*1 Benjamin dis- in this R. joins Jones Mr. Justice opinion. senting proper proper could mandamus time the Courts at a suit Legislators, duty, Legislature perform as since its Constitutional responsive Judges, as should made well Governors who elect them. as axe the citizens
Constitution Appellant, Rice. Costello, Argued Before J., Bell, C. May 6, Jones, JJ. Cohen Musmanno, Jones, Bok,
reargument refused
August 10, Synnestvedt,
Philip P. him John T. with Kalodner, for appellant petitioner.
Harry Deputy Attorney J. him with Rubin, General, Attorney Anne Alpern, X. Commonwealth, for General, appellee.
Opinion by Mb. 30, Chief Justice June Jones, 1959: p.
This like Butcher et case, al. ante v. Rice, 158, questions Apportionment the constitutionality of the May Act of by P. L. amended the Act 10, 1921, 449, July pre P. L. like 106, and, token, 26, ceding Apportionment Acts of 1906 and 1874. The mat jurisdiction. ter is before us on After pleadings completed had been in the Court of Common Dauphin (where Pleas properly the suit was instituted) nothing ques remained for decision but plaintiff petitioned tions of counsel for the law, tous certiorari the disposition record to this below court for along Butcher et supra, al. was then appeal. here on soWe acted two cases ar gued successively day. on the same
What we have said in Butcher v. in de- Rice, ante, clining cognizance plaintiff’s to take on attack constitutionality of an the constitutional impossibility of election-at-large applicable equally of State Senators is here. plaintiff’s
Bill at the costs. dismissed given in Mr. Justice Bell for the reasons dissents opinion dissenting ante. his in Butcher et al. v. Bice, took no considera- part Mr. Justice McBride or decision of case. Supplemental Justice Mr. Chief August 1959: Jones, plaintiff petitioned reargument has complaint
ground dismissing did that our his pass expressly that the his contention Sena- not May torial P.L. 449, Act of *3 because of its failure has unconstitutional become specific provision Article to a of Section conform II, the far as Senatorial of the State so Constitution 16, composed Montgomery County concerned. District petitioner Specifically, Arti- reasons since that, Pennsylvania Constitution cle Section 16, II, containing one provides, that “Each inter alia, one entitled ratios of shall or more additional Senator to an each ratio, population exceeding surplus three-fifths of for a (which con- since ratio .” and . . consequently has District and one Senatorial stitutes according population, Senator), has now but of more than one decennial census, the latest (which is ascertained ratio aof three-fifths by the dividing State the whole to two fifty), is entitled Senators. district number Apportion- argues petitioner that Wherefore unconstitutional. become 1921 has ment Act petitioner’s that the constitu- contention It is prescription Senator for of an additional tional one and excess of population in
20l legal ratios is in other constitutional similar, effect, specifications as in noted in our Butcher which, validity 397 Pa. made the constitutional 158, Apportionment judicially Acts of 1937 review- recognized as was in Shoemaker v. able, Lawrence, Dauphin Dauphin Lyme Lawrence,
There
a material distinction between
is, however,
Apportionment
the circumstances for
which
Acts
being
of 1937 were stricken
violative of the
down,
peti-
situation
Constitution,
tioner bases his contention. The Acts of
in their
very
plainly ignored
un-
enactment,
established and
physical
geographical
deniable
facts
areas
relative
of the State.
In the instant
it is the
increase
case,
population Montgomery County
years
over the
plaintiff’s argument
furnishes the
basis of the
Act of 1921 has become un-
constitutional
because
does not allot two Senators
Montgomery County.
Acts of June
P.L.
30, 1937,
and of June
relating,
P. L.
30, 1937,
re
Representative
spectively,
apportion
and Senatorial
obviously
were
at
invalid
ment,
the time of their
passage
properly
timely
stricken down
patent
decree because of the
errors
their
such
enactment,
as,
omission en
territory
tirely of certain
*4
of their
State,
inclusion
non-contiguous territory within the same district and
specification
political
subdivisions which did
actually
Anything
Assembly
not
exist.
the General
legislative power
does in an exercise of its
is of course
judicially
constitutionality.
reviewable
its
See
Siggins,
Hertz
Inc. v.
Stations,
a latter with which concerned.
The Senatorial its of 1921 in Montgomery allotment of one Senator pertinent pre- District conformed to the scription a and enactment. the decen- was valid Under population nial of 1920 the ratio Senator census for a Montgomery County’s was was 174,400. relatively popu- which was little more than the 199,310, considerably lation ratio than less 279,040, popula- have one three-fifths would been of the then reap- legislature upon ratio. Of course, portioning only one Senatorial Districts should allot having to a district a excess Montgom- (e.g., three-fifths one and ratios ery County), the statute be an unconstitutional would a court strike re- enactment which would down and just apportionment preceding the last act establish supra. Lyme in the An done Shoemaker cases, was apportionment does not be- when valid act, enacted, merely by a district’s unconstitutional reason of come population. a course, Such increase in condition, cogent strong reason for affords apportionment to invalidate an not serve does but question once enacted. The statute, apportionment constitutionality act’s cannot be of an depend fortuitous circumstances made way one the other. or shifts successive petitioner advocates over- solution which The problem. simplifies To be the Constitution sure, population exceeding intends population ratio shall be en- of a that does that, not mean but Senators, titled two reapportionment, would necessarily to it. two Senators allotted have conceivably might take sufficient of Mont- legislature *5 population County’s contiguous gomery area to Bucks incorporate and with in a Sena- torial District have more which would nearly produce approaching the ratio and consequent pro tanto reduced in the remain- ing Montgomery County to District be- number well That low ratio. give petitioner repre-
a court cannot the senatorial patent. sentation he seeks for his district which is reappor- Concededly, the are not to courts authorized legislative districts. problems apportion- many There are involved in only duty legislature, ment which constitutionally such is could connection committed, degree possibly any resolve with of satisfaction expedition. For instance, upon reapportionment,
accorded another ob- Senator viously a district elsewhere in the State would have extinguished. expressly limits the The Constitution fifty. membership other There are two Senate (Delaware Allegheny), each counties in the State to another under Con- of which entitled strongly prescription. argues All of this stitution’s the immediate need senatorial does not to render unconstitutional but it serve applies existing other sixty-four What well. counties Commonwealth as petitioner seeks is a invalidation of though existing court is Act even apportionment authority supply a substitute without compel empowered and is not legislature to do so. Pennsyl- fifty Districts out of
To Senatorial carve varying sixty-seven areas with their vania’s counties, jigsaw irregular geographical as a boundaries prescriptions spe- comply puzzle, the several *6 presents problem a ciiied the in Constitution, precipitated by court out-of-hand should not be existing when Act, invalidation compel judicial power to there is no constitutional though legislative the even of State, long ex- overdue in Constitution’s such is view plicit 18. in Article Section mandate II, recognized here- in the filed
As we posed appeal question ad- by this is ruled the basic in, appellant de- of our versely to the rationale the supra. legisla- Whether the in Butcher Rice, cision disciplined in the dis- for dereliction ture should be charge duty by the it Article Section of laid II, decennially apportion to the State the Constitution, presents legislative a into senatorial districts, question justiciable political a can be and not through by people only resolved ju- a of their elective franchise and not in exercise compel legis- proceeding. people If desire to dicial compliance imposed upon duty Gen- lative Assembly by Article Section then Con- eral II, prescribe amended so efficient must be stitution appropriate the end means sanctions desired imposing them. that be this court will Until done, require authority remain without legislature discharge duty by committed people It than was held more in Constitution. ago by present
eighty years under the Con- court, exempt process that the Governor from the stitution, engaging any pertaining duty the courts whenever judicial proc- immunity that his to his officeand from agents acting his subordinates extends to ess when capacity: Appeal official Pa. in their 85 Hartranft, legislature can be no less 449. immune 433, 444, respect process discharge of its of its from Fergus v. 321 Ill. duties: 152 N.E. Marks, official Any against 557. decree this court directed legislature would be unenforceable and no basis charge ignored. contempt, It a classic would be example of what describes as a law ulmen* brutum f attempt directly, What court cannot do it should not by indirection: U.S. Colegrove Green, reargument
Petition for denied. Dissenting Supplemental Opinion Mb. Justice Bell: *7 length Dissenting my
For the set at reason forth in Butcher I dissent supplemental opinion and to the of the Court this case.
* empty Dictionary, noise; empty “An threat”: Law Black’s Third Ed.
Downey Rymorowicz, Appellant.