Butcher v. Rice
| Citation | 153 A.2d 869,397 Pa. 158 |
| Parties | Harry K. BUTCHER, Samuel H. Rosenberg and Frank W. Dressler, Citizens, Duly Qualified Electros and Taxpayers of the Commonwealth of Pennsylvania, and of the City and County of Philadelphia, for themselves and for any other Taxpayers and Electros who may desire to join as Parties-Plaintiff, Appellants, v. John S. RICE, Secretary of the Commonwealth of Pennsylvania. |
| Decision Date | 30 June 1959 |
| Court | United States State Supreme Court of Pennsylvania |
George M. Brantz, Edward G. Bauer, Jr., Philadelphia, for appellant.
Harry J. Rubin, Deputy Atty. Gen., and Anne X. Alpern, Atty. Gen., for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and BOK, JJ.
The plaintiffs, Harry K. Butcher, Samuel H. Rosenberg and Frank W. Dressler, as citizens, electors and taxpayers of the City and County of Philadelphia and residents respectively in the County's Fourth, Sixth and Eighth Senatorial Districts, instituted this suit in equity in the Court of Common Pleas of Dauphin County in an effort to enjoin the Secretary of the Commonwealth from certifying candidates or holding elections for the office of State Senator from the Philadelphia districts, on the ground that the Apportionment Act of May 10, 1921, P.L. 449, as amended by the Act of April 26, 1923, P.L. 106, 25 P.S. § 2201 et seq., is unconstitutional.
The complaint alleges that the eight senatorial districts within Philadelphia County are not 'as nearly equal in population as may be' as enjoined on the General Assembly by Article II, Section 16, of the Pennsylvania Constitution, P.S., 1 but, on the contrary, are in fact enormously disproportionate with respect to their population; that the General Assembly has not apportioned the State into senatorial districts as required by Article II, Section 18, since the decennial census of 1950; 2 and that the Act of 1921 violates the free and equal election provision of Article I, Section 5, of the Pennsylvania Constitution and 'the equal protection of the laws' clause of the Fourteenth Amendment of the Federal Constitution. The complaint also prayed, in the alternative, a decree ordering the holding of an election at large in Philadelphia County for the eight offices of State Senator (to which that County is constitutionally limited) until the General Assembly shall reapportion the senatorial districts within Philadelphia County. Evidently recognizing the widely accepted rule of law that courts are without power to compel the Legislature to act affirmatively to perform even a constitutional duty (Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 A.L.R. 960), the complainants did not join the members of the General Assembly as parties defendant.
The Secretary of the Commonwealth, as defendant, filed an answer admitting all of the factual averments of the complaint. The Secretary also filed a suggestion that the complaint be dismissed for the plaintiffs' failure to join members of the General Assembly as indispensable parties to the suit. Since the pleadings presented only questions of law, the plaintiffs moved for judgment. The motion was heard by the court en banc, with the assent of the parties, as on final hearing. The court in a formal and well-considered opinion held that it was without power to grant the relief sought, even if the members of the General Assembly were joined as parties defendant, and accordingly entered a final decree dismissing the complaint and giving judgment for the defendant. From the decree so entered the plaintiffs took this appeal.
What the plaintiffs seek is a judicial declaration that the Act of 1921, as amended, is unconstitutional. Since the antecedent Apportionment Acts of February 17, 1906, P.L. 31, and of May 19, 1874, P.L. 197, would, by the same token, be unconstitutional, the Commonwealth would be without a senatorial apportionment act and the General Assembly would thereby be under the immediate necessity of reapportioning the State's senatorial districts on the basis of the latest decennial census. Equity affords no jurisdiction for judicial intervention in the circumstances pleaded. The General Assembly's failure to divide the State into senatorial districts since the decennial census of 1950 raises a purely political question and whether the extant Apportionment Act of 1921 divides the State into senatorial districts 'as nearly equal in population as may be' is not justiciable but rests alone in the discretion of the General Assembly.
The political nature of the problem is fully considered in the case of Colegrove v. Green, 328 U.S. 549, 552, 66 S.Ct. 1198, 1199, 90 L.Ed. 1432. In that case the plaintiff brought an action in the United States District Court for the Northern District of Illinois to restrain certain State administrative officials from conducting congressional elections pursuant to the provisions of an Illinois statute establishing congressional districts. The District Court, 64 F.Supp. 632, dismissed the complaint and the United States Supreme Court affirmed. While the ultimate decision was by a closely divided Court, the case has since been frequently cited with approval by the Supreme and other Federal Courts and numerous State Courts. The opinion in conformity with the decision was written by Mr. Justice Frankfurter who was joined by two other Justices. Mr. Justice Black, who filed a dissenting opinion, was also joined by two other Justices. The determining decisional factor was the vote for affirmance by Mr. Justice Rutledge who stated in his concurring opinion that equity should decline to exercise its jurisdiction because of the peculiar circumstances present in the case. The following from Mr. Justice Frankfurter's opinion has since been widely quoted with approval,-- (Emphasis supplied).
The above quoted reasoning from Colegrove v. Green, supra, subsequently prevailed in the closely analogous case of MacDougall v. Green, 335 U.S. 281, 284 69 S.Ct. 1, 93 L.Ed. 3. There, an injunction was sought against an Illinois statute which prescribed procedures for the formation and recognition of a new political party. The complainants alleged that the statute discriminated against the most populous counties of the State. The Supreme Court, citing Colegrove v. Green, supra, refused to grant the requested relief.
In South v. Peters, 339 U.S. 276, 277, 70 S.Ct. 641, 94 L.Ed. 834, the plaintiff challenged the validity of Georgia's county unit election system. He contended that the voters in the most populous county of the State have an average of about one-tenth of the political weight of those in other counties. The Supreme Court affirmed the dismissal of the plaintiff's petition citing Colegrove v. Green, supra, and MacDougall v. Green, supra.
Likewise, in Cook v. Fortson (Turman v. Duckworth), 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, the plaintiffs attacked the constitutionality of Georgia's county unit system as it applied to the selection of a candidate for Governor in the primary election. A three-judge federal court, in refusing to grant the relief sought, stated (D.C., 68 F.Supp. 744, 747-748), The Supreme Court of the United States dismissed the appeal and directed the District Court to dismiss the bill.
Again, Kidd v. McCanless, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157, where the issues raised were very similar to those presented in the instant case, the Supreme Court of Tennessee (200 Tenn. 273, 292 S.W.2d 40) refused to entertain a suit challenging the constitutional validity of legislation providing for apportionment of election districts for Senators and Representatives of the General Assemby. The Supreme Court, in refusing to interfere with the decision of the Supreme Court of Tennessee, unanimously entered an order dismissing the appeal, citing Colegrove v. Green, supra.
In Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328, the Supreme Court of California had denied a petition for a writ of mandamus seeking to compel the Secretary of State of California to disregard certain California reapportionment statutes (See 20 U.S.L.W. 3252). Just as in the case now before us, the plaintiffs had contended that the statutes were unconstitutional. The Supreme Court of the United States dismissed the plaintiffs' appeal, citing Colegrove v. Green, supra, and MacDougall v. Green, supra.
Somewhat earlier, the Supreme Court, in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 3, 77 L.Ed. 131, had before it a case in which a citizen of Mississippi had sought in the United States District Court an injunction to restrain certain State officers from conducting congressional elections pursuant to an allegedly invalid redistricting State Act. The court granted the injunction. On appeal to the Supreme Court, the members of the Court unanimously agreed that the decree should be reversed and the complaint dismissed. Mr. Chief Justice Hughes, who wrote the opinion for the Court, found it unnecessary to consider the questions raised as to the right to relief in...
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