Opinion
May 2, 1967
Appeal from a judgment of the Supreme Court, Clinton County, which directed that the Clinton County Board of Supervisors be reapportioned under a plan created by Special Term. On July 28, 1966, Special Term declared that the apportionment of the Clinton County Board of Supervisors was not constitutional, and directed the Board of Supervisors to adopt a constitutional plan of apportionment for Clinton County. Although a Committee of Reapportionment comprised of supervisors and private citizens of Clinton County submitted 12 separate and distinct plans for reapportionment for the County of Clinton, the Board of Supervisors failed to adopt any plan since the board was deadlocked in their vote and, by resolution dated August 11, 1966, the board resolved that they were unable to adopt any constitutional plan for reapportionment of Clinton County. By reason of the failure of the board to carry out the mandate of the court, the duty of adopting a constitutional plan was assumed by the court. The court concluded that any plan of weighted voting based on the existing representation in the Board of Supervisors would create an imbalance in voting power between the City of Plattsburgh and the remaining towns of Clinton County with the result that an inequality of voting power would exist in favor of the City of Plattsburgh. Special Term thereupon divided the county into eight new geographical districts based on population figures of the official United States census with each district electing one county legislator to constitute the new Clinton County Board of Supervisors. The appellant contends on this appeal that, in one of the new county districts, the court erroneously included 1,907 inmates of Clinton State Prison and 1,373 inmates of Dannemora State Hospital who were enumerated in the Federal census. If these inmates are to be excluded, the population of that county district would be reduced from 8,882 to 5,602, in which event that county district would be grossly out of proportion to the other county districts. In Seaman v. Fedourich ( 16 N.Y.2d 94, 105), the Court of Appeals held that, in determining the population of districts for an elective legislative body below the State level, the exclusion of patients from a State mental institution from the population was improper "without any investigation of relevant factors". The court's statement that mental patients could not be excluded "without any investigation" would indicate that patients must be excluded from the count of population unless, by reason of other factors, their residence was within the district and no place else. Special Term should not have included in the population figure for the Town of Dannemora the felons confined therein. It is, therefore, apparent that the exclusion of the inmates of the prison and hospital from the population figure of one district will result in a significant population discrepancy between that district and the other districts in the county and the plan, as it presently exists, does not provide the citizens with equal protection in their representation on the Board of Supervisors. In remitting the matter to Special Term, we draw attention to the disparity between the population of the districts as created by the court and that the population ratio between the largest and smallest districts is 1.28 to 1. A more equal apportionment among the districts should be attained to avoid a determination of illegality on the ground of variations among districts held to be unreasonable in Swann v. Adams ( 385 U.S. 440). (See, also, Kilgarlin v. Hill, 385 U.S. 120; Duddleston v. Grills, 385 U.S. 455.) Judgment reversed, on the law and the facts, and case remitted to Special Term for further proceedings not inconsistent herewith, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J. [ 51 Misc.2d 347.]