Costello v. Rice

Decision Date30 June 1959
Citation397 Pa. 198,153 A.2d 888
PartiesDaniel T. COSTELLO, a citizen, duly quallfied elector and taxpayer of the Commonwealth of Pennsylvania and County of Montgomery, for himself and for any other taxpayers and electors who may desire to join as parties-plaintiff, v. John S. RICE, Secretary of the Commonwealth of Pennsylvania.
CourtPennsylvania Supreme Court

Rehearing Denied and Supplemental Opinion Filed Aug. 10, 1959.

Philip P. Kalodner, John T. Synnestvedt, Philadelphia for appellant.

Harry J. Rubin, Deputy Atty. Gen., and Anne X. Alpern, Atty. Gen for appellee.



This case, like Butcher v. Rice, Pa., 153 A.2d 869, questions the constitutionality of the Apportionment Act of May 10, 1921, P.L. 449, as amended by the Act of July 26, 1923, P.L. 106, 25 P.S. § 2201 et seq., and, by like token, the preceding Apportionment Acts of 1906 and 1874. The matter is before us on original jurisdiction. After the pleadings had been completed in the Court of Common Pleas of Dauphin County (where the suit was properly instituted) and nothing remained for decision but questions of law, counsel for the plaintiff petitioned us to certiorari the record below to this court for disposition along with Butcher v. Rice, supra, which was then here on appeal. We so acted and the two cases were argued successively on the same day.

What we have said in Butcher v. Rice, in declining to take cognizance of the plaintiff's attack on the constitutionality of an Apportionment Act and of the constitutional impossibility of an election-at-large of State Senators is equally applicable here.

Bill dismissed at the plaintiff's costs.

BELL, J., dissents for the reasons given in his dissenting opinion in Butcher v. Rice.

McBRIDE, J., took no part in the consideration or disposition of this case.

Supplemental Opinion Sur Petition for Reargument

The plaintiff has petitioned for reargument on the ground that our opinion dismissing his complaint did not expressly pass upon his contention that the Senatorial Apportionment Act of May 10 1921, P.L. 449, 25 P.S. § 2201 et seq., has become unconstitutional because of its failure to conform to a specific provision of Article II, Section 16, of the State Constitution, P.S. so far as the Senatorial District composed of Montgomery County is concerned.

Specifically, the petitioned reasons that, since Article II, Section 16, of the Pennsylvania Constitution provides, inter alia, that 'Each county containing one or more ratios of population shall be entitled to one Senator for each ratio, and to an additional Senator for a surplus of population exceeding three-fifths of a ratio * * *' and since Montgomery County (which constitutes one Senatorial District and consequently has but one Senator), now has a population, according to the latest decennial census, of more than one and three-fifths of a population ratio (which is ascertained by dividing the whole population of the State by the number fifty), the district is entitled to two Senators. Wherefore the petitioner argues that the Apportionment Act of 1921 has become unconstitutional.

It is the petitioner's contention that the constitutional prescription of an additional Senator for a population in excess of one and three-fifths population ratios is similar, in legal effect, to other constitutional specifications which, as noted in our opinion in Butcher v. Rice, 153 A.2d 869, made the constitutional validity of the Apportionment Acts of 1937 judicially reviewable, as was recognized in Shoemaker v. Lawrence, 45 Dauph.Co. 111, 31 Pa.Dist. & Co.R. 681, and Lyme v. Lawrence, 45 Dauph.Co. 322.

There is, however, a material distinction between the circumstances for which the Apportionment Acts of 1937 were stricken down, as being violative of the Constitution, and the situation upon which the petitioner bases his contention. The Acts of 1937, in their very enactment, plainly ignored established and undeniable physical facts relative to geographical areas of the State. In the instant case, it is the increase in the population of Montgomery County over the years which furnishes the basis of the plaintiff's argument that the Apportionment Act of 1921 has become unconstitutional because it does not allot two Senators to Montgomery County.

The Apportionment Acts of June 30, 1937, P.L. 2443, and of June 30, 1937, P.L. 2454, 25 P.S. § 2209a et seq., relating, respectively, to Representative and Senatorial apportionment, were obviously invalid at the time of their passage and were properly stricken down timely by judicial decree because of the patent constitutional errors in their enactment, such as, their omission entirely of certain territory of the State, their inclusion of non-contiguous territory within the same district and their specification of political subdivisions which did not actually exist. Anything the General Assembly does in an exercise of its legislative power is of course judicially reviewable for its constitutionality. See Hertz Drivurself Stations, Inc. v. Siggins, 359 Pa. 25, 33, 58 A.2d 464, 7 A.L.R.2d 438. But, whether the legislature may be judicially enjoined to discharge a duty constitutionally imposed upon it is an entirely different matter. It is a question of the latter type with which this appeal is concerned.

The Senatorial Apportionment Act of 1921 in its allotment of one Senator to the Montgomery County District conformed to the pertinent constitutional prescription and was a valid enactment. Under the decennial ceusus of 1920 the population ratio for a Senator was $174,400. Montgomery County's population was 199,310, which was relatively little more than the population ratio and considerably less than 279,040 which would have been one and three-fifths of the then population ratio. Of course, if the legislature upon reapportioning Senatorial Districts should allot only one Senator to a district having a population in excess of one and three-fifths population ratios (e. g., Montgomery County), the statute would be an unconstitutional enactment which a court would strike down and re-establish the last preceding apportionment act just as was done in the Shoemaker and Lyme cases, supra. An apportionment act, valid when enacted, does not become unconstitutional merely by reason of a district's increase in population. Such a condition, of course, affords a strong and cogent reason for reapportionment but it does not serve to invalidate an apportionment statute, once constitutionally enacted. The question of an apportionment act's constitutionality cannot be made to depend on the fortuitous...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT