, Oneida county two members, and Westchester county four members. Under the language of the Constitution, as altered by the final amendment, Kings county is entitled to twenty-three members, New York county to twenty-three members, Oneida to three members and Westchester to six members. As to all the other counties, the result is precisely the same under either method.

Under all these circumstances this Committee concluded that there were two practical constructions of the paragraph in question by chapter 431, Laws of 1906, and 727, Laws of 1907, which have been acquiesced in for a long period of years. A legislative construction so acquiesced in is almost conclusive upon the courts.

People ex rel. Wogan v. Rafferty, 154 App. Div. 767, 774.

People ex rel. Williams v. Dayton, 55 N. Y. 367,
378.

Cooley on Constitutional Limitations, 7th ed., p. 73.
Storey on the Constitution, section 408.

It cannot therefore be said that there was any constitutional construction of the above paragraph by the apportionment made pursuant to the language employed prior to the amendment of September thirteenth.

The Committee has, therefore, apportioned assemblymen to the several counties on the following basis:

To counties having less than a ratio and half....
Two members to each of the twenty-two other counties...

Total .

39

44

83

67

!

Remaining to be apportioned...

Excess population over two ratios of counties entitled to distribution 4,260,976.

This divided by 67 gives a new ratio of 63,596.

The result is as follows: Albany, none; remainder 61,330; Bronx, six; remainder 3,598; Erie, six; remainder 17,447 ; Kings, 20; remainder 61,841; Monroe, 2; remainder 45,223; New York, 21; remainder 19,308; Oneida, none; remainder 37,316; Onondaga, 1; remainder 23,414; Queens, 3; remainder 46,845; Westchester, 2; remainder 38,417.

Six assemblymen are apportioned on remainders to Albany, Monroe, Kings, Queens, Westchester and Oneida.

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