306 Mass. 237 | Mass. | 1940
These are eight petitions for writs of mandamus brought against the board of special commissioners appointed under the provisions of St. 1939, c. 467, § 2, to divide Suffolk County into representative districts, and to assign representatives thereto. In each case the respondent commissioners filed an answer and the petitioner filed a replication thereto. The Secretary of the Commonwealth is referred to in each of the petitions as a respondent. And he has answered admitting the facts alleged in the petitions, alleging that his duty in the premises is purely administrative, and submitting himself to the jurisdiction of the court. An agreed statement of facts was filed to which the Secretary assented. From that statement it appears that the respondent commissioners have acted to divide the county into'representative districts and to assign representatives thereto, and, under date of December 20, 1939, filed a report of their action with the Secretary and with the registrars of voters, or other body having similar powers ór duties, in each city or town in said county.
The petitioner in. each case is a legal voter in a ward of the city of Boston in said county. Three of these petitioners are legal voters in ward ten, two of them are legal voters in ward eleven, and one each is a legal voter in wards one, eight and nine, respectively. Each petition is based on the ground that the division of the county into
The cases came on to be heard before a single justice of this court. He ordered them consolidated for the purpose of being heard together, found the facts to be as stated in the agreed statement of facts and reported the cases for the consideration of the full court upon the pleadings and the agreed statement of facts. On a report in this form no exercise of discretion is involved. The question for determination by the full court is whether the writs ought to issue as matter of law. Lowry v. Commissioner of Agriculture, 302 Mass. 111, 112. Attorney General v. Secretary of the Commonwealth, ante, 25, 27.
Article 21 of the Amendments to the Constitution of the Commonwealth in its present form (see art. 71) provides in part: "In the year nineteen hundred and thirty-five and every tenth year thereafter a census of the inhabitants of each city and town shall be taken and a special enumeration shall be made of the legal voters therein. . . . The house of representatives shall consist of two hundred and forty members, which shall be apportioned by the general court, at its first regular session after the return of each special enumeration, to the several counties of the commonwealth, equally, as nearly as may be, according to their relative numbers of legal voters, as ascertained by said special enumeration .... The county commissioners or other body acting as such or, in lieu thereof, such board of special commissioners in each county as may for that purpose be provided by law, shall . . . assemble at a shire town of their respective counties, and proceed, as soon as may be, to divide the same into representative districts of contiguous territory and assign representatives thereto, so that each representative in such county will represent an
By St. 1939, c. 467, § 1, substituting a new section for G. L. (Ter. Ed.) c. 57, § 4, the number of representatives apportioned to Suffolk County was forty-six. Suffolk County consists of the city of Boston divided into twenty-two wards, the city of Chelsea divided into five wards, the city of Revere and the town of Winthrop. It appears from the agreed statement of facts that the number of legal voters in Suffolk County at the time of the special enumeration of legal voters in the year 1935 was 358,083, and that the county was divided by the commissioners into twenty-six representative districts. The number of legal voters for each representative if apportioned with exact equality would be 7,784. The manner in which such districts are constituted, according to the report of the commissioners, the number of legal voters in each of these districts and the number of representatives assigned to each district by the commissioners are set out in a footnote.
The inquiry in these cases, therefore, is limited to the first, eighth, ninth, tenth and eleventh districts, except as, in determining whether there is discrimination against any of these districts, other districts are to be considered.
The constitutional provision under which the present controversy arises is the requirement that the commissioners shall proceed “to divide the . . . [county] into representative districts of contiguous territory and assign representatives thereto, so that each representative in such county will represent an equal number of legal voters, as nearly as may be.” The requirement that each district shall consist
In assigning the forty-six representatives apportioned to Suffolk County to the twenty-six districts, three representatives were assigned to one district, two representatives to each of eighteen districts, including the first district, and one representative to each of the seven remaining districts, including the eighth, ninth, tenth and eleventh districts. No two wards of the city of Boston were combined in a single district. In each of the five districts in controversy the number of voters for each representative exceeds the unit of representation for the county of 7,784 voters: in the first district by 21% of the representative unit, in the eighth district by 39% of such unit, in the ninth district by 49% of such unit, in the tenth district by 59% of such unit, and in the eleventh district by 57% of such unit. In no other district does the number of legal voters exceed the representative unit by more than 20% thereof or fall below it by more than 21% thereof. In six districts the divergence from such unit is less than 5% and in two others less than 10%. The average divergence in the districts, other than those in controversy, from the representative unit is 11.88% of such unit. The average divergence in all districts in the county is 18.25%.
The limitations upon the power of the court to review a division of the county into representative districts and assignment of representatives thereto have been stated in earlier cases and need not be restated in detail. See, especially, Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 607-608; Brophy v. Suffolk County Apportionment Commissioners, 225 Mass. 124, 126, 128-129. See also Attorney General v. Secretary
The petitioners, in support of their contentions, have submitted for consideration of the court a plan of division of the county into representative districts and the assignment of representatives thereto that avoids some of the inequalities in the division and assignment made by the commissioners. For reasons already stated, the possibility of such a division and assignment is not in itself fatal to the division and assignment actually made. The suggested plan has weight only so far as it tends to show that the division and assignment actually made is unreasonable. See Attorney General v. Secretary of the Commonwealth, ante, 25, 35.
In the light of these governing principles, and of the facts previously stated, we proceed to a consideration of the districts involved in the petitions.
In the first district — which is involved in one of the petitions — the number of legal voters for each representative, according to the division and assignment made by the commissioners, exceeds the 0unit of representation for the county by 21% of that unit. This divergence is smaller, measured in percentages, than the divergences in several of the districts under a previous apportionment of Suffolk County that was held valid in Brophy v. Suffolk County Apportionment Commissioners, 225 Mass. 124. See Attorney General v. Secretary of the Commonwealth, ante, 25, 38. The petitioners suggest no method by which this divergence could have been avoided. No such method is apparent. Without further discussion we conclude that no unreasonable and unavoidable discrimination against the petitioner living in the first district is shown, and that his petition cannot be maintained.
The other districts — the eighth, ninth, tenth and eleventh — involved in one or more of the petitions pre
The cases relating to previous apportionments of Suffolk County naturally deal with situations closely similar to that here presented, and comparison of these cases with the present case is instructive. In Brophy v. Suffolk County Apportionment Commissioners, 225 Mass. 124, where the apportionment was held valid, the greatest divergence in any district in excess of the representative unit was 31.43% of the unit, and the greatest divergence in any district below the unit was 25.50% thereof. The voting power of a legal voter in the former district was slightly over 59% of the voting power of a legal voter in the latter district. And there were other substantial inequalities in voting power among the districts. On the other hand, in Donovan v.
It is apparent from the above analysis that the present case falls between the Brophy case, where the apportionment was held valid, and the Donovan case, where the apportionment was held invalid. Doubtless such large divergences from the representative unit as exist in the districts involved in the petitions and such inequalities in voting power between the legal voters in these districts respectively and those in other districts cannot be justified if there was any reasonable method of avoiding them.
The only method suggested by the petitioners of avoiding these divergences and inequalities to any substantial extent is the combination, in several instances, of two wards of the city of Boston in a single district. And no other possible method of such avoidance is apparent. Apart from the districts composed of parts of the county
It was said, however, in Brophy v. Suffolk County Apportionment Commissioners, 225 Mass. 124, 127, that there “are obvious objections which may be urged against combinations of wards into double or triple districts. The
What has previously been said disposes also of the petition relating to the tenth district, apart from one other consideration. Naturally the four districts to each of which only one representative should be assigned would be the four districts having the smallest number of legal voters. These districts are the eighth, ninth, fifth and eleventh. The tenth district — having 12,427 legal voters — to which one representative was assigned by the commissioners is slightly larger than the fifth district — having
It follows that the petition in each case must be dismissed.
So ordered.
The districts numbered from one to twenty-two, inclusive, are located in the city of Boston.
District No. 23 consists of wards 1, 2 and 3 of Chelsea, with a population of 8,389 and 1 representative; district No. 24 consists of wards 4 and 5 of Chelsea, with a population of 6,283 and 1 representative; district No. 25 consists of the city of Revere, with a population of 15,028 and 2 representatives; district No. 26 consists of the town of Winthrop, with a population of 8,581 and 1 representative.