light of the construction placed on section 5, article 3 of the Constitution of 1846, as amended in 1874, is only an apparent one, and has no effect upon the power conferred upon the legislature to make the division in question. (Howard v. McDiar mid, 26 Ark. 100; Bittle v. Stuart, 34 id. 224, 232; Pulaski County v. County Judge of Saline County, 37 id. 339.

William D. Guthrie for respondent and for appellant in Town of Westchester v. Haffen, and Village of Williamsbridge v. Haffen, argued with this case. The Constitution was adopted in order to permanently establish the fundamental law of the state, and any legislation inconsistent with its express or implied provisions is invalid. (Minor v. Happersett, 21 Wall. 162; Const. U. S. art. 4, §4; Oakley v. Aspinwall, 3 N. Y. 547, 568; Newell v. People, 7 id. 9, 97; People v. Draper, 15 id. 532, 557; Lanning v. Carpenter, 20 id. 447; In re Lee's Bank, 21 id. 9, 11; People ex rel. v. Albertson, 55 id. 50, 55, 64; People ex rel. v. Porter, 90 id. 68, 75; People v. N. Y. C. R. R. Co., 24 id. 485; M. Bank v. Van Dyck, 27 id. 400; People ex rel. v. Potter, 47 id. 375; Settle v. Van Erera, 49 id. 280; People v. Fancher, 50 id. 288; People ex rel. v. Wemple, 125 id. 485, 489; People ex rel. v. Rice, 135 id. 473, 521; Calder v. Bull, 3 Dallas, 386, 398, 399; Rhode Island v. Massachusetts, 12 Pet. 657, 722; Ex parte Yarbrough, 110 U. S. 651, 658.) The division of the state into counties has always existed, and the policy of preserving and perpetuating the unity of interest and local associations in counties has been observed in every Constitution. (People ex rel. v. Porter, 90 N. Y. 68; People ex rel. v. Draper, 15 id. 532; Coutant v. People, 11 Wend. 511, 513; Clark v. People, 26 id. 599, 604; Income Tax Cases, 157 U. S. 429, 562; 4 Record Const. Conv. 1873; Const. art. 6, $$ 14, 15; Const. arts. 3, 5, $ 26, 27; Const. art. 10, § 1; Code Crim. Pro. §§ 102, 111, 115; In re Gertum v. Bd. Suprs., 109 N. Y. 170.) In making an apportionment which rigidly adhered to county lines under all circumstances, the Constitution of 1894 differed from the Constitution then existing. The framers of the new Constitution and the people who adopted it

intended to base such apportionment permanently and unalterably upon the county system. That purpose would be defeated by the act of 1895. (People ex rel. v. Rice, 135 N. Y. 473; Const. art. 3, $$ 3, 4, 5; Const. art. 2, § 1; Lanning v. Carpenter, 20 N. Y. 447; Rumsey v. People, 19 id. 41; Atty.Gen. v. Holihan, 29 Mich. 116; Kinne v. City of Syracuse, 3 Keyes, 110; Sweet v. City of Syracuse, 129 N. Y. 316, 330; People ex rel. v. Angle, 109 id. 564, 568, 575; People ex rel.v. Potter, 47 id. 375, 380; Brown v. Maryland, 12 Wheat. 419.) The existing provisions of law regulating elections were adopted and continued in force by express constitutional provisions (Art. 2, § 6). Such provisions cannot be observed if the integrity of counties is to be disturbed. The scheme of the Constitution was based upon the continuance of this election machinery until duly changed. It has not been changed. (Laws of 1892, chap. 569, § 12; In re Gertum v. Bd. of Suprs., 109 N. Y. 170; Laws of 1892, chap. 569, $117, 135.) The act of 1895 violates the provisions of the Constitution as to the judicial districts and departments. (Const. art. 6, § 1; Laws of 1876, chap. 24; Code Civ. Pro. §§ 222, 340, 982, 984, 2456; People ex rel. v. Porter, 90 N. Y. 68; Laws of 1881, chap. 415; Code Crim. Pro. §§ 223, 1035; Laws of 1882, chap. 410, $$ 1638, 1663, 1667; Geraty v. Reid, 78 N. Y. 64; L. F. Ins. Co. v. Remmers, 29 La. Ann. 419; Commonwealth v. Gamble, 62 Penn. St. 34; Const. art. 6, $2.) The legislation of 1873-1874 affords no support to the contention that the act of 1895 is constitutional. (Laws of 1873, chap. 613; Laws of 1874, chap. 329; Laws of 1876, chap. 24; Rumsey Case, 19 N. Y. 41; Smith v. People, 47 id. 330; Const. 1846, art. 3, 4, 5; Const. 1846, art. 6, 2, 4; Const. N. Y. art. 3, § 17; People cx rel. v. Banks, 67 N. Y. 568; People ex rel. v. Squire, 107 id. 593; People ex rel. v. Lorillard, 135 id. 285.) The legislature intended the act to annex the territory for all purposes, and that intention cannot be pruned down within the limits of what might have been constitutional. (Wynehamer v. People, 13 N. Y. 378; U. S. v. Reese, 92 U. S. 214; Trade Mark Cases, 100 id. 82.) A

peremptory writ of mandamus will issue against a board of supervisors under the circumstances set forth in the moving papers. (Baird v. Suprs., 138 N. Y. 95, 115; People ex rel. v. Rice, 129 id. 449, 453; People ex rel. v. Suprs., 142 id. 271, 277; People ex rel. v. Rice, 144 id. 249, 264; U. L. T. Co. v. Grant, 137 id. 7, 10; Village of Hyde Park v. Chicago, 124 Ill. 156, 160; Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 168; Cogswell v. N. Y., N. II. & II. R. R. Co., 103 N. Y. 10, 21; W. W. Mfg. Co. v. Shanahan, 58 Hun, 50, 55; Campbell v. Seaman, 63 N. Y. 568; McHenry v. Jewett, 90 id. 58; People v. O'Brien, 111 id. 1 ; In re McGinness, 13 Misc. Rep. 714.)

§§

Wm. B. Hornblower and McCready Sykes for appellant in case of People ex rel. Field v. Board of Aldermen of the City of New York, argued with this case. Chapter 934 of the Laws of 1895 is constitutional. (Rumsey v. People, 19 N. Y. 41; Const. art. 3, § 5; id. art. 8, § 2; Howard v. McDiarmid, 26 Ark. 100; Bittle v. Stuart, 34 id. 224; Pulaski County v. County Judge, 37 id. 339.) The objection that judicial districts are divided, and that the act is thus unconstitutional is not well taken. (Const. 1846, art. 6, $$ 4, 16; Const. N. Y. art. 6, § 1.) There is no force in the point that the act is unconstitutional because it refers to other acts which are not in terms re-enacted and made a part of the act in full. (People ex rel. v. Lorillard, 135 N. Y. 285; Curtin v. Barton, 139 id. 505-514.) The act being constitutional and the territory in question having been duly taken out of the county of Westchester and annexed to the city and county of New York prior to the meeting of the board of aldermen on the 11th day of June, 1895, to apportion assembly districts, it was the duty of that board to deal with the then existing state of affairs, and to divide the county of New York as it then existed and not as it had existed theretofore. (People v. Morrell, 21 Wend. 563.) In determining the constitutionality or unconstitutionality of a statute, the court will inquire into its general character and effect, and will consider facts of

Opinion of the Court, per ANDREWS, Ch. J.

[Vol. 147.

which it can take judicial notice as bearing upon the meaning and intent of the act. (In re Jacobs, 98 N. Y. 98; People v. Mara, 99 id. 377; People v. Gillson, 109 id. 389; Health Dept. v. Rector, etc., 145 id. 32.)

Francis M. Scott and John Proctor Clarke for respondents in cases of People ex rel. Field v. Board of Aldermen, etc.; The Town of Westchester v. Haffen, and The Village of Williamsbridge v. Haffen, argued with this case. The legislature possesses the whole legislative power of the people except so far as limited by the Constitution. (People ex rel. v. Flagg, 46 N. Y. 401; Bank of Chenango v. Brown, 26 id. 467; People v. Morrell, 21 Wend. 563; Const. N. Y. art. 3, § 15-29.) The convention made a complete apportionment as to senators and assemblymen. (Const. art. 3, § 2, 3, 4, 5; Const. of 1846, art. 3, §3.) The provisions of the Constitution cited as prohibiting the division of counties are applicable solely to the political division thereof for apportionment purposes, and do not limit or affect the inherent power of the legislature to divide and sub-divide the territory of the state for local and municipal purposes. (Const. art. 3, §§ 4, 5; People v. Morrell, 21 Wend. 563; Rumsey v. People, 19 N. Y. 41; People ex rel. v. Carter, 135 id. 473; Laws of 1873, chap. 613; Laws of 1874, chap. 329; People v. Flanigan, 66 N. Y. 237; Ehrgott v. Mayor, etc., 96 id. 264.)

ANDREWS, Ch. J. This controversy involves the constitutionality of chap. 934 of the Laws of 1895, approved June 6, 1895, and which took effect the same day, annexing a portion of the county of Westchester to the county of New York. The annexed territory at the time of the annexation consisted of a town and parts of towns, and of two villages in the county of Westchester, having a population of upwards of 13,000 persons, excluding aliens, of whom about 2,500 were duly qualified voters. The act declared that the territory therein described, "with the inhabitants and estates therein, is hereby set off from the county of Westchester and

N Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

annexed to, merged in and made a part of the city and county of New York and of the twenty-fourth ward of said city and county, subject to the same laws, ordinances, regulations, obligations and liabilities, and entitled to the same rights, privileges, franchises and immunities in every respect and to the same extent as if said territory had been included within said city and county of New York at the time of the grant and adoption of the first charter and organization thereof and had so remained to the passage of this act, and except as may be modified by this act, as if such territory had been included within said twentyfourth ward by the provisions of chapter 613 of the Laws of 1873, entitled 'An act to provide for the annexation of the towns of Morrisania, West Farms and Kingsbridge in the county of Westchester to the city and county of New York, and the several acts amendatory thereof, and had so remained up to the passage of this act." The board of supervisors of Westchester county assembled on the second Tuesday of June, 1895 (six days after the act of annexation took effect), pursuant to the requirement of section 5, art. 3, of the new Constitution, to divide the county into three assembly districts, equal to the number of members of assembly apportioned to Westchester county, and made the division of the then existing territory of the county into three assembly districts, excluding from the division the territory embraced in the act of annexation. The board of aldermen of the city of New York on the same day assembled and divided the city and county of New York into assembly districts, but in the division no notice was taken of the annexed territory, and the division was confined to the territory of the city and county of New York as it existed before the act of annexation. The result of the action of the two boards was, therefore, to leave the annexed territory unattached to any assembly district. Thereupon this proceeding was instituted to compel the board of supervisors of Westchester county to re-assemble and re-form the assembly districts by including in the division the territory taken from the county of Westchester by the act of annexation. The proceeding was taken on the view that, notwithstanding the act,