*1 230 case Finn in claim defendants Plaintiffs, Joseph al., et GERMANO plaintiff’s while
volved pleading loss whole discloses In this case KERNER, losses separate the State Otto as distinct Governor series of and the State Illinois and Chairman upon shipment numerous based Carpentier, Board, Electoral Charles F. during equipment 1959 items of Secretary as Illinois and State of meaning Finn Within 1960. Board, Secretary of Electoral the State arising from case there one total loss Attorney Clark, General William G. of the State transactions, a an interlocked series of member of of Illinois and employees conspiracy among Board, the State J. Electoral William carry fraud plaintiff of involving scheme out a Scott, as of Illi Treasurer of the State action ulent dishonest nois and Board, tor of Public Illinois and Electoral member of the State fiduciary and falsifica Howlett, breach duties as Audi Michael J. breach. records Accounts of the State of tion of to conceal the State Elec member of number of The chance consecutive Illinois, Defendants, Board of toral dishonesty total ex first acts of would actly improbable that it $100,000 is so determining ignored Clyde al.,
should be Beals et Defendants- Intervenors. question. con next that the The chance separately, acts, secutive considered Civ. No. 63 A. C 291. exactly $200,000is would create a loss United States District Court ignored. improbable should be more N. D. E. D. supported the fol conclusion This July lowing Dowd cases: Charles additional Co., Fund Ins. Box Co. v. Fireman’s Industries, (C.A.1) 57; 303 F.2d Lancer (W.D.La.) Co., 197 Inc. v. American Ins. F.Supp. 894. following upon relied cases point or not not in
defendants are either ruling of the
consistent with the Su Pacific
preme case: Court the Finn Cases, Removal 115 U.S.
Railroad 319; 1113, 29 Hammer v. L.Ed. Type Investors, Inc., (S.D.N.Y.)
British 497; F.Supp. Lucania Societa Italiana Navigazione Ship v. United States Di Emergency Corp., (S.
ping Fleet Board 568; D.N.Y.) 15 F.2d Greenshields v. Corp., (C.A.10) Petroleum
Warren 61; American Breslerman v. Lib F.2d Co., (E.D.N.Y.) F.Supp. erty Ins.
531; Elec. Baltimore & Co. United (D.Md.) Gas Co., & Fid. Guar.
States
F.Supp. 738. Austin, J., dissented. cause should be remanded. hereby reasons stated it
For consolidated these causes Ordered hereby, remanded to
be, County, Court of Jackson Mis- Circuit
souri. *2 result, plaintiffs contend, grossly ais
malapportioned senate, state an obvious debasement and diminution in the value vote their and an invidious discrimina- tion in violation of the Fourteenth Amendment of the Constitution United States. Agricultural
Members of the Illinois
Association, by
sought
motion,
and were
granted leave to intervene in this action.
They oppose
plaintiffs’ complaint.
Kleinman,
Kleinman,
Corn
Bernard
Asher,
Ill.,
Chicago,
Feldman,
plaintiffs’
prayer
field &
for relief
best
plain
Chicago, Ill.,
Segall,
for
by
Gubbins &
summarized
their brief which states
requests
tiffs.
as follows:
Act, primarily
pursuant
population.
Illinois bicameral
plaintiffs
geographical
which,
atorial
complaint
Act of
electing
to the Constitution of Illinois
process
have been
IV Section 6
S.H.A.) which authorized a certain 1955
the
qualified
practical purposes
(Ill.Rev.Stat.1961,
complaint
82 S.Ct.
court.
Plaintiffs
this
fendant.
AUSTIN,
Burgess
Judge, CAMPBELL,
Ill., Howard
The instant
In the lexicon
CAMPBELL, Chief
Before
William G.
above
plaintiffs,
is another
granted
districts. More
Title 28 2281
allege
voters of
&
denied
turn,
the law a 1954 Amendment
Act,
District
alleges
SCHNACKENBERG, Circuit
Smith,
basis—
the same
Baker
senators, which is
Illinois General
(The
Clark,
Robinson,
is the
complaint, which
sought
L.Ed.2d
on a
is based
citizens,
created the state’s sen-
§
equal protection and
c.
is a
Judge.
lower house apportionment case.
rather, than on
Chicago, Ill.,
present
Atty. Gen.,
population basis.)
Judge.
Chief
Amendment and
prototype
§
specifically,
legal profession
primarily
Sidley, Austin,
proper
residents
158-1 et
appropriately
Constitution,
369 U.S.
§
alleges
three-judge
method of
Judge,
(Now
Assembly
set
Chicago,
basis—
elected,
for de
out in
miss
what seq.)
on a
Art.
due
all
ted an alternative motion
court grounds, 1)
can be
failure
to dis-
Defendants have filed a motion (d)
(c) That this
(b) That the
(a)
predicated upon
proper.”
granted.
rights guaranteed
other and further
portioned and redistricted to in-
ed
That
sure all voters
Constitution of
States.”
stitutional
until such time as the senate of
mentation thereof
the officeof senator to the Gen-
diction of this cause
eral
the Constitution of Illinois
results,
or of the
suant
ed
dates, proclaiming any election
[*]
the Constitution of
“That Article
(be declared)
3)
state a claim
“from
[*]
fetters
State of
implementing
forbear
Court
Assembly.
lack of
this Court
this Court
to Article
[*]
»
(etc.)
defendants
Defendants also submit-
certifying
Court “retain
provisions
imposed by
may
statutes in
Illinois,
jurisdiction
void and invalid.
IV,
abstain
IV,
upon
seem
* * *
* * *
has been
two
* * *
statutes
“grant
them the
the United
relief as to
Section 6 of
* * *
Section 6 of
be restrain-
Illinois
freed from
which relief
invalidat-
asking
just
alternative
the Con-
* * *
tak-
from ”
imple-
candi-
juris-
reap-
pur-
* *
* *
and
2)
house.)
reapportion-
on the lower
Decennial
case based
action on the
further
provided
pos-
mo- ment is
into account
These
take
the doctrine
“Abstention”.
population.
parties and
sible
shifts
state’s
tions were briefed
*3
by
this
argument
court.
with
Plaintiffs do not
issue
the
raise
heard
oral
plan,
for
that
W.M.C.A.
that matter
contend
Baker v.
On the
of
basis
legislators
electing
or method
Simon,
of
370 U.S.
Inc. v.
Hare,
one,
constitutionally acceptable
is the
1234,
237
not concern-
in that case
that it was
clear
senate,
residents
downstate
composition
of the
power
with the
ed
political
granted
upon the
a check
“only
Gray
legislature,
and the
metropolitan area.3
county
Cook
voting case”.
amendment,
considering the 1954
Green,
MacDougall
335
holding
MacDougall
hand,
On the other
(1948) is
1,
3
L.Ed.
281,
93
approval
69 S.Ct.
Bren
U.S.
cited with
Mr. Justice
upheld
the court
Carr,
there
apposite,
nan,
court,
because
369
in Baker v.
which,
1954
law,
like
203,
691,
186,
207,
an Illinois
at 702-
U.S.
82 S.Ct.
upon the
amendment, provided a
(1962)
check
703, 704-705,
Mr. Justice
populous
most
728,
political
Clark,
251,
dominance
369
at
82
at
U.S.
S.Ct.
U.S.,
283, of 335
Stewart,
At
area of the state.
may without re house chosen have one * ** founding fathers ”, and, tem which gard population. made to 3,550,404) population and the suburban power redistricting, complish representative upon special Of 30 duty communities. a ad devolves to do so county in Cook IV, 8). to (Art. allotted tricts § hoc commission Chicago. placed Of the 24 in were 23 coun- allotted to Cook IV, districts IV, senatorial and article 6§ article 3. Both Chicago. ty, recognize 18 within Cook a division 7 also § city Chicago (1960 county of between the county Cook national constitution well the downstate wrote into the as as proved areas. so successful and which has Congress. There in the case of point, At this remember it well is Representatives based on House of is legislative authority, both national popular representation Sen- state, is when involved new states rep- ate on a of area is based form are admitted federal union. While resentation, principle similar undoubtedly drafting plan of of proposed for Illinois.” what is is a state func- attempt be- An to differentiate made is tion, duty it is the constitutional of con- produced as tween conditions which gress, admitting when states to provision compromise the 1954 Illinois union, to determine whether produced the conditions which governments republican in form in com- leading compromise provision to the pliance with the federal constitution. It election of members the United States of significant, pointed is therefore intervenors, as out disregard population Senate in that, when Hawaii and However, plan both recently states. admitted, Congress Alaska were approved United re- choice of States resolutions senators and “found to republican conformity gardless form and with the Constitution of the United comprom- in Illinois were results States” the states, of those constitutions compromises The ises. in both cases although widely senatorial districts of necessary. rep- were actual and If the populations variant were created. For resentation of two senators example, Hawaii, 500,409 persons were in the United is valid be- States Senate given senators, 132,363 while compromise, cause based on then given senators, according to the 1960 provision for election state senators census.5 The ap- Hawaii constitution upon compromise based is proved by Congress printed Ap- as likewise valid. pendix S.Rep.No. A Cong., 86th 1st (1959). Sess. Alaska, verity supported judicial The senatorial districts has in establish- forefathers of our wisdom ing 5,705, 87,748. while another has on a ter- Senate United States Alaska approved by constitution Congress compromise as a ritorial basis printed Appendix A H.R.Rep.No. upon principle based Cong., 85th (1958). 2d Sess. our is relevant sound and compromise in the 1954 consideration of For all these reasons I concur in similarly met- its settled Judge Campbell’sopinion. ropolitan versus downstate stalemate creating a on a territorial basis. senate Judge AUSTIN, (dissent). District Moreover, ad- continued to Illinois has republican pattern aof here form great weight Because stress government. accomplishment given challeng- to the fact that guaran- complies objective with the ed re- amendment *9 federal tee the constitution each of approval of the ceived by Illinois electorate republican a have form of state shall majority a substantial less than nine interesting government.4 Moreover, it is thorough years ago, a more understand- compromise note that the Illinois was to legislative history pre- the of which by the the votes of chosen electors necessary. is that choice ceded IV, 4, U.S.Const. § 4. Art. Their of intervenors. correctness has not by any questioned counsel. figures population paragraph All in this furnished us have been to in the brief
239 thirty-six “compromise” original This is allud- the solution of constitutions colleagues. my opinions including ed to Illinois, provided for of States, their of of both Houses the election This constitutional amendment fails legislatures for vote vote on a bicameral provide reapportionment the Sena- for of of Illi- The three constitutions basis. Districts, despite torial future selection provided for prior 1954 nois changes, and rural forever cedes the to. basis a of both Houses minority it, Senate, of the and with 60% reapportionment provided for further power the attendant veto over the will decade, decennial cen- the based on my majority. of the It constitutes in prin- sus, preserve for vote the vote opinion invidious discrimination. ninety rural years, ciple. while For implementing legislation redistricting State, 101 counties of the areas Districts, Senatorial even State’s majority Cook, of contained outside of time, present less defensible. At less voters, com- assiduous there was than of the voters Illinois elect 29% require- pliance the constitutional with majority Senate. During reapportionment. ment of sought Distinction is to be made on the minority made period, voters urban ground acknowledged that the discrimi- request of the for control nation race, is not based on back- ethnic “protect our minor- Houses to ground, or position, economic and there- majority interests”, ity rural did the nor fore, However, invidious. suggest provision would ever test of invidious discrimination is not just. be fair limited to these factors alone. started, popula- Century 20th theAs In Holzman, 87, 97, Donovan v. 8 Ill.2d developed threatened trend tion 132 N.E.2d (1956), legislature. To meet rural control Supreme Court said: legis- it, rural abate that threat “It purpose clear that illegal- wilfully and Houses in both lators separate representa- senatorial and forty years forswore ly more than tive representation popular districts was to insure reapportion duty to their constitutional house, in one in- contrary had done what the State sure downstate control in the other.” threatened. control was regard present ap- In Senatorial pursuant Although reapportion, bills to portionment, apt I find most the words constitution, introduced dur- were to ing of Justice Clark in Baker period, most sessions of at 186, 258, 7 L.Ed. voting oligarchy, legislature, the rural 663, (1961): 2d Repeated block, one. defeated each aas present representation “If has appeals made to both fruitless but policy all, it is to maintain the compel com- Federal Courts quo status of invidious discrimina- In this pliance the constitution. tion at cost.” hopeless- atmosphere frustration indicated, present amend- has heretofore been less constitutional As ness effect, In the ul- of Illinois conceived. than was ment 29% majority barons to can elect a Senate. feudal timatum Frink, F.Supp. 431, (D.C.Ala. majority this: We will restore Sims urban 1962), held you the Court that a one-half of years forty apportionment, rights where we withheld Senate 19.4% majority could elect the electorate you abandon forever will if rights. Senators, invidiously spirit awith It was half of those gun criminatory. resignation, Moss v. Burkhart, with the to their *10 885, (D.C.Okla.1962), weary majority capitulat- F.Supp. invidious head, the Although constitutionally found was where of entitled discrimination ed. 26% majority people loaf, they accepted elected the of a crumb. a whole to right majority The inalienable a elected House of lower 20% made equal protection be cannot Baker of of After remand in the Senate. ma- depend upon the will to Tennessee supra, proposed new a jority.” more apportionment, plan of Senatorial provid- presently representative is than case, supra, the Likewise, in the Scholle “utterly held be to ed in Michigan rejected a con- in 1952 voters rationality. lacking Its arbitrary calling equal amendment stitutional invidious pattern of is one consistent at had in the Senate 341, F.Supp. discrimination.” [206 very adopted plan a the same election Mey- Thigpen v. (D.C.Tenn.1962)] ap- similar to that which voters (D.C.Wash.1962), ers, F.Supp. 826 proved in 1954. majority of of a the election retaining a bi- The need or wisdom popu- by of the State’s Senators 35.6% questioned if both cameral is invidiously lation held be to ap- Houses elected are on Hare, criminatory. In Scholle portionment The best answer basis. 350, 176, election 116 N.W.2d Mich. publication that is contained majority Senate 28% Century Fund, “One Twentieth entitled people was invidious. deemed Vote”, collating Man—One the views reapportionment cases Courts po- experts fifteen constitutional law an electorate have fact that held expressed a con- litical scientists as reap- recently rejected measures has City New June ference held in York on legislature according popu- portion the 15, 1962: nearly approved identical lation or “Nor true two houses adopted voters the Illinois to that based on will be mirror not a factor to be considered images will, They each other. determining discrim- invidious whether rather, present different reflections case, Thigpen su- In the ination exists. or combinations ele- various twenty- Washington, pra, the voters of population. up ments that make ruling, days de- the court’s four thing, For one one have house will measure feated initiative other, rep- more than members sought legislature ac- redistrict resenting smaller districts. commenting cording population. length of terms will differ. In ad- F.Supp. this, [211 the court stated dition, may members of at 832]: single-member districts, elected from juris- are to decline “We asked while constituencies multi-member the voters Wash- diction because And, are used in the other house. general ington election least, politicians are human be- an ini- defeated November ings differing personalities whose designed reappor- measure tiative produce differing institutions of Legislature Washington ac- tion qualities. cording population revealed “A offer number of states contem- of 1960. Our census the Federal porary evidence two direct. We concise answer way knowing are means based no whether the duplicates of one another. In Mas- ma- was defeated because measure appor- reapportion- sachusetts both houses are jority desire did not population; they ap- on the basis of didn’t tioned or whether ment among proposed two houses method or most prove representative country. in didn’t But understand it whether ** * members, opponents House or whether the organized' pro- and even under control than Senate better party same two bodies man-' ponents. makes no difference. It *11 justi- precedent provide enough. said age disagree often plan’ ‘Federal similar fication for a Oregon houses Washington both legislature, with one though in the state less population; are based on representing people and the Massa- disparate than in size geo- similar or some (there counties about are chambers chusetts analogy graphic is unit. But the repre- many senators as half as false. The United was cre- quite States sentatives), are the two sovereign states, ated thirteen political outlook.” in different and theory the Constitution embodies seek- Finally, of those the last resort federalism which divides legislative apportionment justify sovereign power between the nation is it is here as is involved key pro- and the states. A device for Congress analogous to that tecting sovereignty residual low- where election States United equal was the state voice population and the House is er based Senate. Thus Senate was a con- composed of two is States Senate United among group dition of union regardless of Senators from each states which the Federal Govern- representative population of ment created that union has My Campbell indi- Brother has States. power destroy. Counties, [or atypi- well aware of the cated that he is districts], by contrast, senatorial the Federal Gov- between cal distinctions independent sovereign. were never States, and ernment and the individual They did not create the states but many unmindful that he is not They were created them. rejected the “Federal which have cases analogy” wholly creatures of the states holding type apportion- may merged, time be divided invidiously discriminatory cites ment governments. or abolished state with which I authorities concur. added.) (Bracketed material In addition to the cases heretofore cit- again ed, I refer to “One Man—One theory political “Federalism as a Vote”, supra, succinctly refutes, had and continues to have value has my urged: opinion, the contentions here compromise permit- as a device of major point “A second on which sovereign- ting joining of lesser agreed the conferees were is that greater unions; into ex- ties principle process ample European equally the basis of Community. speak Economic But to applicable in both houses of a state of federalism within state is to legislature. The fact that all voters great principle to an reduce ab- equal have an voice the choice of surdity. ‘The United Sen- States give one house would be no reason to improp- is both irrelevant ate weight some voters more than oth- representation model for er as a electing ers the second chamber. a state.’ Professor Paul Da- within arguments basing repre- “The University Virginia vid of has in one state sentation written, because ‘a state is not something chamber on other than sovereign federal union of counties.’ prin- people are the familiar ones: argument often, Too for a ‘Fed- cipally, that the rural plan’ eral special requiring protection interests legislatures ignor- simple is bom of by disproportionate voting power. background ance of its actual arguments Two further are made. worst, may implications. At it disingenuous pointed “First, as a out advanced cover Congress represents peo- disenfranchisement urban for the the House voters. ple and suburban and the Senate states. This is *12 inequalities of bound population cause some bi- “Second, that a it is contended among no When legislature districts. would cameral houses, repre- an area that there are two were purpose both houses if argu- underrepresented in one population. somewhat This sentative of may given compensating propositions: be advan- ment assumes two tage inequi- other minor and bicameral- function of that contrasting apportionment bal- ties thus be provide bases ism is to representative of ‘area’), make the ther (i. e., first and proposition one second house that people hence redundant. of making can in the population and be a mirror both houses two supported. the other would Nei- of gions or classes.” reflect the will anced off. [******] “There one house of a will of justification of all the state particular voters mak- re- has a function “The second addition, Advisory the Federal Com- giving preferred apart quite from Intergovernmental Relations, mission on political status to one by Congress a federal commission created group providing function of purpose conducting for the study —the of a continual legislative in the and balances cheeks federal, gov- of state and local assuring process, mature more of problems, recently completed ernmental consideration before deliberate study an exhaustive apportion- That in fact a law enacted. legislatures. ment of state This com- reasoning underlay the mission, composed gov- congressmen, during by many adoption states ernors, .legislators, county state officials, century nineteenth city public members, officials came to legis- both houses basis for following proper conclusion as to the latures. basis for apportionment [Advisory Intergovern- Commission on this, century, “Later in Relations, Apportionment mental other than were factors Legislatures, pp. (U. 67-73 S. Govt. introduced, often Printing Office, 1962)]: December reappor- or amendment failure to “ ‘Equal protection the laws’ political power Those held tion. who presume, would seem to and consid- population representa- abandoned political equity demand, erations in order retain their population tion control that the changes both hous- the face es legislature, in the State be based coming. philo- saw Such strictly population. sophical justifications as so- plan’ designed called ‘Federal “The Fourteenth Amendment to motivation, just obscure the real the United States Constitution anis today argu- most of the elaborate designed protec- amendment for the against representation ments on the people. tion of the It is not intended people simply basis of covers political protect subdivisions, to nority mi- struggle political a naked power. retain views, any particular form governmental structure. Fourteenth Amendment is concerned justification for “The bicameral- thing only— thing, and with one provision remains of checks ism person equally that each be treated may Bicameralism balances. eyes law each and very further ob- also serve jective every State. representing people legislature. applying requirement equitably “In person equally districting geographic treated features are *13 eyes question law to of State UNITED STATES of America in the seats only legislature, one inter- State interpre-
pretation possible. That BOSSIER PARISH SCHOOL BOARD requires vote tation man’s et al. every other same as must count the Civ. No. A. au- The State has no man’s vote. thority United States District Court according classify people Louisiana, W. D. they rural where or live—urban Shreveport Division. do— n they type work areas —the Aug. 20, 1963. type edu- laborer banker—the or high they school cation have had— college graduate authorize —and representatives such classes to elect the State in such permit manner as the vote of any members class to have weight in the election of State more legislators than the members Therefore,
other class. the Com-
mission believes acceptable fair and method apportioning
of legislature. in the seats
******
“Except they to the extent that according represented .to their op-
numbers and that have an
portunity present their views to body, are not entitled minorities protection legisla- in the State minority
ture. Protection of inter- ests or views not mean does the mi-
nority position should in a to veto majority.
the desires of the given
protection minority views and power should not be a veto
interests legislative process, since other
adequate protections are offered
both Federal and State constitutions.
[*] [*] *» light foregoing, of the I would In the IY, Article Section 6 hold imple- Illinois and the Constitution
menting statutes, Ill.Rev.Stat.1961, Ch. 158-5, are 158-3 and invalid and 46 §§ they deprive and continue because
void liberty deprive the Plaintiffs of process property due law and without protection equal laws the Fourteenth Amendment
violation United States.
of the Constitution