McPherson v. Bartlett

Ross, J. The provisions of the Constitution with respect to the election of senators are perfectly plain, and if the legislature of 1881 had districted the State- in accordance with the command contained in section 6 of article iv. of that instrument, the scheme therein devised would have been put in perfect and [578]harmonious working. But the legislature of 1881 failed to perform its duty in that regard. If the constitutional mandate had been obeyed, the State would have been divided into forty senatorial districts, numbered from one to forty inclusive, prior to the election of 1882, each of which districts would have elected one senator in that year—those from the even-numbered districts to hold their office for four years, and those from odd-numbered districts to hold for two years, and thereafter the term of each senator to be four years, so that one half of the senators would be elected every two years. But the State not having been divided into forty senatorial districts prior to the election of 1882, the question is, what is the result?

There is no doubt but that as a matter of fact the yhole number of senators—forty—were elected in the year" 1879, who held office for' the term of three years, and that the whole number—forty—were elected in the year 1882. How, where was the authority for those elections in the absence of the forty senatorial districts ? It is found, and can only be found, in the concluding clause of section 6 of article iv. of the Constitution, which is in these words: “Until such districting as herein provided for shall be made, senators and assemblymen shall be elected by the districts according to the apportionment now provided for by law,” that is to say, by the act of the legislature approved March 16, 1874, by which the State was divided into twenty-nine senatorial districts, numbered from one to twenty-nine, inclusive, and according to which there were twenty senators from the districts designated by odd numbers, and twenty senators from the districts designated by even numbers. In other words, the Constitution expressly kept in existence the districts established by the Act of 1874 until the legislature should establish the forty districts it was commanded to establish. It was from the twenty-nine districts as designated in the Act of 1874 that the forty senators were elected in 1879, and it was from those same districts that the forty senators were elected in 1882, twenty of whom were elected from districts designated by odd numbers. How, then, by section 5 of article iv. of the Constitution, it is declared: “The seats of the twenty senators elected in the year eighteen hundred and eighty-two from the odd-numbered districts shall be vacated at