Seitz, Van Dusen and Adams, Circuit Judges. Judge Adams concurs in the result.
The issues raised on appeal pose important questions regarding the propriety of certain procedures established by the Secretary of Commerce and the Director of the Bureau of the Census for the taking of the Nineteenth Decennial Census of the United States (1970 Census).
Two of the plaintiffs below, the City of Philadelphia and James G. Fulton, a Pennsylvania Congressman, appeal from an order of the district court denying, after a hearing, their requests for injunctive relief and entering a declaratory judgment in favor of appellees, 319 F. Supp. 971. The case was heard below on a stipulation of facts and an unchallenged affidavit of Dr. Conrad F. Taeuber, Associate Director of the Bureau of the Census, filed on behalf of appellees.
Specifically, appellants challenge as violative of Art. I, § 2, the Fifth and the Fourteenth Amendments to the Constitution, and the Census Acts of the United States, the action of the Bureau of the Census whereby college students, members of the Armed Services stationed in the United States, and inmates of institutions were enumerated in the 1970 Census as inhabitants of the respective states in which their colleges, military bases, or institutions were located, and not, say appellants, the states which such individuals considered their "legal residence for all purposes other than the census." Appellants assert that, as a result of this method of enumeration, the population of their political subdivisions has been underestimated since more people in the above categories leave than enter these particular subdivisions. It is claimed that as a consequence: (1) certain political subdivisions will be denied their proper share of various funds allocated by both the Federal Government and the Commonwealth of Pennsylvania according to the federal census, (2) these subdivisions will be denied proper representation in the House of Representatives and the Legislature of the Commonwealth of Pennsylvania, and (3) voters in these subdivisions will have the weight of their votes in federal and local elections improperly diluted.
Appellants also challenge the action of the Bureau of the Census whereby military and other government personnel serving outside the United States are not enumerated in any specific political subdivision, although they are enumerated in the state where they maintained their former residences.
In their request for relief in the district court, appellants sought, inter alia, to restrain the Department of Commerce from adopting and promulgating the compilations obtained from the taking of the 1970 Census, to restrain future use of the allegedly invalid enumeration procedures, and to compel a retaking of the 1970 Census.
Art. I, § 2, as amended by Section 2 of the Fourteenth Amendment to the Constitution, provides:
"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." U.S.Const. Amend. 14, § 2.
Art. I, § 2 further provides:
"The actual Enumeration shall be made within three Years of 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." U.S.Const. Art. I, § 2.
Congress has consistently provided for the contemplated enumeration. The Census Act contained in Title 13 of the United States Code governed the 1970 census. It provides in pertinent part:
"(a) The Secretary [of Commerce] shall, in the year 1960 and every ten years thereafter, take a census of population * * * as of the first day of April, ...