*1 Secretary SMITH, REMMEY et al. v. Pennsylvania, al. et Commonwealth of 12124. A.
Civ. No. District United States Pennsylvania. E. D. 22, Sept. Philadelphia, Pa.,
Moore, James, Panfil & plaintiffs. Woodside, Mount- Robert E. Robert M. Pa., enay, Harrisburg, for defendants. BIGGS, Judge, 'Circuit Before CLARY, Judges. BARD BIGGS, Judge. Circuit plaintiffs, of the Unit citizens
ed
States and of the Commonwealth
registered
residents
vot
Philadelphia,
'County
City
ers of
Representative
in the 17th
vote
District thereof
District and 8th Senatorial
Assembly
for Members
Commonwealth of
Secretary
sued the
duly
and the
elected Members of
of the Commonwealth.
plaintiffs seek,
things, to
other
among
have this court declare unconstitutional
10, 1921,
May
statutes of
P.L.
455,
amended, 25
449 and P.L.
P.S.Pa.
seq.1
referred to hereinafter as
§
et
1921”,
“Apportionment
Act of
com
pel the Members of the General
pass
act which will
new
population changes
reflect
in the Common
wealth,
enjoin
Secretary
performing
Commonwealth from
the func
mandatorily imposed upon
tions
him con
holding
for Mem
nection
elections
prop-
of the General
until a
bers
Though
only
April 26, 1923,
refer
to P.L.
ed
Act of
P.L.
P.L.
Complaint,
May 10, 1921,
and P.L.
we
No.
as amended
Act of
purposes
April
opinion,
26, 1923,
assume for the
of this
Act of
spe
May 8, 1923,
seek to have not
P.L.
Act of
P.L.
statutes,
May 15, 1923,
cific
ferred,
to which
have re
Act of
P.L.
Act of
April
29, 1923,
unconstitutional but also
declared
June
P.L.
and Act of
amendatory
supplemental
or
the Acts
P.L.
Purdon’s Pa.Stat.Ann.
pertinent
seq.
thereto. The
statutes are:
Tit.
2201 et
May
10,1921,
P.L.
as amend-
Act
*2
parties
pledged
law has litical
themselves
adequate apportionment
to
publicly
and
er
reapportionment,
relating to re-
no bill
passed.2
been
passed either
has
House.
that under the
Complaint alleges
The
Pennsylvania,
Complaint
that
The
points
also
out that Ar-
present Constitution of
VII,
1874, P.S.Const.,
each decennial
Section
of
after
ticle
of the 'Constitution
of
completed
Pennsylvania
has been
the Commonwealth of
re-
States census
United
Pennsylvania
quires
Representatives
of
Assembly of
Senators and
the
Generál
the
apportion
immediately
the
General
of
required
Com-
the Commonwealth to
representative
they
discharge
and sena- make oath that
monwealth into
will
districts;
fidelity
pro-
of
United States duties
their office
and
that the
with
torial
completed;
any
has
that vides also that
who shall be
decennial census
been
individual
representation
plaintiffs in the
of
convicted
violation
this oath shall be
of
of
grossly
perjury
dis-
guilty
become
deemed
of
and shall be dis-
has
the last two dec-
proportionate;
that for
forever from
office
holding
ades, viz.,
profit
from 1931
the date of
trust or
until
within the Commonwealth.
Complaint April
filing
on
instant
plaintiffs
assert that
have been
disproportion
great
grown
has
so
that
deprived
rights guaranteed
of constitutional
fellow citizens
that
their
them
the Fourteenth Amendment to
Philadelphia desig-
wards
districts of
States,
Constitution
the United
deprived
suf-
have in
nated
'been
effect
guaranteed
freedom of elections as
Ar
plaintiffs
frage.
figures
cite
which
I,
5,5
ticle
Section
of the Constitution of
Representative Dis-
show that
the Ninth
Pennsylvania
(population 8,767), vote cast for
trict
guaranteed by
that
to vote as
their
representative
more
is over a
times
score
VIII,
1,6
Article
Section
the Constitu
effective than a
in the
vote cast
Seven-
tion of
been
has
“decimated”.
Representative
(population
teenth
A motion to dismiss has been
all
filed
plaintiffs
where the
reside.
257,373)
ground, among
based on the
defendants
Complaint also
that since
at
asserts
others,
jurisdic-
this court is without
every regular
of the General As-
session
power
adjudicate
tion or the
the con-
sembly, attempts
made to com-
have been
troversy
subject
because the
matter of the
pel
body
reapportion
state sena-
powers
lies within the
suit
ambit
representative districts in
torial and
ac- peculiarly reserved to the States under the
Pennsyl-
cordance with the Constitution
of the United States.
Constitution
vania
these efforts have met with
success,4
allegations
no
set
beginning
since the
We have
out
complaint
regular
length
session of
because we
As-
sembly
Pennsyl-
plaintiffs
Commonwealth of
that the
think
entitled to
vania, despite
fully.
major po-
receiving
fact
stated
that both
case
Without
Assembly.
“Chronology
2. Since tlie suit is
declare a
eral
one to
See also the
Legislative
three-judge
Change
Attempts
Ap-
statute
unconstitutional a
dis-
pursuant
portionment Legislation
Force”,
trict court was
Now
convened
to Sec-
appendix
tions
an
Title
U.S.C.
to the article referred to.
I,
provides
perti-
3. See the
Article
Section
provides:
part:
Article
Section 18 which
nent
“Elections shall be free and
* * *
* *
equal
“The General
im-
mediately after each
States de-
VIII,
6. Article
Section
of the Consti-
census,
apportion
cennial
shall
the State
pertinent part,
tution of
representative
into senatorial
dis-
provides:
“Every
twenty-one
citizen
* * *
(Emphasis added.)
tricts
age
years
qualifications
(possessing
as
* * *
leading
University
designated)
In a
article in the
shall be entitled to
Pittsburgh
Review,
2, p.
elections, subject, however,
Vol.
Law
No.
vote at all
requiring
regulating
it is stated that since
52 bills
laws
such
registration
dealing
problem
apportion
as the
electors
Assembly may
ment have been introduced in the Gen-
enact.”
placed upon
representative
has been
fact
findings of
specific
making
evidence or
everyone
in form of
demo-
government
aware,
almost
we are
remedy
process.
the substan-
assert
cratic
what
Philadelphia, that
*3
lies,
however,
tially
elector,
notoriously
The
true.
disenfranchised
complaint is
in their
primarily, in the General
of
least
practical disenfranchisement
Pennsylvania.
and in the
election districts
Courts
of the
in certain
electors
com
County
matter of
is a
Philadelphia
in
Repre-
the
the selection of
Even when
Appor
effective
last
The
knowledge.
mon
Congress has been
the national
sentatives in
which
that
Act
tionment
has
litigation
a State
subject of
and
the
de
have
seeking now
plaintiffs are
Rep-
adopt a mode of selection of
failed to
unconstitutional,
act
1921.
clared
reappor-
in
resentatives
accord
federal
Apportionment
1, supra. Two
note
See
acts,
Supreme
tionment
iby
passed
the General
Acts were
pre-
held that the issue
has
States
1937,
30,
2454
P.L.
1937,
Acts
political
peculiarly
na-
one “of a
June
sented is
un
2443,7
were declared
these
and P.L.
but
judicial
meet for
de-
ture and therefore not
Common
by
constitutional
termination”,
equity,
courts
Court^of
County. See Shoemaker
Dauphin
Pleas
system,
federal
should
at least
of the
those
Lawrence,
Dauph. Co.
45
v.
ex rel.
Com.
Green,
Colegrove v.
this
See
not enter
field.
Lawrence,
Lyme
45
111,
v.
Rep.,Pa.,
552,
1198,
549,
1199,
328
66 S.Ct.
U.S.
Ap
Pa.,
general
No
Dauph.Co.Rep.,
322.
court
by
1432. Action
this
90 L.Ed.
by the
passed
has
portionment Act
been
therefore, circumscribed.11 See South v.
As
that of 1937.
Assembly since
Peters,
641,
276,
94 L.Ed.
70 S.Ct.
339 U.S.
of the Com
said,
Constitution
we have
281,
Green,
834; MacDougall
335
v.
U.S.
shall
that “Elections
provides
monwealth
Broom,
v.
3; and
69 S.Ct.
93 L.Ed.
Wood
”
*
**
achieve
and to
equal
be free and
1, 8,
131.
287
53 S.Ct.
77 L.Ed.
U.S.
itself contains
end the Constitution
this
Hughes,
Cf.
v.
321 U.S.
64 S.
Snowden
for the
apportionment
provisions for
Flynn,
Koenig
v.
Ct.
fused or servitude, condition of but it does not fol BARD, Judge. citizenship mere low from of the United that the I should be concur suit dismissed. words, other privilege States. In Judge Biggs opinion 'Chief would jurisdiction in a state is within vote premature suit this on the the be itself, dismiss state the state exercised as '712 necessary direct, Accordingly, to it' I find the terms as cannot may course, right, no violation dis-
may
proper, provided,
federal
seem
would
individuals, miss this
this reason.
action for
discrimination is made between
Constitution.”
of the Federal
violation
great
Plaintiffs have
merit
their cause.
(Emphasis added.)
It
legislators
is all too true
the state
uphold
types
in state sworn
have been
of discrimination
'Constitution
What
flagrant
Pennsyl-
law?
in their violation of the
are forbidden
federal
elections
to re-appor-
mandate
the Fifteenth Amendment
vania Constitutional
Section 1 of
years,
dis
prohibit
every
tion
state
ten
31 Title U.S.C.A.
Section
race,
present apportionment system
or
gross
color
is a
ground
crimination on the
example
The Nine
its worst.
previous
gerrymandering
condition of servitude.
legislative history
on The
of recent decades
Amendment bans discrimination
teenth
dilatory
interpolate
protracted
To
into these and the
tactics
account of sex 1.
legislative
the current
provisions
an individual’s
session indicate
probably
legislators
should the
will
election
offices
state
continue
vote in an
unequal
inexcusably
important
to be
derelict in this
not be diluted
remedy
weight
plaintiffs’
equal in
other
But
but
to each
matter.
should be
lies
*5
right,
legislative
state
because a state
vote cast in
state would be
courts
a fed-
pronouncement.
right,
being
eral
violated.
judicial
action
Supreme
the United States
of the Fourteenth Amendment
determined
1. Section
opinions
proportionately
repre
“politi
to be a
state’s
in recent
reduces
“justieible
Congress
question”
male
cal
sentation
issue”.
to vote for members
In addition to the cases cited in
Judge Biggs’ opinion,
inhabitants
Chief
abridged
legislature
also
is denied or
see
Saunders
pointed
way. But,
Wilkins,
Cir.,
as was
out