*1 COUNTY v. MIDLAND AVERY et al. April 1, 1968. Argued 1967. Decided November No. 39. *2 Lyndon argued L. Olson filed a cause and brief petitioner. for Jr., Browder,
W. B. and F. H. argued Pmnill cause and filed respondents. a brief for Beytagh, Jr., by
Francis X. special Court, leave argued for curiae, the cause States, United as amicus urging him on reversal. With the brief were Acting Solicitor Spritzer Attorney General and Assistant Gen- eral Doar. Lefkowitz, Attorney
Louis J. General, and Daniel M. Imrie, Cohen Robert Attorneys W. Assistant Gen- eral, York, filed a brief for the State of New as amicus curiae, urging reversal.
Mr. Justice White opinion delivered the of the Court. a taxpayer voter in Petitioner, Midland County, a sought determination Texas, this Court Supreme concluding Texas Court erred that selection County from single- Midland Commissioners Court substantially member districts of unequal population did We necessarily violate the Fourteenth Amendment. granted (1967), application because review, U. S. Sims, Reynolds man, principle of the one one vote (1964), S. 533 to units U. hold public importance. petitioner, of broad We a to a vote County, right a of Midland has as resident substantially equal the Commissioners Court every weight to vote of other resident. 70,000. of about County population has of five members. composed
The Commissioners Court is from the entire County large is elected at Judge, One, only to a tie. casts a vote break county, practice chosen from districts. The other four are Commissioners the 1963 according of those population districts, *3 tried, upon were when this case was estimates that relied This vast respectively 67,906; 852; 414; and 828. was single in a district vir- placing imbalance resulted from only city County’s Midland tually Midland, the entire county’s population in which center, urban 95% resides. assigned by the Texas
The Commissioners Court statutory enactments with Constitution and various According commentary variety of functions. to the Statutes, Texas the court: Vernon’s It body county. general governing the the “is numerous jail, appoints a courthouse and establishes county health fills officer, officials such as the minor in the county in lets contracts offices, the vacancies bridges, roads and county, name of the builds adr per- county’s public services, welfare ministers the regard elections, sets duties in forms numerous county the bonds, adopts issues rate, tax for equalization as a board of tax and serves budget, assessments.”1
1 V, Const., Commentary, Tex. Art. Interpretive Ann. Vernon’s Benton, Its Government (1955). Texas: See also W. §18 is also court authorized, among other responsibili- ties, to build and run a hospital, Tex. Civ. Stat. Rev. Ann., id., Art. an (1966), airport, Art. 2351 (1964), id., and libraries, Art. (1962). It fixes boundaries of school districts within the county, id., Art. (1965), a regional establish public housing author- id., Art. ity, 1269k, § 23a (1963), and determines the districts election its own members, Const., Tex. Art. V, 18.§
Petitioner sued the Commissioners Court and its mem- bers in the County Court, alleging District disparity in district population violated the Four- teenth Amendment he standing and that as a had resi- dent, taxpayer, voter in largest district population. Three the four commissioners testified telling at the all trial, (as popula- court indeed the tion statistics for the established districts demonstrated) population major was not a districting factor process. The trial court petitioner. ruled for It made explicit no reference to the Fourteenth but Amendment, apportionment said the plan was not “for effect convenience of people,” apportionment standard established V, 18,§ Art. the Texas Constitution. The court ordered the defendant adopt commissioners to a new plan precinct which each would have “substan- *4 tially same people.” number of
The Texas Court of Civil Appeals judg- reversed ment of the District and judgment Court entered for the 397 919 respondents, (1965). S. W. held that 2d It neither federal nor state a requirement law created that county Texas commissioners courts be districted accord- ing to population. (1966); Municipal County
Polities 360-370 Government (J. McCleskey, 1961); Claunch ed. C. The Government and Politics (1966). of Texas
478 of Civil Supreme
The Texas Court reversed Court 422 It held that under Appeals, (1966). 406 W. 2d S. and the States requirements “the the Texas United imper- present districting scheme was Constitutions” “for the trial court.” missible the reasons stated disagreed Supreme at 425. Court 2d, However, W. S. have precincts with the trial court’s conclusion that must substantially stating that such factors equal populations, areas, geography, land qualified voters, as “number con- roads taxable values” could be miles that no at It also decreed 2d, sidered. 406 S. W. 428. Court. Texas courts could the Commissioners redistrict court and responsibility “This is the of the commissioners accomplished is to be within the constitutional bound- sought 2d, to delineate.” 406 S. W. aries we have 428-429.2 Sims, Reynolds supra, Equal
In Protection v. legisla- applied apportionment was to the state Clause Every Reynolds determined, qualified resident, tures. legislators of right for election of state has the to ballot every weight resident, to the vote of other equal legislators are elected from right infringed when substantially population. ques- unequal districts of us is whether the Fourteenth Amend- tion now before the election of local ment likewise forbids has population. As disparate officials from districts Supreme Court determined that the State The Texas neither population requires sole Federal Constitution be the nor the County apportioning the Midland Commissioners Court. basis for independent ground state for the refusal to There is therefore no requested by petitioner. Supreme And since the the relief award opinion contemplated proceedings no further the lower courts, judgment” population govern a “final does not Texas apportionment of the Commissioners Court is before us. See Langdeau, (1963); Bank Mercantile Nat. v. 371 U. S. Con Curry, (1963); Radio struction Laborers v. 371 U. S. Station (1945). Johnson, S. 120 326 U. WOW
479 every almost court which has itself to addressed we question,3 that it does.4 hold Clause reaches exercise Equal Protection di- state however whether exercised manifested, rectly through or subdivisions State. Amend- prohibitions of the
“Thus the
Fourteenth
denying
action of
ment extend to all
the State
3
principles of
applied
highest
in which the
state courts
Cases
Reynold
government
Miller v. Board
Sims
include
v.
to units of local
Rptr.
Supervisors,
857,
617
343,
63
405 P. 2d
46 Cal.
Cal. 2d
634, 222
Montgomery County
Garrott,
(1965);
Council v.
243 Md.
2d 741
(1966);
Towey,
187, 142 W.
Hanlon
274 Minn.
N.
A. 2d 164
v.
1966);
Schooler,
(Mo.
Sea
(1966); Armentrout v.
Although government the forms and functions of local among are mat- relationships and various units concern, beyond ters of state it is now a question that political comply State’s with the Four- subdivisions must teenth Amendment.5 The actions of local are the actions of the A or city, town, State. may deny equal protection no more of the laws than an abridge it freedom of establish official speech, deny religion, probable cause, proc- arrest without or due ess of law.
When the State
it
apportions
legislature,
its
must have
regard
due
for the
Protection
Equal
Similarly,
Clause.
delegates
when
local
lawmaking power
gov-
the State
to
ernment
provides
the election of local officials
from districts
specified
statute,
or
ordinance,
it must
have
charter,
qualified
insure
those
to vote
right
an
equally
to
effective voice
the election
residing
If
process.
voters
oversize districts are
right
participate
denied their constitutional
in the
precisely
election of state
same
of
legislators,
kind
deprivation
city council,
occurs when the members of a
county governing
school
from
board, or
board
elected
If
substantially unequal population.
districts of
the five
city
legislature may
representing
senators
the state
ranging in
from 60,000
not be elected from districts
size
the members
500,000,
permissible
neither is it
to elect
city
from
In either
council
those same districts.
greater weight
have
case, the votes
some residents
5
(1958);
City
see, e.
See v.
g.,
v.
358 U. S.
16
Cooper
Aaron,
(1967);
Thompson
City
Louisville,
v.
Seattle,
U. S.
(1949).
(1960);
produced staggering a units— governmental number preliminary the calculation Bureau of the Census for government” 1967 is that are 81,304 there “units in staggering 8—and an more United States even diversity. special-purpose organiza while Nonetheless, tions abound of func many and States the allocation among overlap tions results and units instances virtually every American within what he vacuum, lives and neighbors regard government his as a unit of local general responsibility for affairs. power In many subject cases citizens reside within and a a governments, city county. such two County a The Midland Commissioners Court is such Supreme the Texas Court found unit. While “neg- legislative Court’s functions are Commissioners 2d, 406 S. W. the court does have ligible,” range a large having to make a number of decisions broad county. on all the citizens of the sets a impacts It then tax and issues It rate, equalizes assessments, bonds. allocating county’s prepares adopts budget given by range a wide of discretion funds, and is statute In spend. adopting on choosing subjects which both, long-term judgments budget the court makes way County develop should about —whether recreation industry solicited, improved, roads should be imme- and land set aside for schools—and built, facilities among competing needs. diate choices the work Supreme The Texas Court concluded “dispropor- actually Commissioners done 2d, at the rural 406 S. W. tionately areas,” concern [s] a special-purpose the Commissioners Court 428. Were of func- assigned performance unit of *9 Census, of Dept. Commerce, Census of Bureau of the U. S. (prelim, rept. 1967, Governmental Units Governments 1967). Oct. affecting groups
tions definable of more constituents than other we would confront the constituents, have to body may apportioned whether such a be question give greater ways which influence to most the citizens by organization's affected the functions. question, That however, presented by for case, not while County may on authorities concentrate attention their relevant roads, powers rural fact is that of a authority Commissioners Court include the to make citizens, substantial number decisions that affect all they city or whether reside inside outside the limits buildings, Midland. The Commissioners maintain ad- minister and determine school welfare districts services, city. both inside outside imposed The taxes equally county. the court fall on all property Indeed, body it not be mere coincidence a that apportioned with three of its four voting members chosen surrounding residents of the city rural area de- votes most of its attention the problems area, to while paying expenditures for its tax imposed city on equally residents and those live who outside city. might And we point out that a to decision not exercise a function within the court’s decision, —a to example, airport not an build or a or not library, participate in the program federal food stamp just—is much a affecting as decision all citizens as an affirmative decision.
The Equal Protection Clause not, course, does re- quire that distinguish the State never citizens, between only but the distinctions that are made not arbi- be Reynolds trary or Sims invidious. The conclusion of was that bases other than population were acceptable grounds for distinguishing among citizens when determin- ing size of districts used elect members of state legislatures. today only We hold the Constitution
485 in permits population no variation from equal substantial drawing government having districts for of local units general governmental powers geographic over entire body. area served
This pressures facing Court is aware of the immense units of local greatly varying and of the government, problems they with which deal. The Constitution must does not a require straitjacket that uniform bind citizens devising in of mechanisms local suitable for local solving problems. needs and Last efficient Term, upheld procedure the Court a for example, choosing placed a the selection with school board though school of component boards districts even component equal unequal boards had votes and served Education, Board 387 populations. Sailors v. U. S. (1967). 105 The Court on the administrative na- rested ture of the area and school board’s functions the essen- tially form In appointive employed. of the scheme Davis, Dusch per- 112 (1967), U. S. Virginia legislative body by mitted Beach to choose its at-large voting a scheme that included for candidates, had of particular districts, some whom to be residents though widely even the residence districts varied population.
The Sailors and Dusch demonstrate cases that. roadblocks Constitution this Court among path innovation, experiment, development government. of local not bar what Pro- We will units emergence ideology a fessor has called “the of new Wood public equipped capaci- with new bodies, structure Governments, ties and motivations . R. Wood, . ..” today only decision is the Con- (1961). Our imposes ground development one rule for the stitution arrangements government: of local requirement general governmental powers over an units with entire geographic apportioned among single-member area not be substantially districts of population. unequal judgment below is vacated and the case re- for disposition manded not inconsistent opinion. with this
It is ordered. so *11 Mr. Justice Marshall part took no in the considera- tion or decision of this case. Harlan, Justice dissenting.
Mr. I disagree could not more with this decision, which wholly disregards statutory upon appel- limitations the late jurisdiction of this state again cases and betrays insensitivity such to the appropriate dividing lines judicial between the political functions under system. our constitutional
I. I believe that this Court jurisdiction lacks over this case because, properly analyzed, judgment the Texas must be seen either to rest on an adequate ground state or wanting to be in “finality.” history of the Texas proceedings, as related ante, Court's opinion, clearly 477-478, reveals decision of the Texas Su- preme Court disallowing present county apportion- ment scheme upon rests a state as well as a federal ground. ground The state V, § Texas —Art. clearly Constitution —was adequate to support the result. This should suffice to defeat the exercise of this Court’s jurisdiction. g., See, e. Department Hygiene Mental Kirchner, v. 194; U. S. Herb Pitcairn, v. S.U. 117, 125-126.
Nor does this Court have jurisdiction to review the Texas Supreme Court’s statement that in reapportioning county in the future county commissioners take into account factors other than population. That holding obviously judg- does not amount to a “[f]inal ment” within meaning of 28 S. C. 1257.1 The § U. traditional test of finality of state court judgments has been judgment whether the leaves more than a ministerial act g., to be done. e. See, Pope Atlantic Coast Line Co., R. 379, 382; Republic 345 U. S. Natural Gas Co. v. Oklahoma, 334 U. S. 68. is clear It the acts which performed must be bring order to about a new apportionment County very far from ministerial in character, conceivably might even in satisfying result petitioner’s demands without further litigation. For example, since the statement of the Supreme Texas Court regarding nonpopulation factors merely advisory was not mandatory, county might commissioners choose to reapportion solely on the basis of population, leaving thus petitioner nothing about which complain. Since the re- *12 quirement finality this is an unwaivable condition of Court’s jurisdiction, see, e. Market g., St. R. Co. Rail- v. Comm’n, road 324 548, U. S. I consider that this case is not properly before us.
On these I scores, would dismiss the writ as improvi-
dently granted.
II. the merits, On which I only reach because the Court has done I so, consider this decision, which extends the state apportionment Reynolds Sims, rule of v. 377 U. S. 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 beyond science are its constitu- tional powers, for reasons set forth length at my in dis- senting opinion in Reynolds, 377 U. S., seq. 589 et provides: 1 28 U. S. C. 1257 judgments “Final § or decrees rendered by highest court of a in State which a decision could had, be Supreme be reviewed Court as follows . . . .” otherwise, now that the Court has decided However, judicial self-discipline requires political me follow dogma constitutionally consequence now embedded in I am not however, that decision. from foreclosed, remonstrating against the extension that decision to government. new areas of present juncture At the myself stating propositions content with which, two my strongly against today. stand what is done view, “practical The first is that necessities” which have thought by justify profound been some to break history was made Court’s this Carr, 186,2 decision in Baker not present U. S. notwithstanding Reynolds here. The is second “one one man, ideology provide accept- vote” does not an structuring governmental able formula for units.
A. argument generally justifying most heard for entry of the legisla- courts into the field of state federal apportionment tive legislatures that since state had widely failed to correct serious malapportionments their own and since no other structure, means of redress proved through available political had this process, step Court was entitled to picture.3 into the IWhile reject furnishing continue to as an excuse for thesis judiciary’s straying the federal outside proper its consti- I role, tutional and while continue to believe that it bodes country ill for judicial the entire federal system if firmly does not against set its face this loose
2 magnitude irrefutably The of this break was demonstrated Baker, dissenting opinion Mr. Justice Frankfurter in his in 369 S., U. at 300-323. 3 concurring opinion Baker v. See the of Mr. Justice Clark Carr, 186, 251, 369 258-259; Auerbach, Reapportionment U. S. Person, Vote, Cases: One One Value, Sup. Vote —One One 1964 Ct. Rev. 68-70. short-sighted point of view, important thing
present purposes is that no such justification can be brought to bear this instance. claim
No is made in this case political that avenues of redress are not open any to correct malapportionment governmental elective local units, and it is difficult envisage how such a situation could gov- arise. Local ernments are creatures of the States, they may be reformed either the state legislatures, which are now required apportioned to be according Reynolds, byor amendment of state constitutions.4 In these circum- stances, argument of practical necessity has no force. The Court, then, should withhold its until hand such a supposed necessity arise, intruding does before itself into the of restructuring governments .business country. across the
There is another
why
reason
the Court should
least
wait for a
period
suitable
applying
before
Reynolds
dogma
governments.
to local
The administrative feasi-
bility
judicial
application of the “one man, one vote”
apportionment
rule to the
legislatures
even of state
has
yet
been
A
demonstrated.
number
significant
questions
administrative
remain unanswered,5 and the
on
burden
the federal courts has been substantial. When
4 See,
g.,
Advisory
e.
Intergovern
United States
Commission on
Relations,
Statutory
mental
State Constitutional
Restrictions
Upon
Structural, Functional,
and Personnel Powers of Local
(1962);
Government 23-61
Weinstein, The Effect of the Federal
Reapportionment Decisions on Counties and Other Forms of Munic
ipal Government, 65
21, 23,
(1965).
Col. L. Rev.
n. 9
question
apportionment
One such
is
extent to which an
population changes
take into account
which occur between decennial
Rhodes,
censuses.
Lucas
(dissenting opinion
Cf.
v.
U. S.
writer).
degree
of this
population
Another is the
variation which
constitutionally permissible.
Adams,
See Swann v.
385 U. S.
Wells,
440;
(dissenting
cf.
opinion
B. why reasons convincing functional There are also governmental apply to local Reynolds rule should long Reynolds was to read The effect of units at all. only permissible basis theory political debated —that by majority election legislators state is for the selection of popula- equal which are themselves vote within areas thereby fore- Constitution, States tion —into United legislatures experimenting from closing the States ways. assuming-that Even rationally formed other justified level, on the state because this result could be identity in form and function of the of the substantial practical of the asserted and because legislatures, state referred judicial for federal interference necessities theory surely a haz- man, “one one vote” above, on the local As has been generalization level. ardous necessity” has “practical no been previously, noted to local justify application gov- rule asserted greater and more varied important, More ernments. performed governmental units range of functions flexibility the form of their structure is implies in Baker dissenting opinion of Mr. Justice Frankfurter See the Carr, 186, 266, S. 300-324. U. important even more than level, at the state and that *15 depriving governments local adaptability of this needed may the holding very Court’s indeed the goals defeat of Reynolds. present
The why case affords of example one the “one man, one vote” is especially rule inappropriate for local governmental Supreme units. Texas Court held as a matter of law: Texas
“Theoretically, the gov- commissioners is court the erning body county of the and the commissioners represent residents, all the urban rural, both of the county. But developments during years the greatly have narrowed the of scope the functions of the commissioners court and its major re- limited sponsibilities to nonurban areas of county. pass It has government come to . city . . is the major concern of the city dwellers and the administration of the affairs of the is the major of concern the rural dwellers.” 406 S. W. 2d 428.
Despite specialized role of court, the commissioners majority has bring undertaken to within it the ambit Reynolds simply classifying “a as it unit local general responsibility ante, local affairs.” See at 483. Although this approach “equal is intended to afford protection” to all voters Midland County, it would seem that it fact discrimi- against nates county’s rural inhabitants. The com- missioners found court, Supreme as the Texas Court, performs more functions in the area of the county outside City than it city Midland does within the limits. There- fore, each rural greater resident has a interest in its city activities than each dweller. under Yet the major- ity’s formula urban residents are to have a dominant in the county government, voice precisely proportional their or numbers, and little no may allowance be made county- rural inhabitants greater for the stake of the government. not confined is not a trivial one problem
This local from the County. It stems fact special- often governments, are unlike state governments, Reynolds rule to Application of the ized in function.7 appor- adoption governments prevents such take into account the effect which tionments result in a denial and therefore specialization, upon whom the exercise equal treatment to those de- today’s unequal impact. Under special powers has classify the is to only apparent alternative cision, the *16 “general” than as other governmental unit avoiding application thereby, responsibility, presumably, Reyn- satisfies Neither outcome Reynolds of rule. all “equality” assure to voters. purpose: to olds’ avowed option desirable localities deprives The result also gov- slightly specialized, elective units establishing county court, commissioners such as Texas’ ernment, rationally to so as the size of the constituencies varying most. The government affects whom the favor those deny governments local explicitly to has chosen majority of the the solution by rejecting even this alternative county present Court, which held that the Supreme Texas al- but would have impermissible was apportionment to reflect factors related apportionment the new lowed county commissioners functions special to the miles of areas, geography, “land such as court, 2d, 406 W. at as well values,” S. and taxable roads population. as impos- it is not declaration that majority’s
Despite governmental see units, on local ing “straitjacket” ante, likely to have other undesirable its solution at Local Gov Weidner, State and generally Anderson & E. W. See (1951). ernment 85-103
“freezing” effects on government. readily One fore- seeable example is in the crucial of metropolitan field government. A pattern common development in the Nation’s urban areas has been for the less affluent citizens migrate to or remain within the central while city, wealthy more move to the suburbs and come into city only to work.8 The result has been to impose a relatively heavier tax upon city burden taxpayers and to fragmentize governmental services in the metropolitan area.9 An oft-proposed solution to problems these has been the institution of integrated an government encom- passing entire metropolitan area.10 In many in- stances, the suburbs be included such a metro- politan only by unit majority vote the voters in each suburb.11 a practical As matter, suburbanites often will reluctant join be metropolitan government they unless receive a share in the propor- tional they to the benefits bring with them and not 8See, g., e. Weidner, supra, W. Anderson & E. 171-174; United Advisory States Intergovernmental Commission on Relations for use of House Committee on Operations, Cong., Government 87th 1st Sess., Structure, Governmental Organization, Planning in Metro politan (Comm. 1961). Areas Print 9See, g., Advisory e. United States Intergovern Commission on Relations, Approaches mental Alternative to Governmental Reor *17 ganization Metropolitan in (1962); Areas 8-9 United States Advisory Intergovernmental Commission on Relations for use of House Committee on Operations, Government Cong., Sess., 87th 1st Structure, Organization, Planning Governmental Metropolitan in (Comm. 1961). Areas 15-16 Print 10See, g., e. Anderson Weidner, supra, 174M.79; W. & E. United Advisory Intergovernmental States Commission on Relations, Alter Approaches native Reorganization to Metropolitan Governmental in (1962). Areas 11See, g., Advisory e. Intergovern United States Commission on Relations, Statutory State Constitutional mental Restrictions Upon Structural, Functional, and Personnel Powers of Local (1962). Government 44-53 may be city The dwellers numbers.12 to their
merely ability to for the in return much, concede this ready pronouncements, majority’s suburbs. Under tax the be forbidden: would compromise this rational however, solely apportioned be must metropolitan government. “general” a if it is population on basis my belief reinforce considerations functional These possesses rule, which one vote” man, “one any imposed judicially in inherent simplistic defects entirely inap- problem,13 is complex social solution country’s local the form of the determining for propriate governments. could proposition of this better demonstration
No afforded the admirable made than have been my dissenting opinion in the analysis contained pro- my Brother’s respect, But, Brother Fortas. unsatisfactory. less matter is no jected solution an ava- this Court into plunge fair to would bid For it firmer with no reapportionment cases of local lanche notions of con- than its own what anchors constitutional any given instance. protection” “equal stitutes only way I that the sure-footed deference, think With inequities inherent hand, on the one avoiding, pitfalls the morass of other, and on the today’s decision, my Brother Fortas’ follow from approach, that would decline to extend the constitutional structuring of Reynolds, to leave the experiment it process where political units to the governmental belongs. Reapportionment Weinstein, Effect of the Federal The See Municipal Government, and Other Forms of
Decisions on Counties Advisory (1965); cf. United States 37 and n. 67 65 Col. L. Rev. Relations, Affecting Intergovernmental Voter Factors on Commission Metropolitan Reorganization Areas to Governmental Reactions (1962). 26-27 (tent. Legal Sacks, Process 662-669 ed. & A. Cf. H. Hart 1958). *18 Fortas, dissenting.
Mr. Justice I improvidently would dismiss the writ in this case as granted. Supreme districting The Texas held Court It scheme unlawful under the Texas Constitution. redistricting. ordered In this difficult and delicate area I we redistricting would await so the result final of its may pass upon product of Texas’ exercise re- powers, in terms of our constitutional governmental which Texas itself sponsibility, upon and not a scheme has invalidated.1 (ante, 2) opinion argues Court’s n.
The a final be- Supreme judgment the Texas Court’s order is in the Texas contemplates proceedings cause it no further districting although present it holds unlawful courts, I do requires Commissioners Court redistrict. point. not reach this formula superimpose
The Court acts now to own its redistricting disagrees because it with the standard for Supreme states. That standard Texas Court redistricting directed on the basis of the “number qualified voters, areas, geography, land miles 2d 428. This roads and taxable values.” 406 S. W. a result which this may produce or not standard constitutionally acceptable. We or I find Court would of factors melange know in how the cannot advance emerge mixing from by the Texas court would stated who would deal with of the Texas authorities machine imbalance now It clear that the extreme problem. because the Texas Su- eliminated, would be prevailing might It be has held unconstitutional. preme Court it Court, Supreme noted that the Commissioners Texas view courts, has to redistrict. This judicial not Texas’ anticipate troublesome, are not bound to may prove but we to be properly job do the Court will the Commissioners either that put its house order Midland not otherwise Texas will or that County. *19 such worked out would be finally the substitute it as a reject would not a of this Court majority all, laws. After protection equal
denial of accepted passing as Court, Term of this we last less-than-mathemati scrutiny Constitution, Davis, 387 S. plans in Dusch v. U. cally perfect Education, 387 S.U. (1967), and Sailors v. Board of (1967). Court, however, plunges adjudication now to ap- Texas, midstream, County, case of Midland emerge any might result that parently rejects because it of one one man, from literal thrust which deviates simplistic approach, adopts Since it now vote. it as well majority might believes that apparently the devising an and save the labor of answer. say so Texas I disagreement. believe, I as I am in fundamental equal of this case that in the circumstances discuss, shall perhaps the laws be achieved —and protection of system a which takes into only can be achieved — merely complex factors, a of values and account one. Dusch and simplicity equals the arithmetic one They reflect wisely prudently decided. Sailors were empirical to the intri- conservative, approach a reasoned, applying principle constitutional problem cate I government. know of no reason complexities of why ap- now abandon this reasonable and moderate we suffrage of local an proach problem adopt to the potentially formula which is absolute and inflexible de- important political and social values. There structive why we can is no reason should insist that there is and only governmental rule for voters in local units— be one that districts for units of local must be drawn solely population. on the basis of I believe there are H why, insisting upon reasons while powerful reasonable regard population-suffrage ratio, reject for the we should approach and authoritarian rigid, theoretical, problems of local government. In this complex and involved area, we should be careful and conservative application our of constitutional they imperatives, powerful. Constitutional commandments surgical are not instru- ments. They have a tendency to hack deeply ampu- —to tate. I And while have no doubt that, growth with the of suburbia and exurbia, problem of allocating local government functions and benefits urgently requires at- *20 I tention, am persuaded that it does not call for the hatchet of one one vote. It man, duty is our to insist upon regard due for the value the individual vote but not ignore to realities or bypass to the alternatives that legislative alteration might provide.
I. I agree application of the Equal Protection Clause of the Constitution, decreed this Court in the case of state legislatures, stop cannot at point. Of course governmental local units are subject to the commands of the Equal Protection Clause. Cooper Aaron, v. 358 U. S. (1958). That easy. much is The difficult ques- tion, and the one which the Court slights, is: What does the Equal Protection Clause demand with regard to local governmental units?
Reynolds
Sims,
v.
This rule sim- of a State are people Legislature. of a State Its Legislature. the State action of ilarly affected are They pervasive. comprehensive functions particular the needs upon concentrated specially not As of citizens. any separate group or parts of the State in “the stands Reynolds said, each citizen Accordingly, Legislature. relation” to the State same in elec- population equality from substantial variations from the indi- Legislature away take for the State tions man- which the Constitution equality voter the vidual citizen’s a debasement They amount dates. citizenship.3 of his vote and governmental all local be said of But the same cannot certainly of the unit involved in case. not units, 2Reynolds put Equal to a Sims Protection Clause did equal holding of our Its is in the mainstream radical or new use. *21 people in the who stand protection cases hold that cases. Our differently relationship government to their cannot be treated same inferior, by government. would be to mark them as To do so Virginia, society” (Strauder inferiority West “implying in civil v. (1880)), “inferiority in the 303, or as to their status 100 U. S. Education, 483, 494 community” (Brown Board S. U. somehow, they were, (1954)). to treat them as if less It would be people. than responsible enacting by legislatures which are laws “Since they governed, which are are to be should be bodies all citizens popular concept collectively responsive to the will. And the traditionally protection requiring the equal has been viewed as standing persons to the treatment of the same relation uniform questioned challenged. respect governmental action or With representation, voters, legislative all citizens of the allocation of as they State, regardless in the same relation of where stand right debased, that a citizen’s to vote is live. ... To the extent S., a citizen.” 377 U. he is that much less 567. County’s special Midland Commissioners Court has func- primarily popu- tions —directed to its rural area and rural powers specialized, light lation. Its are limited and County of its missions. Residents of do not any rights means have same and interests at stake in the election of the Equal protection Commissioners. rights may certainly reality of their take into account the rights of the segments and interests of the various of the voting population. they It does all require not be alike, regardless treated difference in stark impact of the Commissioners Court them. upon “Equal protection” relates to rights the substance citizens’ interests. It protection adapted demands to sub- stance; it upon, does or even permit, pre- insist scription arbitrary which wrongly formula assumes of all body interests citizens the elected the same. my
In Reynolds the Court judgment, departs from holds, broadly when it that “the generally, Four- Amendment . teenth . . forbids the election of local government officials from districts of disparate popula- Ante, tion.” at 478. This holding, literally applied as the Court commands, completely ignores complexities of local in the United complexities States — Reynolds which, itself states, demand pre- latitude of scription. simplicity of the Court’s ruling today comport does not with the lack of simplicity which char- miscellany acterizes which our constitutes governments.
II. beginning As of the there were 81,253 units *22 local in the United States. figure This in- 3,049 county cludes governments, 18,051 municipal gov- ernments, 17,107 township governments, 21,782 school
districts, 21,264 special other districts.4 These units vary in greatly structure, and function. The powers, usually subject to several governments citizen is jurisdiction. overlapping in a “special- The Court this case concedes that in of purpose government,” rights certain unit con- may stituents be more affected than rights others. It that implies man, the one one vote not apply rule ante, in such cases. See says 483-484. But it we do not here confront implications have to a I agree. such situation. do not I problem presented submit by many, per- county haps most, governments (and by County particular) in is precisely arising the same as those from special-purpose many units. The functions of governing boards, governing no less than the bodies of special-purpose units, only have on slight impact some of their constituents a vast impact and direct on They others. affect residing different within citizens their geographical jurisdictions drastically different ways.5
Study county government leaves one with two clear impressions: the variations from unit to unit great; and that the role and county govern structure of currently ment are County a state of gov flux.6 Dept. of Commerce, U. Bureau of Census, S. Census of Gov (prelim, ernments in 1967, rept. Governmental Units at 1 1967). Oct. complexities If given (that these is, do not exist case if governing the functions unit essentially involved an have upon equal impact all geographical jurisdic- the citizens within its tion), man, then the one apply one vote rule would as it did in Reynolds. city councils, example, Some are in effect miniature legislatures. county governing state Some geographical units have jurisdiction which city only co-extensive with a or which includes reasonably homogeneous rural areas. Adrian, (1960); See C. State and Local Governments 210-217 Snider, C. Local (1957) Government in Rural America 119-139
501 of every significant way: in number ernments differ or competing of governed,7 area number constituents, form, government county,8 units within the overlapping of services governing board,9 selection and of means independent of the number and functions provided,10 sources of revenue.12 county officials,11and county gov- generalizations can be made about Some today perform certain First, ernments. most counties of delegated basic functions the State: assessment recording of of property, property taxes, collection deeds documents, roads, poor other of rural and maintenance of elec- relief, enforcement, law and the administration judicial begun Some counties have toral and functions. more, especially by assumption municipal to do of policy-making most counties still functions.13 But largely act as administrative of the instrumentalities State.14 single absence of a chief executive
Second, “[t]he responsibility among independ diffusion of numerous ently general elected officials characteristics of (hereafter Snider); cited as International Union of Local Authori- ties, (1961) Local Government the United States of 13-14 America (hereafter Government); Municipal League, cited as Local National County (1956). generally Model xi-xxxviii Dun- Charter See S. combe, County (1966) (hereafter as Government America cited Duncombe). 7 See Duncombe 3-5.
8 Dept. Commerce, Census, See U. S. of Bureau Census of Organization, Governments: Governmental Table 17. Dept. Commerce, Census, Governing See U. S. Bureau of the County Boards of Governments: 1965. 10See Duncombe 70-102.
11 See Duncombe 41-63. Dept. Census, Comerce, See U. S. Bureau of the Census County Governments: Governments, Finances Table 11. 13See Duncombe 13-14. Weidner, See W. Anderson & E. State and Local Government (1951); 30-31 Snider 131-134. who have States.”15 Those United invariably pointed
written on the subject have geographical region powers extensive exercised within county by countywide officials elected on a basis organized special perform specific districts *24 organs per officials independent tasks. Often these and great importance form crucial of to all the functions people county.16 within the generalizations
These apply particular force population County chiefly this case. The of is Midland single a urban area.17 That urban area has its own municipal government which, rule,18 because home has autonomy authority relative and to deal with urban In problems: contrast, County the Midland govern- like governments acts generally, primarily ment, as an arm administrative of the State. It a provides agency convenient for the State to collect hold taxes, elections, judicial administer peace-keeping and func- tions, improve roads, perform and other functions which ordinary are the duties of powers the State. The of the Commissioners which Court, governing body is the strictly County, limited and statute provision.19 Although constitutional a mere fisting 15 Government, Local at 14. 16See, g., ibid.; e. 41-63; 44r-45, Duneombe Snider 252-254. 17 population In 1962 the County 67,717. of Midland was More 62,000 than governed by lived in the urban municipal area government. Dept, U. S. Commerce, Census, Bureau of the Census of Organization Governments: Governmental 186. 18 Const., XI, 5; Young, System Tex. Art. R. The Place in Texas § (Institute University Elections of Public Affairs, 1965) of Texas, 38. 19 Benton, Texas, See W. Its Government and Politics 36CU362 (1966) (hereafter Benton); cited as Smith, S. MacCorkle and D. (hereafter (1964) Texas Government MacCorkle) 339-340 ; cited as Patterson, McAlister, C. Hester, S. and G. State and Local Govern (1961) 384r-385, (hereafter ment in Texas 388 Patterson); cited as Municipal County (J. and Government 113-114 1961); Claunch ed. Gantt, Dawson, Hagard F. I. (eds.), Governing L. Texas,
503 authorizing these statutes provisions and constitutional would seem to indicate that the Commissioners Court significant has general power, impression illusory somewhat very because often the provisions grant which also circumscribe its exercise with detailed limitations.
For example, petitioner cites VIII, 9,§ Art. Texas Constitution and Article 2352 of the Texas Civil granting Statutes as the Commissioners authority levy taxes. Yet, at the time this suit was tried, Art. VIII, 9, provided § that no county levy could tax $100 excess on property valuation. And Article 800 2352 among allocated the four “constitutional purposes” mentioned in VIII, (not § A.rt. more than for general county purposes, more than 150 jury fund, not more than for roads bridges, *25 and not more permanent than improvements).20 250
Another example authority is the to issue It bonds. is true, majority as the notes, that the Commissioners Court authority. have this does Yet Title 22 of the Texas Civil up Statutes sets a detailed code concerning how purposes and for what bonds may Signif- be issued. icantly, provides Article 701 county that bonds “shall any never be purpose” issued for unless the bond issue Readings (1966); Documents and McCleskey, C. The Govern- ment and 303-304, (1966) (hereafter Politics of Texas cited as McCleskey). provision There is a home-rule in the Texas Consti- applies tution which counties, IX, provision to Art. 3. But that is § virtually and, 1966, oper- unworkable as of there were no counties ating McCleskey under home rule. Benton 372-375. See also and MacCorkle 341. 20The VIII, 1967 amendment to Art. maintains the § speaks limitation and still of purposes.” “the four constitutional provides, though, county It “may” put the money all tax into general regard one purpose fund without to the or the source of each county’s taxing power tax. For a of discussion the and other sources county revenue, see Benton 367-368. qualified property-taxpaying the has been submitted county. the voters of statutory important and constitutional
More than the of the Com- the function limitations, limited actually in what it does. Court are reflected missioners give complete picture not and briefs do The record it is workings of Commissioners Court. But the the concerned primarily that the Commissioners apparent affairs, particularly with rural roads. rural and more with largest item below the Commissioner testified One And, for roads and county bridges.21 in the was budget county according Commissioner, to that the does Com- City of Midland. The maintain streets within the council quite city seem content let the missioners city of city thing “The it is, handle affairs. about its city mayor has the council and the to run county . and have a whole to run . . business, . . we . Texas Supreme As the stated: gov- the commissioners court is the “Theoretically, erning body commissioners all both represent residents, rural, urban and county. developments during years But greatly scope the functions of have narrowed re- major court and its the commissioners limited county. nonurban sponsibilities to the areas of the pass city government It come to has judicial legislative, branches, its executive major city concern of the and the ad- dwellers *26 county major of affairs of the ministration the is the of the 2d, concern rural dwellers.” 428. 406 S. W. regard to Moreover, specifically even with those areas county government the or con- delegated by statute the provision, Commissioners Court some- stitutional 21 testimony typed appears transcript in the but This of record parties. portions printed by the not in the
505 times does not have the to make decisions. county government Within the de- there are numerous partments which are by controlled inde- officials elected pendently of the Commissioners and whom Court over the The Commissioners Court does not exercise control. com- Commissioners view themselves primarily as road missioners. “The really other have department heads say the department. merely approve We salary. anyone We do not any department hire County The except department. the road department of departments heads 22 the other do hire the employees.” Supreme
As the Texas com- county “the stated, charged missioners court is management not with the county’s and control of all of . business affairs . . . by various officials elected all the voters [T]he county spheres have delegated that are to them law within and which commissioners inter- court or usurp.” fere 2d, officials, W. at 428. These S. countywide on a direct, basis, elected one one vote, man, Taxes, County include Assessor and Collector Attorney, Sheriff, Clerk, the Treasurer, County the County Surveyor.23 County is who Judge, officer of presiding the Commissioners also Court, countywide elected on a county basis.24 Other officials employees appointed by the Commissioners Court.25 21, su-pra. See n. Commentators on Texas local See, noted this
have lack control Commissioners Court. 344-345; McCleskey g., 23 307, 310; e. MacCorkle Benton 369. VIII, 14; §44; V, §21; V, §23; XVI, Article Art. Art. Art. § V, §20; XVI, §44, Art. and Art. of the Texas Constitution respectively. V, 15, 18, Article of the Texas Constitution. §§ description county generally For officials their functions, McCleskey 335-339, see 306-310, MacCorkle and Batter- listing For a who see son 390-392. officials are elected *27 506 city,
The elected officials of the generally residents probably A preponderant because of its vote. Commis- “Every sioner testified elected official in Mid- ... County today [except land rural commis- the three it been sioners], way years, has been back for has by people city elected here in the limits live of Midland.” that of Another Commissioner testified employees only about 150 of the four of those county, precincts. who were not in the rural elected lived Of all the only elected the three rural commissioners officials city outside limits.26 as I And, noted, lived have the fifth member of the its Chair- Court, Commissioners man, County Judge large is the who elected at county.27 apparent city people It is much have county government more control over the than the elec- Many tion of the Commissioners Court would indicate. county of the which city, functions most concern the example, tax assessment and collection, are under the jurisdiction county large.28 of officials elected at Dept, Commerce, Census, IT. S. Bureau of the Census of Govern- 1967, ments Elective Officesof State and Local Governments 117-118 (prelim, rept. Aug. 1967). supra. 21, n. See 24, supra. testimony Note There was below to the effect that county judge only appears votes in case of a tie vote. But it self-imposed. county judge enjoys that this limitation be “The equal voting rights with all the other members of the commissioners’ court, right any which includes the to make or second motion and right among to vote whether there be tiea the votes of other Opinions Attorney members of the court or not.” 1 General (No. 1939). 0-1716, McCleskey 307, Texas 453 See 27. n. qualified Assessor and Collector Taxes is elected large. Const., VIII, 14; voters of the Tex. Art. U. S. § Dept. Commerce, Census, Bureau of the Census of Governments (prelim, Elective Offices of State and Local Governments 117 1967). rept. Aug. adjust The Commissioners Court has VIII, the Assessor and Collector’s valuation. Art. of the Texas § However, testimony Constitution. below indicated that the Com- *28 and functions In the Court’s sum, Commissioners re- are defined and quite limited, they are powers and impact and primary preponderant that their stricted so of its extent on the rural areas and residents. The is To that the extent impact city quite on the is limited. powers, city, on the the relevant impact there is direct in the hands of officials important respects, placed in are in viewed Indeed, one vote basis. man, elected on one rights powers, appears and it realities terms the offi- power the to elect the city that the residents have them, and the rural important cials who are most the respect electoral residents have the powers which Commissioners Court which exercises they primarily interested. that “no substantial variation” this,
In face of to hold may under population Equal be allowed equal from rights ignore is to the substance of Protection Clause not imple- involved. denies —it does powers It and It voting rights. is like equality ment —substantive only a corporation each have insisting that stockholder though $1 the stake of some be one vote even not $1,000. of others The Constitution does the stake Equal protection a result. of the laws is not force such by it. served many govern- I have
Despite fact, shown, as powers are exercised officials mental large powers of the Commis- elected limited, sioners Court are the Court insists the Com- “general governmental is a unit with missioners Court simply except This is not in the most powers.” so impressed by sense. The Court is the fact superficial jurisdiction that the Commissioners Court extends taxpayer complaints only days sits to hear missioners Court a few go year. not each The Commissioners Court does over the Assessor tax rendition sheets before he sends notices to the and Collector’s taxpayers. county.
over the entire area of the But is more reality. form than
Substance, shibboleth, govern should this admit- tedly complex area; and subtle and the substance is that geographical extent of the Commissioners Court very meaning. County’s Commis- limited primary Court has its focus in nonurban areas sioners and upon people. county’s the nonurban True, largely City revenues come from the of Midland. But Commissioners Court the tax subject fixes rate to the specific provided legislature. limitations It must spend categories percentages tax revenues in the *29 legislature which the fixes. are Taxes assessed and col- by an lected, it, county- but official elected on a likely It is if quite city wide basis. that the dwellers given they were control of the Court, Commissioners reduce the it spent primarily would load because is rural area. This a If the is state matter. State the Legislature, presumably city which dwellers are fairly represented (Reynolds Sims), wishes to reduce may it ready do so. But unless we are load, adopt position that Federal Constitution a forbids from taxing city State dwellers to aid their rural neighbors, city the fact that pay dwellers most taxes composition should not determine the county gov- erning body. We should not tax impact use as the sole controlling or for merely basis vote distribution. It in a including one number of factors, the functional of the impact government, which should be taken determining into account in whether a particular voting arrangement recognition results in reasonable of the rights and interests of citizens. neither tax Certainly, relatively impact nor the few services rendered within City of Midland should compel the State to vest all practically voting power city residents to the on dependent those who of a voice to denial virtual other welfare, roads, county government services. essential
III. decide we should not my judgment I said that in have up a chance to come give Texas case but should that own courts hold Texas’ acceptable with an result. constitutionally intolerable. system is present in this case show upon relied estimates population City of of the which includes most the district representative, has one 67,906 people repre- its own of which has districts, rural each the three respectively. people and 828 852; 414; have sentative, as satis- regarded be this cannot it be While I any view, under Equal Protection Clause fying the merely errs the Court’s formula applying suggest will city population Only the direction: opposite in the will be eliminated rural areas and the represented, be they to which county government a in the from voice I respect, all services. With essential must look for very It kills the a destructive result. that this is submit have Texas should purports serve. which it value tolerance, within wide which, scheme to devise a chance but city, underrepresentation gross eliminates the *30 for effective voice adequate, an provides time the same peoples.29 urban, areas as the nonurban, as well dissenting. Stewart, Mr. Justice granted improvidently the writ as I would dismiss and Mr. Harlan Justice reasons stated Mr. Fortas. Justice Reapportionment De Federal Weinstein, Effect of the Cf. Government, Municipal Forms of and Other on Counties cisions (1965). 21, 40-49 L. Rev.
Col.
I add
however,
the merits,
reach
Since
Court does
thorough
in
is said
agree
I
with most of what
I
Indeed,
dissenting
opinion
Mr.
Justice
Fortas.
author’s
it not for the
opinion
would
were
join
Reynolds
of the doctrine
unquestioning endorsement
to believe that
Sims,
I continue