twenty-fourth wards of the city of Buffalo, as at present constituted.

District number forty-eight (48) shall consist of that part of the county of Erie comprising the fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and sixteenth wards of the city of Buffalo, as at present constituted.

District number forty-nine (49) shall consist of that part of the county of Erie comprising the seventeenth, eighteenth and twentyfifth wards of the city of Buffalo, as at present constituted; and all the remainder of the said county of Erie not herein before described. District number fifty (50) shall consist of the counties of Chautauqua and Cattaraugus.

(New.)

Amendment of Convention of 1894, ratified by people, Nov. 6, 1894.

§ 4. An enumeration of the inhabitants of the State shall be taken under the direction of the Secretary of State, during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter; and the said districts shall be so altered by the Legislature at the first regular session after the return of every enumeration, that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the return of another enumeration, and shall at all times, consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein, adjoining such district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.

No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have more than one-third of all the senators; and no two counties of the territory thereof as now organized, which are adjoining counties, or which are separated only by public waters, shall have more than one-half of all the senators.

The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty, and the Senate shall always be composed of fifty members, except that if any county having three or more senators at the time of any apportion

ment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole number of senators shall be increased to that extent.

(New.)

Amendment of Convention of 1894, ratified, Nov. 6, 1894.

§ 5. The members of the Assembly shall be chosen by single districts, and shall be apportioned by the Legislature at the first regular session after the return of every enumeration among the several counties of the State, as nearly as may be according to the number of their respective inhabitants, excluding aliens. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly, and no county shall hereafter be erected unless its population shall entitle it to a member. The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, entitle it to a member. But the Legislature may abolish the said county of Hamilton and annex the territory thereof to some other county or counties.

The quotent obtained by dividing the whole number of inhabitant of the State, excluding aliens, by the number of members of assembly, shall be the ratio for apportionment which shall be made as follows: One member of assembly shall be apportioned to every county, including Fulton and Hamilton as one county, containing less than the ratio and one-half over. Two members shall be apportioned to every other county. The remaining members of assembly shall be apportioned to the counties having more than two ratios according to the number of inhabitants, excluding aliens. Members apportioned on remainders shall be apportioned to the counties having the highest remainders in the order thereof respectively. No county shall have more members of assembly than a county having a greater number of inhabitants, excluding aliens.

Until after the next enumeration, members of the Assembly shall be apportioned to the several counties as follows: Albany county, four members; Allegany county, one member; Broome county, two members; Cattaraugus county, two members; Cayuga county, two members; Chautauqua county, two members; Chemung county, one member; Chenango county, one member; Clinton county, one member; Columbia county, one member; Cortland county, one member; Delaware county, one member; Dutchess county, two members; Erie county, eight members; Essex county, one member; Franklin county, one member; Fulton and Hamilton counties, one member; Genesee county, one member; Greene county, one member; Herkimer county

one member; Jefferson county, two members; Kings county, twentyone members; Lewis county, one member; Livingston county, one member; Madison county, one member; Monroe county, four members; Montgomery county, one member; New York county, thirtyfive members; Niagara county, two members; Oneida county, three members; Onondaga county, four members; Ontario county, one member; Orange county, two members; Orleans county, one member; Oswego county, two members; Otsego county, one member; Putnam county, one member; Queens county, three members; Rensselaer county, three members; Richmond county, one member; Rockland county, one member; St. Lawrence county, two members; Saratoga county, one member; Schenectady county, one member; Schoharie county, one member; Schuyler county, one member; Seneca county, one member; Steuben county, two members; Suffolk county, two members; Sullivan county, one member; Tioga county, one member; Tompkins county, one member; Ulster county, two members; Warren county, one member; Washington county, one member; Westchester county, three members; Wyoming county, one member, and Yates county, one member.

In any county entitled to more than one member, the board of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council, or if there be none, the body exercising the powers of a common council, shall assemble on the second Tuesday in June, one thousand eight hundred and ninetyfive, and at such times as the Legislature making an apportionment shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county shall be entitled, and shall cause to be filed in the office of the Secretary of State and of the clerk of such county, a description of such districts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumeration; and such apportionment and districts shall remain unaltered until another enumeration shall be made, as herein provided; but said division of the city of Brooklyn and the county of Kings to be made on the second Tuesday of June, one thousand eight hundred and ninety-five, shall be made by the common council of said city and the board of supervisors of said county, assembled in joint session. In counties having more than one senate district, the same number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided

among the senate districts of any county, in which case one more assembly district shall be put in the senate district in such county having the largest, or one less assembly district shall be put in the senate district in such county having the smallest number of inhabitants, excluding aliens, as the case may require. No town, and no block in a ity inclosed by streets or public ways, shall be divided in the formation of assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same. senate district, than the population of a town or block therein adjoining such assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens; but in the division of cities under the first apportionment, regard shall be had to the number of inhabitants, excluding aliens, of the election districts according to the State enumeration of one thousand eight hundred and ninety-two, so far as may be, instead of blocks. Nothing in this section shall prevent the division, at any time, of counties and towns, and the erection of new towns by the Legislature.

An apportionment by the Legislature, or other body, shall be subject to review by the Supreme Court, at the suit of any citizen, under such reasonable regulations as the Legislature may prescribe; and any court before which a cause may be pending involving an appointment, 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.

The domicile or home, requisite as a qualification for voting purposes, means a residence which the voter voluntarily chooses and has the right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it. People v. Cady, 143 N. Y. 100. "The Tombs" is a place of confinement for all except the keeper and his family, and a person cannot, under the guise of a commitment or even without any commitment, go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there. Id.

The apportionment of a county into assembly districts should be based upon the citizen, and exclude the alien, population. Matter of Whitney, 142 N. Y. 531; affirming 75 Hun, 581. The fact that in making such apportionment, it was not based upon the citizen population, but aliens were included, does not necessarily require that the apportionment should be set aside for that error. Id. The court will not presume a material disproportion in the distribution of aliens throughout the country. Id. And where no appreciable harm has resulted from the error, the apportionment will stand. Id.

A reasonable discretion is left with the board of supervisors in dividing a county into districts for the election of members of assembly. Matter of Baird, 142 N. Y. 523; affirming 75 Hun, 545. Under the constitutional limitations, forbidding the division of towns in making such an apportionment and requiring each district to be of convenient and contiguous territory, absolute equality of population in the districts is not possible. Id. In such case, a slight variation will not warrant or justify an application to the courts for redress. Id. To authorize such application, there must be a grave, palpable and unreasonable deviation, so that when the facts are presented, argument will not be necessary to show that such a deviation has been intentionally made. Id. The Constitution does not require the districts to be made up of compact territory, and the fact that districts in a city are irregular in form does not establish any actual inconvenience. Id. The constitutional prohibitior.

against the division of towns in making apportionment does not apply to wards of a city. Id. A ward, though treated as a town for some purposes of municipal government, is not a town within the meaning of said prohibition and, therefore, a ward may be divided. Id. In the case cited, it was held that the deviations were not so great as to justify the interference of the courts; that the apportionment did not, upon the face of the record, indicate such a manifest abuse of discretion as to amount to an evasion of the law. Id. It is not the function of the court of appeals to revise official action involving the exercise of discretion. Id.

Under section 5, article 3, of the Revised Constitution, the requirement for equality in number of inhabitants is mandatory, and paramount to that of convenience in arrangement, so that the division of a county in the assembly districts will be set aside, where the board, in making it, sacrifices the requirement of equality in numbers to that of convenience. Matter of Smith (Sup. Ct. 3 D., 1895), 90 Hun, 568.

The fundamental idea of all laws, in relation to the apportionment of election districts in this State, is the equality of representation. Matter of Smith (Sup. Ct. 3 D., 1895), 0 Hun, 568. The Constitution of the State of New York, 1895, shows an evident intention to reduce to a minimum the discretion vested in the legislature and in boards of supervisors in apportioning senators and members of assembly. Id. The main purpose of the provision of said Constitution, relative to apportionment, is to divide the people equally among the senate and assembly districts, and the only limitation upon the complete fulfillment of that principle is the provision which prohibits the division of counties, towns and blocks. Id. The Constitution, in order to stop the abuse of having districts irregular in form, has required that they be "of convenient and contiguous territory, in such compact form as practicable;" and in order to minimize any inequality of representation in the number of inhabitants in each district, and in order to reduce the discretion of those making the apportionment to a minimum, the Constitution has provided that "towns or blocks, which from their limitation may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants." Id. The word "shall" is here used in the sense of "must," and this direction is mandatory. Id. In the case last cited, the action of the board of supervisors of St. Lawrence county in placing the town of Hermon in the second assembly district of that county, and the town of Madrid in the first assembly district of that county, both towns being susceptible of being placed in either assembly district, was held to be erroneous in view of the fact that, had the disposition made of these towns been reversed, the number of voters in each assembly district, after excluding aliens, would have been more nearly equal. It was held to be immaterial that the division actually made was the most convenient for the purposes of the inhabitants of the towns of Hermon and Madrid.

The Constitution of 1895, in making apportionments subject to review by the Supreme Court, at the instance of any citizen, has made a radical change in the question of power which courts formerly had over matters of apportionment. Matter of Smith (Sup. Ct., 8 D., 1895), 90 Hun, 568. Under the old Constitution, the court had power to direct a body to proceed anew, without any power to indicate what its actions would be. Id. But, under the Constitution of 1895, it seems that the court has power either to correct errors in an apportionment, or to send the proceeding back to the body whose proceedings are being reviewed, in order that it may correct them. Id. The procedure in the Supreme Court to review an apportionment of assemblymen is governed by usage adopted by courts in similar cases as there are no statutory regulations on the subject. Id.

Where the board, to which the duty of making an apportionment of assembly districts is delegated, has proceeded in violation of the Constitution, it is the duty of the court, on the application of any citizen, to set aside the apportionment so made, and direct the board to reconvene and make an apportionment in accordance with the requirements of the Constitution. People ex rel. Gleason v. Board of Aldermen of New York City (Sup. Ct. Circ. 1895), 14 Misc. 105. The apportionment of the thirteenth senate district into assembly districts by the board of aldermen of the city of New York was held to be violative of the Constitution, inasmuch as the said districts were not made as nearly equal in the number of inhabitants, excluding aliens, as may be. Id.