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

June 30, 1959


Appeal, No. 27, May T., 1959, from decree of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1958, No. 313, Equity Docket No. 2319, in case of Harry K. Butcher et al. v. John S. Rice, Secretary of the Commonwealth of Pennsylvania. Decree affirmed; reargument refused August 10, 1959. Equity. Adjudication filed dismissing complaint and decree entered, opinion by SOHN, J. Plaintiffs appealed.


Edward G. Bauer, Jr. and George M. Brantz, for appellants.

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

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

Author: Jones

[ 397 Pa. Page 160]


The plaintiffs, Harry K. Butcher, Samuel H. Rosenberg and Frank W. Dressler, as citizens, electors and taxpayers of the City and County of Philadelphia and residents respectively in the County's Fourth, Sixth and Eighth Senatorial Districts, instituted this suit in equity in the Court of Common Pleas of Dauphin County in an effort to enjoin the Secretary of the Commonwealth from certifying candidates or holding elections for the office of State Senator from the Philadelphia districts, on the ground that the Apportionment Act of May 10, 1921, P.L. 449, as amended by the Act of April 26, 1923, P.L. 106, 25 PS § 2201 et seq., is unconstitutional.

The complaint alleges that the eight senatorial districts within Philadelphia County are not "as nearly equal in population as may be" as enjoined on the General Assembly by Article II, Section 16, of the Pennsylvania Constitution*fn1 but, on the contrary, are in fact

[ 397 Pa. Page 161]

    enormously disproportionate with respect to their population; that the General Assembly has not apportioned the State into senatorial districts as required by Article II, Section 18, since the decennial census of 1950;*fn2 and that the Act of 1921 violates the free and equal election provision of Article I, Section 5, of the Pennsylvania Constitution and "the equal protection of the laws" clause of the Fourteenth Amendment of the Federal Constitution. The complaint also prayed, in the alternative, a decree ordering the holding of an election at large in Philadelphia County for the eight offices of State Senator (to which that County is constitutionally limited) until the General Assembly shall reapportion the senatorial districts within Philadelphia County. Evidently recognizing the widely accepted rule of law that courts are without power to compel the Legislature to act affirmatively to perform even a constitutional duty (Fergus v. Marks, 321 Ill. 510, 152 N.E. 557), the complainants did not join the members of the General Assembly as parties defendant.

The Secretary of the Commonwealth, as defendant, filed an answer admitting all of the factual averments of the complaint. The Secretary also filed a suggestion

[ 397 Pa. Page 162]

    that the complaint be dismissed for the plaintiffs' failure to join members of the General Assembly as indispensable parties to the suit. Since the pleadings presented only questions of law, the plaintiffs moved for judgment. The motion was heard by the court en banc, with the assent of the parties, as on final hearing. The court in a formal and well-considered opinion held that it was without power to grant the relief sought, even if the members of the General Assembly were joined as parties defendant, and accordingly entered a final decree dismissing the complaint and giving judgment for the defendant. From the decree so entered the plaintiffs took this appeal.

What the plaintiffs seek is a judicial declaration that the Act of 1921, as amended, is unconstitutional. Since the antecedent Apportionment Acts of February 17, 1906, P.L. 31, and of May 19, 1874, P.L. 197, would, by the same token, be unconstitutional, the Commonwealth would be without a senatorial apportionment act and the General Assembly would thereby be under the immediate necessity of reapportioning the State's senatorial districts on the basis of the latest decennial census. Equity affords no jurisdiction for judicial intervention in the circumstances pleaded. The General Assembly's failure to divide the State into senatorial districts since the decennial census of 1950 raises a purely political question and whether the extant Apportionment Act of 1921 divides the State into senatorial districts "as nearly equal in population as may be" is not justiciable but rests alone in the discretion of the General Assembly.

The political nature of the problem is fully considered in the case of Colegrove v. Green, 328 U.S. 549, 552. In that case the plaintiff brought an action in the United States District Court for the Northern District of Illinois to restrain certain State administrative officials

[ 397 Pa. Page 163]

    from conducting congressional elections pursuant to the provisions of an Illinois statute establishing congressional districts. The District Court dismissed the complaint and the United States Supreme Court affirmed. While the ultimate decision was by a closely divided Court, the case has since been frequently cited with approval by the Supreme and other Federal Courts and numerous State Courts. The opinion in conformity with the decision was written by Mr. Justice FRANKFURTER who was joined by two other Justices. Mr. Justice BLACK, who filed a dissenting opinion, was also joined by two other Justices. The determining decisional factor was the vote for affirmance by Mr. Justice RUTLEDGE who stated in his concurring opinion that equity should decline to exercise its jurisdiction because of the peculiar circumstances present in the case. The following from Mr. Justice FRANKFURTER'S opinion has since been widely quoted with approval, - "We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about 'jurisdiction.' It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination." (Emphasis supplied)

The above quoted reasoning from Colegrove v. Green, supra, subsequently prevailed in the closely analogous case of MacDougall v. Green, 335 U.S. 281, 284. There, an injunction was sought against an Illinois statute which prescribed procedures for the formation and recognition of a new political party. The complainants alleged that the statute discriminated against the most populous counties of the State. The Supreme

[ 397 Pa. Page 164]

Court, citing Colegrove v. Green, supra, refused to grant the requested relief.

In South v. Peters, 339 U.S. 276, 277, the plaintiff challenged the validity of Georgia's county unit election system. He contended that the voters in the most populous county of the State have an average of about one-tenth of the political weight of those in other counties. The Supreme Court affirmed the dismissal of the plaintiff's petition citing Colegrove v. Green, supra, and MacDougall v. Green, supra.

Likewise, in Turman v. Duckworth, 329 U.S. 675, the plaintiffs attacked the constitutionality of Georgia's county unit system as it applied to the selection of a candidate for Governor in the primary election. A three-judge federal court, in refusing to grant the relief sought, stated (68 F.Supp. 744, 747-748), "Here equity is asked to interfere to achieve or frustrate a political result, and that through the discretionary remedy of injunction. Whether it be that the subject matter is not of equitable cognizance, or merely that equity should withhold its hand, we think the decision in Colegrove v. Green, 66 S.Ct. 1198, requires us to deny equitable relief." The Supreme Court of the United States dismissed the appeal and directed the District Court to dismiss the bill.

Again, in Kidd v. McCanless, 352 U.S. 920, where the issues raised were very similar to those presented in the instant case, the Supreme Court of Tennessee (200 Tenn. 273, 292 S.W.2d 40) refused to entertain a suit challenging the constitutional validity of legislation providing for apportionment of election districts for Senators and Representatives of the General Assembly. The Supreme Court, in refusing to interfere with the decision of the Supreme Court of Tennessee, unanimously entered an order dismissing the appeal, citing Colegrove v. Green, supra.

[ 397 Pa. Page 165]

In Anderson v. Jordan, 343 U.S. 912, the Supreme Court of California had denied a petition for a writ of mandamus seeking to compel the Secretary of State of California to disregard certain California reapportionment statutes (See 20 U.S.L.W. 3252). Just as in the case now before us, the plaintiffs had contended that the statutes were unconstitutional. The Supreme Court of the United States dismissed the plaintiff's appeal, citing Colegrove v. Green, supra, and MacDougall v. Green, supra.

Somewhat earlier, the Supreme Court, in Wood v. Broom, 287 U.S. 1, had before it a case in which a citizen of Mississippi had sought in the United States District Court an injunction to restrain certain State officers from conducting congressional elections pursuant to an allegedly invalid redistricting State Act. The court granted the injunction. On appeal to the Supreme Court, the members of the Court unanimously agreed that the decree should be reversed and the complaint dismissed. Mr. Chief Justice HUGHES, who wrote the opinion for the Court, found it unnecessary to consider the questions raised as to the right to relief in equity or as to the justiciability of the controversy. However, a brief concurring opinion reads in part as follows: "Mr. Justice BRANDEIS, Mr. Justice STONE, Mr. Justice ROBERTS, and Mr. Justice CARDOZO are of opinion that the decree should be reversed and the bill dismissed for want of equity...." (Emphasis supplied). In Colegrove v. Green, supra, Mr. Justice FRANKFURTER, after discussing the above quoted concurrence, added "we also agree."

By far, the greater weight of authority holds that equity is without jurisdiction to entertain a complaint concerning a Legislature's action or failure to act with respect to its constitutionally imposed obligation to apportion a State into districts for the election of senators

[ 397 Pa. Page 166]

    and representatives. In addition to the cases already referred to in support of the principle many more to the same effect might be cited. A brief review of a few additional should suffice.

In Radford v. Gary, 352 U.S. 991, plaintiffs brought an action to compel the Legislature of Oklahoma to reapportion the election districts for the Senate and House of Representatives of the State. The District Court of the United States (145 F.Supp. 541, 543) dismissed the complaint, citing and quoting from Colegrove v. Green, supra, that "the issue was one of a 'peculiarly political nature and therefore not meet for judicial determination.'" The decree of dismissal was unanimously affirmed by the Supreme Court, citing Colegrove v. Green, and Kidd v. McCanless, supra.

In Perry v. Folsom, 144 F.Supp. 874, 877, a citizen of Alabama brought suit in equity against the members of the Legislature and certain administrative officers of the State seeking a decree directing the defendants to enact a constitutionally valid statute reapportioning the State's Legislative Districts. The Court, citing, inter alia, Colegrove v. Green, supra, dismissed the bill. The opinion concluded that "The issue presented is of a political nature."

Also, in State ex rel. Broughton v. Zimmerman, 261 Wis. 398, 52 N.W.2d 903, 910, plaintiffs attacked the constitutionality of the Act establishing districts for members of the Senate and Assembly of Wisconsin. The Supreme Court of the State, after quoting from Colegrove v. Green, supra, declared that "Because controversies over apportionment are ordinarily political in nature, courts should be hesitant to intervene therein."

The Supreme Court of Oklahoma refused to interfere with the existing senatorial apportionment statute of that State even though it was argued that the Act violated the express provisions of the Constitution of

[ 397 Pa. Page 167]

Oklahoma. Latting v. Cordell, 197 Okla. 369, 172 P.2d 397. The court said that "... the framers of our constitution had no thought in mind other than to delegate the duties of apportionment solely to the legislature."

The decisions in the foregoing cases are practical applications of the well recognized rule stated in Pomeroy, Equity Jurisprudence, Vol. 4, § 1753 (4th ed.) as follows: "An injunction will not issue, as a general rule, for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held .... Moreover, the effect of interference in such matters might often result in the destruction of the government. This is especially so when the relief is sought to prevent the holding of an election .... Thus, an injunction will not issue to restrain the holding of an election although it is alleged that it is without authority of law, or that the act authorizing it or providing for apportionment is unconstitutional." (Emphasis supplied). The same rule is otherwise stated in 10 Ruling Case Law 342, as follows: "Matters of a political character are also outside the pale of a court of equity, no such jurisdiction having ever been conceded to a chancery court, either in a federal or state judiciary, unless it is so provided expressly or impliedly by organic or statute laws. ... Neither in England nor America has this power been suffered to extend to political affairs." Also, as succinctly stated in 30 C.J.S., Equity, § 66, "Questions purely political or governmental in their nature cannot be heard or determined by a court of equity .... Generally, matters pertaining to elections are deemed to be purely political questions and hence outside the scope of equitable jurisdiction."

It is clear beyond question that equity is without jurisdiction to grant the relief which the appellants

[ 397 Pa. Page 168]

    here seek. For support of their contention to the contrary, they rely on Commonwealth ex rel. v. Crow, 218 Pa. 234, 236, 67 A. 355, where, in a brief per curiam opinion, this court, after stating that "The substantial question involved is the constitutionality of the senatorial apportionment by the Act of February 17, 1906, P.L. 31" said, "On the general jurisdiction to consider and pass upon that question we entertain no doubt. The judicial power extends to the review of all legislative acts for the comparison of their provisions with the requirements and prohibitions of the constitution, and there is no exception expressed or implied in regard to statutes of apportionment." We do not disagree with what was there said although the statement was plainly a dictum, as will be readily apparent.

The proceeding before the court was a suggestion by the Commonwealth for a writ of quo warrantor on the relation of a private citizen who was seeking to obtain the respondent's office as Senator for the 32nd Senatorial District. What this court held was that the relator was without standing to question the respondent's right to the office, and accordingly quashed the writ. The constitutionality of the Apportionment Act of 1906 was neither discussed, considered, nor passed upon.

This court did not assert in the Crow case, supra, that equity will take jurisdiction to order the General Assembly to carry out the duty imposed upon it by the Constitution to apportion the State into elective districts for senators and representatives. The illustration, which the court's opinion gave of instances where equity would take jurisdiction to invalidate an Apportionment Act, makes plain what the court had in mind and, with that, we fully agree. If an Apportionment Act should fail to follow the definitely fixed constitutional specifications as, for instance, by dividing the

[ 397 Pa. Page 169]

State into sixty or a hundred senatorial districts instead of fifty or by giving one county more than a sixth of the whole number of senators, a court of equity would, of course, strike down the transgression. Indeed, that is exactly what happened in Shoemaker v. Lawrence, 45 Dauphin 111, and Lyme v. Lawrence, 45 Dauphin 322. There the Apportionment Act of June 30, 1937, P.L. 2443, relating to Representatives' Districts, and the Act of June 30, 1937, P.L. 2454, relating to Senatorial Districts, were respectively held unconstitutional because of their factual errors. In some instances, the Acts left out entirely certain territories and, in others, included non-contiguous territories within the same district and enumerated certain political subdivisions which did not exist. Equity's jurisdiction to prevent enforcement of an apportionment act, which contains patent factual defects or errors, was unquestioned.

The constitutional enjoinder on the General Assembly to divide the State into districts "as nearly equal in population as may be", by the very elasticity of the phrase, does not admit of error judicially reviewable. And whether or when the General Assembly will carry out the duty imposed upon it by the Constitution of dividing the State into districts for the election of senators and representatives poses a non-justiciable question whereof equity will not take jurisdiction.

Even if it were to be held that the plaintiffs' assault on the constitutionality of the Act of 1921, as amended, on the grounds assigned by the appellants, presented a justiciable question cognizable in equity, still the chancellor's grace would rightly be withheld for the reason that a declaration of the Act's unconstitutionality (and that is as far as the court could go) would benefit no one but would seriously disrupt and render chaotic the State's government.

[ 397 Pa. Page 170]

To be specific, an election of senators at large, for which the plaintiffs pray, pending the Legislature's senatorial reapportionment of the State, is not legally possible. Article II, Section 16, after providing that the State should be divided into fifty senatorial districts, provides further that "each district shall be entitled to elect one Senator." Manifestly, there could not be an election of senators at large when they must be elected by districts. It would indeed be vain for a court to order the Secretary of the Commonwealth to do something which cannot be done constitutionally.

Again, and this is still more ominous, if the Act of 1921, as amended, were to be declared unconstitutional, a most serious question would at once arise concerning the validity of legislation enacted by the Senate subsequent to the determination that the Act, defining the senatorial districts under which members of the Senate had been elected, was unconstitutional. It was the considered opinion of the Supreme Court of Tennessee that, in such an eventuality, the Legislature would lose its powers. Thus, in Kidd v. McCanless, supra, that court declared "... there can be a de facto body or office only until there has been a judicial determination of the invalidity of same. ... It seems obvious and we therefore hold that if the [Apportionment] Act of 1901 is to be declared unconstitutional, then the de facto doctrine cannot be applied to maintain the present members of the General Assembly in office. If the Chancellor is correct in holding that this statute has expired by the passage of the decade following its enactment then for the same reason all prior apportionment acts have expired by a like lapse of time and are non-existent. Therefore, we would not only not have any existing members of the General Assembly but we would have no apportionment act whatever under which a new election could be held for the election of

[ 397 Pa. Page 171]

    members to the General Assembly. ... The ultimate result of holding this Act unconstitutional by reason of the lapse of time would be to deprive us of the present Legislature and the means of electing a new one and ultimately bring about the destruction of the State itself."

In like regard, the Supreme Court of Wisconsin in State ex rel. Martin v. Zimmerman, 249 Wis. 101, 23 N.W.2d 610, 612, said, - "... if [the apportionment act] had become void and legislators elected since 1941 were not chosen from legal and constitutional legislative districts, then would we have a qualified and lawful body to enact a valid reapportionment statute? It is unnecessary, because of the validity of ch. 27, to rely on a theory that legislators elected to office from unconstitutional or nonexistent districts, have by some doctrine of de facto officialdom based on de facto legislative districts, a right to exercise the important duties necessarily entering into a fair and just apportionment. Once it is determined that the present incumbents are not de jure officers, they have no color of authority and could not serve as de facto officers. 46 C.J. § 367, p. 1054; Ekern v. McGovern, 1913, 154 Wis. 157, 142 N.W. 595, 46 L.R.A., N.S., 796." (Emphasis ...

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