Autor: Nortencio

Video: Factnomenal

Video: CuriosaMente

Video: Ñoqui DF

United States Supreme Court
HOLT CIVIC CLUB v. TUSCALOOSA, (1978)
No. 77-515
Argued: October 11, 1978 Decided: November 28, 1978

Appellants, a civic association and certain individual residents of Holt, Ala., a small unincorporated community outside the corporate limits of Tuscaloosa but within three miles thereof, brought this statewide class action challenging the constitutionality of “police jurisdiction” statutes that extend municipal police, sanitary, and business-licensing powers over those residing within three miles of certain corporate boundaries without permitting such residents to vote in municipal elections. A three-judge District Court granted appellees’ motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Held:

1. The convening of a three-judge court under then-applicable 28 U.S.C. 2281 (1970 ed.) was proper since appellants challenged the constitutionality of state statutes that created a statewide system under which Alabama cities exercise extraterritorial powers. Moody v. Flowers, 387 U.S. 97, distinguished. Pp. 63-65.

2. Alabama’s police jurisdiction statutes do not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 66-75.

(a) A government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. Various voting qualification decisions on which appellants rely in support of their contention that the denial of the franchise to them can stand only if justified by a compelling state interest are inapposite. In those cases, unlike the situation here, the challenged statutes disfranchised individuals who physically resided within the geographical boundaries of the governmental entity concerned. Pp. 66-70.

(b) Alabama’s police jurisdiction statutory scheme is a rational legislative response to the problems faced by the State’s burgeoning cities, and the legislature has a legitimate interest in ensuring that residents of areas adjoining city borders be provided such basic municipal services as police, fire, and health protection. Nor is it unreasonable for the legislature to require police jurisdiction residents to contribute through license fees, as they do here on a reduced scale, to the expense of such services. Pp. 70-75.

3. The challenged statutes do not violate due process since appellants have no constitutional right to vote in Tuscaloosa elections. P. 75.

Affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 75. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 79.

Edward Still argued the cause for appellants. With him on the briefs were Neil Bradley, Laughlin McDonald, Christopher Coates, and Bruce Ennis.

J. Wagner Finnell argued the cause and filed a brief for appellees.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Holt is a small, largely rural, unincorporated community located on the northeastern outskirts of Tuscaloosa, the fifth largest city in Alabama. Because the community is within the three-mile police jurisdiction circumscribing Tuscaloosa’s corporate limits, its residents are subject to the city’s “police [and] sanitary regulations.” Ala. Code 11-40-10 (1975). 1 Holt residents are also subject to the criminal jurisdiction of the city’s court, Ala. Code 12-14-1 (1975), 2 and to the city’s power to license businesses, trades, and professions, Ala. Code 11-51-91 (1975). 3 Tuscaloosa, however, may collect from businesses in the police jurisdiction only one-half of the license fee chargeable to similar businesses conducted within the corporate limits. Ibid.

In 1973 appellants, an unincorporated civic association and seven individual residents of Holt, brought this statewide class action in the United States District Court for the Northern District of Alabama, 4 challenging the constitutionality of these Alabama statutes. They claimed that the city’s extraterritorial exercise of police powers over Holt residents, without a concomitant (related, connected) extension of the franchise on an equal footing with those residing within the corporate limits, denies residents of the police jurisdiction rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court denied appellants’ request to convene a three-judge court pursuant to 28 U.S.C. 2281 (1970 ed.) and dismissed the complaint for failure to state a claim upon which relief could be granted. Characterizing the Alabama statutes as enabling Acts, the District Court held that the statutes lack the requisite statewide application necessary to convene a three-judge District Court. On appeal the Court of Appeals for the Fifth Circuit ordered the convening of a three-judge court, finding that the police jurisdiction statute embodies “`a policy of statewide concern.'” Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975), quoting Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 94 (1935).

A three-judge District Court was convened, but appellants’ constitutional claims fared no better (no obtuvo resultado/no prosperó) on the merits. Noting that appellants sought a declaration that extraterritorial regulation is unconstitutional per se rather than an extension of the franchise to police jurisdiction residents, the District Court held simply that “[e]qual protection has not been extended to cover such contention.” App. to Juris. Statement 2a. The court rejected appellants’ due process claim without comment. Accordingly, appellees’ motion to dismiss was granted.

Unsure whether appellants’ constitutional attack on the Alabama statutes satisfied the requirements of 28 U.S.C. 2281 (1970 ed.) for convening a three-judge district court we postponed consideration of the jurisdictional issue until the hearing of the case on the merits. 435 U.S. 914 (1978). We now conclude that the three-judge court was properly convened and that appellants’ constitutional claims were properly rejected.

I

Before its repeal, 5 28 U.S.C. 2281 (1970 ed.) required that a three-judge district court be convened in any case in which a preliminary or permanent injunction was sought to restrain “the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . .” Our decisions have interpreted 2281 to require the convening of a three-judge district court “where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy.” Board of Regents v. New Left Education Project, 404 U.S. 541, 542 (1972). Relying on Moody v. Flowers, 387 U.S. 97 (1967), appellees contend, and the original single-judge District Court held, that Alabama’s police jurisdiction statutes lack statewide impact.

A three-judge court was improperly convened in Moody because the challenged state statutes had “limited application, concerning only a particular county involved in the litigation . . . .” Id., at 104. In contrast, appellants’ constitutional attack focuses upon a state statute that creates the statewide system under which Alabama cities exercise extraterritorial powers. In mandatory terms, the statute provides that municipal police and sanitary ordinances “shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town.” 6 Clearly, Alabama’s police jurisdiction statutes have statewide application. See, e. g., Sailors v. Board of Education, 387 U.S. 105, 107 (1967). That the named defendants are local officials is irrelevant where, as here, those officials are “functioning pursuant to a statewide policy and performing a state function.” Moody v. Flowers, supra, at 102; Spielman Motor Sales Co. v. Dodge, supra, at 94-95. The convening of a three-judge District Court was proper.

II

Appellants’ amended complaint requested the District Court to declare the Alabama statutes unconstitutional and to enjoin (prohibit) their enforcement insofar as (to the extent that, in that) they authorize the extraterritorial exercise of municipal powers. Seizing on the District Court’s observation that “[appellants] do not seek extension of the franchise to themselves,” appellants suggest that their complaint was dismissed because they sought the wrong remedy.

The unconstitutional predicament in which appellants assertedly found themselves could be remedied in only two ways:

(1) the city’s extraterritorial power could be negated by invalidating the State’s authorizing statutes or

(2) the right to vote in municipal elections could be extended to residents of the police jurisdiction.

We agree with appellants that a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one. Under the Federal Rules of Civil Procedure “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Rule 54 (c). Thus, although the prayer for relief may be looked to for illumination when there is doubt as to the substantive theory under which a plaintiff is proceeding, its omissions are not in and of themselves a barrier to redress of a meritorious claim. See, e. g., 6 J. Moore. W. Taggart, & J. Wicker, Moore’s Federal Practice § 54.62, pp. 1261-1265 (2d ed. 1976). But while a meritorious claim will not be rejected for want of a prayer for appropriate relief, a claim lacking substantive merit obviously should be rejected. We think it is clear from the pleadings in this case that appellants have alleged no claim cognizable under the United States Constitution.

A

Appellants focus their equal protection attack on 11-40-10, the statute fixing the limits of municipal police jurisdiction and giving extraterritorial effect to municipal police and sanitary ordinances. Citing Kramer v. Union Free School Dist., 395 U.S. 621 (1969), and cases following in its wake, appellants argue that the section creates a classification infringing on their right to participate in municipal elections. The State’s denial of the franchise to police jurisdiction residents, appellants urge, can stand only if justified by a compelling state interest.

At issue in Kramer was a New York voter qualification statute that limited the vote in school district elections to otherwise qualified district residents who (1) either owned or leased taxable real property located within the district, (2) were married to persons owning or leasing qualifying property, or (3) were parents or guardians of children enrolled in a local district school for a specified time during the preceding year. Without deciding whether or not a State may in some circumstances limit the franchise to residents primarily interested in or primarily affected by the activities of a [439 U.S. 60, 67]   given governmental unit, the Court held that the statute was not sufficiently tailored to meet that state interest since its classifications excluded many bona fide residents of the school district who had distinct and direct interests in school board decisions and included many residents whose interests in school affairs were, at best, remote and indirect.

On the same day, in Cipriano v. City of Houma, 395 U.S. 701 (1969), the Court upheld an equal protection challenge to a Louisiana law providing that only “property taxpayers” could vote in elections called to approve the issuance of revenue bonds by a municipal utility system. Operation of the utility system affected virtually every resident of the city, not just property owners, and the bonds were in no way financed by property tax revenue. Thus, since the benefits and burdens of the bond issue fell indiscriminately on property owner and nonproperty owner alike, the challenged classification impermissibly excluded otherwise qualified residents who were substantially affected by and directly interested in the matter put to a referendum. The rationale of Cipriano was subsequently called upon to invalidate an Arizona law restricting the franchise to property taxpayers in elections to approve the issuance of general obligation municipal bonds. Phoenix v. Kolodziejski,399 U.S. 204 (1970).

Appellants also place heavy reliance on Evans v. Cornman, 398 U.S. 419 (1970). In Evans the Permanent Board of Registry of Montgomery County, Md., ruled that persons living on the grounds of the National Institutes of Health (NIH), a federal enclave located within the geographical boundaries of the State, did not meet the residency requirement of the Maryland Constitution. Accordingly, NIH residents were denied the right to vote in Maryland elections. This Court rejected the notion that persons living on NIH grounds were not residents of Maryland:

• “Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state

[439 U.S. 60, 68]   

• residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that `fiction of a state within a state’ was specifically rejected by this Court in Howard v. Commissioners of Louisville,

344 U.S. 624, 627 

(1953), and it cannot be resurrected here to deny appellees the right to vote.” Id., at 421-422.

Thus, because inhabitants of the NIH enclave were residents of Maryland and were “just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as their neighbors who live off the enclave,” id., at 426, the State could not deny them the equal right to vote in Maryland elections.

From these and our other voting qualifications cases a common characteristic emerges: The challenged statute in each case denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned. See, e. g., Hill v. Stone, 421 U.S. 289 (1975) (invalidating provision of the Texas Constitution restricting franchise on general obligation bond issue to residents who had “rendered” or listed real, mixed, or personal property for taxation in the election district); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (invalidating Virginia statute conditioning the right to vote of otherwise qualified residents on payment of a poll tax); cf. Turner v. Fouche, 396 U.S. 346 (1970) (invalidating Georgia statute restricting county school board membership to residents owning real property in the county). No decision of this Court has extended the “one man, one vote” principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivisions. On the contrary, our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its [439 U.S. 60, 69]   borders. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 343 -344 (1972); Evans v. Cornman, supra, at 422; Kramer v. Union Free School Dist., 395 U.S., at 625 ; Carrington v. Rash, 380 U.S. 89, 91 (1965); Pope v. Williams, 193 U.S. 621 (1904). Bona fide residence alone, however, does not automatically confer the right to vote on all matters, for at least in the context of special interest elections the State may constitutionally disfranchise residents who lack the required special interest in the subject matter of the election. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973); Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743(1973).

Appellants’ argument that extraterritorial extension of municipal powers requires concomitant extraterritorial extension of the franchise proves too much. The imaginary line defining a city’s corporate limits cannot corral the influence of municipal actions. A city’s decisions inescapably affect individuals living immediately outside its borders. The granting of building permits for high rise apartments, industrial plants, and the like on the city’s fringe unavoidably contributes to problems of traffic congestion, school districting, and law enforcement immediately outside the city. A rate change in the city’s sales or ad valorem tax could well have a significant impact on retailers and property values in areas bordering the city. The condemnation of real property on the city’s edge for construction of a municipal garbage dump or waste treatment plant would have obvious implications for neighboring nonresidents. Indeed, the indirect extraterritorial effects of many purely internal municipal actions could conceivably have a heavier impact on surrounding environs than the direct regulation contemplated by Alabama’s police jurisdiction statutes. Yet no one would suggest that nonresidents likely to be affected by this sort of municipal action have a constitutional right to participate in the political processes bringing it about. And unless one adopts the idea that the [439 U.S. 60, 70]   Austinian notion of sovereignty, which is presumably embodied to some extent in the authority of a city over a police jurisdiction, distinguishes the direct effects of limited municipal powers over police jurisdiction residents from the indirect though equally dramatic extraterritorial effects of purely internal municipal actions, it makes little sense to say that one requires extension of the franchise while the other does not.

Given this country’s tradition of popular sovereignty, appellants’ claimed right to vote in Tuscaloosa elections is not without some logical appeal. We are mindful, however, of Mr. Justice Holmes’ observation in Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908):

“All rights tend to declare themselve absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. . . . The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side.”

The line heretofore marked by this Court’s voting qualifications decisions coincides with the geographical boundary of the governmental unit at issue, and we hold that appellants’ case, like their homes, falls on the farther side.

B

Thus stripped of its voting rights attire, the equal protection issue presented by appellants becomes whether the Alabama statutes giving extraterritorial force to certain municipal ordinances and powers bear some rational relationship to a legitimate state purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). “The Fourteenth Amendment does not prohibit legislation merely because [439 U.S. 60, 71]  cause it is special, or limited in its application to a particular geographical or political subdivision of the state.” Fort Smith Light Co. v. Paving Dist., 274 U.S. 387, 391 (1927). Rather, the Equal Protection Clause is offended only if the statute’s classification “rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan v. Maryland, 366 U.S. 420, 425 (1961); Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 556 (1947).

Government, observed Mr. Justice Johnson, “is the science of experiment,” Anderson v. Dunn, 6 Wheat. 204, 226 (1821), and a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power. This Court has often recognized that political subdivisions such as cities and counties are created by the State “as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.” Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907). See also, e. g., Sailors v. Board of Education, 387 U.S., at 108 ; Reynolds v. Sims, 377 U.S. 533, 575 (1964). In Hunter v. Pittsburgh, the Court discussed at length the relationship between a State and its political subdivisions, remarking: “The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the State.” 207 U.S., at 178 . While the broad statements as to state control over municipal corporations contained in Hunter have undoubtedly been qualified by the holdings of later cases such as Kramer v. Union Free School Dist., supra, we think that the case continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them. 7   [439 U.S. 60, 72]  

The extraterritorial exercise of municipal powers is a governmental technique neither recent in origin nor unique to the State of Alabama. See R. Maddox, Extraterritorial Powers of Municipalities in the United States (1955). In this country 35 States authorize their municipal subdivisions to exercise governmental powers beyond their corporate limits. Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U. Chi. L. Rev. 151 (1977). Although the extraterritorial municipal powers granted by these States vary widely, several States grant their cities more extensive or intrusive powers over bordering areas than those granted under the Alabama statutes. 8   [439 U.S. 60, 73]  

In support of their equal protection claim, appellants suggest a number of “constitutionally preferable” governmental alternatives to Alabama’s system of municipal police jurisdictions. For example, exclusive management of the police jurisdiction by county officials, appellants maintain, would be more “practical.” From a political science standpoint, appellants’ suggestions may be sound, but this Court does not sit to determine whether Alabama has chosen the soundest or [439 U.S. 60, 74]   most practical form of internal government possible. Authority to make those judgments resides in the state legislature, and Alabama citizens are free to urge their proposals to that body. See, e. g., Hunter v. Pittsburgh, 207 U.S., at 179 . Our inquiry is limited to the question whether “any state of facts reasonably may be conceived to justify” Alabama’s system of police jurisdictions, Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S., at 732 , and in this case it takes but momentary reflection to arrive at an affirmative answer.

The Alabama Legislature could have decided that municipal corporations should have some measure of control over activities carried on just beyond their “city limit” signs, particularly since today’s police jurisdiction may be tomorrow’s annexation to the city proper. Nor need the city’s interests have been the only concern of the legislature when it enacted the police jurisdiction statutes. Urbanization of any area brings with it a number of individuals who long both for the quiet of suburban or country living and for the career opportunities offered by the city’s working environment. Unincorporated communities like Holt dot the rim of most major population centers in Alabama and elsewhere, and state legislatures have a legitimate interest in seeing that this substantial segment of the population does not go without basic municipal services such as police, fire, and health protection. Established cities are experienced in the delivery of such services, and the incremental cost of extending the city’s responsibility in these areas to surrounding environs may be substantially less than the expense of establishing wholly new service organizations in each community.

Nor was it unreasonable for the Alabama Legislature to require police jurisdiction residents to contribute through license fees to the expense of services provided them by the city. The statutory limitation on license fees to half the amount exacted within the city assures that police jurisdiction residents will not be victimized by the city government.

“Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions.” Sailors v. Board of Education, 387 U.S., at 110-111. This observation in Sailors was doubtless as true at the turn of this century, when urban areas throughout the country were temporally closer to the effects of the industrial revolution. Alabama’s police jurisdiction statute, enacted in 1907, was a rational legislative response to the problems faced by the State’s burgeoning cities. Alabama is apparently content with the results of its experiment, and nothing in the Equal Protection Clause of the Fourteenth Amendment requires that it try something new.

C

Appellants also argue that “governance without the franchise is a fundamental violation of the due process clause.” Brief for Appellants 28. Support for this proposition is alleged to come from United States v. Texas, 252 F. Supp. 234 (WD Tex.) (three-judge District Court), summarily aff’d, 384 U.S. 155 (1966), which held that conditioning the franchise of otherwise qualified voters on payment of a poll tax denied due process to many Texas voters. Appellants’ argument proceeds from the assumption, earlier shown to be erroneous, supra, at 66-70, that they have a right to vote in Tuscaloosa elections. Their conclusion falls with their premise.

III

In sum, we conclude that Alabama’s police jurisdiction statutes violate neither the Equal Protection Clause nor the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court is

Affirmed.

Footnotes

[ Footnote 1 ] The full text of 11-40-10 provides:

“The police jurisdiction in cities having 6,000 or more inhabitants shall cover all adjoining territory within three miles of the corporate limits, and in cities having less than 6,000 inhabitants and in towns, such police jurisdiction shall extend also to the adjoining territory within a mile and a half of the corporate limits of such city or town.

“Ordinances of a city or town enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town.”

[ Footnote 2 ] “The municipal court shall have jurisdiction of all prosecutions for [439 U.S. 60, 62]   the breach of the ordinances of the municipality within its police jurisdiction.” Ala. Code 12-14-1 (b) (1975).

[ Footnote 3 ] In pertinent part 11-51-91 provides:

“Any city or town within the state of Alabama may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city or town but outside the corporate limits thereof; provided, that the amount of such licenses shall not be more than one half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city or town, fees and penalties excluded . . . .”

Although not at issue here, Ala. Code 11-52-8 (1975) imposes a duty on the municipal planning commission “to make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission’s judgment, bear relation to the planning of such municipality.” Under Ala. Code 11-52-30 and 11-52-31 (1975), also not contested here, the municipal planning commission is required to adopt regulations governing the subdivision of land within its jurisdiction, which includes all land lying within five miles of the municipality’s corporate limits and not located within the corporate limits of any other municipality.

[ Footnote 4 ] This suit was instituted prior to the 1975 recompilation of the Alabama Code. Other than minor stylistic changes, 11-40-10 and 11-51-91 are identical to their predecessors, Ala. Code, Tit. 37, 9 and 733 (1958) respectively. Section 12-14-1 abolished the recorder’s courts created under is predecessor, Ala. Code, Tit. 37, 585 (1958), and replaced them with municipal courts having similar extraterritorial jurisdiction.

[ Footnote 5 ] Pub. L. 94-381, 1, Aug. 12, 1976, 90 Stat. 1119.

[ Footnote 6 ] Ala. Code 11-40-10 (1975) (emphasis added). The Alabama Supreme Court has recognized the mandatory nature of 11-40-10. In City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975), the court rejected the contention that the city of Leeds had, by discontinuing police and fire protection in its police jurisdiction, “waived and relinquished its police jurisdiction over the area.” Id., at 502, 319 So.2d, at 246. “Since a municipality cannot barter away a governmental power specifically delegated to it by the legislature, . . . it follows that it also cannot waive or relinquish such power.” Ibid. See also Trailway Oil Co. v. Mobile, 271 Ala. 218, 224, 122 So.2d 757, 762 (1960) (“[Section] 9 of Title 37 [now 11-40-10], describing the territorial extent of the municipal police jurisdiction and the incidents thereof, and 733 of Title 37 [now 11-51-91], [439 U.S. 60, 65]   as amended, authorizing and regulating the fixing and collecting of licenses within the police jurisdiction of cities and towns, are general laws, and, as such, they are considered part of every municipal charter”); Coursey v. City of Andalusia, 24 Ala. App. 247, 247-248, 134 So. 671 (1931) (“Under the statute [ 11-40-10] the police jurisdiction extends to all the adjoining territory within a mile and a half of the corporate limits of said city, and . . . ordinances of the city enforcing police or sanitary regulations . . . have force and effect not only in the limits of the city, but also in the police jurisdiction thereof”).

[ Footnote 7 ] In this case residents of the police jurisdiction are excluded only from participation in municipal elections since they reside outside of Tuscaloosa’s corporate limits. This “denial of the franchise,” as appellants put it, does not have anything like the far-reaching consequences of the [439 U.S. 60, 72]   denial of the franchise in Evans v. Cornman, 398 U.S. 419 (1970). There the Court pointed out that “[i]n nearly every election, federal, state, and local, for offices from the Presidency to the school board, and on the entire variety of other ballot propositions, appellees have a stake equal to that of other Maryland residents.” Id., at 426. Treatment of the plaintiffs in Evans as nonresidents of Maryland had repercussions not merely with respect to their right to vote in city elections, but with respect to their right to vote in national, state, school board, and referendum elections.

[ Footnote 8 ] Municipalities in some States have almost unrestricted governmental powers over surrounding unincorporated territories. For example, South Dakota cities

“have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits . . . and in and over all places, except within the corporate limits of another municipality, within one mile of the corporate limits or of any public ground or park belonging to the municipality outside the corporate limits, for the purpose of promoting the health, safety, morals, and general welfare of the community, and of enforcing its ordinances and resolutions relating thereto.” S. D. Comp. Laws Ann. 9-29-1 (1967).

North Dakota’s statutory grant of extraterritorial municipal powers is similarly broad:

“Except as otherwise provided by law, a governing body of a municipality shall have jurisdiction:
• . . . . .

• “2. In and over all places within one-half mile of the municipal limits for the purpose of enforcing health and quarantine ordinances and regulations and police regulations and ordinances adopted to promote the peace,

[439 U.S. 60, 73]   

order, safety, and general welfare of the municipality.” N. D. Cent. Code 40-06-01 (2) (1968).

Cities in many States are statutorily authorized to zone extraterritorially, see, e. g., Ariz. Rev. Stat. Ann. 9-240-B-21 (c) (1977); Mich. Comp. Laws 125.36 (1970); N. D. Cent. Code 11-35-02 (1976), a power not afforded Alabama municipalities. See Roberson v. City of Montgomery, 285 Ala. 421, 233 So.2d 69 (1970).

By setting forth these various state provisions respecting extraterritorial powers of cities, we do not mean to imply that every one of them would pass constitutional muster. We do not have before us, of course, a situation in which a city has annexed outlying territory in all but name, and is exercising precisely the same governmental powers over residents of surrounding unincorporated territory as it does over those residing within its corporate limits. See Little Thunder v. South Dakota, 518 F.2d 1253 (CA8 1975). Nor do we have here a case like Evans v. Cornman, supra, where NIH residents were subject to such “important aspects of state powers” as Maryland’s authority “to levy and collect [its] income, gasoline, sales, and use taxes” and were “just as interested in and connected with electoral decisions as . . . their neighbors who live[d] off the enclave.” 398 U.S., at 423 , 424, 426.

Appellants have made neither an allegation nor a showing that the authority exercised by the city of Tuscaloosa within the police jurisdiction is no less than that exercised by the city within its corporate limits. The minute catalog of ordinances of the city of Tuscaloosa which have extraterritorial effect set forth by our dissenting Brethren, post, at 82-84, n. 10, is as notable for what it does not include as for what it does. While the burden was on appellants to establish a difference in treatment violative of the Equal Protection Clause, we are bound to observe that among the powers not included in the “addendum” to appellants’ brief referred to by the dissent are the vital and traditional authorities of cities and towns to levy ad valorem taxes, invoke the power of eminent domain, and zone property for various types of uses.

MR. JUSTICE STEVENS, concurring.

The Court today holds that the Alabama statutes providing for the extraterritorial exercise of certain limited powers by [439 U.S. 60, 76]   municipalities are not unconstitutional. While I join the opinion of the Court, I write separately to emphasize that this holding does not make all exercises of extraterritorial authority by a municipality immune from attack under the Equal Protection Clause of the Fourteenth Amendment.

The Alabama Legislature, which is elected by all of the citizens of the State including the individual appellants, has prescribed a statewide program pursuant to which residents of police jurisdictions are subject to limited regulation by, and receive certain services from, adjacent cities. In return, those residents who are engaged in business are charged license fees equal to one-half those charged to city businesses. In my view, there is nothing necessarily unconstitutional about such a system. Certainly there is nothing in the Federal Constitution to prevent a suburb from contracting with a nearby city to provide municipal services for its residents, even though those residents have no voice in the election of the city’s officials or in the formulation of the city’s rules. That is essentially what Alabama has accomplished here, through the elected representatives of all its citizens in the state legislature. 1 

Of course, in structuring a system, neither a contracting suburb nor an enacting legislature can consent to a waiver of the constitutional rights of its constituents in the election process. For “when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process.” Avery v. Midland County, 390 U.S. 474, 480 . [439 U.S. 60, 77]  

But the fact that these appellants are subject to certain regulations of the municipality does not itself establish that they are “qualified to vote.” Unlike the residents of the National Institutes of Health enclave at issue in Evans v. Cornman, 398 U.S. 419 , appellants are not without any voice in the election of the officials who govern their affairs. They do vote for the county, state, and federal officials who exercise primary control over their day-to-day lives. And even as to their interaction with the government of the city, appellants are not completely without a voice: through their state representatives, they participate directly in the process which has created their governmental relationship with the city. The question then is whether by virtue of that relationship created by state law, the residents of Holt and all other police jurisdictions in the State are entitled to a voice “equally effective” with the residents of the municipalities themselves in the election of the officials responsible for governing the municipalities.

In my judgment, they are not. A State or city is free under the Constitution to require that “all applicants for the vote actually fulfill the requirements of bona fide residence.” Carrington v. Rash, 380 U.S. 89, 96 . While it is not free to draw residency lines which deny the franchise to individuals who “are just as interested in and connected with electoral decisions . . . as are their neighbors” who are entitled to vote, Evans v. Cornman, supra, at 426, the Alabama statutes, at least on their face, do not do so. The powers of extraterritorial jurisdiction granted by the challenged statutes are limited. Tuscaloosa, for example, does not tax the residents of Holt, nor does it control the zoning of their property or the operation of their schools. Indeed, many of the powers traditionally exercised by municipalities – the provision of parks, hospitals, schools, and libraries and the construction and repair of bridges and highways – are entrusted here to the county government, which is fully representative of Holt. Nor is [439 U.S. 60, 78]   there any claim that residency lines have generally been drawn invidiously or that residents of the police jurisdictions have been charged unreasonable costs for the services they receive. In sum, appellants have shown no more than that they and all residents of police jurisdictions in Alabama are subject to some – but by no means all – of the regulations and services afforded by the cities to their residents, in return for which they pay license fees half as great as those paid by city residents. Such a showing is plainly insufficient to justify a holding that the Alabama statutes are unconstitutional and cannot be applied anywhere in the State.

This is all that the Court decides today. For this suit was brought under the then-applicable three-judge-court jurisdiction as a challenge to the constitutionality of the Alabama statutes. 2 Appellants did not merely challenge the statutes as applied in the Tuscaloosa police jurisdiction. Rather, they sought to represent all Alabama residents living in contiguous zones, and to have the statutes at issue here declared unconstitutional in all their applications throughout the State. It was for this very reason that the Court of Appeals for the Fifth Circuit concluded that three-judge-court jurisdiction was proper in this case. See Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975). And it is for this reason that our holding is necessarily a limited one. The statutory scheme created by the Alabama Legislature is not unconstitutional by its terms, but it may well be, as the opinion of the Court recognizes, ante, at 72-73, n. 8, that that scheme or another much like it might sometimes operate to deny the franchise to individuals who share the interests of their voting neighbors. No such question, however, is presented by this appeal from the decision of the three-judge District Court. See Moody v. [439 U.S. 60, 79]   Flowers, 387 U.S. 97 ; Rorick v. Board of Comm’rs, 307 U.S. 208 .

[ Footnote 1 ] I recognize that there is a difference between a suburb’s decision to contract with a nearby city and a decision by the state legislature requiring all suburbs to do so. In some situations that difference might justify a holding that a particular extraterritorial delegation of power is unconstitutional. It does not, however, justify the view that all such delegations are invalid.

[ Footnote 2 ] 28 U.S.C. 2281 (1970 ed.), repealed by Pub. L. 94-381, 1, Aug. 12, 1976, 90 Stat. 1119.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, dissenting.

Alabama creates by statute an area of “police jurisdiction” encompassing all adjoining territory within three miles of the corporate limits of cities with a population of 6,000 or more. Within this police jurisdiction Alabama law provides that “[o]rdinances of a city . . . enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof shall have force and effect . . . .” Ala. Code 11-40-10 (1975). 1 Alabama law provides in addition that a city “may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city . . . provided, that the amount of such licenses shall not be more than one half the amount charged and collected as a license for like business, trade or profession done within the corporate limits of such city . . . .” Ala. Code 11-51-91 (1975). 2 At the time this lawsuit commenced on August 7, 1973, Alabama vested jurisdiction of the prosecution of breaches of municipal ordinances occurring within a police jurisdiction in a recorder’s court, 3 the recorder being elected by a city’s board of commissioners. Ala. Code, Tit. 37, 584 (1958). 4   [439 U.S. 60, 80]  

Appellants are the Holt Civic Club and seven residents of the unincorporated community of Holt, which lies within the police jurisdiction of the city of Tuscaloosa, Ala. 5 Although appellants are thus subject to Tuscaloosa’s police and sanitary ordinances, to the jurisdiction of its municipal court, 6 and to the requirements of its licensing fees, appellants are not permitted to vote in Tuscaloosa’s municipal elections, or to participate in or to initiate Tuscaloosa’s referenda or recall elections. Appellants claim that this disparity “infringes on their constitutional right (under the due process and equal protection clauses) to a voice in their government.” Complaint § 11. The three-judge District Court below dismissed appellants’ equal protection and due process claims. 7 Without reaching the due process issue, I would reverse the judgment of the District Court and hold that appellants’ equal protection claim should have been sustained.

It is, of course, established that once a “franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966). Because “statutes distributing the franchise [439 U.S. 60, 81]   constitute the foundation of our representative society,” Kramer v. Union Free School Dist., 395 U.S. 621, 626 (1969), we have subjected such statutes to “exacting judicial scrutiny.” Id., at 628. 8 Indeed, “if a challenged statute grants the right to vote to some citizens and denies the franchise to others, `the Court must determine whether the exclusions are necessary to promote a compelling state interest.’ [Kramer v. Union Free School Dist., 395 U.S.,] at 627 (emphasis added).” Dunn v. Blumstein, 405 U.S. 330, 337 (1972). The general rule is that “whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election . . . .” Hadley v. Junior College Dist., 397 U.S. 50, 56 (1970).

Our decisions before today have held that bona fide residency requirements are an acceptable means of distinguishing qualified from unqualified voters. Dunn v. Blumstein, supra, at 343. The Court holds today, however, that the restriction of the franchise to those residing within the corporate limits of the city of Tuscaloosa is such a bona fide residency requirement. The Court rests this holding on the conclusion that “a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders.” Ante, at 68-69. The Court thus insulates the Alabama statutes challenged in this case from the strict judicial scrutiny ordinarily applied to state laws distributing the franchise. In so doing, the Court cedes to geography a talismanic significance contrary to the theory and meaning of our past voting-rights cases.

We have previously held that when statutes distributing the franchise depend upon residency requirements, state-law [439 U.S. 60, 82]   characterizations of residency are not controlling for purposes of the Fourteenth Amendment. See, e. g., Evans v. Cornman, 398 U.S. 419 (1970); Carrington v. Rash, 380 U.S. 89 (1965). Indeed, Dunn v. Blumstein, supra, was careful to exempt from strict judicial scrutiny only bona fide residency requirements that were “appropriately defined and uniformly applied.” 405 U.S., at 343 . The touchstone for determining whether a residency requirement is “appropriately defined” derives from the purpose of such requirements, which, as stated in Dunn, is “to preserve the basic conception of a political community.” Id., at 344. At the heart of our basic conception of a “political community,” however, is the notion of a reciprocal relationship between the process of government and those who subject themselves to that process by choosing to live within the area of its authoritative application. 9 Cf. Avery v. Midland County, 390 U.S. 474, 485 (1968). Statutes such as those challenged in this case, which fracture this relationship by severing the connection between the process of government and those who are governed in the places of their residency, thus undermine the very purposes which have led this Court in the past to approve the application of bona fide residency requirements.

There is no question but that the residents of Tuscaloosa’s police jurisdiction are governed by the city. 10Under Alabama [439 U.S. 60, 83]   law, a municipality exercises “governing” and “lawmaking” power over its police jurisdiction. City of Homewood v. Wofford Oil Co., 232 Ala. 634, 637, 169 So. 288, 290 (1936). Residents of Tuscaloosa’s police jurisdiction are subject [439 U.S. 60, 84]   to license fees exacted by the city, as well as to the city’s police and sanitary regulations, which can be enforced through penal sanctions effective in the city’s municipal court. See Birmingham v. Lake, 243 Ala. 367, 372, 10 So.2d 24, 28 (1942). The Court seems to imply, however, that residents of the police jurisdiction are not governed enough to be included within the political community of Tuscaloosa, since they are not subject to Tuscaloosa’s powers of eminent domain, zoning, [439 U.S. 60, 85]   or ad valorem taxation. Ante, at 73 n. 8. But this position is sharply contrary to our previous holdings. In Kramer v. Union Free School Dist., 395 U.S. 621 (1969), for example, we held that residents of a school district who neither owned nor leased taxable real property located within the district, or were not married to someone who did, or were not parents or guardians of children enrolled in a local district school, nevertheless were sufficiently affected by the decisions of the local school board to make the denial of their franchise in local school board elections a violation of the Equal Protection Clause. Similarly, we held in Cipriano v. City of Houma, 395 U.S. 701 (1969), that a Louisiana statute limiting the franchise in municipal utility system revenue bond referenda to those who were “property taxpayers” was unconstitutional because all residents of the municipality were affected by the operation of the utility system. See Phoenix v. Kolodziejski,399 U.S. 204 (1970).

The residents of Tuscaloosa’s police jurisdiction are vastly more affected by Tuscaloosa’s decisionmaking processes than were the plaintiffs in either Kramer or Cipriano affected by the decisionmaking processes from which they had been unconstitutionally excluded. Indeed, under Alabama law Tuscaloosa’s authority to create and enforce police and sanitary regulations represents an extensive reservoir of power “to prevent, an anticipation of danger to come, . . . and in so doing to curb and restrain the individual tendency.” Gilchrist Drug Co. v. Birmingham, 234 Ala. 204, 208, 174 So. 609, 612 (1937). See Cooper v. Town of Valley Head, 212 Ala. 125, 126, 101 So. 874, 875 (1924). A municipality, for example, may use its police powers to regulate, or even to ban, common professions and businesses. “In the exertion and application of the police power there is to be observed the sound distinction as to useful and harmless trades, occupations and businesses and as to businesses, occupations and trades recognized as hurtful to public morals, public safety, [439 U.S. 60, 86]  productive of disorder or injurious to public good. In applying it to the class last mentioned it may be exerted to destroy.” Chappell v. Birmingham, 236 Ala. 363, 365, 181 So. 906, 907 (1938). The Court today does not explain why being subjected to the authority to exercise such extensive power does not suffice to bring the residents of Tuscaloosa’s police jurisdiction within the political community of the city. Nor does the Court in fact provide any standards for determining when those subjected to extraterritorial municipal legislation will have been “governed enough” to trigger the protections of the Equal Protection Clause.

The criterion of geographical residency relied upon by the Court is of no assistance in this analysis. Just as a State may not fracture the integrity of a political community by restricting the franchise to property taxpayers, so it may not use geographical restrictions on the franchise to accomplish the same end. This is the teaching of Evans v. Cornman. Evans held, contrary to the conclusion of the Maryland Court of Appeals, that those who lived on the grounds of the National Institutes of Health (NIH) enclave within Montgomery County were residents of Maryland for purposes of the franchise. Our decision rested on the grounds that inhabitants of the enclave were “treated as state residents in the census and in determining congressional apportionment,” 398 U.S., at 421 , and that “residents of the NIH grounds are just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as are their neighbors who live off the enclave.” Id., at 426. Residents of Tuscaloosa’s police jurisdiction are assuredly as “interested in and connected with” the electoral decisions of the city as were the inhabitants of the NIH enclave in the electoral decisions of Maryland. True, inhabitants of the enclave lived “within the geographical boundaries of the State of Maryland,” but appellants in this case similarly reside within the geographical boundaries of Tuscaloosa’s police jurisdiction. They live within the perimeters of the city’s “legislative powers.” City of Leeds v. Town of Moody, 294 Ala. 496, 501, 319 So.2d 242, 246 (1975).

The criterion of geographical residency is thus entirely arbitrary when applied to this case. It fails to explain why, consistently with the Equal Protection Clause, the “government unit” which may exclude from the franchise those who reside outside of its geographical boundaries should be composed of the city of Tuscaloosa rather than of the city together with its police jurisdiction. It irrationally distinguishes between two classes of citizens, each with equal claim to residency (insofar as that can be determined by domicile or intention or other similar criteria), and each governed by the city of Tuscaloosa in the place of their residency.

The Court argues, however, that if the franchise were extended to residents of the city’s police jurisdiction, the franchise must similarly be extended to all those indirectly affected by the city’s actions. This is a simple non sequitur. There is a crystal-clear distinction between those who reside in Tuscaloosa’s police jurisdiction, and who are therefore subject to that city’s police and sanitary ordinances, licensing fees, and the jurisdiction of its municipal court, and those who reside in neither the city nor its police jurisdiction, and who are thus merely affected by the indirect impact of the city’s decisions.

————————————————————————————————-

///////////// This distinction is recognized in Alabama law, cf. Roberson v. City of Montgomery, 285 Ala. 421, 233 So.2d 69 (1970), and is consistent with, if not mandated by, the very conception of a political community underlying constitutional recognition of bona fide residency requirements.

Appellants’ equal protection claim can be simply expressed: The State cannot extend the franchise to some citizens who are governed by municipal government in the places of their residency, and withhold the franchise from others similarly situated, unless this distinction is necessary to promote a compelling state interest. No such interest has been articulated [439 U.S. 60, 88]   in this case. Neither Tuscaloosa’s interest in regulating “activities carried on just beyond [its] `city limit’ signs,” ante, at 74, nor Alabama’s interest in providing municipal services to the unincorporated communities surrounding its cities, ibid., are in any way inconsistent with the extension of the franchise to residents of Tuscaloosa’s police jurisdiction. Although a great many States may presently authorize the exercise of extraterritorial lawmaking powers by a municipality, 11 and although the Alabama statutes involved in this case may be of venerable age, neither of these factors, as Reynolds v. Sims, 377 U.S. 533 (1964), made clear, can serve to justify practices otherwise impermissible under the Equal Protection Clause of the Fourteenth Amendment.

Therefore, since the statutes challenged by appellants distinguish among otherwise qualified voters without a compelling justification, I would reverse the judgment of the District Court and hold the challenged statutes to be in violation of the Equal Protection Clause.

[ Footnote 1 ] At the time this lawsuit commenced, this statute was codified at Ala. Code, Tit. 37, 9 (1958).

[ Footnote 2 ] At the time appellants filed their complaint, this statute was found at Ala. Code, Tit. 37, 733 (1958). Minor changes in wording were effected during recodification.

[ Footnote 3 ] Alabama Code, Tit. 37, 585 (1958) provided:

• “It shall be the duty of the recorder to keep an office in the city, and hear and determine all cases for the breach of the ordinances and by-laws of the city that may be brought before him, and he shall make report, at least once a month, of all fines, penalties and forfeitures imposed by him, or by any councilman in his stead. Such recorder is especially vested

[439 U.S. 60, 80]   

with and may exercise in the city and within the police jurisdiction thereof, full jurisdiction in criminal and quasi criminal matters, and may impose the penalties prescribed by ordinance for the violation of ordinances and by-laws of the city, and shall have the power of an ex-officio justice of the peace, except in civil matters. . . .”

[ Footnote 4 ] On December 27, 1973, recorder’s courts were abolished in Alabama and replaced by municipal courts having virtually identical jurisdiction. See Ala. Code 12-14-1 (1975). Municipal judges “shall be appointed and vacancies filled by the governing body of the municipality . . . .” Ala. Const., Amdt. No. 328, 6.065.

[ Footnote 5 ] Tuscaloosa contains 65,773 residents, while the police jurisdiction surrounding the city contains between 16,000 and 17,000 residents. See App. 17-19.

[ Footnote 6 ] See n. 4, supra.

[ Footnote 7 ] The court granted appellants leave “to further amend within 45 days to specify particular ordinances of the City of Tuscaloosa which are claimed to deprive plaintiffs of liberty or property.”

[ Footnote 8 ] “[S]tatutes structuring local government units receive no less exacting an examination merely because the state legislature is fairly elected. See Avery v. Midland County, 390 U.S. 474, 481 n. 6 (1968).” Kramer v. Union Free School Dist., 395 U.S., at 628 n. 10.

[ Footnote 9 ] The Court apparently accepts this proposition by strongly implying, ante, at 73 n. 8, that “a situation in which a city has annexed outlying territory in all but name, and is exercising precisely the same governmental powers over residents of surrounding unincorporated territory as it does over those residing within its corporate limits” would not “pass constitutional muster.”

[ Footnote 10 ] Appellants have included in their brief an unchallenged addendum listing the ordinances of the city of Tuscaloosa, Code of Tuscaloosa (1962, Supplemented 1975), that have application in its police jurisdiction:

“Licenses:

4-1 ambulance 9-4, 9-18, 9-33 bottle dealers [439 U.S. 60, 83]   19-1 junk dealers 20-5 general business license ordinance 20-67 florists 20-102 hotels, motels, etc. 20-163 industry

“Buildings:

10-1 inspection service enforces codes 10-10 regulation of dams 10-21 Southern Standard Building Code adopted 10-25 building permits 13-3 National Electrical Code adopted 14-23 Fire Prevention Code adopted 14-65 regulation of incinerators 14-81 discharge of cinders Chapter 21A mobile home parks 25-1 Southern Standard Plumbing Code adopted 33-79 disposal of human wastes 33-114, 118 regulation of wells

“Public Health:

5-4 certain birds protected 5-4C, 42, 55 dogs running at large and bitches in heat prohibited 14-4 no smoking on buses 14-15 no self-service gas stations 15-2 regulation of sale of produce from trucks 15-4 food establishments to use public water supply 15-16 food, meat, milk inspectors 15-37 thru 40 regulates boardinghouses 15-52 milk code adopted 17-5 mosquito control

“Traffic Regulations:

22-2 stop & yield signs may be erected by chief of police 22-3 mufflers required 22-4 brakes required 22-5 inspection of vehicle by police 22-6 operation of vehicle [439 U.S. 60, 84]   22-9 hitchhiking in roadway prohibited 22-9.1 permit to solicit funds on roadway 22-11 impounding cars 22-14 load limit on bridges 22-15 police damage stickers required after accident 22-25 driving while intoxicated 22-26 reckless driving 22-27 driving without consent of owner 22-33 stop sign 22-34 yield sign 22-38 driving across median 22-40 yield to emergency vehicle 22-42 cutting across private property 22-54 general speed limit 22-72 thru 78 truck routes

“Criminal Ordinances:

23-1 adopts all state misdemeanors 23-7.1 no wrecked cars on premises 23-15 nuisances 23-17 obscene literature 23-20 destruction of plants 23-37 swimming in nude 23-38 trespass to boats 26-51 no shooting galleries in the police jurisdiction or outside fire limits (downtown area) 28-31 thru 39 obscene films

“Miscellaneous:

20-120 thru 122 cigarette tax 24-31 public parks and recreation 26-18 admission tax Chapter 29 regulates public streets 30-23 taxis must have meters.”

[ Footnote 11 ] See Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U. Chi. L. Rev. 151 (1977). [439 U.S. 60, 89]  

In: findlaw

Phoenix v. Kolodziejski
399 U.S. 204
Supreme Court of the United States
March 31, 1970, Argued ; June 23, 1970, Decided
No. 1066

The City of Phoenix held an election in June 1969 at which the issuance of general obligation bonds to finance various municipal improvements was approved. Under Arizona law only real property taxpayers were permitted to vote. Six days after the election this Court held in Cipriano v. City of Houma, 395 U.S. 701 , that restricting the franchise to property taxpayers in elections on revenue bonds violated the Equal Protection Clause. In August 1969 appellee, who owned no realty, challenged the franchise restriction and attacked the validity of the June election. The District Court, finding no significant difference between revenue bonds and general obligation bonds, held the nonproperty-owner exclusion unconstitutional. It declared the June bond election invalid, since the authorization for the issuance of the bonds was not final on the date of the Cipriano decision. Held:

1. The Equal Protection Clause does not permit a State to restrict the franchise to real property taxpayers in elections to approve the issuance of general obligation bonds, as the differences between the interests of property owners and nonproperty owners are not sufficiently substantial to justify excluding the latter from voting. Pp. 207-213.

2. This decision will apply only to authorizations for general obligation bonds that are not final as of the date of this decision. Pp. 213-215.

Affirmed.

Rex E. Lee argued the cause for appellants. With him on the brief were Robert J. Backstein and Alan K. Polley.

Fred H. Rosenfeld argued the cause for appellee. With him on the brief was Ivan Robinettee.

Briefs of amici curiae were filed by Jack P. F. Gremillion, Attorney General, Edward Donald Moseley, Harold B. Judell, and James Hugh Martin for the State [399 U.S. 204, 205] of Louisiana; by Phillip H. Holm for the Parish School Board of Caddo Parish; by John F. Ward, Jr., Fred G. Benton, Jr., and Fred G. Benton, Sr., for the Louisiana School Boards Association; by Myles P. Tallmadge for Poudre School District R-1 of Larimer County, Colorado; and by Richard H. Frank for Elizabeth M. Axtell et al.

MR. JUSTICE WHITE delivered the opinion of the Court.

In Kramer v. Union Free School District, 395 U.S. 621 (1969), this Court held that a State could not restrict the vote in school district elections to owners and lessees of real property and parents of school children because the exclusion of otherwise qualified voters was not shown to be necessary to promote a compelling state interest. This ruling, by its terms applicable to elections of public officials, was extended to elections for the approval of revenue bonds to finance local improvements in Cipriano v. City of Houma, 395 U.S. 701 (1969). Our decision in Cipriano did not, however, reach the question now presented for decision: Does the Federal Constitution permit a State to restrict to real property taxpayers the vote in elections to approve the issuance of general obligation bonds?

This question arises in the following factual setting: On June 10, 1969, the City of Phoenix, Arizona, held an election to authorize the issuance of $60,450,000 in general obligation bonds as well as certain revenue bonds. Under Arizona law, property taxes were to be levied to service this indebtedness, although the city was legally privileged to use other revenues for this purpose. 1 The [399 U.S. 204, 206] general obligation bonds were to be issued to finance various municipal improvements, with the largest amounts to go for the city sewer system, parks and playgrounds, police and public safety buildings, and libraries. Pursuant to Arizona constitutional and statutory provisions, 2 only otherwise qualified voters who were also real property taxpayers were permitted to vote on these bond issues. All of the bond issues submitted to the voters were approved by a majority of those voting.

On June 16, 1969, six days after the election in Phoenix, this Court held in Cipriano v. City of Houma, supra, that restricting the franchise to property taxpayers in elections on revenue bonds violated the Equal Protection Clause of the Fourteenth Amendment. That ruling was applied to the case before the Court in which under local law the authorization of the revenue bonds was not yet final when the challenge to the election was raised in the District Court. On August 1, 1969, appellee Kolodziejski, a Phoenix resident who was otherwise qualified to vote but who owned no real property, filed [399 U.S. 204, 207] her complaint in the United States District Court for the District of Arizona challenging the constitutionality of the restriction on the franchise in Arizona bond elections and attacking the validity of the June 1969 election approving the Phoenix bond issues. A District Court of three judges was convened. In the District Court, appellants conceded that, under this Court’s decisions in Cipriano and Kramer, supra, the bond election was invalid with regard to the revenue bonds that had been approved. The District Court perceived no significant difference between revenue bonds and general obligation bonds and therefore held that the exclusion of nonproperty-owning voters from the election on the general obligation bonds was unconstitutional under Cipriano and Kramer. Because the authorization of the Phoenix general obligation bonds was not final on the date of the Cipriano decision, the court held the Cipriano rule applicable and declared the June 10, 1969, bond election invalid. The appellants were enjoined from taking further action to issue the bonds approved in that election. The City of Phoenix and the members of the City Council appealed from the judgment of the District Court with respect to the general obligation bonds. We noted probable jurisdiction, 397 U.S. 903 (1970). We affirm the judgment of the District Court but do not agree that the ruling in this case should be retroactive to the date of the Cipriano decision.

I

In Cipriano v. City of Houma, supra, the denial of the franchise (right to vote) to nonproperty owners in elections on revenue bonds was held to be a denial of the Fourteenth Amendment rights of the nonproperty owners since they, as well as property owners, are substantially affected by the issuance of revenue bonds to finance municipal utilities. It is now argued that the rationale of Cipriano does not render unconstitutional the exclusion of nonproperty [399 U.S. 204, 208] owners from voting in elections on general obligation bonds.

The argument proceeds on two related fronts. First, it is said that the Arizona statutes require that property taxes be levied in an amount sufficient to service the general obligation bonds, 3 the law thus expressly placing a special burden on property owners for the benefit of the entire community. Second, and more generally, whereas revenue bonds are secured by the revenues from the operation of particular facilities and these revenues may be earned from both property owners and nonproperty owners, general obligation bonds are secured by the general taxing power of the issuing municipality. Since most municipalities rely to a substantial extent on property tax revenues which will be used to make debt service payments if other revenue sources prove insufficient, 4 general obligation bonds are in effect a lien on the real property subject to taxation by the issuing municipality. Whatever revenues are actually used to service the bonds, an unavoidable potential tax burden is imposed only on those who own realty since that property cannot be moved beyond the reach of the municipality’s taxing power. Hence, according to appellants, the State is justified in recognizing the unique interests of real property owners by allowing only property taxpayers to participate in elections to approve the issuance of general obligation bonds.

Concededly, the case of elections to approve general obligation bonds was not decided in Cipriano v. City of Houma, supra. But we have concluded that the principles [399 U.S. 204, 209] of that case, and of Kramer v. Union Free School District, supra, dictate a like result where a State excludes nonproperty taxpayers from voting in elections for the approval of general obligation bonds. The differences between the interests of property owners and the interests of nonproperty owners are not sufficiently substantial to justify excluding the latter from the franchise. This is so for several reasons.

First, it is unquestioned that all residents of Phoenix, property owners and nonproperty owners alike, have a substantial interest in the public facilities and the services available in the city and will be substantially affected by the ultimate outcome of the bond election at issue in this case. Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise. Arizona nevertheless excludes nonproperty owners from participating in bond elections and vests in the majority of individual property owners voting in the election the power to approve or disapprove facilities that the municipal government has determined should be financed by issuing general obligation bonds. Placing such power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.

Second, although Arizona law ostensibly calls for the levy of real property taxes to service general obligation bonds, other revenues are legally available for this purpose. According to the parties’ stipulation in this case, it is anticipated with respect to the instant bonds, as has been true in the past, that more than half of the debt service requirements will be satisfied not from real property taxes but from revenues from other local taxes paid by nonproperty owners as well as those who own real [399 U.S. 204, 210] property. 5 Not only do those persons excluded from the franchise have a great interest in approving or disapproving municipal improvements, but they will also contribute, as directly as property owners, to the servicing of the bonds by the payment of taxes to be used for this purpose.

Third, the justification for restricting the franchise to the property owners would seem to be strongest in the case of a municipality which, unlike Phoenix, looks only to property tax revenues for servicing general obligation bonds. But even in such a case the justification would be insufficient. Property taxes may be paid initially by property owners, but a significant part of the ultimate burden of each year’s tax on rental property will very likely be borne by the tenant rather than the landlord since, as the parties also stipulated in this case, the landlord will treat the property tax as a business expense and normally will be able to pass all or a large part of this cost on to the tenants in the form of higher rent. 6 Since most city residents not owning their [399 U.S. 204, 211] own homes are lessees of dwelling units, virtually all residents share the burden of property taxes imposed and used to service general obligation bonds. Moreover, property taxes on commercial property, 7 much of which is owned by corporations having no vote, will be treated as a cost of doing business and will normally be reflected in the prices of goods and services purchased by nonproperty owners and property owners alike.

While in theory the expected future income from real property, and hence property values in a municipality, may depend in part on the predicted future levels of property taxes, 8 the actual impact of an increase in property taxes is problematical. 9 Moreover, to the extent that property values are directly affected by the additional potential tax burden entailed in the bond issue, any adverse effect would normally be offset at least in substantial part by the favorable effects on property values of the improvements to be financed by the bond issue. 10 [399 U.S. 204, 212]

It is true that a general obligation bond may be loosely described as a “lien” on the property within the jurisdiction of the municipality in the sense that the issuer undertakes to levy sufficient taxes to service the bond. In theory, if the economy of the issuing city were to collapse, the levy of sufficiently high property taxes on property producing little or no income might result in some cases in defaults, foreclosures, and tax sales. Nothing before us, however, indicates that the possibility of future foreclosures to meet bond obligations significantly affects current real estate values or the ability of the concerned property owner to liquidate his holdings to avoid the risk of those future difficulties; the price of real estate appears to be more a function of the health of the local economy than a reflection of the level of property taxes imposed to finance municipal improvements. In any event, we are not convinced that the risk of future economic collapse that might result in bond obligations becoming an unshiftable, unsharable burden on property owners is sufficiently real or substantial to justify denying the vote in a current bond election to all those nonproperty owners who have a significant interest in the facilities to be financed, who are now indirectly sharing the property tax burden, and who will be paying other taxes used by the municipality to service its general obligation bonds.

We thus conclude that, although owners of real property have interests somewhat different from the interests of nonproperty owners in the issuance of general obligation bonds, there is no basis for concluding that nonproperty owners are substantially less interested in the issuance of these securities than are property owners. That there is no adequate reason to restrict the franchise on the issuance of general obligation bonds to property owners is further evidenced by the fact that only 14 States now restrict the franchise in this way; 11 most States find it possible to protect property owners from excessive property tax burdens by means other than restricting the franchise to property owners.

—————————————————————————–

//////////////////////////// The States now allowing all qualified voters to vote in general obligation bond elections do not appear to have been significantly less successful in protecting property values and in soundly financing their municipal improvements. Nor have we been shown that the 14 States now restricting the franchise have unique problems that make it necessary to limit the vote to property owners. We must therefore affirm the District Court’s declaratory judgment that the challenged provisions of the Arizona Constitution and statutes, as applied to exclude nonproperty owners from elections for the approval of the issuance of general obligation bonds, violate the Equal Protection Clause of the United States Constitution.

II

In view of the fact that over the years many general obligation bonds have been issued on the good-faith assumption that restriction of the franchise in bond elections was not prohibited by the Federal Constitution, [399 U.S. 204, 214] it would be unjustifiably disruptive to give our decision in this case full retroactive effect. We therefore adopt a rule similar to that employed with respect to the applicability of the Cipriano decision: our decision in this case will apply only to authorizations for general obligation bonds that are not final as of June 23, 1970, the date of this decision. In the case of States authorizing challenges to bond elections within a definite period, all elections held prior to the date of this decision will not be affected by this decision unless a challenge on the grounds sustained by this decision has been or is brought within the period specified by state law. In the case of States, including apparently Arizona, 12 that do not have a well-defined period for bringing challenges to bond elections, all elections held prior to the date of this decision that have not yet been challenged on the grounds sustained in this decision prior to the date of this decision will not be open to challenge on the basis of our ruling in this case. In addition, in States with no definite challenge period, the validity of general obligation bonds that have been issued before this decision and prior to the commencement of an action challenging the issuance on the grounds sustained by this decision will not be affected by the decision in this case. Since appellee in this case brought her constitutional challenge to the Phoenix election prior to the date of our decision in this case and no bonds have been issued pursuant to [399 U.S. 204, 215] that election, our decision applies to the election involved in this case. The District Court was therefore correct in holding that the June 10, 1969, bond election in Phoenix was constitutionally invalid and in enjoining the issuance of bonds pursuant to the approval obtained in that election.

Affirmed.

MR. JUSTICE BLACK concurs in the judgment and in Part I of the opinion of the Court.

MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.

Footnotes
[ Footnote 1 ] The relevant Arizona statute provides as follows:

“A. After the bonds are issued, the governing body or board shall enter upon its minutes a record of the bonds sold, their numbers and dates, and shall annually levy and cause to be collected a tax, at the same time and in the same manner as other taxes are levied and collected upon all taxable property in such political [399 U.S. 204, 206] subdivision, sufficient to pay the interest on the bonds when due, and shall likewise annually levy a tax sufficient to redeem the bonds when they mature.

“B. Monies derived from the levy of the tax when collected shall constitute a fund for payment of interest and the bonds. The fund shall be kept separately and shall be known as the `Interest Fund’ and `Redemption Fund.'” Ariz. Rev. Stat. Ann. 35-458 (1956).
In Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927 (1934), the Arizona Supreme Court ruled that the predecessor of this section permitted an issuing municipality to use other funds for debt service if such funds were available. In this case the parties have stipulated that for the 1969-1970 fiscal year $3,244,773 of the city’s total general obligation debt service requirement of $5,594,937 was met from sources other than ad valorem property taxes and that this apportionment of debt service burden is typical of recent years.
[ Footnote 2 ] Ariz. Const., Art. 7, 13, Art. 9, 8; Ariz. Rev. Stat. Ann. 9-523, 35-452 (1956), 35-455 (Supp. 1969).

[ Footnote 3 ] See n. 1, supra.

[ Footnote 4 ] In 1967-1968, property taxes yielded $26.835 billion (approximately 86%) of the $31.171 billion raised in taxes by local governments. U.S. Dept. of Commerce, Bureau of the Census, Governmental Finances in 1967-68, p. 20 (1969).

[ Footnote 5 ] For the 1969-1970 fiscal year, the City of Phoenix utilized revenues other than revenues from property taxes to meet over 55% of its general obligation debt service requirements. See n. 1, supra.

[ Footnote 6 ] In this case the parties stipulated that “the amount of money paid as real property taxes is a cost of doing business of the [appellee’s] landlord and as such has a material bearing on the cost of the [appellee’s] rental payments.”

The extent to which a landlord can pass along an increase in property taxes to his tenants generally depends on how changes in rent levels in the municipality affect the amount of rental property demanded – the less responsive the demand for rental property to changes in rent levels, the larger the proportion of property taxes that will ultimately be borne by tenants. See C. Shoup, Public Finance 385-390 (1969); D. Netzer, Economics of the Property Tax 32-40 (1966); Simon, The Incidence of a Tax on Urban Real Property, in Readings in the Economics of Taxation 416 (published by the American Economic Assn. 1959).

[ Footnote 7 ] In 1957, about 28 1/2% of real property taxes paid to local governments in the United States were paid on commercial and industrial properties. See Netzer, supra, n. 6, at 19.

[ Footnote 8 ] In theory, the value of property is the present value of the expected income to be earned from the property in the future; in the case of owner-occupied residences, this “income” is the satisfaction which the homeowners derive from the enjoyment of their residences. Property taxes on rental property will reduce the expected future earnings from the property to the extent that it is expected that the taxes cannot be passed on to tenants in the form of higher rent. See n. 6, supra. For owner-occupiers the property tax will reduce the expected “income” net of costs and will thus reduce the value of their property. For a further discussion of this “capitalization” of unshiftable future property taxes, see H. Newman, An Introduction to Public Finance 262 (1968); Shoup, supra, n. 6, at 442-443; Netzer, supra, n. 6, at 34-36; J. Jensen, Property Taxation in the United States 63-75 (1931).

[ Footnote 9 ] The empirical evidence on capitalization of unshifted property taxes has been described as “most unsatisfactory.” See Netzer, supra, n. 6, at 34-35; see also Shoup, supra, n. 6, at 443.

[ Footnote 10 ] See Netzer, supra, n. 6, at 34.

[ Footnote 11 ] It appears from the briefs filed in this case that 13 States besides Arizona restrict the franchise to property owners or property taxpayers in some or all general obligation bond elections:

Alaska (Alaska Stat. 07.30.010 (b) (Supp. 1969)); Colorado (Colo. Const., Art XI, 6, 7, and 8); Florida (Fla. Const., Art. 7, 12); Idaho (Idaho Code Ann. 31-1905 (1963), 33-404 (Supp. 1969), 50-1026 (1967)); Louisiana (La. Const., Art. 14, 14 (a)); Michigan (Mich. Const., Art. II, 6); Montana (Mont. Const., Art. IX, 2, Art. XIII, 5; Mont. Rev. Codes Ann. 11-2310 (1968), 75-3912 (1962)); New Mexico (N. M. Const., Art. IX, 10, 11, and 12); New York (N. Y. Town Law 84 (1965); N. Y. Village Law 4-402 (1966)); Oklahoma (Okla. Const., Art. X, 27); Rhode Island (R. I. Const., amdt. 29, 2); Texas (Tex. Const., Art. 6, 3a); Utah (Utah Const., Art. XIV, 3).

[ Footnote 12 ] Ariz. Rev. Stat. Ann. 16-1202 (Supp. 1969) and 16-1204 (1956) provide that election contest suits generally must be brought by “electors” within five days after completion of the canvass and declaration of the result of an election. Under the Arizona Supreme Court’s decision in Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P.2d 236 (1948), it is unclear whether suits brought after the expiration of the five-day period to challenge a bond election on constitutional grounds would in all cases be barred. The District Court found there was no bar to suit in this case.

MR. JUSTICE STEWART, whom THE CHIEF JUSTICE and MR. JUSTICE HARLAN join, dissenting.

If this case really involved an “election,” that is, a choice by popular vote of candidates for public office under a system of representative democracy, then our frame of reference would necessarily have to be Reynolds v. Sims, 377 U.S. 533 , and its progeny. For, rightly or wrongly, the Court has said that in cases where public officials with legislative or other governmental power are to be elected by the people, the Constitution requires that the electoral franchise must generally reflect a regime of political suffrage based upon “one man, one vote.” Recent examples of that constitutional doctrine are the Court’s decisions in Kramer v. Union Free School District, 395 U.S. 621 , involving the franchise to vote for the members of a school board; and Hadley v. Junior College District, 397 U.S. 50 , involving the apportionment of voting districts for the election of the trustees of a state junior college.

Whether or not one accepts the constitutional doctrine embodied in those decisions, they are of little relevance here. For in this case nobody has claimed that the [399 U.S. 204, 216] members of the City Council of Phoenix, Arizona – the individual appellants here – were elected in any way other than on a one man, one vote basis, or that they do not fully and fairly represent the entire electorate of the municipality. And it was these councilmen who initiated the program for borrowing money so that the city might have a sewer system, parks and playgrounds, police and public safety buildings, a new library, and other municipal improvements. Having made that initial decision, the councilmen submitted the borrowing and construction program for final approval by those upon whom the burden of the municipal bonded indebtedness would legally fall – the property owners of the city. These property owners approved the entire program by a majority vote. Yet the Court today says the Equal Protection Clause prevents the city of Phoenix from borrowing the money to build the public improvements that the council and the property owners of the city have both approved. I cannot believe that the United States Constitution lays such a heavy hand upon the initiative and independence of Phoenix, Arizona, or any other city in our Nation.

In Cipriano v. City of Houma, 395 U.S. 701 , the Court held unconstitutional a Louisiana law that permitted only property owners to vote on the question of approving bonds that were to be financed exclusively from the revenues of municipally operated public utilities. I agreed with that decision, because the State had created a wholly irrelevant voting classification. Id., at 707 (BLACK and STEWART, JJ., concurring in the judgment). As the Court there noted:

“The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay the rates; however, the impact of the revenue [399 U.S. 204, 217] bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike.” Id., at 705.

The case before us bears only a superficial resemblance to Cipriano, for we deal here, not with income-producing utilities that can pay for themselves, but with municipal improvements that must be paid for by the taxpayers. Under Arizona law a city’s general bonded indebtedness effectively operates as a lien on all taxable real estate located within the city’s borders. During the entire life of the bonds the privately owned real property in the city is burdened by the city’s pledge – and statutory obligation – to use its real estate taxing power for the purpose of repaying both interest and principal under the bond obligation. 1 Whether under these circumstances Arizona could constitutionally confer upon its municipal governing bodies exclusive and absolute power [399 U.S. 204, 218] to incur general bonded indebtedness without limit at the expense of real property owners is a question that is not before us. For the State has chosen a different policy, reflected in both its constitutional and statutory law. 2 It has told the governing bodies of its cities that while they are free to plan and propose capital improvements, general obligation bonds cannot be validly issued to finance them without the approval of a majority of those upon whom the weight of repaying those bonds will legally fall.

This is not the invidious discrimination that the Equal Protection Clause condemns, but an entirely rational public policy. I would reverse the judgment, because I cannot hold that the Constitution denies the City of Phoenix the public improvements that its Council and its taxpayers have endorsed. 3

[ Footnote 1 ] Ariz. Rev. Stat. Ann. 35-458 provides: “After the bonds are issued, the governing body or board . . . shall annually levy and cause to be collected a tax . . . upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and . . . to redeem the bonds when they mature.”

In Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927 (1934), the Arizona Supreme Court held that if a city has money available from another source “it may from time to time be transferred to the interest and redemption funds created by the statute. . . .” 44 Ariz., at 77, 33 P.2d, at 931. The court made clear, however, that the predecessor of Ariz. Rev. Stat. Ann. 35-458 “is mandatory and binding upon all parties mentioned therein, and that they must levy and cause to be collected a tax for the payment of bonds issued under such article, in the manner provided by such section.” Id., at 74, 33 P.2d, at 930. The use of excise taxes to repay general obligation bonds is thus optional, but the imposition of ad valorem taxes for these purposes is mandatory.

Taxes imposed on real property in Arizona become a lien on that property. Ariz. Rev. Stat. Ann. 42-312.

[ Footnote 2 ] The constitutional and statutory provisions applicable to all bond authorization elections of incorporated cities and towns in the State of Arizona limit the right to vote in such elections to persons who are qualified electors and who are also real property taxpayers. Ariz. Const., Art. 7, 13; Art. 9, 8. Ariz. Rev. Stat. Ann. 9-523 and 35-455. These constitutional and statutory provisions apply to all political subdivisions within the State of Arizona, and not just to cities and towns.

[ Footnote 3 ] Since the Court’s contrary view today prevails, I add that upon that premise THE CHIEF JUSTICE and I agree with Part II of the Court’s opinion, and that MR. JUSTICE HARLAN also joins in Part II of the Court’s opinion, subject, however, to the views expressed in his concurring opinion in United States v. Estate of Donnelly, 397 U.S. 286, 295 (1970). [399 U.S. 204, 219]

In: findlaw

General Obligation Bond
A general obligation bond (GO) is a municipal bond backed by the credit and taxing power of the issuing jurisdiction rather than the revenue from a given project. General obligation bonds are issued with the belief that a municipality will be able to repay its debt obligation through taxation or revenue from projects. No assets are used as collateral.

In: investopedia

United States Supreme Court
AVERY v. MIDLAND COUNTY
390 U.S. 474
Argued: November 14, 1967    Decided: April 1, 1968

Syllabus

The Midland County, Texas, Commissioners Court is the governing body for that county, and like other such bodies is established by the State’s Constitution and statutes. It consists of five members – a County Judge, elected at large from the entire county, and four commissioners, one elected from each of the four districts (precincts) into which the county is divided. Commissioners courts exercise broad governmental functions in the counties including the setting of tax rates, equalization of assessments, issuance of bonds, and allocation of funds; and they have wide discretion over expenditures. One district of Midland County, which includes almost all the City of Midland, had a population of 67,906, according to 1963 estimates. The others, all rural areas, had populations respectively, of about 852; 414; and 828. In this action challenging the County’s districting petitioner alleged that the gross disparity in population distribution among the four districts violated the Equal Protection Clause of the Fourteenth Amendment. Three of the four commissioners testified at trial that population was not a major factor in the districting process. The trial court ruled for petitioner that each district under the State’s constitutional apportionment standard should have “substantially the same number of people.” An intermediate appellate court reversed. The State Supreme Court reversed that judgment, holding that under the Federal and State Constitutions the districting scheme was impermissible “for the reasons stated by the trial court.” It held, however, that the work actually done by the County Commissioners “disproportionately concerns the rural areas” and that such factors as “number of qualified voters, land areas, geography, miles of county roads, and taxable values” could justify apportionment otherwise than on a basis of substantially equal populations. Held: Local units with general governmental powers over an entire geographic area may not, consistently with the Equal Protection Clause of the Fourteenth Amendment, be apportioned among single-member districts of substantially unequal population. Reynolds v. Sims, 377 U.S. 533 (1964). Pp. 478-486.

(a) The Equal Protection Clause reaches the exercise of state power, whether exercised by the State or a political subdivision. P. 479.

(b) Although the state legislature may itself be properly apportioned the Fourteenth Amendment requires that citizens not be denied equal representation in political subdivisions which also have broad policy-making functions. P. 481.

(c) The commissioners court performs some functions normally thought of as “legislative,” and others typically characterized in other terms; but, regardless of the labels, this body has the power to make a large number of decisions having a broad impact on all the citizens of the county. Pp. 482-483.

(d) Though the Midland County Commissioners may concentrate their attention on rural roads, their decisions also affect citizens in the City of Midland. P. 484.

406 S. W. 2d 422, vacated and remanded.

Lyndon L. Olson argued the cause and filed a brief for petitioner.

W. B. Browder, Jr., and F. H. Pannill argued the cause and filed a brief for respondents.

Francis X. Beytagh, Jr., by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Acting Solicitor General Spritzer and Assistant Attorney General Doar.

Louis J. Lefkowitz, Attorney General, and Daniel M. Cohen and Robert W. Imrie, Assistant Attorneys General, filed a brief for the State of New York, as amicus curiae, urging reversal.

MR. JUSTICE WHITE delivered the opinion of the Court.

Petitioner, a taxpayer and voter in Midland County, Texas, sought a determination by this Court that the Texas Supreme Court erred in concluding that selection of the Midland County Commissioners Court from single-member districts of substantially unequal population did not necessarily violate the Fourteenth Amendment. We granted review, 388 U.S. 905 (1967), because application of the one man, one vote principle of Reynolds v. Sims, 377 U.S. 533 (1964), to units of local government is of broad public importance. We hold that petitioner, as a resident of Midland County, has a right to a vote for the Commissioners Court of substantially equal weight to the vote of every other resident.

Midland County has a population of about 70,000. The Commissioners Court is composed of five members. One, the County Judge, is elected at large from the entire county, and in practice casts a vote only to break a tie. The other four are Commissioners chosen from districts. The population of those districts, according to the 1963 estimates that were relied upon when this case was tried, was respectively 67,906; 852; 414; and 828. This vast imbalance resulted from placing in a single district virtually the entire city of Midland, Midland County’s only urban center, in which 95% of the county’s population resides.

The Commissioners Court is assigned by the Texas Constitution and by various statutory enactments with a variety of functions. According to the commentary to Vernon’s Texas Statutes, the court:

“is the general governing body of the county. It establishes a courthouse and jail, appoints numerous minor officials such as the county health officer, fills vacancies in the county offices, lets contracts in the name of the county, builds roads and bridges, administers the county’s public welfare services, performs numerous duties in regard to elections, sets the county tax rate, issues bonds, adopts the county budget, and serves as a board of equalization for tax assessments.”[390 U.S. 474, 477]

The court is also authorized, among other responsibilities, to build and run a hospital, Tex. Rev. Civ. Stat. Ann., Art. 4492 (1966), an airport, id., Art. 2351 (1964), and libraries, id., Art. 1677 (1962). It fixes boundaries of school districts within the county, id., Art. 2766 (1965), may establish a regional public housing authority, id., Art. 1269k, 23a (1963), and determines the districts for election of its own members, Tex. Const., Art. V, 18.

Petitioner sued the Commissioners Court and its members in the Midland County District Court, alleging that the disparity in district population violated the Fourteenth Amendment and that he had standing as a resident, taxpayer, and voter in the district with the largest population. Three of the four commissioners testified at the trial, all telling the court (as indeed the population statistics for the established districts demonstrated) that population was not a major factor in the districting process. The trial court ruled for petitioner. It made no explicit reference to the Fourteenth Amendment, but said the apportionment plan in effect was not “for the convenience of the people,” the apportionment standard established by Art. V, 18, of the Texas Constitution. The court ordered the defendant commissioners to adopt a new plan in which each precinct would have “substantially the same number of people.”

The Texas Court of Civil Appeals reversed the judgment of the District Court and entered judgment for the respondents, 397 S. W. 2d 919 (1965). It held that neither federal nor state law created a requirement that Texas county commissioners courts be districted according to population. [390 U.S. 474, 478]  

The Texas Supreme Court reversed the Court of Civil Appeals, 406 S. W. 2d 422 (1966). It held that under “the requirements of the Texas and the United States Constitutions” the present districting scheme was impermissible “for the reasons stated by the trial court.” 406 S. W. 2d, at 425. However, the Supreme Court disagreed with the trial court’s conclusion that precincts must have substantially equal populations, stating that such factors as “number of qualified voters, land areas, geography, miles of county roads and taxable values” could be considered. 406 S. W. 2d, at 428. It also decreed that no Texas courts could redistrict the Commissioners Court. “This is the responsibility of the commissioners court and is to be accomplished within the constitutional boundaries we have sought to delineate.” 406 S. W. 2d, at 428-429. 2 

In Reynolds v. Sims, supra, the Equal Protection Clause was applied to the apportionment of state legislatures. Every qualified resident, Reynolds determined, has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population. The question now before us is whether the Fourteenth Amendment likewise forbids the election of local government officials from districts of disparate population. As has [390 U.S. 474, 479]   almost every court which has addressed itself to this question, 3 we hold that it does. 4 

The Equal Protection Clause reaches the exercise of state power however manifested, whether exercised directly or through subdivisions of the State.

“Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action . . . .” Cooper v. Aaron, 358 U.S. 1, 17 (1958).

Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State’s political subdivisions must comply with the Fourteenth Amendment. 5 The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. If the five senators representing a city in the state legislature may not be elected from districts ranging in size from 50,000 to 500,000, neither is it permissible to elect the members of the city council from those same districts. In either case, the votes of some residents have greater weight [390 U.S. 474, 481]   than those of others; in both cases the equal protection of the laws has been denied.

That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment. While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level. What is more, in providing for the governments of their cities, counties, towns, and districts, the States characteristically provide for representative government – for decisionmaking at the local level by representatives elected by the people. And, not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens. We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties. 6  [390 U.S. 474, 482]  

We are urged to permit unequal districts for the Midland County Commissioners Court on the ground that the court’s functions are not sufficiently “legislative.” The parties have devoted much effort to urging that alternative labels – “administrative” versus “legislative” – be applied to the Commissioners Court. As the brief description of the court’s functions above amply demonstrates, this unit of local government cannot easily be classified in the neat categories favored by civics texts. The Texas commissioners courts are assigned some tasks which would normally be thought of as “legislative,” others typically assigned to “executive” or “administrative” departments, and still others which are “judicial.” In this regard Midland County’s Commissioners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages. 7 One knowledgeable commentator has written of “the states’ varied, pragmatic approach in establishing governments.” R. Wood, in Politics and Government in the United States 891-892 (A. Westin ed. 1965). That approach has produced a staggering number of governmental units – the preliminary calculation by the Bureau of the Census for 1967 is that there are 81,304 “units of government” in the United States 8 – and an even more staggering diversity. Nonetheless, while special-purpose organizations abound and in many States the allocation of functions among units results in instances of overlap and vacuum, virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs. In many cases citizens reside within and are subject to two such governments, a city and a county.

The Midland County Commissioners Court is such a unit. While the Texas Supreme Court found that the Commissioners Court’s legislative functions are “negligible,” (insignificant) 406 S. W. 2d, at 426, the court does have power to make a large number of decisions having a broad range of impacts on all the citizens of the county. It sets a tax rate, equalizes assessments, and issues bonds. It then prepares and adopts a budget for allocating the county’s funds, and is given by statute a wide range of discretion in choosing the subjects on which to spend. In adopting the budget the court makes both long-term judgments about the way Midland County should develop – whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools – and immediate choices among competing needs.

The Texas Supreme Court concluded that the work actually done by the Commissioners Court “disproportionately concern[s] the rural areas,” 406 S. W. 2d, at 428. Were the Commissioners Court a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization’s functions. That question, however, is not presented by this case, for while Midland County authorities may concentrate their attention on rural roads, the relevant fact is that the powers of the Commissioners Court include the authority to make a substantial number of decisions that affect all citizens, whether they reside inside or outside the city limits of Midland. The Commissioners maintain buildings, administer welfare services, and determine school districts both inside and outside the city. The taxes imposed by the court fall equally on all property in the county. Indeed, it may not be mere coincidence that a body apportioned with three of its four voting members chosen by residents of the rural area surrounding the city devotes most of its attention to the problems of that area, while paying for its expenditures with a tax imposed equally on city residents and those who live outside the city. And we might point out that a decision not to exercise a function within the court’s power – a decision, for example, not to build an airport or a library, or not to participate in the federal food stamp program – is just as much a decision affecting all citizens of the county as an affirmative decision.

The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious (offensive, insulting). The conclusion of Reynolds v. Sims was that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution [390 U.S. 474, 485]   permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.

This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v. Board of Education, 387 U.S. 105 (1967). The Court rested on the administrative nature of the area school board’s functions and the essentially appointive form of the scheme employed. In Dusch v. Davis, 387 U.S. 112 (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.

The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. We will not bar what Professor Wood has called “the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations . . . .” R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.

The judgment below is vacated and the case is remanded for disposition not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Footnotes

[ Footnote 1 ] Interpretive Commentary, Vernon’s Ann. Tex. Const., Art. V, 18 (1955). See also W. Benton, Texas: Its Government and [390 U.S. 474, 477]   Politics 360-370 (1966); Municipal and County Government (J. Claunch ed. 1961); C. McCleskey, The Government and Politics of Texas (1966).

[ Footnote 2 ] The Texas Supreme Court determined that neither the State nor the Federal Constitution requires that population be the sole basis for apportioning the Midland County Commissioners Court. There is therefore no independent state ground for the refusal to award the relief requested by petitioner. And since the Supreme Court opinion contemplated no further proceedings in the lower Texas courts, a “final judgment” that population does not govern the apportionment of the Commissioners Court is before us. See Mercantile Nat. Bank v. Langdeau, 371 U.S. 555 (1963); Construction Laborers v. Curry, 371 U.S. 542 (1963); Radio Station WOW v. Johnson, 326 U.S. 120 (1945).

[ Footnote 3 ] Cases in which the highest state courts applied the principles of Reynold v. Sims to units of local government include Miller v. Board of Supervisors, 63 Cal. 2d 343, 405 P.2d 857, 46 Cal. Rptr. 617 (1965); Montgomery County Council v. Garrott, 243 Md. 634, 222 A. 2d 164 (1966); Hanlon v. Towey, 274 Minn. 187, 142 N. W. 2d 741 (1966); Armentrout v. Schooler, 409 S. W. 2d 138 (Mo. 1966); Seaman v. Fedourich, 16 N. Y. 2d 94, 209 N. E. 2d 778, 262 N. Y. S. 2d 444 (1965); Bailey v. Jones, 81 S. D. 617, 139 N. W. 2d 385 (1966); State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 132 N. W. 2d 249 (1965). Newbold v. Osser, 425 Pa. 478, 230 A. 2d 54 (1967), seemed to assume application of Reynolds. In opposition to these cases are only the decision of the Texas Supreme Court in the case before us and Brouwer v. Bronkema, 377 Mich. 616, 141 N. W. 2d 98 (1966), in which the eight justices of the Michigan Supreme Court divided evenly on the question. Among the many federal court cases applying Reynolds v. Sims to local government are Hyden v. Baker, 286 F. Supp. 475 (D.C. M. D. Tenn. 1968); Martinolich v. Dean, 256 F. Supp. 612 (D.C. S. D. Miss. 1966); Strickland v. Burns, 256 F. Supp. 824 (D.C. M. D. Tenn. 1966); Ellis v. Mayor of Baltimore, 234 F. Supp. 945 (D.C. Md. 1964), affirmed and remanded, 352 F.2d 123 (C. A. 4th Cir. 1965).

[ Footnote 4 ] A precedent frequently cited in opposition to this conclusion is Tedesco v. Board of Supervisors, 43 So.2d 514 (La. Ct. App. 1949), appeal dismissed for want of a substantial federal question, 339 U.S. 940(1950). Petitioner points out that the Equal Protection Clause was not invoked in Tedesco, where the districting of the New Orleans City Council was challenged under the Privileges and Immunities Clause. A more realistic answer is that Tedesco, decided 12 years before Baker v. Carr, 369 U.S. 186 (1962), has been severely undermined by Baker and the succeeding apportionment cases. See, among the great many cases so concluding, Delozier v. Tyrone Area School Bd., 247 F. Supp. 30 (D.C. W. D. Pa. 1965).

[ Footnote 5 ] Cooper v. Aaron, 358 U.S. 1, 16 (1958); see, e. g., See v. City of Seattle, 387 U.S. 541 (1967); Thompson v. City of Louisville, 362 U.S. 199 (1960); Terminiello v. Chicago, 337 U.S. 1 (1949).

[ Footnote 6 ] Inequitable apportionment of local governing bodies offends the Constitution even if adopted by a properly apportioned legislature representing the majority of the State’s citizens. The majority of a State – by constitutional provision, by referendum, or through accurately apportioned representatives – can no more place a minority in oversize districts without depriving that minority of equal protection of the laws than they can deprive the minority of the ballot altogether, or impose upon them a tax rate in excess of that [390 U.S. 474, 482]   to be paid by equally situated members of the majority. Government – National, State, and local – must grant to each citizen the equal protection of its laws, which includes an equal opportunity to influence the election of lawmakers, no matter how large the majority wishing to deprive other citizens of equal treatment or how small the minority who object to their mistreatment. Lucas v. Colorado General Assembly, 377 U.S. 713(1964), stands as a square adjudication by this Court of these principles.

[ Footnote 7 ] Midland County is apparently untypical in choosing the members of its local governing body from districts. “On the basis of available figures, coupled with rough estimates from samplings made of the situations in various States, it appears that only about 25 percent of . . . local government governing boards are elected, in whole or in part, from districts or, while at large, under schemes including district residence requirements.” Brief for the United States as Amicus Curiae 22, n. 31, filed in Sailors v. Board of Education,387 U.S. 105 (1967), and the other 1966 Term local reapportionment cases.

[ Footnote 8 ] U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).

MR. JUSTICE HARLAN, dissenting.

I could not disagree more with this decision, which wholly disregards statutory limitations upon the appellate jurisdiction of this Court in state cases and again betrays such insensitivity to the appropriate dividing lines between the judicial and political functions under our constitutional system.

I.

I believe that this Court lacks jurisdiction over this case because, properly analyzed, the Texas judgment must be seen either to rest on an adequate state ground or to be wanting in “finality.” The history of the Texas proceedings, as related in the Court’s opinion, ante, at 477-478, clearly reveals that the decision of the Texas Supreme Court disallowing the present county apportionment scheme rests upon a state as well as a federal ground. The state ground – Art. V, 18, of the Texas Constitution – was clearly adequate to support the result. This should suffice to defeat the exercise of this Court’s jurisdiction. See, e. g., Department of Mental Hygiene v. Kirchner, 380 U.S. 194 ; Herb v. Pitcairn, 324 U.S. 117, 125 -126.

Nor does this Court have jurisdiction to review the Texas Supreme Court’s statement that in reapportioning the county in the future the county commissioners may take into account factors other than population. That [390 U.S. 474, 487]   holding obviously does not amount to a “[f]inal judgment” within the meaning of 28 U.S.C. 1257. 1 The traditional test of finality of state court judgments has been whether the judgment leaves more than a ministerial act to be done. See, e. g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382 ; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 . It is clear that the acts which must be performed in order to bring about a new apportionment of Midland County are very far from ministerial in character, and conceivably might even result in satisfying petitioner’s demands without further litigation. For example, since the statement of the Texas Supreme Court regarding nonpopulation factors was merely advisory and not mandatory, the county commissioners might choose to reapportion the county solely on the basis of population, thus leaving petitioner with nothing about which to complain. Since the requirement of finality is an unwaivable condition of this Court’s jurisdiction, see, e. g., Market St. R. Co. v. Railroad Comm’n, 324 U.S. 548, 551 , I consider that this case is not properly before us.

On these scores, I would dismiss the writ as improvidently granted.

II.

On the merits, which I reach only because the Court has done so, I consider this decision, which extends the state apportionment rule of Reynolds v. Sims, 377 U.S. 533 , to an estimated 80,000 units of local government throughout the land, both unjustifiable and ill-advised.

I continue to think that these adventures of the Court in the realm of political science are beyond its constitutional powers, for reasons set forth at length in my dissenting opinion in Reynolds, 377 U.S., at 589 et seq. [390 U.S. 474, 488]   However, now that the Court has decided otherwise, judicial self-discipline requires me to follow the political dogma now constitutionally embedded in consequence of that decision. I am not foreclosed, however, from remonstrating against the extension of that decision to new areas of government. At the present juncture I content myself with stating two propositions which, in my view, stand strongly against what is done today. The first is that the “practical necessities” which have been thought by some to justify the profound break with history that was made in 1962 by this Court’s decision in Baker v. Carr, 369 U.S. 186 , 2are not present here. The second is that notwithstanding Reynolds the “one man, one vote” ideology does not provide an acceptable formula for structuring local governmental units.

A.

The argument most generally heard for justifying the entry of the federal courts into the field of state legislative apportionment is that since state legislatures had widely failed to correct serious malapportionments in their own structure, and since no other means of redress had proved available through the political process, this Court was entitled to step into the picture. 3 While I continue to reject that thesis as furnishing an excuse for the federal judiciary’s straying outside its proper constitutional role, and while I continue to believe that it bodes ill for the country and the entire federal judicial system if this Court does not firmly set its face against this loose [390 U.S. 474, 489]   and short-sighted point of view, the important thing for present purposes is that no such justification can be brought to bear in this instance.

No claim is made in this case that avenues of political redress are not open to correct any malapportionment in elective local governmental units, and it is difficult to envisage how such a situation could arise. Local governments are creatures of the States, and they may be reformed either by the state legislatures, which are now required to be apportioned according to Reynolds, or by amendment of state constitutions. 4 In these circumstances, the argument of practical necessity has no force. The Court, then, should withhold its hand until such a supposed necessity does arise, before intruding itself into the business of restructuring local governments across the country.

There is another reason why the Court should at least wait for a suitable period before applying the Reynolds dogma to local governments. The administrative feasibility of judicial application of the “one man, one vote” rule to the apportionment even of state legislatures has not yet been demonstrated. A number of significant administrative questions remain unanswered, 5 and the burden on the federal courts has been substantial. When [390 U.S. 474, 490]   this has thus far been the outcome of applying the rule to 50 state legislatures, it seems most unwise at this time to extend it to some 80,000 units of local government, whose bewildering variety is sure to multiply the problems which have already arisen and to cast further burdens, of imponderable dimension, on the federal courts. I am frankly astonished at the ease with which the Court has proceeded to fasten upon the entire country at its lowest political levels the strong arm of the federal judiciary, let alone a particular political ideology which has been the subject of wide debate and differences from the beginnings of our Nation. 6 

B.

There are also convincing functional reasons why the Reynolds rule should not apply to local governmental units at all. The effect of Reynolds was to read a long debated political theory – that the only permissible basis for the selection of state legislators is election by majority vote within areas which are themselves equal in population – into the United States Constitution, thereby foreclosing the States from experimenting with legislatures rationally formed in other ways. Even assuming that this result could be justified on the state level, because of the substantial identity in form and function of the state legislatures, and because of the asserted practical necessities for federal judicial interference referred to above, the “one man, one vote” theory is surely a hazardous generalization on the local level. As has been noted previously, no “practical necessity” has been asserted to justify application of the rule to local governments. More important, the greater and more varied range of functions performed by local governmental units implies that flexibility in the form of their structure is [390 U.S. 474, 491]   even more important than at the state level, and that by depriving local governments of this needed adaptability the Court’s holding may indeed defeat the very goals of Reynolds.

The present case affords one example of why the “one man, one vote” rule is especially inappropriate for local governmental units. The Texas Supreme Court held as a matter of Texas law:

“Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government . . . is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.” 406 S. W. 2d 422, 428.

Despite the specialized role of the commissioners court, the majority has undertaken to bring it within the ambit of Reynolds simply by classifying it as “a unit of local government with general responsibility and power for local affairs.” See ante, at 483. Although this approach is intended to afford “equal protection” to all voters in Midland County, it would seem that it in fact discriminates against the county’s rural inhabitants. The commissioners court, as found by the Texas Supreme Court, performs more functions in the area of the county outside Midland City than it does within the city limits. Therefore, each rural resident has a greater interest in its activities than each city dweller. Yet under the majority’s formula the urban residents are to have a dominant voice in the county government, precisely proportional to their numbers, and little or no allowance may be made [390 U.S. 474, 492]   for the greater stake of the rural inhabitants in the county government.

This problem is not a trivial one and is not confined to Midland County. It stems from the fact that local governments, unlike state governments, are often specialized in function. 7 Application of the Reynolds rule to such local governments prevents the adoption of apportionments which take into account the effect of this specialization, and therefore may result in a denial of equal treatment to those upon whom the exercise of the special powers has unequal impact. Under today’s decision, the only apparent alternative is to classify the governmental unit as other than “general” in power and responsibility, thereby, presumably, avoiding application of the Reynolds rule. Neither outcome satisfies Reynolds’ avowed purpose: to assure “equality” to all voters. The result also deprives localities of the desirable option of establishing slightly specialized, elective units of government, such as Texas’ county commissioners court, and varying the size of the constituencies so as rationally to favor those whom the government affects most. The majority has chosen explicitly to deny local governments this alternative by rejecting even the solution of the Texas Supreme Court, which held that the present county apportionment was impermissible but would have allowed the new apportionment to reflect factors related to the special functions of the county commissioners court, such as “land areas, geography, miles of county roads and taxable values,” 406 S. W. 2d, at 428, as well as population.

Despite the majority’s declaration that it is not imposing a “straitjacket” on local governmental units, see ante, at 485, its solution is likely to have other undesirable [390 U.S. 474, 493]   “freezing” effects on local government. One readily foreseeable example is in the crucial field of metropolitan government. A common pattern of development in the Nation’s urban areas has been for the less affluent citizens to migrate to or remain within the central city, while the more wealthy move to the suburbs and come into the city only to work. 8 The result has been to impose a relatively heavier tax burden upon city taxpayers and to fragmentize governmental services in the metropolitan area. 9 An oft-proposed solution to these problems has been the institution of an integrated government encompassing the entire metropolitan area. 10 In many instances, the suburbs may be included in such a metropolitan unit only by majority vote of the voters in each suburb. 11 As a practical matter, the suburbanites often will be reluctant to join the metropolitan government unless they receive a share in the government proportional to the benefits they bring with them and not [390 U.S. 474, 494]   merely to their numbers. 12 The city dwellers may be ready to concede this much, in return for the ability to tax the suburbs. Under the majority’s pronouncements, however, this rational compromise would be forbidden: the metropolitan government must be apportioned solely on the basis of population if it is a “general” government.

These functional considerations reinforce my belief that the “one man, one vote” rule, which possesses the simplistic defects inherent in any judicially imposed solution of a complex social problem, 13 is entirely inappropriate for determining the form of the country’s local governments.

No better demonstration of this proposition could have been made than that afforded by the admirable analysis contained in the dissenting opinion of my Brother FORTAS. But, with respect, my Brother’s projected solution of the matter is no less unsatisfactory. For it would bid fair to plunge this Court into an avalanche of local reapportionment cases with no firmer constitutional anchors than its own notions of what constitutes “equal protection” in any given instance.

With deference, I think that the only sure-footed way of avoiding, on the one hand, the inequities inherent in today’s decision, and on the other, the morass of pitfalls that would follow from my Brother FORTAS’ approach, is for this Court to decline to extend the constitutional experiment of Reynolds, and to leave the structuring of local governmental units to the political process where it belongs.

[ Footnote 1 ] 28 U.S.C. 1257 provides: “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows . . . .”

[ Footnote 2 ] The magnitude of this break was irrefutably demonstrated by Mr. Justice Frankfurter in his dissenting opinion in Baker, 369 U.S., at 266 , 300-323.

[ Footnote 3 ] See the concurring opinion of Mr. Justice Clark in Baker v. Carr, 369 U.S. 186, 251 , 258-259; Auerbach, The Reapportionment Cases: One Person, One Vote – One Vote, One Value, 1964 Sup. Ct. Rev. 1, 68-70.

[ Footnote 4 ] See, e. g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 23-61 (1962); Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col. L. Rev. 21, 23, n. 9 (1965).

[ Footnote 5 ] One such question is the extent to which an apportionment may take into account population changes which occur between decennial censuses. Cf. Lucas v. Rhodes, 389 U.S. 212 (dissenting opinion of this writer). Another is the degree of population variation which is constitutionally permissible. See Swann v. Adams, 385 U.S. 440 ; cf. Rockefeller v. Wells, 389 U.S. 421 (dissenting opinion of this writer).

[ Footnote 6 ] See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, 369 U.S. 186, 266 , 300-324.

[ Footnote 7 ] See generally W. Anderson & E. Weidner, State and Local Government 85-103 (1951).

[ Footnote 8 ] See, e. g., W. Anderson & E. Weidner, supra, at 171-174; United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 7 (Comm. Print 1961).

[ Footnote 9 ] See, e. g., United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas 8-9 (1962); United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 15-16 (Comm. Print 1961).

[ Footnote 10 ] See, e. g., W. Anderson & E. Weidner, supra, at 174-179; United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas (1962).

[ Footnote 11 ] See, e. g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 38, 44-53 (1962).

[ Footnote 12 ] See Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col. L. Rev. 21, 37 and n. 67 (1965); cf. United States Advisory Commission on Intergovernmental Relations, Factors Affecting Voter Reactions to Governmental Reorganization in Metropolitan Areas 26-27 (1962).

[ Footnote 13 ] Cf. H. Hart & A. Sacks, The Legal Process 662-669 (tent. ed. 1958). [390 U.S. 474, 495]  

MR. JUSTICE FORTAS, dissenting.

I would dismiss the writ in this case as improvidently granted. The Texas Supreme Court held the districting scheme unlawful under the Texas Constitution. It ordered redistricting. In this difficult and delicate area I would await the result of the redistricting so that we may pass upon the final product of Texas’ exercise of its governmental powers, in terms of our constitutional responsibility, and not upon a scheme which Texas itself has invalidated. 1 

The Court’s opinion argues (ante, at 478, n. 2) that the Texas Supreme Court’s order is a final judgment because it contemplates no further proceedings in the Texas courts, although it holds the present districting unlawful and requires the Commissioners Court to redistrict. I do not reach this point.

The Court acts now to superimpose its own formula because it disagrees with the standard for redistricting that the Texas Supreme Court states. That standard directed redistricting on the basis of the “number of qualified voters, land areas, geography, miles of county roads and taxable values.” 406 S. W. 2d 422, 428. This standard may or may not produce a result which this Court or I would find constitutionally acceptable. We cannot know in advance how the melange of factors stated by the Texas court would emerge from the mixing machine of the Texas authorities who would deal with the problem. It is clear that the extreme imbalance now prevailing would be eliminated, because the Texas Supreme Court has held it unconstitutional. It might be [390 U.S. 474, 496]   that the substitute finally worked out would be such that a majority of this Court would not reject it as a denial of equal protection of the laws. After all, at the last Term of this Court, we accepted as passing the scrutiny of the Constitution, the less-than-mathematically perfect plans in Dusch v. Davis, 387 U.S. 112 (1967), and Sailors v. Board of Education, 387 U.S. 105 (1967).

The Court, however, now plunges to adjudication of the case of Midland County, Texas, in midstream, apparently because it rejects any result that might emerge which deviates from the literal thrust of one man, one vote. Since it now adopts this simplistic approach, apparently the majority believes that it might as well say so and save Texas the labor of devising an answer.

I am in fundamental disagreement. I believe, as I shall discuss, that in the circumstances of this case equal protection of the laws may be achieved – and perhaps can only be achieved – by a system which takes into account a complex of values and factors, and not merely the arithmetic simplicity of one equals one. Dusch and Sailors were wisely and prudently decided. They reflect a reasoned, conservative, empirical approach to the intricate problem of applying constitutional principle to the complexities of local government. I know of no reason why we now abandon this reasonable and moderate approach to the problem of local suffrage and adopt an absolute and inflexible formula which is potentially destructive of important political and social values. There is no reason why we should insist that there is and can be only one rule for voters in local governmental units – that districts for units of local government must be drawn solely on the basis of population. I believe there are powerful reasons why, while insisting upon reasonable regard for the population-suffrage ratio, we should reject a rigid, theoretical, and authoritarian approach to the [390 U.S. 474, 497]   problems of local government. In this complex and involved area, we should be careful and conservative in our application of constitutional imperatives, for they are powerful.

Constitutional commandments are not surgical instruments. They have a tendency to hack deeply – to amputate. And while I have no doubt that, with the growth of suburbia and exurbia, the problem of allocating local government functions and benefits urgently requires attention, I am persuaded that it does not call for the hatchet of one man, one vote. It is our duty to insist upon due regard for the value of the individual vote but not to ignore realities or to bypass the alternatives that legislative alternation might provide.

I.

I agree that application of the Equal Protection Clause of the Constitution, decreed by this Court in the case of state legislatures, cannot stop at that point. Of course local governmental units are subject to the commands of the Equal Protection Clause. Cooper v. Aaron, 358 U.S. 1, 17 (1958). That much is easy. The difficult question, and the one which the Court slights, is: What does the Equal Protection Clause demand with regard to local governmental units?

Reynolds v. Sims, 377 U.S. 533 (1964), stands for the general proposition that the debasement of the right to vote through malapportionment is offensive to the Equal Protection Clause. It holds that where the allegedly debased vote relates to the State Legislature, a judicial remedy is available to adjudicate a claim of such debasement, and that, subject to some permissible deviation, the remedy is to require reapportionment on a population basis. Although the Court’s opinion carefully emphasizes the appropriateness of allowing latitude to meet local and special conditions, 377 U.S., at 577 -581, its insistence [390 U.S. 474, 498]   upon the need for general correspondence of voting rights to population has come to be called the one man, one vote rule. 2 

This rule is appropriate to the selection of members of a State Legislature. The people of a State are similarly affected by the action of the State Legislature. Its functions are comprehensive and pervasive. They are not specially concentrated upon the needs of particular parts of the State or any separate group of citizens. As the Court in Reynolds said, each citizen stands in “the same relation” to the State Legislature. Accordingly, variations from substantial population equality in elections for the State Legislature take away from the individual voter the equality which the Constitution mandates. They amount to a debasement of the citizen’s vote and of his citizenship. 3 

But the same cannot be said of all local governmental units, and certainly not of the unit involved in this case.[390 U.S. 474, 499]   Midland County’s Commissioners Court has special functions – directed primarily to its rural area and rural population. Its powers are limited and specialized, in light of its missions. Residents of Midland County do not by any means have the same rights and interests at stake in the election of the Commissioners. Equal protection of their rights may certainly take into account the reality of the rights and interests of the various segments of the voting population. It does not require that they all be treated alike, regardless of the stark difference in the impact of the Commissioners Court upon them. “Equal protection” relates to the substance of citizens’ rights and interests. It demands protection adapted to substance; it does not insist upon, or even permit, prescription by arbitrary formula which wrongly assumes that the interests of all citizens in the elected body are the same.

In my judgment, the Court departs from Reynolds when it holds, broadly and generally, that “the Fourteenth Amendment . . . forbids the election of local government officials from districts of disparate population.” Ante, at 478. This holding, literally applied as the Court commands, completely ignores the complexities of local government in the United States – complexities which, Reynolds itself states, demand latitude of prescription. The simplicity of the Court’s ruling today does not comport with the lack of simplicity which characterizes the miscellany which constitutes our local governments.

II.

As of the beginning of 1967, there were 81,253 units of local government in the United States. This figure includes 3,049 county governments, 18,051 municipal governments, 17,107 township governments, 21,782 school [390 U.S. 474, 500]   districts, and 21,264 other special districts. 4 These units vary greatly in powers, structure, and function. The citizen is usually subject to several local governments with overlapping jurisdiction.

The Court in this case concedes that in a “special purpose unit of government,” the rights of certain constituents may be more affected than the rights of others. It implies that the one man, one vote rule may not apply in such cases. See ante, at 483-484. But it says that we do not here have to confront the implications of such a situation. I do not agree.

I submit that the problem presented by many, perhaps most, county governments (and by Midland County in particular) is precisely the same as those arising from special-purpose units. The functions of many county governing boards, no less than the governing bodies of special-purpose units, have only slight impact on some of their constituents and a vast and direct impact on others. They affect different citizens residing within their geographical jurisdictions in drastically different ways. 5 

Study of county government leaves one with two clear impressions: that the variations from unit to unit are great; and that the role and structure of county government are currently in a state of flux. 6 County governments [390 U.S. 474, 501]   differ in every significant way: number of constituents, area governed, 7number of competing or overlapping government units within the county, 8 form, and means of selection of the governing board, 9 services provided, 10 the number and functions of independent county officials, 11 and sources of revenue. 12 

Some generalizations can be made about county governments. First, most counties today perform certain basic functions delegated by the State: assessment of property, collection of property taxes, recording of deeds and other documents, maintenance of rural roads, poor relief, law enforcement, and the administration of electoral and judicial functions. Some counties have begun to do more, especially by the assumption of municipal and policy-making functions. 13 But most counties still act largely as administrative instrumentalities of the State.14 

Second, “[t]he absence of a single chief executive and diffusion of responsibility among numerous independently elected officials are general characteristics of county [390 U.S. 474, 502]   government in the United States.” 15 Those who have written on the subject have invariably pointed to the extensive powers exercised within the geographical region of the county by officials elected on a countywide basis and by special districts organized to perform specific tasks. Often these independent officials and organs perform crucial functions of great importance to all the people within the county. 16 

These generalizations apply with particular force in this case. The population of Midland County is chiefly in a single urban area. 17 That urban area has its own municipal government which, because of home rule, 18 has relative autonomy and authority to deal with urban problems. In contrast, the Midland County government, like county governments generally, acts primarily as an administrative arm of the State. It provides a convenient agency for the State to collect taxes, hold elections, administer judicial and peace-keeping functions, improve roads, and perform other functions which are the ordinary duties of the State. The powers of the Commissioners Court, which is the governing body of Midland County, are strictly limited by statute and constitutional provision. 19 Although a mere listing of [390 U.S. 474, 503]   these authorizing statutes and constitutional provisions would seem to indicate that the Commissioners Court has significant and general power, this impression is somewhat illusory because very often the provisions which grant the power also circumscribe its exercise with detailed limitations.

For example, the petitioner cites Art. VIII, 9, of the Texas Constitution and Article 2352 of the Texas Civil Statutes as granting the Commissioners Court authority to levy taxes. Yet, at the time this suit was tried, Art. VIII, 9, provided that no county could levy a tax in excess of 80 on $100 property valuation. And Article 2352 allocated that 80 among the four “constitutional purposes” mentioned in Art. VIII, 9 (not more than 25 for general county purposes, not more than 15 for the jury fund, not more than 15 for roads and bridges, and not more than 25 for permanent improvements). 20 

Another example is the authority to issue bonds. It is true, as the majority notes, that the Commissioners Court does have this authority. Yet Title 22 of the Texas Civil Statutes sets up a detailed code concerning how and for what purposes bonds may be issued. Significantly, Article 701 provides that county bonds “shall never be issued for any purpose” unless the bond issue [390 U.S. 474, 504]   has been submitted to the qualified property-taxpaying voters of the county.

More important than the statutory and constitutional limitations, the limited power and function of the Commissioners Court are reflected in what it actually does. The record and briefs do not give a complete picture of the workings of the Commissioners Court. But it is apparent that the Commissioners are primarily concerned with rural affairs, and more particularly with rural roads. One Commissioner testified below that the largest item in the county budget was for roads and bridges. 21 And, according to that Commissioner, the county does not maintain streets within the City of Midland. The Commissioners seem quite content to let the city council handle city affairs. “The thing about it is, the city of Midland has the city council and the mayor to run its business, . . . and we have a whole county to run . . . .”

As the Texas Supreme Court stated:

“Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government with its legislative, executive and judicial branches, is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.” 406 S. W. 2d, at 428.

Moreover, even with regard to those areas specifically delegated to the county government by statute or constitutional provision, the Commissioners Court sometimes [390 U.S. 474, 505]   does not have the power to make decisions. Within the county government there are numerous departments which are controlled by officials elected independently of the Commissioners Court and over whom the Commissioners Court does not exercise control. The Commissioners view themselves primarily as road commissioners. “The other department heads really have the say in that department. We merely approve the salary. We do not hire anyone in any department in Midland County except the road department. The department heads of the other departments do hire the employees.” 22 

As the Texas Supreme Court stated, “the county commissioners court is not charged with the management and control of all of the county’s business affairs . . . . [T]he various officials elected by all the voters of the county have spheres that are delegated to them by law and within which the commissioners court may not interfere or usurp.” 406 S. W. 2d, at 428. These officials, elected on a direct, one man, one vote, countywide basis, include the Assessor and Collector of Taxes, the County Attorney, the Sheriff, the Treasurer, the County Clerk, and the County Surveyor. 23 The County Judge, who is the presiding officer of the Commissioners Court, is also elected on a countywide basis. 24 Other county officials and employees are appointed by the Commissioners Court. 25  [390 U.S. 474, 506]  

The elected officials are generally residents of the city, probably because of its preponderant vote. A Commissioner testified that “Every elected official . . . in Midland County today [except the three rural commissioners], and it has been way back for years, has been elected by the people that live here in the city limits of Midland.” Another Commissioner testified that of about 150 employees of the county, only four of those who were not elected lived in the rural precincts. Of all the elected officials only the three rural commissioners lived outside the city limits. 26 And, as I have noted, the fifth member of the Commissioners Court, its Chairman, is the County Judge who is elected at large in the county. 27 It is apparent that the city people have much more control over the county government than the election of the Commissioners Court would indicate. Many of the county functions which most concern the city, for example, tax assessment and collection, are under the jurisdiction of officials elected by the county at large. 28   [390 U.S. 474, 507]  

In sum, the Commissioners Court’s functions and powers are quite limited, and they are defined and restricted so that their primary and preponderant impact is on the rural areas and residents. The extent of its impact on the city is quite limited. To the extent that there is direct impact on the city, the relevant powers, in important respects, are placed in the hands of officials elected on a one man, one vote basis. Indeed, viewed in terms of the realities of rights and powers, it appears that the city residents have the power to elect the officials who are most important to them, and the rural residents have the electoral power with respect to the Commissioners Court which exercises powers in which they are primarily interested.

In face of this, to hold that “no substantial variation” from equal population may be allowed under the Equal Protection Clause is to ignore the substance of the rights and powers involved. It denies – it does not implement – substantive equality of voting rights. It is like insisting that each stockholder of a corporation have only one vote even though the stake of some may be $1 and the stake of others $1,000. The Constitution does not force such a result. Equal protection of the laws is not served by it.

Despite the fact, as I have shown, that many governmental powers in the county are exercised by officials elected at large and that the powers of the Commissioners Court are limited, the Court insists that the Commissioners Court is a unit with “general governmental powers.” This simply is not so except in the most superficial sense. The Court is impressed by the fact that the jurisdiction of the Commissioners Court extends[390 U.S. 474, 508]   over the entire area of the county. But this is more form than reality.

Substance, not shibboleth, should govern in this admittedly complex and subtle area; and the substance is that the geographical extent of the Commissioners Court is of very limited meaning. Midland County’s Commissioners Court has its primary focus in nonurban areas and upon the nonurban people. True, the county’s revenues come largely from the City of Midland. But the Commissioners Court fixes the tax rate subject to the specific limitations provided by the legislature. It must spend tax revenues in the categories and percentages which the legislature fixes. Taxes are assessed and collected, not by it, but by an official elected on a countywide basis. It is quite likely that if the city dwellers were given control of the Commissioners Court, they would reduce the load because it is spent primarily in the rural area. This is a state matter. If the State Legislature, in which presumably the city dwellers are fairly represented (Reynolds v. Sims), wishes to reduce the load, it may do so. But unless we are ready to adopt the position that the Federal Constitution forbids a State from taxing city dwellers to aid their rural neighbors, the fact that city dwellers pay most taxes should not determine the composition of the county governing body. We should not use tax impact as the sole or controlling basis for vote distribution. It is merely one in a number of factors, including the functional impact of the county government, which should be taken into account in determining whether a particular voting arrangement results in reasonable recognition of the rights and interests of citizens. Certainly, neither tax impact nor the relatively few services rendered within the City of Midland should compel the State to vest practically all voting power in the city residents to the [390 U.S. 474, 509]   virtual denial of a voice to those who are dependent on the county government for roads, welfare, and other essential services.

III.

I have said that in my judgment we should not decide this case but should give Texas a chance to come up with an acceptable result. Texas’ own courts hold that the present system is constitutionally intolerable. The 1963 population estimates relied upon in this case show that the district which includes most of the City of Midland with 67,906 people has one representative, and the three rural districts, each of which has its own representative, have 852; 414; and 828 people respectively. While it may be that this cannot be regarded as satisfying the Equal Protection Clause under any view, I suggest that applying the Court’s formula merely errs in the opposite direction: Only the city population will be represented, and the rural areas will be eliminated from a voice in the county government to which they must look for essential services. With all respect, I submit that this is a destructive result. It kills the very value which it purports to serve. Texas should have a chance to devise a scheme which, within wide tolerance, eliminates the gross underrepresentation of the city, but at the same time provides an adequate, effective voice for the nonurban, as well as the urban, areas and peoples. 29 

[ Footnote 1 ] The Texas Supreme Court noted that the Commissioners Court, and not Texas’ judicial courts, has power to redistrict. This view may prove to be troublesome, but we are not bound to anticipate either that the Commissioners Court will not properly do the job or that Texas will not otherwise put its house in order in Midland County.

[ Footnote 2 ] Reynolds v. Sims did not put the Equal Protection Clause to a radical or new use. Its holding is in the mainstream of our equal protection cases. Our cases hold that people who stand in the same relationship to their government cannot be treated differently by that government. To do so would be to mark them as inferior, “implying inferiority in civil society” (Strauder v. West Virginia, 100 U.S. 303, 308 (1880)), or “inferiority as to their status in the community” (Brown v. Board of Education, 347 U.S. 483, 494 (1954)). It would be to treat them as if they were, somehow, less than people.

[ Footnote 3 ] “Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will. And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. . . . To the extent that a citizen’s right to vote is debased, he is that much less a citizen.” 377 U.S., at 565 , 567.

[ Footnote 4 ] U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).

[ Footnote 5 ] If these complexities do not exist in a given case (that is, if the functions of the governing unit involved have an essentially equal impact upon all the citizens within its geographical jurisdiction), then the one man, one vote rule would apply as it did in Reynolds. Some city councils, for example, are in effect miniature state legislatures. Some county governing units have geographical jurisdiction which is co-extensive with a city or which includes only reasonably homogeneous rural areas.

[ Footnote 6 ] See C. Adrian, State and Local Governments 210-217 (1960); C. Snider, Local Government in Rural America 119-139 (1957) [390 U.S. 474, 501]   (hereafter cited as Snider); International Union of Local Authorities, Local Government in the United States of America 13-14 (1961) (hereafter cited as Local Government); National Municipal League, Model County Charter xi-xxxviii (1956). See generally S. Duncombe, County Government in America (1966) (hereafter cited as Duncombe).

[ Footnote 7 ] See Duncombe 3-5.

[ Footnote 8 ] See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Governmental Organization, Table 17.

[ Footnote 9 ] See U.S. Dept. of Commerce, Bureau of the Census, Governing Boards of County Governments: 1965.

[ Footnote 10 ] See Duncombe 70-102.

[ Footnote 11 ] See Duncombe 41-63.

[ Footnote 12 ] See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Finances of County Governments, Table 11.

[ Footnote 13 ] See Duncombe 13-14.

[ Footnote 14 ] See W. Anderson & E. Weidner, State and Local Government 30-31 (1951); Snider 131-134.

[ Footnote 15 ] Local Government, at 14.

[ Footnote 16 ] See, e. g., ibid.; Duncombe 41-63; Snider 44-45, 252-254.

[ Footnote 17 ] In 1962 the population of Midland County was 67,717. More than 62,000 lived in the urban area governed by the municipal government. U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Government Organization 186.

[ Footnote 18 ] Tex. Const., Art. XI, 5; R. Young, The Place System in Texas Elections (Institute of Public Affairs, University of Texas, 1965) 38.

[ Footnote 19 ] See W. Benton, Texas, Its Government and Politics 360-362 (1966) (hereafter cited as Benton); S. MacCorkle and D. Smith, Texas Government 339-340 (1964) (hereafter cited as MacCorkle); C. Patterson, S. McAlister, and G. Hester, State and Local Government in Texas 384-385, 388 (1961) (hereafter cited as Patterson); Municipal and County Government 113-114 (J. Claunch ed. 1961); F. Gantt, I. Dawson, and L. Hagard (eds.), Governing Texas, [390 U.S. 474, 503]   Documents and Readings 254 (1966); C. McCleskey, The Government and Politics of Texas 303-304, 305 (1966) (hereafter cited as McCleskey). There is a home-rule provision in the Texas Constitution which applies to counties, Art. IX, 3. But that provision is virtually unworkable and, as of 1966, there were no counties operating under home rule. Benton 372-375. See also McCleskey 304, and MacCorkle 341.

[ Footnote 20 ] The 1967 amendment to Art. VIII, 9, maintains the 80 limitation and still speaks of “the four constitutional purposes.” It provides, though, that the county “may” put all tax money into one general fund without regard to the purpose or the source of each tax. For a discussion of the county’s taxing power and other sources of county revenue, see Benton 367-368.

[ Footnote 21 ] This testimony appears in the typed transcript of record but not in the portions printed by the parties.

[ Footnote 22 ] See n. 21, supra. Commentators on Texas local government have noted this lack of control by the Commissioners Court. See, e. g., MacCorkle 344-345; McCleskey 307, 310; Benton 369.

[ Footnote 23 ] Article VIII, 14; Art. V, 21; Art. V, 23; Art. XVI, 44; Art. V, 20; and Art. XVI, 44, of the Texas Constitution respectively.

[ Footnote 24 ] Article V, 15, 18, of the Texas Constitution.

[ Footnote 25 ] For a description of county officials generally and of their functions, see McCleskey 306-310, MacCorkle 335-339, and Patterson 390-392. For a listing of county officials who are elected see [390 U.S. 474, 506]   U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117-118 (prelim. rept. Aug. 1967).

[ Footnote 26 ] See n. 21, supra.

[ Footnote 27 ] Note 24, supra. There was testimony below to the effect that the county judge votes only in case of a tie vote. But it appears that this limitation may be self-imposed. “The county judge enjoys equal voting rights with all the other members of the commissioners’ court, which includes the right to make or second any motion and the right to vote whether there be a tie among the votes of other members of the court or not.” 1 Opinions of the Attorney General of Texas 453 (No. 0-1716, 1939). See McCleskey 307, n. 27.

[ Footnote 28 ] The Assessor and Collector of Taxes is elected by the qualified voters of the county at large. Tex. Const., Art. VIII, 14; U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117 (prelim. rept. Aug. 1967). The Commissioners Court has power to adjust the Assessor and Collector’s valuation. Art. VIII, 18, of the Texas Constitution. However, testimony below indicated that the Commissioners [390 U.S. 474, 507]   Court sits to hear taxpayer complaints only a few days each year. The Commissioners Court does not go over the Assessor and Collector’s tax rendition sheets before he sends notices to the taxpayers.

[ Footnote 29 ] Cf. Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col. L. Rev. 21, 40-49 (1965).

MR. JUSTICE STEWART, dissenting.

I would dismiss the writ as improvidently granted for the reasons stated by MR. JUSTICE HARLAN and MR. JUSTICE FORTAS. [390 U.S. 474, 510]  

Since the Court does reach the merits, however, I add that I agree with most of what is said in the thorough dissenting opinion of MR. JUSTICE FORTAS. Indeed, I would join that opinion were it not for the author’s unquestioning endorsement of the doctrine of Reynolds v. Sims, 377 U.S. 533 . I continue to believe that the Court’s opinion in that case misapplied the Equal Protection Clause of the Fourteenth Amendment – that the apportionment of the legislative body of a sovereign State, no less than the apportionment of a county government, is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic. My views on that score, set out at length elsewhere, * closely parallel those expressed by MR. JUSTICE FORTAS in the present case.

[ Footnote * ] Lucas v. Colorado General Assembly, 377 U.S. 713, 744 (dissenting opinion). [390 U.S. 474, 511]  

In: justia