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FRIDAY, FEBRUARY 9, 1838.
The convention again resolved itself into a committee of the whole, Mr. DENNY in the chair, on the amendments heretofore agreed to on 800ond reading, to the first article of the constitution.
The amendment to the fifth section of said article being again under consideration, being the motion of Mr. WooDWARD to strike out the said fifth section,
Mr. EARLB, of Philadelphia county, resumed his remarks. He had already said, if any such difficulty was likely to arise, as had been anticipared by the gentleman from Luzerne, (Mr. Woodward) it might be remedied by an alteration of the language, without destroying the section. He believed there would be found a disposition in the convention to take time to make this article perfect.
He had been somewhat surprised to hear some gentlemen impugn the justice of the provision which requires that fractions of more than one half of the average representative ratio should be represented by an additional member. Any other principle would be unjust to the small counties. If the fractions are not represented, a large portion of the citizens will be without representation. Take five small counties, the population of which is about equal, and they may, unless fractions are represented, lose about two and a half members, nearly half their proper representation. Philadelphia may only lose half a member, or about one twentieth of its representation, while the five small counties, which are likely to have as great a surplus to each county as the large ones, would lose half their representation. If we take ten of the smaller counties the loss would still be greater. They would be entitled only to six or seven representatives. To do justice to all, the fractions must be represented.
The situation of Centre and Lycoming shewed that injustice had been done to them. If the fractions had been represented, according to this principle, Centre would have one more representative, and Lycoming
On reflection, he was satisfied that the objections of the gentleman from Luzerne are withont foundation, and that the introduction of this principle would not make any difficulty in any case. He would suppose the possible case of a county, morally and equitably entitled to a member. The legislature could not deprive the county of that member without being guilty of gross injustice. He believed no member could wish to deprive Monroe of a representative. He would shew that this could not arise, unless by wilful perversion of the constitution.
The opinion of the gentleman from Luzerne is, that Monroe could not be joined to any county, because it might have more than half the representative ratio, and Pike and Wayne, also, having more than one half, the union of the shree counties would be prohibited, as the amendment
DOW stands. Then, says he, Monroe might have no representative al all; because the larger fractions in other counties might raise the number of members to one hundred, leaving none for Monroe.
He would shew how the difficulty might be obviated. The constitution does not say that you shall divide the population by one hundred to obtain the ratio of representation. You may take ninety-nine, or ninety. Suppose you take one hundred as the number by which to divide for obiaining ihe ratio : you find that it produces three thousand as the ratio of laxables for each representative, and that to give a representative on every fraction above fisteen hundred, that is to say one half the ratio, would make one hundred and one members in all. You are therefore obliged to leave the smallest fraction of those which exceed fifteen hun. dred unrepresented ; and it so happens, that a small county, standing by itself, has the smallest fraction of the kind mentioned, and therefore cannot be represented at all. For this case, you have only to change your divisor from one hundred to ninety-nine, and the inevitable result will be, that ihe small county in question will have less than half of the new ratio thus obtained, and therefore may be joined to another county, or to two others; or if it still has more than one half the ratio, there wil be enough spare members, so that you may give one to every fiaction exceeding half the ratio ; and thus the small county in question will obtain its member. This would be the case with Monroe, as it would have, taking one hundred as the divisor, a fraction exceeding by two or three hundred the one half of the ratio.
Let me illustrate it. Suppose the whole number of taxables in the stale to be three hundred thousand. You take one hundred as the divi
100) 300,000(3,000 ratio. Thus you get three thousand as the ratio. Now supposc Philadelphia county to have thirty one thousand seven hurdred and fifty taxables, and Monroe to have one thousand seven hundred. Philadelphia county would have len members, and on its fraction of seventeen hundred and fifty would be entitled to an eleventh member, in preference to giving one to Monroe on its fraction-or whole number--of seventeen hundred. Now change the ratio to three thousand one hundred, as the legislature may rightfully do, inasmuch as we do not fix the ratio by the constitution. The result will be, that the ten members of Philadelphia county will ke op three thousand one hundred of her taxables, leaving her a surplus of but seven hundred and fifty; so that she will lose the eleventh member, which she would have bad on the ratio of ihree thousand, while Monroe having seventeen hundred, or more than one half of the new ratio of three thousand one hundred, will be entitled to a member under the new ratio so fixed upon.
All we have to do then, to secure infallible justice, is to provide that every fraction exceeding one half of the ratio fixed upon, shall be entitled io a niember; ihen the legislature must necessarily fix such a ratio as will give a representative 10 all such fractions, and at the same time make the whole number not to exceed one hundred. I doubt not that the legislature, as the clause now stands, would act upon this principle; but to prevent the possibility of the arising of the case supposed by the gentlemau from Luzerne, I will move this additional amendment, viz :
"Any surplus or fraction of taxables contained in any district, which surplus shall exceed one half of the representative ratio that shall have been fixed upon by the legislature, shall entitle such district to a representative for such surplus or fraction."
The PRESIDENT decided that this amendment was not now in order.
Mr. WOODWARD said he would modify his motion, and would only move to strike out the words of the section, wbich follow the word "unless” in the third line, and to insert in lieu thereof the words they shall be contiguous." The section would then read as follows :
" Sect. 2. Not more than three counties shall be united to forin a representative district. No two counties shall be so united, unless they shall be contiguous."
Mr. Read, of Susquehanna county, said, it had not been his purpose to submit any more remarks in this convention; but the proposition made by the gentleman from Luzerne was so new and unexpected, that he was compelled to forego his resolution, and to ask the attention of the body for a few moments, while he should shew, if able to do so, that the gen. tleman from Luzerne had entirely mistaken the operation of the fifth section, as it now stands, and as he hoped it would stand. One of the points on which the gentleman from Luzerne had addressed the convention was that the words "each county shall have at least one representative," if permitted to stand, should take date from 1790 instead of 1838. He (Mr. R.) did not know how the gentleman from Luzerne came to such a conclusion. He (Mr. R.) held that we are not bound by the acts and specifications of the act of assembly under which the convention was called, 10 pursue any prescribed path, and we are to disre. gard any of these whenever we can hit on a better course. Some gentlemen held that we are bound. He would take it to be so, for the sake of the argument. The act provides that when the convention shall have met, and agreed on the amended constitution, the amended constitution shall be engrossed, and signed by the members of the convention, and deposited in the office of the secretary of the commonwealth. For what purpose was it to be deposited there, unless as an original document, a writ, and that its provisions might take date from the same moment.
There could be no difference between the constitution and the amended constitution. The act says, the amended constitution so agreed on, shall be thus signed and deposited--for what? That a part sliould bear date from 1790, and a part from 1858? To make it known to all time, that the judges, in putling their constrution on its provisions, should take reference to different dates? Look at the inaccuracies which would result from such a state of things. The instant the engrossed constitution is so signed and deposited, in all time to come, a part is to go back forty or fifty years, instead of all bearing date together, as an amended constitution, in the words of the act to which the gentleman adheres.
If the words “such county shall have at least one representative" stand, every one, except, it might be, some member here, would understand it as taking iis date and operation from the same moment of tiine as the other provisions of the constitution. He was astonished that the genile. man froin Luzerne should have put so singular a construction ou this part of the article,
Again, the gentleman from Luzerne was opposed to the fifth section, because he fears that, under its provisions, ihe. small counties will be injured. He fears that the rights of the small counties will be sacrificed. This section was expressly framed to give ihe advantage to the small counties of preserving all their rights, in cases where they might be affected by the disposition of the fractions. This gives to them all they desire.
The gentleman from Luzerne has referred to the counties of Wayne, Pike, and Monroe, to shew the difficulties which woulil arise, and it was to be presumed that he had referred to the most difficult cases he could select. Let us see (said Mr. R.) if there is any difficulty. Wayne con tains a little more than half of the average representative ratio ; Monroe more than haif; and Pike less than half the ratio. What is the consequence? Pike niust be united to Wayne or Monioe, and form a district, and the other county would be entitled to a separate representation. Every county, where it was not absolutely necessary to connect with some one containing less than half the average ratio, would have a separate representation. United, Monroe and Pike would form a district; Wayne having more than half the ratio, would have a separate represen tation ; and every county in the state, having more than half the ratio would be entitled, as a matter of right, to a separate representation ; and the legislature could not refuse any county that right, unless by uniting it with some one county having less than half the ratio.
What he now said, was not in reference to the question of striking out the last part of the section, but to the argument of the gentleman from Luzerne. The incongruity which exists is between the first and the latter part of the section, and not betweer, the fourth and the fifth sections ; and thus difficulty and ambiguity would necessarily arise from the difference in the condition of things and the interests of men, contemplated by the provisions of the constitution of 1790, and those of that of 1838. Let us (said Mr. R.) look, without reference to the last parts of the section, if there be any contradiction between the section which apportions representation according to taxation, and the fifth section. The clause of ihe fourth section on this subject is:
"The number of representatives shall, at the several periods of making such enumeration, be fixed by the legislature, and apportioned among the city of Philadelphia and the several counties, according to the num·ber of taxable inhabitants in each."
He would ask every member of this body if the words "the several counties” can receive any other construction than would be put on the words "every county." When the clause says "the several counties," it means “every county." Therefore the gentleman from Luzerne was under a mistake, when he supposed that this did not apply to every county. Here is an apportionment of representation, in proportion to the taxable inhabitants in the several counties, which is equivalent to all the countics. This is the general principle to which we all adhere. But in regard to the fractions, it is impossible to carry out the principle to the very letter, without disregarding the county lines, because the provision cannot be literally complied with without altering the county lines. Thus it was utterly impossible to carry out the general principle to the
letter. It was necessary then to depart from the general principle, so far as to carry into effect the provision as to the fractions. He would ask the gentleman from Luzerne, therefore, to say, if there was any contradiction between the fourth and fifth sections. The fourth section establishes representation according to population; the fifth section disposes of the fractions. A modification of the general principle we find in the fourth section. It is only an exception to the general rule, founded on the necessity of the case; aud, from the information he had received as to the feelings of the people, he would venture to assert that there was no county in the commonwealth but what would rather lose a fraction equal to nearly one half of the ratio, than to be connected with any other county. There was no county but would rather lose less than one half the ratio by a single taxable, inan be connected with any other county. 'The filth section merely disposes of the fractions, and it disposes of them in the way which is mosi acceptable to the people of the common. wealth.
If he was correct in this, and he was almost sure that he was, then the tisth article, as it stood, disposed of a fraction in the way most acceptable to the people. He would venture to say that there was not a gentleman on that floor who would assert that he (Mr. R.) was mistaken when he affirmed that there was not a county in the state containing three thousand taxables that would not rather have one representative alone, than three by being connected with another county.
This section provided that in all cases where a county has more than half a ratio, it shall have a separate representation, unless it becomes necessary to connect it with a county having less than half a ratio.
The legislature could not, as was supposed by the gentleman from Luzerne) unless they violated the constitution and their oaths, deprive any small county of a separate representation, unless it had less than half a ratio.
He hoped that any motion that might be made to strike out this section would fail. It was one of the most valuable amendments that we have made. It compels the legislature to be honest. Now, that we were acting on the right of suffrage-a most important right-was it not, he asked, of the highest consequence that we should lay down a rule which the legislature could not depart from, and which would compel them to make counties acuerding to this provision, which cuis up Gerrymandering by the roots. He hoped the motion would not prevail.
Mr. Woodward was very anxious to make the section as perfect as possible. He hoped that the gentlemen from Susquehanna and Philadelphia would see that the provision he now proposed would avoid the difficulty at present in the way.
Mr. W. then withdrew his former amendment, and moved to add the following to the section:
6. And if any county containing less than the number of taxables necessary to entitie it
a separate representation, but more than one half of such number, cannot be united with another county to form a district, it shall be entitled to a separate representation."
Mr. Earle remarked that that would obtain the object he (Mr. E.) proposed.