Sweeney v. Notte
| Citation | 95 R.I. 68,183 A.2d 296 |
| Decision Date | 24 July 1962 |
| Docket Number | No. 643,643 |
| Parties | David F. SWEENEY, Jr., et al. v. John A. NOTTE, Jr., Governor, et al. C. Q. |
| Court | United States State Supreme Court of Rhode Island |
Gallogly, Beals & Tiernan, David F. Sweeney, Robert O. Tiernan, Providence, for petitioners.
J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Sp. Counsel for State, for respondents.
This is a petition to the superior court under the Uniform Declaratory Judgments Act, G.L.1956, chap. 30 of title 9. It seeks a declaration that those provisions of G.L.1956, chap. 2 of title 22, which relate to the prevailing apportionment of seats in the house of representatives are in the light of the 1960 federal census violative of article XIII of amendments to the constitution of this state and of article XIV of amendments to the United States constitution. Hereinafter references to article XIII of amendments will mean to the constitution of this state and to article XIV will mean amendments to the United States constitution.
The petition also prays for injunctive relief and for certification to this court of questions of such doubt and importance as to affect the merits of the controversy. After a hearing, a justice of the superior court denied the petitioners' motion for a preliminary injunction and invoking the authority of G.L.1956, § 9-24-27, ordered the certification of certain questions as prayed. The cause is before us on said order.
The petition recites that respondents, His Excellency the Governor, the Secretary of State, and the members of the board of elections in their respective official capacities, are charged by constitution and statutes with the holding and conducting of elections for state officers, the certification and qualification of successful condidates and the enforcement of all laws relating thereto; and that petitioners are informed and believe that the 1962 primary and general election of candidates for the house of representatives will be conducted in accordance with the prevailing statutory apportionment of seats in the house of representatives, which apportionment, having been enacted by P.L.1930, chap. 1526, now G.L.1956, § 22-2-4, has become obsolete and violates article XIII of amendments to the constitution of this state and article XIV of amendments to the constitution of the United States.
Article XIII, § 1, of amendments provides as follows
Although article XIV of amendments to the United States constitution provides for equal protection and for due process and petitioners have invoked both clauses, we deem it necessary to consider only whether the prevailing apportionment of seats in the house of representatives denies to petitioners the equal protection of the laws as guaranteed by said amendment, the pertinent language of which is as follows: '* * * nor deny to any person within its jurisdiction the equal protection of the laws.'
The petition further recites that petitioners are residents of the cities of Cranston and Warwick respectively; that according to the bureau of the census 1960 report the population of Cranston is 66,766 and of Warwick is 68,504; that by the 1930 apportionment said cities were allotted five and three seats respectively; and that such continues to be their allotted apportionment despite a marked increase in their population.
The petitioners also aver, and it so appears from the record, that by the terms of G.L.1956, § 22-2-4, the city of Woonsocket was allotted eight seats, the city of Central Falls four seats, and the town of West Warwick three seats, which representation said communities still enjoy although the 1960 census report reveals their population to be 47,080, 19,858 and 21,414, respectively.
The petition as originally filed averred in substance that the general assembly had not reapportioned house seats since 1930 and that petitioners were informed and believed that no reapportionment would be enacted prior to the holding of the next primary and general election. Subsequent to said filing the general assembly gave first passage to a proposed constitutional amendment which, if again enacted by the legislature and approved by the people at the 1964 general election, would increase the limit on house seats from 100 to 125. Thereafter and before hearing, the petition was amended so as to acknowledge the action taken by the general assembly, averring, however, that such action afforded no relief to petitioners.
They further aver in substance that, in the light of the 1960 census report and by virtue of the constitutional provisions quoted supra, the inhabitants of the cities of Cranston and Warwick are entitled to increased representation, and that the inhabitants of other municipalities, more particularly those of Woonsocket, Central Falls and West Warwick, are not entitled to such overrepresentation as they presently enjoy.
In addition to the foregoing, it appears that petitioner David F. Sweeney, Jr. is a member of the house of representatives from the city of Cranston. As such he avers that if re-elected on the basis of § 22-2-4 his title to the office will be in doubt. For reasons which will become obvious, this contention does not require consideration in these proceedings.
On these premises, petitioners pray that the questions of law and the question of the constitutionality of G.L.1956, chap. 2 of title 22, be certified to this court as provided by G.L.1956, § 9-24-27. Inconsistently they also pray that the superior court declare the unconstitutionality of chap. 2 of title 22, and temporarily enjoin respondents from performing their applicable duties pending such declaration. Further, they pray that the superior court appoint a commissioner or commissioners to devise a schedule of apportionment consistent with the population of the several municipalities as shown by the 1960 federal census and the formula contained within article XIII of amendments, and that the superior court decree the holding of elections of candidates to the house of representatives in accordance with such schedule or, in the alternative, that the election of representatives be held at large.
The petition was heard by a superior court justice who, on a finding that the relevant facts alleged had been established as true, denied petitioners' motion for a preliminary injunction but granted a motion that certain questions be certified to this court as being of sufficient doubt and importance as to affect the merits of the controversy. Pursuant thereto he certified thirteen questions.
The instant proceedings follow Moore v. Langton, R.I., 167 A.2d 558. In that case, however, we entertained serious, if unexpressed, doubts as to the propriety of the superior court's invoking the provisions of § 9-24-27 in a proceeding brought under the Uniform Declaratory Judgments Act. Indeed, in Rondoni v. Sherman, 90 R.I. 322, at page 326, 158 A.2d 267, 269, we indicated such doubts. However, both cases involved serious questions of immediate import and for that reason we did not deem it desirable to delay a decision on the merits on procedural grounds.
The instant cause also involves grave questions of public concern and we are, therefore, constrained to consider the same in its present posture, even though we believe the legislature did not intend to permit a combining of petitions under the Uniform Declaratory Judgments Act with certifications under § 9-24-27. Such certification in the present instance involves but a phase of the controversy in litigation. A petition filed pursuant to chap. 30 of title 9, however, constitutes the entire controversy with the obligation on the superior court to make the declaration prayed for with a right of appeal to this court.
In the interest of orderly procedure, therefore, we declare that we will not hereafter entertain certification of questions under § 9-24-27 in proceedings commenced under the Uniform Declaratory Judgments Act.
Furthermore we deem it neither necessary nor desirable in these proceedings to consider and answer each specific question as certified. The first three questions relate to the nonconformance of the legislation in issue to article XIII of amendments to the state constitution, seven others raise the issue of equal protection, and the remaining questions are remedial in nature. For purposes of brevity and continuity we shall so group and consider them.
Although petitioners by their prayer challenge the constitutionality of chap. 2 of title 22, only § 22-2-4 is specifically mentioned in the questions certified to us. This is presumably occasioned by the fact that it is this section which specifically enumerates those communities to which in 1930 the general assembly allotted two or more seats on the basis of their then prevailing populations, among which are Cranston, Warwick and those communities whose representation is herein under attack.
The petitioners are understandably content to limit the scope of...
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