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05/16/78 FREDERICK MERRIAM & OTHERS *FN1 v.

May 16, 1978

FREDERICK MERRIAM & OTHERS *FN1
v.
SECRETARY OF THE COMMONWEALTH



Suffolk. Civil action commenced in the Supreme Judicial Court on July 19, 1977. Following transfer to the county court, the case was reported without decision by Kaplan, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, & Abrams, JJ. Wilkins, J., Dissenting.

SYLLABUS BY THE COURT

Constitutional Law, Apportionment of representation, Representative districts. Municipal Corporations, Representative districts.

The opinion of the court was delivered by: Quirico

Scope of judicial review of legislative acts. [253-257]

Discussion of the meaning of the words "as nearly as may be" as appearing in various Amendments to the Constitution of the Commonwealth dealing with the establishment of representative districts. [257-261]

Statute 1977, c. 277, does not violate the provisions of art. 101 of the Amendments to the Constitution of the Commonwealth in so far as it establishes the Twelfth and Thirteenth Essex representative districts, each of which consists of a portion of the town of Danvers and of the city of Peabody. [261-264] Wilkins, J., Dissenting.

By art. 101, § 1, of the Amendments to the Constitution of the Commonwealth, approved by the people on November 5, 1974, the Legislature was required to divide the Commonwealth into 160 representative districts. Section 3 of art. 101 vests jurisdiction in the Supreme Judicial Court, "upon the petition of any voter of the Commonwealth, . . . for judicial relief relative to the establishment of House of Representatives . . . districts."

By G. L. c. 57, § 4, as appearing in St. 1977, c. 277, § 1, the Legislature divided the Commonwealth into 160 representative districts, and by § 2 provided that "he supreme judicial court shall have jurisdiction of any petition for a writ of mandamus relative to the establishment of . . . representative districts under section one of this act."

The plaintiffs started this action by a complaint seeking relief in the nature of mandamus. *fn2 They allege that St. 1977, c. 277, § 1, in so far as it purports to establish the Twelfth and Thirteenth Essex representative districts (Twelfth and Thirteenth districts), each of which consists of a portion of the town of Danvers and of the city of Peabody, violates art. 101 of the Amendments to the Constitution of this Commonwealth. *fn3 They seek a judgment (a) declaring that c. 277 is unconstitutional as it applies to the two representative districts in question, and (b) "restraining the defendant from taking any steps to prepare or process nomination papers or to prepare election ballots for the 1978 election to the General Court utilizing the representative districts established by St. 1977, c. 277."

For the reasons discussed below, we hold that St. 1977, c. 277, in so far as it establishes the Twelfth and Thirteenth districts, does not violate art. 101 of the Amendments to the Constitution of this Commonwealth, and we deny the injunctive relief sought by the plaintiffs.

Article 101 reduces the number of members of the House of Representatives from the present 240 to 160. It further requires that this division of the Commonwealth by the Legislature shall result in "one hundred and sixty representative districts [1] of contiguous territory [2] so that each representative will represent an equal number of inhabitants, as nearly as may be ; [3] and such districts shall be formed, as nearly as may be, without uniting two counties or parts of two or more counties, two towns or parts of two or more towns, two cities or parts of two or more cities, or a city and a town, or parts of cities and towns, into one district [; and 4, s]uch districts shall also be so formed that no town containing less than twenty-five hundred inhabitants . . . shall be divided" (emphasis supplied). Art. 101, § 1.

Each of the proposed Twelfth and Thirteenth districts is made up of "contiguous territory," thus complying with the first of the four requirements of art. 101. The Twelfth district includes 36,713 inhabitants, and the Thirteenth includes 33,797 inhabitants, and no argument is made that such totals do not satisfy the second requirement that each district shall include "an equal number of inhabitants, as nearly as may be." *fn4 Passing over the third requirement of art. 101 for the moment, we note that the fourth requirement, prohibiting the division of towns with less than 2,500 inhabitants, is not involved in the two representative districts in question, since Danvers, the only town within the two districts in question, had 24,947 inhabitants.

We thus come to the basic issue presented to us, whether the division which placed a part of Danvers and a part of Peabody in each of the Twelfth and Thirteenth districts violates that part of art. 101, § 1, that required the Legislature to divide the Commonwealth into 160 representative districts " as nearly as may be, without uniting . . . parts of cities and towns, into one district" (emphasis supplied). That issue is before us on a statement of agreed facts which incorporated 1977 House Doc. No. 5900, the report of the Joint Special Committee (committee) which recommended the division of the Commonwealth into the 160 representative districts that were established by St. 1977, c. 277. *fn5 We summarize the statement of agreed facts as they relate to the issue before us.

Two of the districts proposed by St. 1977, c. 277, § 1, each unite part of Danvers with part of Peabody. *fn6 The number of inhabitants in the Twelfth district is 36,713, composed of 10,020 inhabitants of Danvers, and 26,633 inhabitants of Peabody. The Thirteenth district includes 33,797 inhabitants, 14,927 of Danvers, and 19,270 of Peabody. (The figures are taken from the statement of agreed facts.) The close relationship between the town and city is indicated by their histories. Danvers was part of Salem until 1752, when it separated and was incorporated. The south parish of Danvers, comprising what is now ...


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