Opinion
Argued September 28, 1906
Decided October 1, 1906
Elon R. Brown for William L. Sherrill et al., appellants.
Eugene Lamb Richards, Jr., and William Allaire Shortt for Walter Pendleton, appellant.
Edward B. Whitney and Robert Grier Monroe for George E. Payne et al., appellants.
Julius M. Mayer, Attorney-General ( Merton E. Lewis and James G. Graham of counsel), for respondent.
The appeal in each of the above-entitled proceedings is from an order of the Appellate Division affirming an order of the Special Term denying an application for a common-law writ of mandamus.
It has long been the law that an order refusing a common-law writ of mandamus is not reviewable in this court unless it appears in the order that it was not refused in the exercise of discretion. If it does not appear in the order that the writ was refused on a question of law only, this court must assume that it was denied in the proper exercise of the discretion of the Supreme Court, which cannot be reviewed here. ( People ex rel. Lentilhon v. Coler, 168 N.Y. 6, and cases there cited.)
Section 5, article 3 of the Constitution provides that an apportionment shall be subject to review by the Supreme Court at the suit of any citizen, under such reasonable regulations as the legislature may prescribe, but the legislature never having acted under this provision and prescribed any procedure for a direct challenge of the validity of an apportionment the citizen is confined to existing remedies and, therefore, each of the proceedings before us has been an application for a common-law writ of mandamus. There is no express provision in the section of the Constitution quoted for review by the Court of Appeals of the action of the Supreme Court, and, therefore, the right to such review by this court proceeds from its general appellate jurisdiction. As already stated, its general appellate power does not authorize the review of an order denying an application for a writ of mandamus, unless it affirmatively appears on the face of the order that it was not made in the exercise of discretion. Even the great importance of this litigation would not justify the court in assuming a jurisdiction the possession of which it has so repeatedly repudiated.
It may be further said, as an additional reason why we should not strain to extend our jurisdiction, that a decision adverse to the validity of the apportionment act made now might throw the general election about to be held into inextricable confusion and chaos. The people have acted on the law and held their primary elections. Election districts have been laid out in all the great counties of this state under the new apportionment. It is difficult to exaggerate the confusion that might and probably would arise were the apportionment set aside at this time. If these cases are to come before us at all, it is far better that they should be heard and decided at a time when they can be considered solely with reference to the constitutional provision, uninfluenced by fear of results on a pending election. Even if the apportionment statute should subsequently be held void, the members of the legislature actually elected by the people under its provisions would be officers de facto, and the validity of their action in no way impaired. ( People v. White, 24 Wend. 520; M'Instry v. Tanner, 9 Johns. 135; Parker v. Baker, 8 Paige, 428.)
The appeals should be dismissed, without costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Appeals dismissed.