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BUTCHER v. BLOOM. (09/29/64)

September 29, 1964


Original jurisdiction, Miscellaneous Docket No. 198, in case (originally commenced in Court of Common Pleas of Dauphin County, No. 151, Commonwealth Docket, 1962) of Harry K. Butcher, Donald C. Rubel, Anne B. McKinley et al. v. George I. Bloom, Secretary of Commonwealth. Jurisdiction retained.


Arthur E. Newbold, III, with him Carter R. Buller, Tyson W. Coughlin, Edward E. Russell and Eugene F. Waye, for petitioners.

George T. Kelton, with him Jack Sirott, for intervenors.

Walter E. Alessandroni, Attorney General, with him Edward Friedman, Deputy Attorney General, for Commonwealth.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 415 Pa. Page 441]



At issue in this litigation is the constitutional validity, under the Fourteenth Amendment to the Federal Constitution of the present apportionment of seats in both houses of the Pennsylvania Legislature.

On March 30, 1962, plaintiffs, Pennsylvania taxpayers and electors, filed complaints in equity in the Court of Common Pleas of Dauphin County against

[ 415 Pa. Page 442]

    the Secretary of the Commonwealth. The complaints sought that defendant be restrained from taking any steps toward the holding of elections for state legislative offices under the provisions of the existing apportionment acts*fn1 on the ground that the acts violated certain provisions of the Pennsylvania and Federal Constitutions.*fn2 After an answer was filed by defendant, plaintiffs moved for judgment on the pleadings. The motion was denied on June 13, 1962. However, the court of common pleas retained jurisdiction of the action, held the issues concerning reapportionment to be justiciable, and refused to adjudicate them until the Legislature had an opportunity to enact appropriate legislation at its forthcoming sessions.*fn3 On November 12, 1963, a special session of the General Assembly was convened for the purpose of considering reapportionment legislation. Subsequently, two reapportionment bills, the Act of January 9, 1964, No. 1, P.L. (1963) 1419, 25 P.S. § 2221 (Supp. 1963), and the Act of January 9, 1964, No. 2, P.L. (1963) 1432, 25 P.S. § 2217 (Supp. 1963), were passed and approved by the Governor.*fn4

On January 14, 1964, plaintiffs petitioned the Supreme Court of Pennsylvania to take immediate jurisdiction of this case, and on January 15 we granted

[ 415 Pa. Page 443]

    plaintiffs' petition and issued a Special Writ of Certiorari to the Court of Common Pleas of Dauphin County. We also permitted intervention by two residents of Bucks County who filed a separate complaint averring, inter alia, that the First Legislative District of Bucks County is not compact within the meaning of Article II, § 17, of the Pennsylvania Constitution and that they are denied fair and equal representation as required by § 1 of the Fourteenth Amendment to the Constitution of the United States. On January 24, 1964, we remanded the matter to the Dauphin County court with directions to hold a hearing forthwith, to allow any pertinent amendment and any proper intervention, to make all necessary and appropriate findings of fact, and to remit its findings and report to this Court as expeditiously as possible. On March 19, 1964, after several hearings in that court, the hearing judge filed a report and findings of fact. On April 7, 1964, oral argument was held before this Court.


In considering this case, we are aware that a similar proceeding was instituted in the United States District Court for the Middle District of Pennsylvania on November 22, 1963.*fn5 On April 9, 1964, that three-judge court filed findings of fact, conclusions of law, and an opinion holding the Pennsylvania Reapportionment Acts of January 9, 1964, and certain provisions of the Pennsylvania Constitution to be violative of the Fourteenth Amendment to the Federal Constitution. Accordingly, it enjoined various state officials from conducting elections pursuant thereto. That court retained jurisdiction of the matter pending enactment of a valid reapportionment plan by the General Assembly or, in default thereof, by its own decree or in some other lawful manner. At the same time, it announced that it would reconvene in Philadelphia on

[ 415 Pa. Page 444]

June 1, 1964, to consider any further relief which might be necessary. On April 14, 1964, a stay of the federal district court order was granted pending appeal to the Supreme Court of the United States.


For many reasons, we believe that we should decide the issues presented and provide necessary remedies for achieving valid reapportionment. In the presence of the demonstrated willingness of the Legislature*fn6 to act and the willingness of our courts to assume jurisdiction, the federal district court should be relieved of responsibility in this matter for a period sufficient to allow such remedies to become effective. In assuming the responsibility of securing, in a timely fashion, a reapportionment plan which would meet the requirements of the Federal and State Constitutions, we have taken literally the words of the Supreme Court of the United States: "We applaud the willingness of state courts to assume jurisdiction and render decision in cases involving challenges to state legislative apportionment schemes." Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 674, 84 S.Ct. 1442, 1451-52 (1964). (Emphasis supplied.)

This suit challenges the recent Pennsylvania Reapportionment Acts and the election of state senators and representatives thereunder. More importantly, it challenges - in light of recent decisions interpreting the Constitution of the United States - the validity of certain provisions of the Constitution of Pennsylvania which establish the legislative branch of government. It presents one of the most important constitutional questions ever raised in the history of this Commonwealth. It involves the basic rights of the citizens of Pennsylvania in the election of their state lawmakers. Historically and logically, this Court is the most appropriate forum to determine the issues presented and

[ 415 Pa. Page 445]

    to fashion suitable remedies. Proper and continuing respect for federal-state judicial relationship necessitates consideration by the Supreme Court of Pennsylvania of the relevant state statutes and state constitutional provisions, subject, of course, to review by the Supreme Court of the United States.

Furthermore, jurisdiction with respect to the matters involved was obtained by the Court of Common Pleas of Dauphin County prior to the federal district court, and both the former court and this Court have acted diligently in light of all the circumstances of this case. After the initial complaints were filed in March, 1962, the common pleas court postponed adjudication of the issues involved in order to give the Legislature an opportunity to act at its forthcoming session. At a special session in 1963, the General Assembly enacted reapportionment legislation, and, immediately thereafter, this Court assumed jurisdiction of this case, received findings of fact and a report based on hearing before the Dauphin County court, and promptly heard argument. Meanwhile, the federal district court denied an application for a preliminary injunction which would have restrained state officials from conducting any election for state legislative office, pending final enactment by the General Assembly of reapportionment legislation then being considered.*fn7

[ 415 Pa. Page 446]

Therefore, both the federal court and the state courts postponed judicial action while awaiting the final passage of the Pennsylvania Reapportionment Acts; both acted promptly in their respective cases in the spring of 1964.*fn8 Further immediate action by us was made unnecessary by the stay of the federal order, granted April 14, 1964, pending appeal to the Supreme Court of the United States. Thus, we were given the opportunity to await opinions of that Court in related cases concerning reapportionment in other states before rendering a decision in the instant case.

It is obvious, of course, that the federal district court's decision of April 9, 1964, was made without the benefit of this Court's interpretation of relevant Pennsylvania constitutional provisions, and, more importantly, without the benefit of recent crucial and controlling decisions announced by the Supreme Court of the United States on June 15, 1964.*fn9 We believe, for reasons which will appear later in our opinion, that reliance on all that was said and directed in the opinion of the district court, although excellent in many respects, would be constitutionally unsafe.

The General Assembly of Pennsylvania is entitled to an opportunity to enact reapportionment legislation pursuant to the recent Reynolds cases and to our interpretation here of pertinent provisions of the

[ 415 Pa. Page 447]

Pennsylvania Constitution. Since the Legislature is intimately acquainted with the characteristics of Pennsylvania and is primarily responsible for constitutional apportionment, action by that body, taken promptly and in good faith, is more likely to achieve a workable, constitutionally acceptable result than an apportionment following the suggested plan of the district court.


The Supreme Court of the United States has held that "seats in both houses of a bicameral state legislature must be apportioned on a population basis";*fn10 that "an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State";*fn11 that "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race ... or economic status";*fn12 and that state legislative districting schemes which give the same number of representatives to unequal numbers of constituents would not be constitutionally sustainable.*fn13

The Act of January 9, 1964, No. 1, which fixes the number of representatives at 209 divides the state into districts as follows:

(Population ratio based on division by 200:56,597)

County District No. District Total No. of Population per

Represent. Represent.

Philadelphia 1 57,507 1 57,507

2 123,445 2 61,722

3 50,896 1 50,896

4 52,246 1 52,246

5 118,067 2 59,033

6 59,203 1 59,203

7 105,037 2 52,519

8 66,017 1 66,017

9 68,833 1 68,833

10 53,550 1 53,550

11 59,483 1 59,483

12 166,944 3 55,648

13 54,497 1 54,497

14 50,616 1 50,616

15 53,563 1 53,563

16 51,055 1 51,055

17 98,589 2 49,299

18 65,622 1 65,622

19 64,956 1 64,956

20 53,986 1 53,986

21 114,280 2 57,140

22 42,761 1 42,761

23 64,982 1 64,982

24 48,898 1 48,898

25 137,260 2 68,630

26 120,210 2 60,105

Adams 51,906 1 51,906

Allegheny 1 137,544 2 68,772

2 50,690 1 50,690

3 49,644 1 49,644

4 49,413 1 49,413

5 47,301 1 47,301

6 132,115 2 66,058

7 143,605 2 71,802

8 53,515 1 53,515

9 111,365 2 55,682

10 63,944 1 63,944

11 127,373 2 63,687

12 62,839 1 62,839

13 60,727 1 60,727

14 235,672 4 58,918

15 153,108 3 51,036

16 150,966 3 50,322

Armstrong 79,524 1 79,524

Beaver 1 102,521 2 51,260

2 104,427 2 52,213

Bedford 42,451 1 42,451

Berks 1 48,551 1 48,551

2 59,639 1 59,639

3 56,817 1 56,817

4 60,781 1 60,781

5 49,626 1 49,626

Blair 1 69,407 1 69,407

2 67,863 1 67,863

Bradford 54,925 1 54,925

Bucks 1 236,905 4 59,226

2 71,662 1 71,662

Butler 1 58,819 1 58,819

2 55,820 1 55,820

Cambria 1 56,756 1 56,756

2 95,114 2 47,557

3 51,413 1 51,413

Cameron 7,586 1 7,586

Carbon 52,889 1 52,889

Centre 78,580 1 78,580

Chester 1 105,824 2 52,912

2 104,784 2 52,392

Clarion 37,408 1 37,408

Clearfield 81,534 1 81,534

Clinton 37,619 1 ...

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