TABLE OF CASES DISTINGUISHED, ETC., IN OPINIONS REPORTED IN THIS VOLUME. O'Reilly v. Utah, N. & C. Stage Co. 87 Hun, 406, adopted.... 333 CASES DECIDED IN THE COURT OF APPEALS OF THE STATE OF NEW YORK, COMMENCING SEPTEMBER 27, 1898. THE PEOPLE ex rel. HENRY C. HENDERSON, Respondent, v. 1. CONSTITUTION ANNEXATION ACT-DIVISION OF COUNTY. Chapter 934 of the Laws of 1895, which provides for the annexation of a part of Westchester county to the city and county of New York, by setting off from the county of Westchester the territory described therein, with its inhabitants and estates, and declaring it annexed to and merged in the city and county of New York, is not rendered unconstitutional by reason of the provisions of the New York Constitution of 1894, conferring upon the legislature power to alter senate districts after a decennial enumeration, and providing that "no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in one county," and that the assembly districts to be apportioned under the Constitution shall remain unaltered until another enumeration shall be made, but that nothing in that section should prevent the division, at any time, of counties and towns, by the legislature, and the provisions continuing the judicial districts until after an enumeration— notwithstanding the facts that the city and county of New York constituted the first judicial district and the county of Westchester was in the second judicial district, and that the county of Westchester was declared by the Constitution to constitute a senate district (the twenty-second). 2. ERECTION OF COUNTIES. The power of the legislature to erect new counties, although not conferred by any express grant, is embraced in the general grant of legislative power and is implied in the prohibition in section 5, article 3, of the Constitution, relating to members of assembly, that "no new county shall be hereafter erected, unless its population shall entitle it to a member." SMITH-VOL. I. 1 - Statement of case. [Vol. 147. 3. STATUTE - CONSTITUTIONALITY. A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible, the statute will be upheld. 4. DIVISION OF COUNTIES. The insertion in the Constitution, as an addition to the section relating to assembly districts, of the clause: "Nothing in this section shall prevent division at any time of counties and towns, and the erection of new towns and counties by the legislature," 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. (Lanning v. Carpenter, 20 N. Y. 447, and Kinne v. City of Syracuse, 3 Keyes, 110, discussed.) 5. SENATE DISTRICT CHANGE OF BOUNDARIES. Under the Constitution of 1894, the act in question (Chap. 934 of Laws of 1895), as an act of annexation, was within the constitutional power of the legislature, although it changed, as to the twenty-second senate district, the county boundaries of the district, but such effect should be given to the act as will least disturb the general plan that senate districts shall be bounded by county lines, and this will be accomplished by regarding the annexed territory as still a part of that district for the election of a senator. 6. CONSTRUCTION OF THE ACT — ASSEMBLY DISTRICTS. A construction of the act of annexation which affirms its validity as such, but leaves the annexed territory part of the twenty-second senate district and of the second judicial district and department, and within the jurisdiction of the board of supervisors of Westchester county for the purpose of forming assembly districts, most nearly harmonizes the provisions of the Constitution relating to senate, judicial and assembly districts and the power possessed by the legislature to divide counties and towns. 7. MUNICIPAL RIGHTS. The Annexation Act provides that the portion of Westchester county annexed thereby shall thereafter constitute a part of the city and county of New York "in every respect and to the same extent" as if it had originally been included therein. Held, that the words quoted, read in connection with the context, were satisfied by construing them as referring to municipal burdens and municipal rights in which the annexed territory and its inhabitants were to share. 8. ELECTIONS. Held, that the voters in the annexed territory will be entitled to vote for senator, member of assembly and justices of the Supreme Court, the same as though the Annexation Act had not been passed, and that elections in the annexed territory will of necessity be conducted under the control of the election officers of the city and county of New York, and the returns will be made to the proper authorities of Westchester county. (Argued September 17, 1895: decided September 27, 1895.) APPEAL from order of the General Term of the Supreme Court in the second judicial department, made July 26, 1895, which affirmed an order of Special Term directing the issuance of a peremptory writ of mandamus, requiring the board of supervisors of Westchester county to re-assemble and divide the said county into three assembly districts, in accordance with the provisions of the Constitution of the State of New York. The appeal was heard September 17, 1895, at a special session of the court, convened in accordance with the provision of the Constitution (Art. 3, § 5), that "any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session, it shall convene promptly for the disposition of the same." On September 27, 1895, the court rendered the following decision: "1st. That the act, chapter 934 of the Laws of 1895, annexing certain territory taken from the county of Westchester to the city and county of New York is constitutional. "2nd. That by virtue of the act the annexed territory became, for all purposes of local government and administration, a part of the city and county of New York, except as otherwise provided therein. “3rd. That the act did not operate to change the territorial boundaries of the twenty-second senate district, established by the Constitution of 1894; or to take the annexed territory out of the jurisdiction of the board of supervisors of Westchester county, in forming assembly districts pursuant to section 5 of article 3 of the Constitution; or to change the boundaries of the second judicial district, as they existed when the act was passed, or the boundaries of the second judicial department, as established by chapter 376 of the Laws of 1895. "4th. That for the purpose of voting for senator, members of assembly and justices of the Supreme Court, the annexed territory is to be regarded as part of the twenty-second senate district, and of an assembly district to be formed by the board of supervisors of Westchester county, and of the second judicial district. 5th. That the public property in the annexed territory vested under the act of annexation in the mayor, aldermen and commonalty of New York, as provided in said act. "6th. That it became the duty of the board of supervisors of Westchester county, at its meeting on the second Tuesday of June, 1895, to include the annexed territory within one of the three assembly districts allotted by the Constitution to the county of Westchester. "7th. That having omitted to perform their duty, the mandamus was properly granted. "The order and judgment of the General Term is, therefore, affirmed, with costs to the relator." Thereafter, on October 8, 1895, on the re-assembling of the court in regular session, the opinion was handed down, in which the facts, so far as material, are stated. William II. Robertson for appellant. The territory detached from the county of Westchester, and annexed to the city and county of New York, by chapter 934 of the Laws of 1895, was a part of the city and county of New York, and not a part of the county of Westchester, on the 11th of June, 1895. (Laws of 1895, chap. 934; People ex rel. v. Carter, 135 N. Y. 473; Const. art. 3, §§ 1, 5; Bank of Chenango v. Brown, 26 N. Y. 467; People v. Morrell, 21 Wend. 563; People ex rel. v. Flagg, 46 N. Y. 401; Kinne v. City of Syracuse, 3 Keyes, 110; Const. of 1846, art. 3, § 5; Howard v. McDiarmid, 26 Ark. 100; Pulaski County v. County Judge of Saline County, 37 id. 339; Bittle v. Stuart, 34 id. 224, 232.) The question of altering judicial districts or departments is not involved in this controversy. (Rumsey v. People, 19 N. Y. 41; Lanning v. Carpenter, 20 id. 447.) The legislature had the inherent power to make the division in question; the Constitution conferred upon it that power, and unless prohibited by the Constitution it could make the division in question. The only apparent restriction in the |