the laws of 1906. The applications were denied in the appellate division and appeals were taken to the court of appeals. By the statute of 1906, thus assailed, the state was divided into fifty-one Senate districts, and provision was also made for the number of assemblymen to be elected in each county. Prior to the passage of this act, an enumeration of the inhabitants of the state had been made, as provided in the constitution of 1894. The Senate districts as provided for exhibited wide variances in the number of inhabitants therein, district No. 42 containing less than 98,000, and district No. 38 nearly 170,000. The following diagram of the county of New York shows the island of Manhattan from Thirty-third street southerly and its division into districts.

Eugene Lamb Richards, Jr., William Allaire Shortt, Elon R. Brown, Edward B. Whitney, Robert Grier Monroe, Julius M. Mayer, James G. Graham and Merton E. Lewis, for the appellants.

William S. Jackson, attorney general, and George P. Decker, for the respondent.

195 CHASE, J. The validity of the so-called apportionment act of 1906 is assailed, and it is claimed that some of its provisions relating to the division of the state into senatorial districts are contrary to express constitutional provision, and that other provisions thereof constitute such an arbitrary use of alleged discretionary power as to be wholly invalid and void. The power of this court to review the questions involved in the relator's claim should be first considered.

In the United States the general power and authority of the judicial department of the federal and of the state governments to determine the constitutional validity of legislative acts applicable to and involved in a pending controversy is not now open to question. It is also expressly provided by section 5 of article 3 of our state constitution of 1894 that 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 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."

This constitutional provision is new, and it was intended to and does set at rest any further claim that the legislature in passing an act reapportioning the state for legislative purposes is so far exercising a political, as distinguished from a legislative power that its action cannot be reviewed by the courts. The jurisdiction of the supreme court of this state to review an apportionment by the legislature or other body is now express, but the jurisdiction to review such an act of apportionment is not expressly given by constitution to this court. The jurisdiction of this court to review the orders appealed from is the general jurisdiction of the court to review actual determinations made by the appellate division of the supreme court of 196 orders finally determining special proceedings (Const., art. 6, sec. 9; Code Civ. Proc., sec. 190), and the jur

isdiction of the court is limited to the review of questions of law: Const., art. 6, sec. 9; Code Civ. Proc., sec. 191, subd. 3. The determination of every question of law involved in the appeals is within the jurisdiction of this court.

In the opinion of Judge Andrews in People v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, referring to the jurisdiction of this court in determining the constitutionality of the apportionment act of 1892 (Laws 1902, c. 397), he said: "I shall not undertake to show that the question presented is of judicial cognizance. That it is a judicial question cannot under the authorities be denied. The legislature and the courts are alike bound to obey the constitution, and if the legislature transgresses the fundamental law and oversteps in legislation the barriers of the constitution, it is a part of the liberties of the people that the judicial department shall have and exercise the power of protecting the constitution itself against infringement. The power of the courts to set aside an unconstitutional apportionment has quite recently been asserted and exercised by the courts of Wisconsin and Michigan: State v. Cunningham, 82 Wis. 39, 51 N. W. 1133; Giddings v. Blacker, 93 Mich. 1, 52 N. W. 944, 16 L. R. A. 402; Supervisors of Houghton County v. Blacker, 92 Mich. 638, 52 N. W. 951, 16 L. R. A. 432."

Although the language quoted is taken from a dissenting opinion, the opinion of the court by Judge Peckham does not deny the power of the court to review an act of apportionment, but it says (page 501): "We think that the courts have no power in such case to review the exercise of a discretion intrusted to the legislature by the constitution unless it is plainly and grossly abused. . . . . We do not intimate that in no case could the action of the legislature be reviewed by the courts. Cases may easily be imagined where the action of that body would be so gross a violation of the constitution that it could be seen that it had been entirely lost sight of and an intentional disregard of its commands both in the letter and in the spirit had been indulged in."

....

197 And Judge Gray, in his concurring opinion in the same case (page 510), says "But if any provision of the fundamental law of the state intended to secure the equal representation of its citizens in the legislative department has been violated by the act in question, it is then properly the duty of the judicial department of power to declare it unconstitutional and therefore void. The judiciary has a duty to pro

nounce all legislative acts null which are contrary to the manifest tenor of the constitution of the state."

The jurisdiction of this court was again considered in Baird v. Board of Supervisors of the County of Kings, 138 N. Y. 95, 33 N. E. 827, 20 L. R. A. 81, which involved the division of the county of Kings into assembly districts as provided by said chapter 397 of the Laws of 1892, and this court held that the division that had been made was not a constitutional division, and the court, among other things, said: "The proper discharge of the duty of division by the board implies considerable discretion in the formation of the various districts. The discretion exercised must be an honest and a fair discretion arising out of the circumstances of the case and reasonably affecting the exercise of the power of equal division.”

Since the constitution of 1894 the case of Smith v. Board of Supervisors of St. Lawrence Co., 148 N. Y. 187, 42 N. E. 592, has been before this court, and it was said that "Each case must be decided on its peculiar facts, and the courts can be relied upon at all times to enforce the constitution in its letter and spirit."

The courts have jurisdiction to determine whether or not an act of apportionment is in conflict with the limitations fixed by the constitution, and if such conflict is found to exist, to declare the act void: 2 Am. & Eng. Ency. of Law, 2d ed., p. 485, and cases cited. It appears, therefore, that the courts can review legislative action in reapportioning the state, and that on an appeal to this court jurisdiction should be entertained.

1. Where the question to be determined on the appeal is as 198 to whether the legislature has obeyed a mandatory provision of the constitution, in which case a question of law is presented for the determination of this court.

2. Where by the constitution some discretion is vested in the legislature, this court cannot inquire into the motives of the legislators in exercising such discretion and voting for a particular plan of apportionment, and it cannot inquire into the relative merits of several plans to choose from which requires the exercise of sound judgment and judicial discretion. But if the legislature under the assumption of an exercise of discretion does a thing which is a mere assumption of arbitrary power, and which, in view of the provisions of the constitution, is beyond all reasonable controversy, a gross

and deliberate violation of the plain intent of the constitution and a disregard of its spirit and the purpose for which express limitations are included therein, such act is not the exercise of discretion but a reckless disregard of that discretion which is intended by the constitution. Such an exercise of arbitrary power is not by authority of the people. It is an assumption and when it is claimed that an act is thus in violation of the constitution, a question of law is presented for the determination of this court.

A legislative apportionment act cannot stand as a valid exercise of discretionary power by the legislature when it is manifest that the constitutional provisions have been disregarded any more than an order of the appellate division can create a question of fact by declaring that there is one when no question of fact exists: See Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, and Penryhn Slate Co. v. Granville Elec. etc. Power Co., 181 N. Y. 80, 73 N. E. 566. Any other determination by the courts might result in the constitutional standards being broken down and wholly disregarded.

We have seen that an apportionment may be such as to require that the act be declared invalid and void as a matter of law. Let us look, then, to the authority of the legislature.

The people are vested with the supreme and sovereign authority. The constitution is the voice of the people speaking 199 in their sovereign capacity: Matter of New York Elevated R. R. Co., 70 N. Y. 327.

An act of the legislature is the voice of the people speaking through their representatives. The authority of the representatives in the legislature is a delegated authority, and it is wholly derived from and dependent upon the constitution.

By our first constitution, adopted April 20, 1777, it is provided "That the supreme legislative power within this state shall be vested in two separate and distinct bodies of men; the one to be called the assembly of the state of New York; and the other to be called the Senate of the state of New York; who, together, shall form the legislature": Sec. 2.

Our constitution, adopted November 6, 1894, provides that "The legislative power of this state shall be vested in the Senate and assembly": Art. 3, sec. 1. The general legislative power is absolute and unlimited except as restrained by constitution: Bank of Chenango v. Brown, 26 N. Y. 467;