Attorney General v. Suffolk County Apportionment Commissioners.

• Decision Date: 08 September 1916
• Citation: 224 Mass. 598
• Parties: ATTORNEY GENERAL v. SUFFOLK COUNTY APPORTIONMENT COMMISSIONERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 598

ATTORNEY GENERAL v. SUFFOLK COUNTY APPORTIONMENT COMMISSIONERS.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1916

September 5, 1916.

Present: RUGG, C.

J., LORING, BRALEY DE COURCY, & CARROLL, JJ.

Constitutional Law Apportionment of representation. House of Representatives. Suffolk County Apportionment Commissioners. Mandamus. Attorney General.

On a petition by the Attorney General for a writ of mandamus addressed to the Suffolk County apportionment commissioners elected under St 1913, c. 835, Section 390, declaring an apportionment of representation in the legislative districts in that county attempted to be made by the respondents to be void as not in conformity with the Constitution and ordering them to proceed "as soon as may be" to divide the county of

Suffolk into representative districts so as to apportion the number of representatives assigned to that county "equally, as nearly as may be, according to the relative number of legal voters" in the several districts, a clause in the reservation for determination of the case by this court stating that, if the question whether the respondents acted in good faith was material, this court might draw conclusions from the apportionment itself, was disregarded by this court, because this court has no power to decide facts in a proceeding at law and the question of good faith, if material, was one of fact, and it was held that the case must be considered by the court on the footing that the good faith of the commissioners was presumed. By art. 21 of the Amendments to the Constitution, which provides that a

"board of special commissioners . . . shall, on the first Tuesday of August next after each assignment of representatives to each county . . . proceed, as soon as may be, to divide the same into representative districts of contiguous territory, so as to apportion the representation assigned to each county equally, as nearly as may be, according to the relative number of legal voters in the several districts of each county," the principle of practical equality of representation among all the voters of the Commonwealth is established. The Suffolk County apportionment commissioners elected under St. 1913, c.

835, Section 390, in 1915 and in every tenth year thereafter, who are directed to "so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts," must perform their duties as directed by art. 21 of the

Amendments to the Constitution; and, where it is manifest from the inspection of an apportionment attempted to be made by them that there is grave, unnecessary and unreasonable inequality in the representation assigned by them to different districts, the Constitution has been violated und their attempted action is void.

Among the inequalities, which were held to have been sufficient to make the attempted apportionment void, was the apportioning to one district of two representatives for 3,913 voters and in another district giving only one representative for 6,182 voters. Another inequality was apportioning one representative to a district with almost 5,000 voters and apportioning three representatives to another district with about 6,000 voters. There were many other similar disparities showing gross and palpable inequalities extending to a considerable number of the districts.

A petition for a writ of mandamus addressed to the Suffolk County apportionment Commissioners, who had filed a report purporting to make an apportionment of representation in the legislative districts in that county which was void as in violation of art. 21 of the Amendments to the Constitution, commanding them to proceed with the performance of their duties under St. 1913, c. 835, in accordance with the provisions of the Constitution, affords the appropriate form of relief and is a remedy expressly provided by Section 502 of the statute named for enforcing the provisions of that chapter.

The remedy by mandamus described above is available to a citizen and voter interested in the execution of the laws.

In the case above described it was held, that, the public interests being involved, the Attorney General might institute and maintain a petition for a writ of mandamus to vindicate the public right.

In the case above described it was held that in issuing the writ of mandamus no specific time need be fixed for the completion by the commissioners of their work, it being assumed that they would be actuated by a consciousness of serious public duty with the obligations thereby entailed.

W. A. Buie, (T. J. Ahern with him,) for the commissioners.

W. H. Hitchcock, Assistant Attorney General, (C.

W. Mulcahy with him,) for the Attorney General.

N. Matthews, (F.

G. Goodale & J.

E. Searle with him,) for the individual petitioners and the plaintiff in the suit in equity.

RUGG, C.J. These proceedings are brought to test the legality of the division into representative districts of the fifty-four representatives to the General Court apportioned to Suffolk County by St. 1916, c. 270, Section 24. This division is required to be made by a board of nine commissioners elected by the voters of Suffolk County. St. 1913, c. 835, Section 390, provides as follows:

"At the annual State election in the year nineteen hundred and fifteen, and in every tenth year thereafter, nine commissioners shall be elected for the county of Suffolk, for the performance of the duties hereinafter specified. Five of said commissioners shall be residents of and voters in the city of Boston and shall be elected by the voters of that city; two shall be residents of and voters in the city of Chelsea and shall be elected by the voters of that city; one shall be a resident of and a voter in the town of Winthrop and shall be elected by the voters of that town; and one shall be a resident of and a voter in the town of Revere and shall be elected by the voters of that town. Said commissioners shall hold office for one year from the first Wednesday of January next after their election. At their first meeting, they shall organize by choosing a chairman, who shall be one of their number, and a clerk. The city of Boston shall provide them with a suitable office and room for hearings and shall allow and pay to them for compensation a sum not exceeding five hundred dollars each, said sum to be determined by the Governor and Council, and a further sum of not more than seven hundred dollars for clerk hire, stationery and incidental expenses.

"The said commissioners shall, on the first Tuesday of August next after the Secretary of the Commonwealth shall have certified to them the number of representatives to which the county of Suffolk may be entitled, as determined by the General Court, assemble in the city of Boston, and, as soon as may be, shall so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts. Such districts shall be so formed that no ward of a city and no town shall be divided, and no district shall be so formed that it shall be entitled to elect more than three representatives. . . ." One of the commissioners has deceased and the remaining eight are the respondents in each of the petitions and the defendants in the bill in equity in which the Secretary of the Commonwealth also is joined as a defendant.

A report has been filed by the commissioners. The division into representative districts therein set forth is assailed on the ground that it has not been made in accordance with the requirement of the Constitution. The pertinent provision of the Constitution is in art. 21 of the Amendments, and is as follows:

"A census of the legal voters of each city and town, on the first day of May, shall be taken and returned into the office of the Secretary of the Commonwealth, on or before the last day of June, in the year one thousand eight hundred and fifty-seven and a census of the inhabitants of each city and town, in the year one thousand eight hundred and sixty-five, and of every tenth year thereafter. In the census aforesaid, a special enumeration shall be made of the legal voters; and in each city, said enumeration shall specify the number of such legal voters aforesaid, residing in each ward of such city. The enumeration aforesaid shall determine the apportionment of representatives for the periods between the taking of the census.

"The House of Representatives shall consist of two hundred and forty members, which shall be apportioned by the Legislature, at its first session after the return of each enumeration as aforesaid, to the several counties of the Commonwealth equally, as nearly as may be, according to their relative numbers of legal voters, as ascertained by the next preceding special enumeration; and the town of Cohasset, in the county of Norfolk, shall, for this purpose, as well as in the formation of districts, as hereinafter provided, be considered a part of the county of Plymouth; and it shall be the duty of the Secretary of the Commonwealth, to certify, as soon as may be after it is determined by the Legislature, the number of representatives to which each county shall be entitled, to the board authorized to divide each county into representative districts. The mayor and aldermen of the city of Boston, the county commissioners of other counties than Suffolk, -- or in lieu of the mayor and aldermen of the city of Boston, or of the county commissioners in each county other than Suffolk, such board of special commissioners in each county, to be elected by the people of the...