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September 22, 1951

REMMEY et al.
SMITH, Secretary of Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: BIGGS

BIGGS, Circuit Judge.

The plaintiffs, citizens of the United States and of the Commonwealth of Pennsylvania, residents and registered voters of the City and County of Philadelphia, qualified to vote in the 17th Representative District and 8th Senatorial District thereof for Members of the General Assembly of the Commonwealth of Pennsylvania, have sued the Secretary of the Commonwealth and the duly elected Members of the 1951 General Assembly of the Commonwealth. The plaintiffs seek, among other things, to have this court declare unconstitutional the Pennsylvania statutes of May 10, 1921, P.L. 449 and P.L. 455, as amended, 25 P.S.Pa. § 2201 et seq. *fn1" referred to hereinafter as the 'Apportionment Act of 1921', to compel the Members of the General Assembly to pass a new apportionment act which will reflect population changes in the Commonwealth, and to enjoin the Secretary of the Commonwealth from performing the functions mandatorily imposed upon him in connection with holding of elections for Members of the General Assembly until a proper and adequate apportionment law has been passed. *fn2"

 The Complaint alleges that under the present Constitution of Pennsylvania, that of 1874, P.S. Const., after each decennial United States census has been completed the General Assembly of Pennsylvania is required immediately to apportion the Commonwealth into representative and senatorial districts; *fn3" that the 1950 United States decennial census has been completed; that the representation of the plaintiffs in the General Assembly has become grossly disproportionate; that for the last two decades, viz., from 1931 until the date of the filing of the instant Complaint on April 11, 1951 that disproportion has grown so great that they and their fellow citizens in the wards and districts of Philadelphia designated have in effect been deprived of suffrage. The plaintiffs cite figures which show that in the Ninth Representative District (population 8,767), a vote cast for a representative is over a score of times more effective than a vote cast in the Seventeenth Representative District (population 257,373) where the plaintiffs reside. The Complaint also asserts that since 1931, at every regular session of the General Assembly, attempts have been made to compel that body to reapportion the state senatorial and representative districts in accordance with the Constitution of Pennsylvania and that these efforts have met with no success, *fn4" that since the beginning of the 1951 regular session of the General Assembly of the Commonwealth of Pennsylvania, despite the fact that both major political parties publicly pledged themselves to reapportionment, no bill relating to reapportionment has passed either House.

 The Complaint also points out that Article VII, Section 1, of the Constitution of the Commonwealth of Pennsylvania requires Senators and Representatives of the General Assembly of the Commonwealth to make oath that they will discharge the duties of their office with fidelity and provides also that any individual who shall be convicted of violation of this oath shall be deemed guilty of perjury and shall be disqualified forever from holding any office of trust or profit within the Commonwealth.

 The plaintiffs assert that they have been deprived of constitutional rights guaranteed to them by the Fourteenth Amendment to the Constitution of the United States, and freedom of elections as guaranteed by Article I, Section 5, *fn5" of the Constitution of the Commonwealth of Pennsylvania and that their right to vote as guaranteed by Article VIII, Section 1, *fn6" of the Constitution of Pennsylvania has been 'decimated'.

 A motion to dismiss has been filed by all the defendants based on the ground, among others, that this court is without jurisdiction or the power to adjudicate the controversy because the subject matter of the suit lies within the ambit of the powers peculiarly reserved to the States under the Constitution of the United States.

 We have set out the allegations of the complaint at such length because we think that the plaintiffs are entitled to have their case stated fully. Without receiving evidence or making specific findings of fact we are aware, as is almost everyone in Philadelphia, that what the plaintiffs assert in their complaint is notoriously true. The practical disenfranchisement of qualified electors in certain of the election districts in Philadelphia County is a matter of common knowledge. The last effective Apportionment Act of Pennsylvania, that which the plaintiffs are seeking now to have declared unconstitutional, is the act of 1921. See note 1, supra. Two Apportionment Acts were passed by the General Assembly in 1937, Acts of June 30, 1937, P.L. 2454 and P.L. 2443, *fn7" but these were declared unconstitutional by the Court of Common Pleas of Dauphin County. See Shoemaker v. Com. ex rel. Lawrence, 45 Dauph.Co.Rep.,Pa., 111, and Lyme v. Lawrence, 45 Dauph.Co.Rep.,Pa., 322. No general Apportionment Act has been passed by the General Assembly since that of 1937. As we have said, the Constitution of the Commonwealth provides that 'Elections shall be free and equal * * * ' and to achieve this end the Constitution itself contains provisions for the apportionment for the election of Senators *fn8" and Representatives, *fn9" and for the times and periods when such apportionments shall be made. *fn10"

 The blunt fact is that past General Assemblies of Pennsylvania have been derelict in the duty specifically imposed on them by the Constitution of Pennsylvania in failing to pass reapportionment acts as required by the express mandate of the Pennsylvania Constitution. That they have failed to do so must be deemed to be all the more extraordinary in the temper of this time and age when so much emphasis has been placed upon the representative form of government and upon the democratic process. The remedy of the substantially disenfranchised elector, however, lies, at least primarily, in the General Assembly and in the Courts of Pennsylvania.

 Even when the selection of the Representatives in the national Congress has been the subject of the litigation and a State has failed to adopt a mode of selection of Representatives in accord with federal reapportionment acts, the Supreme Court of the United States has held that the issue presented is one 'of a peculiarly political nature and therefore not meet for judicial determination', and that the courts of equity, at least those of the federal system, should not enter this field. See Colegrove v. Green, 328 U.S. 549, 552, 66 S. Ct. 1198, 1199, 90 L. Ed. 1432. Action by this court is therefore, circumscribed. *fn11" See South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834; MacDougall v. Green, 335 U.S. 281, 69 S. Ct. 1, 93 L. Ed. 3; and Wood v. Broom, 287 U.S. 1, 8, 53 S. Ct. 1, 77 L. Ed. 131. Cf. Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 and Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805. A fortiori if a court of the United States should not compel a State Legislature to effect a reapportion reapportionment relative to the national representative elective system, it should not do so in respect to an apportionment system whereby Representatives in States legislatures are to be chosen. An action such as that at bar may strike at the very heart of our dual system of government under which the United States and the States must remain sovereign in their spheres. But a suit based on the Third Civil Rights Act, 17 Stat. 13, 8 U.S.C.A. § 43, as well upon the Fourteenth Amendment, may present novel questions, not as yet decided. We do not reach them at this time for the reason hereinafter stated.

 The determination which the plaintiffs would have us make lies in that extremely sensitive field, the relation of the powers of the National Government to those of the States. Here, of all places, a federal court should tread warily and with great circumspection and should forego any action where relief may be furnished by the State. This court should not intervene where an apparent, but untried, remedy may lie in the Courts of the Commonwealth of Pennsylvania. Those Courts may declare the present operation of the Apportionment Act of 1921 to be unconstitutional under the Pennsylvania Constitution. Cf. Shoemaker v. Commissioner ex rel. Lawrence and Lyme v. Lawrence, supra; Commonwealth ex rel. Biddle v. Crow, 218 Pa. 234, 67 A. 355; Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 113 N.E. 581, and State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561. Moreover, and this we deem to be a most cogent circumstance, the 1951 General Assembly of the Commonwealth of Pennsylvania is in session. This is the first General Assembly convened following the United States decennial census of 1950. The 1951 General Assembly has the opportunity to act in respect to this most important matter and, if it does, may pass a reapportionment act which will meet every constitutional requirement. Under these circumstances action by this court at this time would, at best, be premature.

 Expressly we do not pass upon the question of our jurisdiction to adjudicate the questions presented. Deeming the instant suit to be prematurely brought, ...

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