Sincock v. Duffy

• Decision Date: 17 April 1963
• Docket Number: Civ. A. No. 2470.
• Citation: 215 F. Supp. 169
• Parties: Richard SINCOCK et al., Plaintiffs, v. William DUFFY, Jr., et al., Defendants.
• Court: U.S. District Court — District of Delaware

215 F. Supp. 169

Richard SINCOCK et al., Plaintiffs, v. William DUFFY, Jr., et al., Defendants.

Civ. A. No. 2470.

United States District Court D. Delaware.

April 17, 1963.

COPYRIGHT MATERIAL OMITTED

Vincent A. Theisen and Victor F. Battaglia, Wilmington, Del., for plaintiffs.

Januar D. Bove, Jr., Frank O'Donnell, Warren B. Burt, Wilmington, and N. Maxson Terry, James H. Hughes, III, Dover, Del., Robert W. Tunnell, Georgetown, Del., and David P. Buckson, Atty. Gen. for State of Delaware, for defendants.

Before BIGGS, Circuit Judge, and WRIGHT and LAYTON, District Judges.

BIGGS, Circuit Judge.

This is a Three-Judge Court constituted pursuant to Section 2284 of Title 28, U.S.C., and our jurisdiction lies in the first instance in the provisions of Sections 2281 and 1343, Title 28, U.S.C., and in Section 1983, Title 42, U.S.C.A., the Civil Rights Acts. We are called upon to restrain enforcement of a provision of the Constitution of Delaware and for other relief as set out hereinafter. Section 2281 states in pertinent part: "An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title." We, of course, in the case at bar are passing on provisions of the Constitution of Delaware, as hereinafter set out, and are not adjudicating the validity of a "statute". But, as the Supreme Court has stated, it would be incongruous to hold that a single judge "while prohibited from enjoining action under an act of the state legislature, would be free to act if the state constitution alone were involved." See American Federation of Labor v. Watson, 327 U.S. 582, 592-593, 66 S.Ct. 761, 766, 90 L.Ed. 873 (1946).

Our jurisdiction over the subject matter of the instant case has been stated by us in one of our previous opinions as follows: "In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court of the United States held that a court such as this had the jurisdiction to and must determine whether or not the apportioning of members of a state general assembly or legislature by geographical units offends the constitutional rights of the electors of the state under the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States because of an alleged debasement of their voting rights." See D.C., 207 F.Supp. at p. 205.

The suit at bar is a class action brought by the plaintiffs on their own behalf and on behalf of all other persons similarly situated. Some of the prior history of this case is set out in our opinions in 207 F.Supp. 205, in 210 F.Supp. 395, and in id. 396 (sub nom. Sincock v. Terry). As will be gathered from the preceding paragraph, the fundamental issue presented for our adjudication is whether or not the apportioning of members of the General Assembly of the State of Delaware offends the electors of the State because of an alleged debasement of their voting rights. We have before us not only the provisions of Section 2 of Article II of the Constitution of Delaware of 1897 as originally framed, Del.C.Ann., but also the Amendment to Section 2 of Article II as agreed to by the 122nd General Assembly this year. See id., supra, (1962 Supp.) This is so because the new Section 2 of Article II, promulgated and effective in January 1963, is designated an "Amendment", and if it should fail for constitutional infirmities old Section 2 of Article II might conceivably be deemed to be reinstated. We shall not rule on this issue. Rather than deal with the intricacies of law relating to survival or revival of constitutional provisions, it seems simpler to adjudicate the constitutionality of both old and new Section 2 of Article II, and we shall do so.

The relief sought by the plaintiffs in substance is an adjudication that Section 2 of Article II as it was prior to the 1963 Amendment and as it is now is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. The plaintiffs also seek a decree of this court reapportioning the representation of both the House of Representatives and the Senate of the General Assembly of Delaware in accordance with Section 3 of Article I of the Constitution of Delaware, and have submitted a plan on which an extensive hearing was had pursuant to the pretrial order. The plaintiffs assert that this plan would, if decreed by this court, grant them and other citizens of Delaware the relief sought. The plaintiffs also desire an injunction to restrain the defendants¹ from applying the apportionment provided by the Constitution of Delaware, as it was and as it is, at the next general election or thereafter.

The case was pretried extensively. A statement of agreed facts is set out in the pretrial order. Affidavits have been filed and depositions taken. The court also has had the advantage of the evidence of three political scientists whom the court deemed to be well qualified in that field. The qualifications of these gentlemen are set out in the testimony and need not be repeated here. They were Dr. Paul Dolan of the University of Delaware and Associate Professor Royce Hanson of American University, who testified on behalf of the plaintiffs, and Dr. James R. Pollock, Murfin Professor of Political Science at the University of Michigan, who gave evidence on behalf of the defendants. We also have had the benefit of the testimony of Mr. Leon de Valinger, State Archivist of Delaware, who has specialized in the history of the government of this State, and of Houston Wilson, Esquire, a member of the Delaware Bar, Chairman of a Subcommittee of the Bi-Partisan Reapportionment Committee, the parent committee appointed by the Governor of Delaware and which made a report to him.

The findings of fact made herein are, of course, based on the entire record.

I

The plaintiffs are residents of four representative districts and four senatorial districts of the State of Delaware and are duly qualified voters and taxpayers of the State and citizens of the United States. The defendants comprise the Boards of Canvass, the Clerks of Peace, the Departments of Election and their Secretaries of New Castle, Kent and Sussex Counties, respectively, and the State Election Commissioner, all of whom perform statutory and constitutional duties relating to the general elections in the State of Delaware.

The composition of the House and Senate of the General Assembly is established by the provisions of Section 2, Article II of the Constitution of the State of Delaware of 1897. This section, as it existed prior to the 1963 Amendment, divided Delaware into 35 geographical representative districts and provided that the qualified electors of each district should elect one representative. It also divided Delaware into 17 geographical senatorial districts from each of which a Senator was chosen by the qualified electors thereof. The section created 15 representative districts, numbered one to 15 inclusive, in New Castle County; 10 representative districts, numbered one to ten inclusive, in Kent County; and 10 representative districts, numbered from one to ten inclusive, in Sussex County. It also established 7 senatorial districts, numbered 1 to 7 inclusive, in New Castle County; 5 senatorial districts, numbered 1 to 5 inclusive, in Kent County; and 5 senatorial districts, numbered 1 to 5 inclusive, in Sussex County.

The apportionment of Delaware into representative and senatorial districts as designated was the result of a Constitutional Convention convened at Dover, Delaware, on December 1, 1896, for the purpose of revising the Constitution of the State of Delaware of 1831.

At the time of the adoption of the Constitution of 1897 the population of Delaware was approximately 180,000. About 105,000 persons resided in New Castle County, 70,000 of whom resided in the City of Wilmington,² and 35,000 resided in rural New Castle County. Kent County had a population of 32,000 and Sussex County a population of 38,000.³

At the time of the adoption of the Constitution of 1897 the inhabitants of rural New Castle County, Kent County, and Sussex County were considered to be identical insofar as their occupations and vocations were concerned and the populations of the respective counties were substantially equal. Accordingly each county was apportioned to the then existing population so that each rural area had 10 representatives in the House of Representatives and 5 senators in the Senate of the General Assembly. The City of Wilmington with a population of 70,000 was accorded special consideration and was allotted 5 representatives in the House of Representatives and 2 senators in the Senate.⁴

By April 1, 1930, according to the 15th Decennial Census⁵ of the United States, the population of the State of Delaware had increased to 238,380 which represented an increase of 15,374 or 6.9% as compared with the population on January 1, 1920. In 1930 New Castle County had grown to 161,032 inhabitants of which 106,597 resided in the City of Wilmington and 54,435 resided in rural New Castle County, while Kent County had a population of 31,841 and Sussex County had a population of 45,507.⁶

By 1960 the total population of Delaware had increased to 446,292 of which 307,446 resided in New Castle County. Of these, 95,827 resided in the City of Wilmington and 211,619 resided in rural New Castle County. In the same year 65,651 persons resided in Kent County and 73,195 persons inhabited Sussex County.⁷ It is apparent from the foregoing that New Castle County in...