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In re Richardson

Supreme Court of New York, Appellate Division

June 24, 1954

In the Matter of ROY M. D. RICHARDSON et al., Petitioners-Respondents. ABE STARK, as President of the City Council of the City of New York, et al., Appellants, et al., Respondents, and THOMAS J. RHATIGAN, Intervener-Appellant.

APPEAL from an order of the Supreme Court at Special Term (ARKWRIGHT, J.), entered June 21, 1954, in Kings County, which (1) granted an application by petitioners in a proceeding under chapter 773 of the Laws of 1911 to review the action of the city council of the City of New York, acting as a board of apportionment, in dividing the County of Kings into assembly districts pursuant to chapter 893 of the Laws of 1953, chapter 2 of the Laws of 1954, and chapter 497 of the Laws of 1954 (State Law, § § 120-125), and section 5 of article III of the State Constitution; (2) declared that the action of the city council in apportioning the 5th Assembly District within the 10th Senate District; the 17th Assembly District within the 11th Senate District; the 3rd Assembly District within the 13th Senate District; and the 4th Assembly District within the 18th Senate District in the county of Kings, violated section 5 of article III of the State Constitution; (3) enjoined the officers of the city council and the board of apportionment from certifying the apportionment of said assembly districts; (4) directed the board of elections of the city of New York to treat the purported apportionment of said assembly districts as void and of no effect; and (5) denied the remainder of the application which was to direct the members of the city council to reconvene and adopt a legal and proper division of the county into assembly districts.

COUNSEL

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Adrian P. Burke, Corporation Counsel (W. Bernard Richland, Seymour B. Quel, Bernard Friedlander and Blossom G. Saxe of counsel), for appellants.

George Rosling for intervener-appellant.

Charles H. Tuttle, Carmine A. Ventiera, John R. Bartels and Roy M. D. Richardson, in person, for Roy M. D. Richardson and others, petitioners-respondents.

Per Curiam.

The proceeding, which is limited to the third, fourth, fifth and seventeenth assembly districts of Kings County, seeks to void the resolution of the city council, which establishes such assembly districts, on the ground that the apportionment which was approved by the resolution is unconstitutional.

The petition alleges that the districts are not convenient, compact, or contiguous, and that it would have been possible to divide the senate districts into assembly districts which would be convenient, compact, and contiguous, and substantially equal in population.

The answer of the respondents-appellants, who represent the city council and the board of apportionment, sets forth denials of the allegations of the petition and affirmative defenses to the effect that the districts meet the constitutional requirements, that the districts are not as irregular in their outlines as are many pre-existing districts, and that the petitioners have been guilty of laches. The answer also sets forth two partial defenses. The respondents-appellants submitted affidavits in support of the factual allegations of their answer, together with documentary evidence. The affidavits and documents set forth that the districts were laid out on considerations of equality of citizen inhabitants, convenience, contiguity of territory, and compactness.

An additional answer was interposed by the intervener-respondent-appellant, setting forth denials of material allegations of the petition.

At Special Term the proceeding was decided upon the papers which have been referred to above. Three of the four assembly districts in suit have been severally characterized as being in the shapes of a dumbbell, an inverted J, and an automatic pistol. It was held solely on the fact of such irregular shapes that the apportionment made by the council of the challenged districts is contrary to the express and restraining provisions of the section of the Constitution (Art. III, § 5). An order was made declaring the resolution of the city council void, restraining the

Page 346

council from certifying the said apportionment of the districts, the directing the board of elections of the City of New York to treat the said resolution of the city council as void and of no effect. The remainder of the application, which was to direct the members of the city council to reconvene and adopt a legal and proper division of the County of Kings into assembly districts, was denied.

The parties representing the city council and the board of apportionment, and the intervener, appeal from the ...


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