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March 8, 1963

UNITED STATES of America ex rel. Charles WATKINS
COMMONWEALTH OF PENNSYLVANIA, and James F. Maroney, Superintendent, State Correctional Institution, Pittsburgh 33, Pennsylvania

The opinion of the court was delivered by: ROSENBERG

The relator, Charles Watkins, is now imprisoned in the State Correctional Institution at Pittsburgh, Pennsylvania. He filed a petition for a Writ of Habeas Corpus to test whether or not he was being unlawfully deprived of his freedom.

Pursuant to the petition filed in this Court on August 9, 1962, a rule issued to show cause why a writ of habeas corpus should not be granted, permission was given the petitioner to proceed in forma pauperis, and the Clerk of Court was ordered to secure counsel to represent the relator in this proceedings. Thereupon, Paul A. Village, Esquire, was appointed as counsel for the relator. A return was made by the respondent and an answer filed by the District Attorney of Lawrence County. In addition, appointed counsel reported orally to this Court that after consulting with the relator and examining the records, he could add nothing further on be record in behalf of the relator.

 From the records before this Court and from the report of counsel, sufficient facts appear for a determination of the questions raised by the relator in his petition for the issuance of a writ of habeas corpus.

 The relator was indicted by the Grand Jury of Lawrence County at No. 22 September Session 1957 on a charge of burglary. After the case was certified into the Court of Oyer and Terminer at No. 1 September 1957, the relator represented by counsel was tried and found guilty of the offense charged. He was thereupon sentenced by the Lawrence County Court on September 26, 1957, to pay the costs of prosecution and a fine of 6 1/4 cents, and to undergo imprisonment for and during the period of a term of not less than four years nor more than eight years in the State Correctional Institution at Pittsburgh.

 On February 23, 1961, the relator filed in the Lawrence County Court a petition for a writ of habeas corpus in forma pauperis. On March 13, 1961, he filed a motion for leave to amend his original petition assigning additional reasons, and on March 24, 1961, the then District Attorney filed an answer. On April 14, 1961, the relator filed a traverse to the answer of the then District Attorney, and the then President Judge directed the papers to be filed. Both the District Attorney and the President Judge left office on the first Monday of January, 1962. The matter thereafter was brought to the attention of the present District Attorney and to the present President Judge.

 The relator's petition is based upon two complaints:

 1. The failure of the Lawrence County Court to hear his petition for a writ of habeas corpus, and its failure to act thereon has, in effect, suspended his privilege of a writ of habeas corpus contrary to Article 1, Section 9, Clause 2 of the Federal Constitution, and in violation of the right guaranteed him under the 14th Amendment of the Constitution; and,

 2. The failure of the General Assembly of the State of Pennsylvania to reapportion apportion once every ten years as required by the Pennsylvania Constitution, caused the statute by which he was indicted, convicted and sentenced to be illegal and void. Therefore, his incarceration is void and wrongful.

 The second of these will be discussed first. The District Attorney of Lawrence County urges the lack of authority in this Court to consider the Pennsylvania General Assembly's failure to act on the matter of apportionment pursuant to Article II, Section 18 of the Pennsylvania Constitution, because it is 'purely a question' of a 'political nature' and 'therefore not proper for judicial determination'.

 This fundamental principle of law was lately defined by the United States Supreme Court in Baker et al. v. Carr et al., 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663. The Supreme Court in this case reversed a decision of a three-judge court ( D.C., 179 F.Supp. 825) and remanded the case to the District Court for further action.

 In that case the complaint was made that the legislature of the state had not complied with the provisions of the State Constitution requiring apportionment periodically, similar to that contained in the Pennsylvania Constitution.

 The Supreme Court stated as follows:

 'In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the * * * apportionment statutes.'

 Thus, there is no longer any defense that the failure of the legislature to re-apportion pursuant to the directions or provisions of the State Constitution is 'political'. The objection raised here now by the District ...

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