The opinion of the court was delivered by: GOURLEY
In this civil action, plaintiffs challenge as contrary to the Constitution and Census Acts of the United States certain procedures established by the Director of the Bureau of the Census for the taking of the 1970 Census. Challenged in particular are the procedures whereby college students, members of the Armed Services stationed in the United States, and inmates of institutions are enumerated as inhabitants of the respective places where their colleges, military bases, or institutions are located.
The original plaintiffs are a political subdivision of Allegheny County, Pennsylvania, the President and Mayor of that political subdivision, a member of the House of Representatives of the General Assembly of Pennsylvania and a member of the House of Representatives of the United States who represents one of twenty-seven Congressional Districts within the State of Pennsylvania. Members of the United States House of Representatives representing the remaining twenty-six Congressional Districts within Pennsylvania have been permitted to intervene as party-plaintiffs. The City of Philadelphia has also intervened as a party-plaintiff. The individual plaintiffs bring the action in their official capacities, in their capacities as Pennsylvania residents and voters, and on behalf of all other similarly situated residents and voters. Defendants are the Secretary of the Department of Commerce, the Director of the Bureau of the Census and the Bureau of the Census.
Plaintiffs seek both declaratory and injunctive relief. The Court is asked to declare the practices of the Director of the Bureau of the Census to be violative of Article I, Section 2, Clause 3 of the Constitution, the Due Process Clause of the Fifth Amendment thereto, and the Census Acts of the United States. Plaintiffs request an injunction restraining the Department of Commerce from adopting and promulgating the compilations obtained from the taking of the 1970 Census, restraining the future use of the designated procedures and compelling a re-taking of the 1970 Census.
The matter presently before the Court is plaintiffs' Motion for a Preliminary Injunction and a Declaratory Judgment. The Court has conducted an evidentiary hearing upon the Motion wherein the testimony of Dr. Conrad F. Taeuber, Associate Director of the Bureau of the Census, was received. Upon review of the evidence, the arguments and briefs of counsel for the respective parties, and the law applicable herein, the Court concludes that injunctive relief should be denied and that a declaratory judgment should be granted in favor of the defendants and against plaintiffs.
The phrase "whole number of persons in each State" has been interpreted by the Bureau to mean those persons whose usual place of residence was a particular State on the date of the census, including those persons present in a State who had no usual place of residence elsewhere. In the census, each person enumerated in areas within the jurisdiction of the United States is recorded and counted as of his usual place of residence, i.e., the specific address at which he is living on the date of the census. The Bureau's criteria for determining the usual place of residence is as follows: persons are enumerated at the place in which they generally eat, sleep, and work, with persons who are temporarily absent for a few days or weeks from such usual place of abode being counted as residents of their usual place of abode. The concepts of "domicile" and "legal residence" are not deemed material. Under the above procedure, the Bureau enumerates a person as a resident of a State where he usually resides, regardless of whether or not he is a "domiciliary" or "legal resident" of that State.
Uniformly applying the aforementioned criteria to college students, inmates of institutions, and members of the Armed Services serving at military installations within the United States, the Bureau enumerates these persons respectively as residents of the specific locations where their colleges, institutions, and military installations are located. In the 1940 and previous censuses, college students were counted as residents of their parental homes even though they lived during the better part of the year in the communities where they were attending college. However, the procedure was changed for the 1950 and two subsequent censuses so that college students are now enumerated at the places where they actually live while attending college. Apparently, inmates of institutions and members of the Armed Services serving within the United States always have been enumerated as residents of the places where their institutions and military installations are located.
With respect to persons abroad, the Bureau utilizes the following procedures. In the 1970 Census, military personnel serving abroad, for the first time, have been allocated back to the States constituting their homes of record as shown on listings provided by the Department of Defense. However, such military personnel are not allocated back to any specific addresses within those States. A similar procedure is followed for other Government personnel serving abroad. Private persons working or living abroad, not merely visiting abroad, are not counted.
Plaintiffs challenge the aforementioned procedures as an abuse of statutorily vested discretion and violative of the Constitution. The challenge is premised upon plaintiffs' assertion that persons within the aforementioned categories (college students, institutional inmates, military personnel at home and abroad, Government personnel serving abroad, and private persons living and working abroad) are transients on the date of the taking of the census, all, most, or some of whom have an identifiable home to which they will return upon relinquishing their transient status, and within which they will live for the greater duration of the decennial period. Plaintiffs claim that the Bureau's practice of enumerating these persons as living at their usual places of residence on the date of the census without ascertaining whether these persons, or a relevant percentage of them, have identifiable home residences is an abuse of discretion and unconstitutional. If these persons do have identifiable home residences, plaintiffs argue, the Bureau is duty bound to enumerate them as of such home residences.
Although plaintiffs assert several grounds upon which jurisdiction allegedly is based, the Court finds that jurisdiction of this action lies under 28 U.S.C. § 1337. Quon v. Stans, 309 F. Supp. 604, 606 (N.D. Cal. 1970). A determination of the applicability of other asserted bases of jurisdiction is unnecessary.
The Constitution creates a duty upon the executive branch of the Government to take a decennial census. Article I, Section 2, Clause 3, provides in relevant part:
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." (Emphasis added.)
Amendment 14, Section 2, adopted July 28, 1868, provides in relevant part:
"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." (Emphasis added.)
Article I, Section 2, Clause 3 of the Constitution provides for decennial enumerations in general terms and does not specify the details of the enumeration. Authority for the enactment of legislation to carry out the constitutional provision is conferred upon the Congress. The object of the census, as stated in the case of Loughborough v. Blake, 18 U.S. 317, 5 Wheat. 317, 320, 5 L. Ed. 98 (1820) is "to furnish a standard by which 'representatives, and direct taxes, may be apportioned among the several states which may be included within this Union'."
The problem before the members of the Constitutional Convention as to the method by which each State was to be represented in the Congress was the subject of much debate. Although it was finally decided that representatives in the lower House would be apportioned among the several States on the basis of the number of people enumerated therein, there is no indication that the members of the Constitutional Convention had in mind any specific criteria by which persons were to be deemed residents of one State rather than another. It is most likely that they thought in terms of an average inhabitant, whose actual location at the time of the census, domicile, and legal residence would be the same. The fringe problem of persons actually living on the date of the census in places other than the places of their domicile or legal residence was not considered.
It would also appear that neither the members of the Constitutional Convention nor the authors of the Fourteenth Amendment were concerned with concepts of "domicile" or "legal residence." On the contrary, other language was used: "according to their respective ...