Moore v. Board of Aldermen

CB.OPSEY, J. [1] This application seeks to compel the board of aldermen of the city of New York to reconvene and reapportion the Fourth senate district of the county of Kings into assembly districts. The board has laid out but 2 assembly districts in this senate district, while in every other district in this county there are 3 assembly districts. The petitioner complains of this alleged discrimination, but there is nothing to show that that senate district was discriminated against. There are 8 senate districts in the county, and only 23 assembly districts. Consequently 1 of the senate districts could contain but 2 assembly districts. The Constitution provides that in such a case the senate district which must have the lesser number of assembly districts is the one having the smallest number of inhabitants. [473] Article 3, § 5. There is no allegation that the Fourth senate district was not the one having the smallest number of inhabitants. It must therefore be presumed that the board of aldermen complied with the provision of the Constitution, and that the petitioner has no just cause for complaint in this respect. [2] The petitioner also attacks the apportionment on the ground of inequality of population, on the ground that one of the districts contains a greater excess in population over the other district than the population of a block therein adjoining the other district, and on the further ground that the districts are not as compact as practicable. None of the allegations of the petition is denied. They show that the Fifteenth assembly district contains 90,481 inhabitants and the Nineteenth assembly district 89,656, a difference of 825. They further show that this difference is greater than the number of inhabitants in any block of the Fifteenth district which adjoins the Nineteenth district. [3] As to compactness, the maps and papers show that the Fifteenth district has an end, or tail, consisting of six blocks, forming the appearance of a ladder, and that at another portion of the boundary line between the districts the otherwise straight line of division has been varied and the boundary line has been run around another block. The petitioner claims to set forth the reason this block was included; and, while these allegations are not denied, they are immaterial, as they show no necessity arising out of a compliance with other provisions of the Constitution. People ex rel. Carter v. Rice, 135 N. Y. 473, 511, 31 N. E. 921, 16 L. R. A. 836. This application, therefore, must be decided solely upon consideration of whether the provisions of the Constitution have been violated with respect to compactness and to population. [4] The provisions of the different Constitutions and the decisions of the courts affecting matters of apportionment have been referred to and considered in Matter of Livingston, 160 N. Y. Supp. 462, decided herewith. Hence no discussion of them will be had here. Under that decision and the authorities there cited, it seems clear that this apportionment is invalid. The inequality in population is substantial. Clearly, the Constitution requires the population of adjoining assembly districts in the same senate district to be as nearly equal as possible. This is not the case in the apportionment now being considered. The difference in population is greater than the population of any of the blocks on the boundary line between the two districts. This clearly cannot be permitted unless that difference is so small, as was pointed out in Matter of Livingston (decided herewith), as to be trivial. Here it is not trivial. In Matter of Young (no opinion written), a proceeding similar to this and which came on with this, the board of aldermen consented to the issuance of a writ. The difference in population in the districts therein involved, as shown by the papers, was 640 between two of the districts and 1,687 between others. In comparison with the districts involved in Matter of Livingston, the districts herein are compact in form, but they are not as compact [474] as they can be and should be. No explanation whatever is offered by the respondents for having included the single blo.ck referred to, thus making it practically a pocket in one district, nor for having added to the end of that district the six blocks in a vertical line. If this had been necessary in order to comply with some other provision of the Constitution, such as convenience, it might have been justified, and so could be sustained, but no such claim is made. Nor is there any basis for making it. The motion papers show that the districts can be laid out without such irregularities. It must therefore be held that this apportionment also violates the provisions relating to the form of the districts. The application is granted, with $50 costs, and a writ of mandamus is directed to issue, requiring the board of aldermen to reconvene and to reapportion the Fourth senate district of this county into assembly districts, as required by the provisions of the Constitution and the laws of the state. Settle order and form of writ on one day’s notice.