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COSTELLO v. RICE. (06/30/59)

June 30, 1959

COSTELLO, APPELLANT,
v.
RICE.



Appeal, No. 4, May T., 1960, from order on special writ of certiorari to Court of Common Pleas of Dauphin County, April 24, 1959, in case of Daniel T. Costello v. John S. Rice, Secretary of the Commonwealth of Pennsylvania. Bill dismissed; reargument refused August 10, 1959.

COUNSEL

Philip P. Kalodner, with him John T. Synnestvedt, for appellant petitioner.

Harry J. Rubin, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Jones

[ 397 Pa. Page 199]

OPINION BY MR. CHIEF JUSTICE JONES

This case, like Butcher et al. v. Rice, ante p. 158, questions the constitutionality of the Apportionment Act of May 10, 1921, P.L. 449, as amended by the Act of July 26, 1923, P.L. 106, and, by like token, the preceding Apportionment Acts of 1906 and 1874. The matter is before us on original jurisdiction. After the pleadings had been completed in the Court of Common Pleas of Dauphin County (where the suit was properly instituted) and nothing remained for decision but questions of law, counsel for the plaintiff petitioned us to certiorari the record below to this court for disposition along with Butcher et al. v. Rice, supra, which was then here on appeal. We so acted and the two cases were argued successively on the same day.

What we have said in Butcher v. Rice, ante, in declining to take cognizance of the plaintiff's attack on the constitutionality of an Apportionment Act and of the constitutional impossibility of an election-at-large of State Senators is equally applicable here.

[ 397 Pa. Page 200]

Bill dismissed at the plaintiff's costs.

Mr. Justice BELL dissents for the reasons given in his dissenting opinion in Butcher et al. v. Rice, ante.

Mr. Justice MCBRIDE took no part in the consideration or ...


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