In making a new apportionment the Legislature now has the advantage of the guidance of the court of last resort in the construction of the constitutional provisions. With reference to the Apportionment Act of 1906, the court mentions specifically two districts where the disregard of the constitutional provisions was so clear that the whole apportionment was rendered invalid. The court expressed no opinion as to the other districts, contenting itself with a definition of the principles of apportionment established by the Constitution.

The Constitution contains certain mandatory provisions, and others which leave opportunity for the exercise of legislative discretion. It is, of course, impossible to divide the State with mathematical exactness. The recognition, in the manner required by the Constitution, of county, town and block lines, prevents an apportionment which would result in absolute equality of representation. But as Judge Chase says: "As the discretion of the Legislature relating to the relative number of inhabitants in senate districts arises from necessity, it should cease where the necessity for discretion ends." The history of constitutional changes in regard to legislative apportionments, as the learned judge points out, "shows a gradual withdrawal from the Legislature of discretionary power and a continued adding " of constitutional limitation. The conclusion is inevitable, "that the minimum of discretion necessary to preserve county and other lines and to give reasonable consideration to the other provisions of the Constitution is left to the Legislature."

The matter is not one of personal preference or of individual interests, nor does it rest in large political discretion. It was wholly to eliminate such considerations that the people, in adopting the new Constitution, so strictly limited the legislative power. As the Court of Appeals said in Matter of Smith agt. Board of Supervisors (148 N. Y. 187):

"The evil sought to be remedied by the new Constitution was to prevent those gross discrepancies in apportionment and representation that had long been a public scandal and a reproach to the good name of the State."

The people are entitled to have a perfectly fair apportionment in accordance with the letter and the spirit of the Constitution. No considerations are paramount to this just requirement.

I therefore recommend to the Legislature the passage of a new apportionment act which will redistrict the State so as to provide such equality of representation as can be had under the constitutional provisions, and of such a character as to be of unquestioned validity and commend itself to the intelligent judgment of the people.

(Signed)

CHARLES E. HUGHES

Recommending the Passage of a Bill for a Recount of the Votes Cast for Mayor of New York City in 1905

STATE OF NEW YORK - EXECUTIVE CHAMBER

TO THE LEGISLATURE:

Albany, May 23, 1907

The

In my first message to the Legislature I recommended that provision be made for a recount of the votes cast for mayor at the municipal election in New York city in 1905. reasons for this recommendation were fully stated. The doubt that exists as to the result of that election should be dispelled and the demands of justice with reference to a matter of fundamental importance should be satisfied.

There is no reason why a grievance should be fostered because the law, supposed to be adequate, has been found defective and provision for a summary recount is wanting. This lack the Legislature is competent to supply.

A bill providing for the recount has passed the Assembly and I respectfully urge its passage by the Senate. The measure is neither for nor against any one, but is simply in the public interest in order to provide the means for settling a matter which all should desire to place beyond controversy.

The importance of the question increases rather than diminishes with the lapse of time, and it should be promptly disposed of.

It has been suggested that it will be necessary, under the constitutional provision, to submit the bill to the mayor of the city. Without attempting to deal with this matter at length, I may say that in my judgment that course should be taken. And, in view of the urgency of the matter, I recommend that the Legislature postpone final adjournment until after the bill becomes a law.

(Signed)

CHARLES E. HUGHES

Recommending the Passage of Acts Providing for an Investigation of Departments - Amending the Primary Law and the Election Law, for the Development of Water Power and Amending the Tax Law

STATE OF NEW YORK - EXECUTIVE CHAMBER

TO THE LEGISLATURE:

Albany, June 4, 1907

I respectfully urge the passage of suitable legislation with reference to the following matters:

(1) Provision for investigation by the Governor of administrative departments.

(2) Amendment of the Primary Election Law so as to make proper provision for direct nominations and official primary ballots.

(3) Amendment of the Election Law so as to make more effective provision against corrupt practices. The recent decision of the Supreme Court holding certain features of the act of the last session to be unconstitutional because of the absence of a requirement of notice to the persons affected by proceedings for the purpose of inquiring into the truth or sufficiency of statements of election expenses makes it highly

important that the law should be amended. The scheme for a judicial scrutiny of the statements filed is a most valuable one and should not be allowed to fail of effect. I also recommend to your consideration the further limitation of the amounts which can be expended in connection with elections without being scheduled or itemized.

(4) Provision for inquiry and the formulation of plans with reference to the development and use of water powers and their proper regulation and control by the State.

(5) Amendment of the Tax Law so as to include for purposes of taxation, within the term "special franchise," the crossing of streets, highways or public places within the limits of cities and incorporated villages. Under the present law, as it has been amended, it appears that a large number of important special franchises to maintain such crossings are not the subject of taxation, and there would seem to be no adequate reason for the exemption. With reference to this matter the State Board of Tax Commissioners said in its recent report:

"The immediate effect of this amendment (referring to the present law) was to reduce the number of special franchise assessments made by this Board by more than 1,100, and took from the aggregate special franchise assessments more than $10,000,000 in values. A small portion of this amount was tangible real property embraced therein which went back to the jurisdiction of local assessing officers, but the much larger amount represented intangible or special franchise value proper, which has since that time been lost to the localities. It may be quite safely stated that but for this amendment the amount of the intangible or special franchise values, on account of the assessment of these crossings, would at this time show a material increase over the amount stated. The greater part of these values which entered into this aggregate of $10,000,000 came from the populous centers, the cities and villages of the State. It may be, as contended, that the expense of gathering the information and

making the assessments of these crossings in the country districts by this Board is out of proportion to the benefits received, but this condition does not exist in respect to such crossings in the populous centers. In such localities these rights are of very substantial value. In many instances they are much more valuable than special franchises which are being assessed by this Board on account of their being differently situate in streets and public places. This property right, indisputably of substantial value, is not taxable under the present law, and this Board is unable to see why it should not bear its just share of the burdens of government."

The passage of suitable measures to attain these objects I believe to be of great public importance.

(Signed)

CHARLES E. HUGHES

Recommending the Passage of an Act Apportioning Senators and Members of Assembly

STATE OF NEW YORK - EXECUTIVE CHAMBER

TO THE LEGISLATURE:

Albany, June 24, 1907

I recommend to your most serious consideration the importance of making a constitutional apportionment of Senators and Members of Assembly before the Legislature adjourns.

The necessity of a new apportionment is obvious. The Apportionment Act of last year has been set aside, and it would be not only inconvenient, but most unjust, in view of the changes in population, to have an election upon the basis of the apportionment fixed in 1895. The alternative is to have a new apportionment in accordance with the requirements of the Constitution, and this should be provided without delay.