W. M. C. A., Inc. v. Simon

Straus; Joseph A., INC.; M. C. R. Peter W. Maio; Lind; De S. Thomas De laney; Edward Brown; J. James Edward C. McCafferty, Plaintiffs, SIMON, Secretary

Caroline K. York, J. Lef of the State of New Louis kowitz, Attorney of the State General Stark, York, of New Abe President City City Council of New Patterson, York; Holly Chairman, A. Supervisors, County; Board of Nassau Quinn, Chairman, Board Owen M. Supervisors, County, Wil Westchester Leonard, Chairman, J. Board of liam Supervisors, County, Suffolk Denis J. Mahon, Powers, Crews, James John R. Mallee, Commissioners, Thomas Board Elections, City, New York Defend

ants.

United States District Court

D.S. New York.

Jan. result of the determination district July 7,

court dated 1961 and pursuant order made M. thereto. See W. Simon, D.C.S.D.N.Y., C. A. Inc. v. statutory three-judge court, Before this Silverman, & Aron- Robinson, Pearce motions have been renewed defendants City, Gross, for York New Max and sohn Secretary Simon, K. Caroline of State Sand, York New Leonard B. plaintiffs. York, of the State of witz, Attorney Louis J. New Lefko- City, of counsel. of General se., Atty. Gen., pro Lefkowitz, York, Holly Patterson, Chairman, J. Louis A. New Secretary Simon, of State K. County, Supervisors, Caroline Board for of Nassau Irving Galt, Asst. Sol. York. Quinn, Chairman, of New M. Owen Board of George City, Mantzor- C. Gen., York Supervisors, New County, Westchester Wil- Attys. Oberman, Asst. os, W. Leonard, Chairman, Gretchen liam J. Board of Su- Gen., counsel. pervisors, County, of Suffolk dismiss complaint 12(b) under Counsel, this action Rule Larkin, Corp. New A. Leo Procedure, of Federal Rules of Civil Stark, City, President for Abe York grounds (1) York, U.S.C.A. on the City City and of New Council subject court lacks over Mahon, others, Commission- and J. Denis complaint City (2) and fails to matter of Elections Board ers of relief Offner, claim can be Benjamin New York. of New granted. City, of counsel. York Atty. County George Jr., for Percy, W. City defendants, to-wit, The New York Y., Riverhead, County Suffolk, N. City Stark, Abe President of the Council Chairman, Leonard, Board J. William for City York, Mahon, Denis J. New Corwin, Stanley Asst. Supervisors. S. Crews, Powers, James John R. Thomas Y., County Atty., Greenport, of coun- N. Mallee, Commissioners, Board of Elec- sel. tions, City, have New York answered Atty. County Oakey McKnight, for J. admitting allegations complaint, Mineola, Y., County Nassau, N. for asking for thereof and effect the relief Chairman, Holly Patterson, Board of A. sought by plaintiffs. Consequently, County. Harold E. Supervisors, Nassau opposed they aforesaid motion. Atty. Collins, County Deputy of the Coun Nassau, Mineola, Y., ty N. of counsel. THE COMPLAINT Atty. Morgan, County J. Francis alleged in their various Plaintiffs ca Y., Plains, County, N. White Chairman, Westchester taxpayers, pacities as citizens and voters Quinn, Board of M. for Owen declaratory judgment (1) a pur seek County. Irving Supervisors, Westchester to 28 U.S.C.A. suant and §§ Vernon, Atty., County Libenson, Mt. Asst. New York’s that tory and statu Y., of counsel. N. governing provisions Haber, Mineola, Y., I. N. for Ferdinand State, Assembly Senate and Districts petitioner. Constitution, (New III, York State Art. 2-5; Law, Eugene City, New Nickerson, York State H. New York McKin §§ Consol.Laws, ney’s 121, 123) c. §§ curiae. amici proc under unconstitutional due WATERMAN, J., and C. RYAN Before equal protection clauses ess LEVET, D. JJ. Fourteenth United injunction States; (2) to restrain LEVET, Judge. District Attorney New York General Secretary State, well as the matter came before this This above- county municipal officials, to Title 28 U.S.C.A. as a mentioned pursuant § required performing but functions without their effect decreases in ”* large challenged laws. under the counties (b) county may no have “four or the asserted under Jurisdiction more Senators unless a full it has Rights Act, 42 U.S.C.A. §§ Civil ”* * * ratio for each Senator 1343(3). Plain- and 28 U.S.C.A. § and sought convening aof three- the tiffs “ * * * judge court, pursuant to 28 U.S.C.A. § (c) every county except request- injunction insofar as an always Hamilton shall be entitled [in restraining execution enforcement or ed Assembly] member cou- one constitution. state statute and pled with the limitation the entire membership to 150 members Inc., Except a New for W. M. C. A. (par. complaint.) 13 of corporation, characterized York “taxpayer” (par. complaint as a allege Plaintiffs further they complaint), all individuals plaintiffs are subjected been to “taxation without ade- “citizens,” “taxpayers,” and described “qualified quate representation” (par. com- complaint) (par. 4 of voters” plaint) prevailing and that the New York of New counties of the five from four apportionment “contrary formula is County) City (none from Richmond York prevailing government philosophy Suffolk. Nassau and and the Counties of in jurisdictions.” Anglo-Saxon the United and all Straus, plaintiffs, Peter One of R. (Complaint, par. alleges president of that he is further corporate plaintiff, The district court was therefore re- (par. Inc. M. C. A. W. quested three-judge to convene a complaint). [a] to declare Constitution, New York State Plaintiffs ask the court to Art. declare Ill, 2-5, Art. §§ unconstitutional and Ill, 2-5 of the New York State Con- §§ void; Secretary restrain the of State process violative of the stitution equal protection due printing, mailing from or otherwise dis- provision of the laws tributing any materials, election to re- Fourteenth of the Attorney strain the General from enforc- upon Constitution of United States ing said statutory constitutional and pro- ground that: visions,, municipal aforementioned apportionment for- county taking officials any ac- results, contained therein mula existing tion (complaint, under such laws result, necessarily applied must when pp. 15-16). judge, Before the district figures population to the of the State the complaint moved defendants to dismiss the grossly weighting in a unfair of both jurisdiction for lack of over houses State subject matter and failure to state populated rural lesser favor grant- claim which relief could be great of the state to the dis- areas advantage judge ed. convening The district this densely populated three-judge court denied the motion to (par. urban centers the state.” prejudice dismiss without complaint) 12 of of the defendants to renew such motion complaint specifically as the cites three-judge statutory before the court. allegedly cause of unconstitutional M. Simon, W. C. A. D.C.S.D.N.Y., Inc. v. legislative represen- of state distribution 758. This court is provi- York tation New Constitutional further asked “to retain requiring that: sions legis- this cause until such time as the “ * * * * * * fifty (a) the total of lature of provides the State established Senators Constitu- leg- such of the of 1894 shall be increased islature as will insure the urban voters rights those Senators which of New guaran- York State the larger counties becomeentitled in ad- teed them the Constitution (Complaint, dition to their allotment as of par. 17) United States.” argument, died be- Stone heard the but JURISDICTION Justice Jackson fore decision. Mr. ** * is the “Jurisdiction part de- no took the consideration way one and decide consider Frank- cision this case. Mr. Justice n orthe other, require, the law court, furter wrote merely and is because not to be declined Jus- and Mr. Mr. Justice Reed which certainty that is not foreseen with Justice Mr. tice Burton concurred. help plaintiff.” Geneva outcome will opinion in in an Black dissented Mfg. Karpen, Furniture Co. v. S. Douglas Justice Mr. Mr. Justice L.Ed. 59 238 U.S. 35 S.Ct. among dissent, joined. Murphy This pow- “Jurisdiction” connotes things, (1) that Wood other stated that Kibler er to decide a on its merits. case Broom, 1, 1, 77 v. U.S. 53 S.Ct. 287 Air, D.C. & v. Transcontinental Western granting eq- preclude 131 not L.Ed. did E.D.N.Y., 1945, F.Supp. 724. 63 (Colegrove); in case this uitable relief jurisdiction (2) existed. that Even the case of Gomil before 339, Lightfoot, 1960, lion v. 364 U.S. Frankfurter An examination of the 125, 110, 81 S.Ct. 5 the United L.Ed.2d statutory opinion, affirmed never held that Court complaint, re- dismissal court’s juris the federal courts without posi- Mr. Justice Frankfurter’s veals that legisla concerning over diction matters among factors, was, based involving tive Con either equity upon (1) for want dismissal a gressional legislative apportion or state 1198) ; 553, (328 p. U.S. S.Ct. 66 Rather, appears ments. that the court authority (2) for deal- that the fact specific has seen fit in to decline instances ing problems involved resided with the equity power its exercise in that area. Congress p. 554, (328 U.S. jurisdiction opposing Defendants in solely was, believe, to sus- 1198). It I rely herein on the determination in Cole Congressional policy control tain the grove Green, 1946, 549, v. 328 66 U.S. consequent wisdom lack of 1198, rehearing 1432, S.Ct. de used such that interference he. 1946, nied 329 U.S. phrases as: 118, argued 91 L.Ed. 701. It is that emerges Colegrove stark fact that “The one case decided that there history study of of Con- from no federal courts gressional apportionment its em- is involving apportionment. in suits An politics, the sense broilment examination of the reveal will party party interests. contests and interpretation that this is incorrect. ”*** 1200) p. (p. 554, 66 Colegrove, S.Ct. plaintiff complained that the state had failed to re “ * * * ought en- Courts Congressional apportion the Illinois Dis ” * * political this thicket. ter years forty tricts for some and that in 556, p. (p. S.Ct. 66 voting power equality of resulted. The statutory making Rutledge, up court concluded that it was Mr. Justice Broom, justices, prevailing bound decision in v.Wood con- fourth Referring opinion. separate 53 L.Ed. S.Ct. 77 in a curred accordingly, and, Broom, 1311 suit. dismissed the 53 Wood part: he wrote in L.Ed. In the United States Colegrove Green, supra, only opin- seven the Court’s [As] justices participated. notes, [i.e., jus- four Chief Justice ion Wood] Broom, nearly practicable ritory 1. In Wood only population, applied equal the court to districts held Reapportionment Act under that Act and not formed requiring Congressional Apportionment dis § election Act of U.S.C.A. contiguous compact tricts be ter- 2a. thought system, tices bill be dis- unit did should af- equity. missed for firmance of a want dismissal was based jurisdiction. Instead, lack words complaint my judgment “In are: [Colegrove should be dis- v. Green] “ * * * missed reason. Assum- for the same We affirm. Federal ing justicia- controversy that the consistently courts to exer- refuse ble, I think cause is of deli- cise powers so their in cases jurisdiction. ment should than the disease. And the siderations above cate a in one in which the Court risdiction es. (328 “I ^[******] that should, U.S. think, character, most disposition cure should pp. compelling therefore, decline to exercise its be Accordingly, sought may here 565-566, affirmed and noted, be exercised view is not absolute. may properly, circumstanc- the case is that the the cause.” 66 of the con- be S.Ct. I worse judg- only join ju- p. ledge 287, MacDougall 675, posing Broom, 1932, ical subdivisions. F.2d 108.” son v. S.Ct. S.Ct. See also state’s electoral 67 S.Ct. 69 S.Ct. Green, 1946, Green, in 3,1, Cook v. Stevenson, [, opinions v. geographical 77 strength 90 21, Green, 1, (Emphasis L.Ed. L.Ed. Fortson, 93 287 U.S. issues 91 L.Ed. 5 L.Ed. 1948, See among Cir., 1948, 1432; Mr. Justice Rut- 3]; arising 1946, added.) distribution MacDougall 335 U.S. 3. 596, 1, 8, 53 cf. John- Wood v. Also 329 polit- and in 170 U.S. 281, see Kavanaugh observations of Mr. Justice Thus, justices at least four out of sev- Michigan regard- Court of clearly in con- en Green v. ing Colegrove v. Green in Scholle v. jurisdiction cluded that existed but Hare, 1960, 1, 360 Mich. 104 2d N.W. complaint for should be dismissed 63, 70-71. equity. questioned want be It Rutledge pointed As Mr. Justice opinion the Frankfurter itself whether opinion in two footnotes to his in opin- Cole otherwise 1960 in his holds since grove, 549, pages U.S. Lightfoot, 328 at 565 and 364 U.S. ion Gomillion v. 566, 1198, page 1208, 125, 66 339, 346, 129, S.Ct. at 90 L.Ed.2d 81 S.Ct. 5 Colegrove Green, L.Ed. 110, referring 1432: v. he ment. The responded, ly lature recommended a Ill.Sess.Laws ^[*] ground Dwight H. 879, ject 1947 biennial sion dismissal wrote: *[Note] * “ * * and in 1951 redistricted not meet *X* ” Colegrove case, Green “Soon The Court affirmed the 1951, p. Ill.Sess.Laws message it presented complaint after Illinois in his adjudication.* reapportion- 1924.” immediate- the deci- Governor 1947, p. a on the again. legis- sub- which is American Watson, ment of state S.Ct. risdiction over Where only asked ^[*] not the same manner as want of to act is a “Want of ^[*] ‘The go “to 761, 766 [90 ^[*] a interfere prevent 327 U.S. discretionary Federation clear equity jurisdiction laws, power irreparable injury court of and imminent.” with the enforce- a 582, subject it should do so court of a court one. [593,] 873,] Labor matter. equity does ju- 66 is ’ cases cited.” per curiam in South v. Peters, 1950, 276, 277, perhaps It amiss to following involving justices county 94 L.Ed. 834 746 Dyer ABE, D.C.D.Ha- eas- v. Kazuhisa one more 233-234, waii, 1956, 220, jurisdiction outrightly 138 es have held that Judge, McLaughlin, Chief wrote: 1 11 Roberts, Stone, Brandéis, present: was “ * * * Colegrove v. def- Green 3, 5, 6, 7, 8 1 5 involving initely decided that a case Black, Cardozo, Rutledge, voting judiciable districts was 2, 3, 4, 6, 8 question over which a federal Murphy. Douglas, jurisdiction. justices held had Three Wood, S.Ct. 1. Broom v. jurisdiction the court lacked 1, 77 L.Ed. 131. should not exercise what justices Colegrove Green, jurisdic- U.S. had. Three 2. felt 1432. existed should exercised. deciding vote was cast Mr. Duck (Turman 3. Cook v. Fortson Rutledge. juris- He stated Justice 21, 91

worth), present, diction was but should L.Ed. 596. majority be exercised. Thus a held Colegrove Barrett, 4. justiciable question that a be- 973, L.Ed. 1262. it, but that in the discretion fore Green, MacDougall court, equitable jurisdiction (Empha- should not be exercised.” added) Peters, sis U.S. 339 v. 6. South 641, 834. 94 L.Ed. S.Ct. Moreover, as Solicitor General Cox 916, 72 Remmey Smith, 342 U.S. v. 7. page on states 13 in the brief for the 368, 685. L.Ed. 96 S.Ct. United States as amicus curiae submit- 912, Jordan, Supreme U.S. 343 ted Baker Carr v. v. before Anderson the 648, L.Ed. Court: 96 72 S.Ct. homa, aff’d L.Ed.2d Wallace, District follows: limitations Court In clear primarily adhering to ers eral with tricting. within come basic asmuch cations “ 1957, -» Radford majority * decision doctrine, 1956, Judiciary ' embroiled 540, in a ^[*] * * federal Congress, federal itsof » matter of 352 concerned A control 145 Congress possessed the [A] U.S. v. own complete pass was not United States Judge, government, government, F.Supp. Colegrove in such Gary, D.C.W.D.Okla- separation of careful members, 991, dissenting opinion, congressional dis- desired co-equal makes with another branch pointed 77 going remedy controversy. 541, reading of Court v. S.Ct. faithfully to defer the Fed- to Green, branch qualifi- 545-546, amply pow- 559, deal law be- in- the 1 pra, Barrett, 1946, 973, decision cerning problem opinion Representatives, plied portionment. to that Article that section nor the Constitution sional stitution representation such exclusive and the of a * Subsequent (Brief “3. the United Congress 91 L.Ed. to the substantial stated: apportionment. In No. motion >t appeal state gives any event, Colegrove Green, to state I, to secure fair significantly Section malapportionment in state Colegrove is dismissed That States exclusive should not be any dismiss is federal gives Congress in a opinion v. 4, the legislatures.” But neither 804, of the Con- v. regard authority per plurality question. different congres- Green, granted part malap- stated want curiam con- ap- to su-

747 ** contrary, In cases in a number of On the it has legislative apportionments passed apportion- have been sub- merits of jected statutory systems attack, courts or in several cases and juris- granted definitely has Thus, district courts assumed relief in of them. some constitutionality Smiley Holm, diction to determine 795], of such state 355 [52 enactments. 76 L.Ed. existing the Court held that D.C.N.D.Ill., MacDougall Green, In Minnesota of United E.D., 1948, F.Supp. 725, aff’d Representatives not meet did 335 statutory U.S. requirements because complaint, court considered the governor approve had refused Findings Fact and Conclusions filed bill, accordingly, Court or- of the con of Law relative to issues election-at-large. dered nominating peti stitutionality of state apportion- Court also held a state pro requirements, and held that the (the governor ment law had invalid repugnant or violative visions it) vetoed at-large ordered an election- provision United States Becker, in Carroll v. Constitution. 76 L.Ed. [52 S.Ct. Peters, D.C.N.D.Ga., In South v. Koenig Flynn, And in 807]. F.Supp. 672, aff’d [52 statutory 805], the affirmed a decision held a trial at which evidence was holding that, of a state court Findings presented and made and filed districting absence a valid statute and Conclusions of Law deter- Fact governor (the approved had not mining that was no constitutional there legislature) resolution of the state violation. Represen- conform to the increase D.C.E.D.Pa., Remmey Smith, tatives allotted to a state Con- gress, Representatives aff’d the additional large.” a (Brief U.S. statutory be must elected at involving court, 103) in matter a No. Act, Pennsylvania Apportionment de- the The recent decision in Gomillion v. ground upon that act the the clined to Lightfoot, 1960, brought, prematurely did not suit was 5 L.Ed.2d involved a clear-cut jurisdiction lack because of of dismiss assumption jurisdiction ap- in a state equity. but for want portionment case. While determi- upon nation was Magraw Donovan, based D.C.D.Minn., the Fifteenth In Amendment, F.Supp. 901, reasonable Devitt, inference is District that the court question intended Judge, to indicate that held that the in the validity it would test the appor- validity of a Minnesota re by any applicable districting tionment jurisdic federal con- act was within the provision. step stitutional It assumed of the court. should also noted tion although the court is three-judge to consider. court, This the does that depend upon equitable convened, pending whether when deferred action in- eventually tervention upon legislative adjustment, ensues or that court the- re result reached on Magraw juris- the jurisdiction merits after tained case. diction is Donovan, D.C.D.Minn., 1958, entertained. 163 F. Supp. The recent action granting reargument Court “has never Court in held in the Oc apportionment necessarily cases tober 1961 Term of the case of Baker non-justiciable questions.” Carr, 1961, raise As So- v. 81 points 1082, involving licitor General Cox legis a Tennessee state brief for the apportionment, United as amicus lative ap indicates page curiae in Baker parent Carr at 24: policy. continuation of this (For right Carr, afforded see should be vote Baker v. below decision the D.C., pos- F.Supp. protection fullest federal and extent, (2) protection fail- sible and 824.) concerns v. Carr Baker comply principally form of should. take the of a state ure and, (Brief requirement court action.” No. a state questions involved

hence, the short, foregoing, view the at bar. in the case issues equivalent to the appears conclusion inevitable that basic petitioners seek There, the enforcement subject matter exists. here, plaintiffs provision; a state We, deny therefore, dis- the motion to bar seek enforcement. jurisdiction. miss lack of because of curiae amicus General’s In the Solicitor QUESTION OF OF SUFFICIENCY mentioned, 32-33), (pp. heretofore brief COMPLAINT Civil .pertinently on the he comments' purpose fol- Facts which Rights 1957 and Acts of we must consider as this determination lows: following: admitted include Congress, “The enactment Colegrove decision, since 1. The New York Constitution- Rights statutory provisions Acts of 1957 and in reference Civil al and af 74 Stat. also 71 Stat. of State Senators plurality Assemblymen reliance in fects the which are set forth as ex- exclusively complaint. on the hibits process. The of the election nature popula- citizen The fact Rights Act included 1957 Civil districts varies senatorial tion conferring expressly juris provision Thirty- 146,666 in as low as diction district (Counties District Ninth Senatorial equita courts of actions ‘to secure high Saratoga Warren) Essex, to as or other relief under Act ble Twenty-Sixth 344,547 in Congress providing pro for the (located Twenty-Ninth Districts rights, including of civil tection right ike (See County). III Exhibits Bronx 1343(4) to vote.’ 28 U.S.C. complaint) attached IV added). Congress (emphasis there popula- fact that citizen 3. The that, view, ques made clear assembly districts varies involving ‘political’ rights, tions ‘in 14,066 (Schuyler low as from as Coun- cluding vote,’ ‘meet ty) 17,461 (Yates County) to as judicial for determination.’ Cf. high 115,000 County. (See in Bronx Colegrove Green, supra, III and Exhibits IV attached com- to at [66 90 L.Ed. plaint) specifically Act 1432]. au results, perhaps That similar 4. thorized the federal courts to con greater spread, likely will be somewhat registration applications for sider apportion- occur as a result the voting under certain circum for stances, in 1962 based the 1960 cen- ju complete so as to afford I, (See II Exhibits and attached sus. V against protection discrimina dicial complaint) 90 [42 Stat. U.S.C.A. tion. 74 § general, that the senatorial In dis- 5. Congress thereby empha 1971]. assembly districts of certain and tricts again, sized, pol once the national greater a areas contain citizen urban population relying icy Judiciary on the the districts in than so-called organ through which the areas. rural fully is to be made effective. to vote express no failure of That Acts intent Both of Con 6. comply gress with the constitution state is and the national consensus only disagreement malap- that, the so-called whatever claimed assembly (1) portionment of senatorial rights, to other civil exist as (See minutes than City, is involved. those in districts here New York with 54.0% 32-33) 1961, pp. population, of November of the to- have 56.7% assembly tal of the senate 56.9% ju- may take I that this court believe seats. facts, dicial notice of certain additional 5. The courts of the State of New as follows: approved York present meth- The revised Constitution 1. apportionment. ods of Matter of Sher- containing present apportionment rill O’Brien, 1907, 188 N.Y. provisions on the voters was submitted to 124; N.E. Fay, 1943, Matter of by approved 1894 and was November 97; N.Y. 52 N.E.2d see Mat- also legis- 327,402; 410,697 a vote ter Dowling, 1915, 219 N.Y. approved lative N.E. 545. Legis- 350,625. 404,335 See vote no There is authoritative indication 1961-1962, Manual, York lative New weight that the relative accorded individ- page 7, 1916, 289. On November on legis- ual votes in elections for .the state to revise vote the Constitution and pursuant lature, applicable provi- same, 506,563 amend vote was Constitution, sions pro- of the State is 658,269 against. for Id. at 292. On equal tected protection clause of 5, 1957, November vote a conven- fact, Fourteenth Amendment. In tion to revise Constitution and amend contrary seems true. Section 5 of the 1,242,568 1,368,063 the same was against. for and provides: Fourteenth Amendment Id. at 309. Congress enforce, by shall have every appor practically state 2. appropriate legislation, provisions “over-representation” results tionment Obviously this article.” the enforcement Reap (See populated areas. least prohibitions of the evident Four- Legislatures by portionments of State teenth Amendment is no invasion of Lashley Harvey, 17 Law & Contem G. sovereignty, state people since the porary Problems National states have powered Congress the Constitution so em- Leg League, Compendium Municipal parte to act. Ex Vir- Apportionment (1st 1960)). islative Ed. ginia, 1879, The State of New York divided 676. is extending counties from into 62 Suffolk assert, however, To County Chautauqua County, westward to Fourteenth Amendment was intended to County Richmond the south to give Congress or the federal courts con Lawrence, Saint Franklin and Clinton provisions trol of the along Counties the St. River Lawrence apportionment of for the districts for the border, Canadian with a total legislators beyond election of the state square 49,576 miles, area of with a varie- apparently reasonable belief. There is ty agricultural, industrial and other express implied incorporation no economic interests. power. exists, certainly If it such City population with a New York never been has exercised. Consideration 7,781,984 pop- of existing or of state’s of the 46.0% constitutions and 16,782,304, assembly- of has 65 ulation adop statutes force at the time of the assembly, of total men or and tion the Fourteenth of 43.3% Amendment cre or of the num- 25 senators total respect any ates formidable doubt with 43.1% to senators, ber of while counties other such intent.3 Wood, People 1892, 617, connection, N.Y. 3. In this Mr. Justice Edwards 243; Clark, 1892, Hare, 1960, N.E. Field v. 1, in Scholle v. 360 Mich. 649, 495, 294; part: 63, 12 S.Ct. N.W.2d stated v. John Hancock Stawski Mutual Life “Of the 37 States the union in Co., provisions Misc.2d Ins. 163 N.Y.S. 9 had constitutional for elec- 155; People Snyder, 1869, representatives 2d N.Y. to at of least 1 of Taylor City 397; Plains, legislatures of White their the houses of which Sup., representation constitutionally 135 N.Y.S.2d 773. on based county repre- tion condemned the Constitution of basis The historical (such for the Nineteenth the Fifteenth and in brief forth was set sentation thought Amendments).4 re- ex- This was curiae amicus United States pressed by in Minor the Octo- Chief Waite Justice argument Carr at Baker of Happersett, 1874, Wall. Term ber 1961 he 22 L.Ed. when words: these wrote: *** Historically, claim “ * * * repre- [Ajfter adoption to political subdivisions amendment, fourteenth been has regardless of size sentation necessary adopt right was departing deemed to important reason fifteenth, apportion- as follows: ‘The rule of strict from Early citizens of the United States to vote according population. to abridged county not shall be denied or history or town in our gov- States, any State, the United or unit a dominant often was assembly race, color, previous on account of or ernment, colonial condition servitude/ The four- the State later already teenth pro- amendment had representatives composed of vided that no State should the town make or it was Since entities. these enforce abridge being represent- law which should county that was or privileges very sense, immunities real ed, ain of citizens of the United If natural States. directly, it was people suffrage rep- privileges was one of these guarantee one at least unit each why immunities, one, amend the Con- and sometimes resentative prevent being legis- stitution to denied both, the branches race, Nothing on account of provisions &c? are still Such lature. greater more twenty- evident than that the constitutions found ”* less, must 28-29, include (pp. and if all were States. seven already protected go why through 6)No. Brief with the amending form of the Con- did Amendment The Fourteenth protect stitution part?” attempt in did not invest and Minor held The case in effect legislate Congress vest suffrage limitation male citizens subjects do within the which are not a violation of the Fourteenth legislation. Rahrer, In re main of state Amendment. 554-555, 11 S.Ct. 140 U.S. states broad Fifteenth powers together un determine conditions pro the Nineteenth Amendment suffrage rights be vide that der which of citizens of discrimina- United States to absence vote exercised shall not denied

New Maryland, South Carolina and Novada. tutionally were 13 additional Alaska, Hawaii, ion. described stitutions [p. Ill] “Between “Of popular any pretense of Vermont, Hampshire, approved [p. 113] 13 allocated (for representation. ^[*] States States whose Constitutions Rhode for the States of New Idaho, Montana, admission, ^[*] guarantee districts representation Island, Connecticut, Jersey, entered present These ^{[*] [*]} with consti- 8 such Con- Delaware, Arizona, equality with- time, ^{[*] [*]} New Un- 4. Lassiter v. 5S.Ct. Mexico, Oklahoma, Utah,) lative Ed. 64 S.Ct. United U.S. categories United States provisions Elections, 1959, 336 U.S. D.C.D.Ala., 1949, (pp. 113-114) 987, rehearing denied, 3 L.Ed.2d 542, house 926, States, 1915, 933, 1052, 23 L.Ed. for election of at least 1 Northampton County 59 L.Ed. 1340. 69 S.Ct. disproportion 88 L.Ed. v. 81 Cruikshank, 1876, 588; fell into 1 of the 3 Smith v. F.Supp. 872, affi’d, 749, 238 U.S. Davis v. 1594; 93 L.Ed. 1093. * Allwright, See also contained v. Guinn 347, Schnell, * Bd. of 88 L. legis- 92 3

75X by Ga., 1946, abridged by F.Supp. or Turman States 68 624 and the United color, pre- race, Duckworth, D.C.N.D.Ga., 1946, v. F. 68 state account of Supp. system), “In (county appeals or sex. 744 unit condition of servitude vious dismissed, fact, very 675, Amend- Fortson, of the Cook v. 329 U.S. command recognizes MacDougall 21, 596; 67 S.Ct. e., 91 v. Fifteenth] L.Ed. [i. ment by power Green, general D.C.N.D.Ill., 1948, F.Supp. possession 80 725 reg- (requirements signatures State, quali seeks to of 200 since particular fied voters from each of at as least 50 coun ulate exercise * * * subject prerequisite ties as a deals. for with which it nomination for change, office), 1948, 281, mod- aff’d, not state amendment does 335 U.S. [T]he 1, 3; deprive full ify, Peters, their 69 S.Ct. 93 the states L.Ed. South v. course, suffrage D.C.N.D.Ga., 1950, except, F.Supp. (coun power as to 89 672 ty rule), subject aff’d, 1950, 276, the Amend- unit to the with which 339 U.S. 641, (“Relief S.Ct. deals and to the extent obe- 70 94 834 necessary.” prayed peti is its command die'nce denied 1915, States, dismissed.’); Remmey Smith, 238 U.S. tion be v. United Guinn v. 930, 926, D.C.E.D.Pa., 347, 362, F.Supp. 59 L.Ed. 1951,102 (com 35 S.Ct. 708 Williams, 1904, Pope plaint malapportionment legis v. See also 1340. state — 573, districts), 621, appeal dismissed, 48 L.Ed. 817. 1952, lative 24 S.Ct. 193 U.S. suffrage right 916, 368, not inherent 342 U.S. 72 S.Ct. 96 L.Ed. 685 (lack citizenship, natural and in- question); of a nor is it a substantial federal by right. McCanless, 1956, restrained 273, Kidd v. Unless alienable 200 Tenn. legislature limitations, (malapportionment 292 S.W.2d 40 suffrage right may lawfully districts), appeal confer state dis missed, portions 1956, upon 920, citizens of the 223, such 352 U.S. 77 S.Ct. States, expedient, 157; deem Gary, as it 1 L.Ed.2d United Radford v. D.C. may deny 1956, W.D.Okla., (state to others. Unit- 145 541 legislature Miller, 1901, D.C.D.Ind., legis 107 States v. ed of state Reese, districts), 1957, United States v. lative 991, F. 913. See also aff’d 352 U.S. 1875, 214, 559, 540; 92 U.S. 23 L.Ed. 563. 1 77 L.Ed.2d Matthews Handley, D.C.N.D.Ind., 1959, F. Fourteenth, Fifteenth and Nine Supp. (attempt to have federal court designed Amendments not were teenth abrogate declare a state revenue unconstitutional Amendment, the Tenth by because enacted a state delegated powers to the states: apportioned which districts by Constitution, States nor United required by constitution), aff’d, by States, prohibited it to the re 1959, 127, U.S. 80 S.Ct. 4 L.Ed. respectively, served States or to 2d 180. people,” except to the extent reason ably authority indicated restrictions supports of such Substantial thus subsequent Siegel position amendments. Ra present taken statu Cir., 1950, tory gen, MacDougall 180 F.2d cert. court. Green, de nied, 94 L. 93 L.Ed. rehearing denied, per opinion, in a Ed. majority U.S. curiam See United Court stated: Butler, 1936, “ * * *- y0 politi- assume that 477; Gordon v. Unit cal is a exclusively function States, ed Collector disregard numbers is to prac- Day, 1870, Wall. government. ticalities Thus, the 20 L.Ed. protects Constitution the interests of against greater The United States the smaller Court has adversely giving repeatedly acted entirely unequal claims Senate involving complaints representation populations. similar to the one It Fortson, strange this ease. indeed, Cook v. would be D.C.N.D. and doc- populated able to the litical fact that on the States. cal initiative concentrated ernment—makes no such opportunities for tion—a to assure a due trinaife, such broad laws, process and weight practical counties proper constitutional former. The Constitu- deny masses, as between at the latter Colegrove Green, equal instrument of exerting a State diffusion Court, applying polls in view of protection of those concepts not their practical demands having politi- thinly avail- gov- po- icy, forbidding weight, vote. shall made and the manner of any general shall be question of territorial smaller units of “We therefore ^[*****] unequal voting power .be * * * people. but rather the equalized in which courts of is to or constitutional subdivisions conducting discouraging Whether subdivisions [p. say, unequal population cannot is matter 679] how is a voting closely say an election in principle for each there fixing is they pol- use by is may up meddle L.Ed. to set own U.S. their 328 1432, * * * Barrett, [p. ideas. 679-680] ***** 283-284, 69 S.Ct. 1262.” 335 U.S. at “The federal Constitution does right (Emphasis added) (Nominating at 3 take from the States their procedures.) up set organiza- their own internal prescribe tion and manner Broom, 1932, Cf. Wood v. ” * * * 680) (p. elections. Justices where Biggs, Brandéis, Stone, Judge, three-judge Circuit Roberts and for a Cardozo Remmey court Smith, supra in decree de- clared : equity” should be dismissed “for want of “ * * * (congressional involved).5 districts A if a court fortiori of the United States should not Opinions by previous three-judge compel Legislature a State to ef- agreement courts with this court. reapportionment fect a relative per In a majority opinion curiam representative the national elective Peters, D.C.N.D.Ga.1950, South v. Supp. 672, 89 F. system, it respect should not do so in court stated: apportionment system to an whereby proposition “Plaintiff’s Representatives legisla- in States County only one Fulton has vote tures are to be chosen. An action tenth would have the force that it such as that at bar strike at county but for the unit rule of very system heart of our dual Primary unjust Act, Neill which is government under which the Unit- strong undemocratic, ap- has ed States and the States must re- peal, but it is not a matter for this sovereign main spheres. in their question to decide. Our is * * *» (p. 710) primarily whether Con- concurring opinion by (cid:127) Bard, In a Dis- thereby. stitution is violated Judge, case, in the same trict it was general, that Constitution is not stated: peo- committed to elections ple right territory over the whole affected free and untrammeled every suffrage given equal privilege vote will have is not Holmes, equal Judge, tliree-judge protection District on a clause court, dissenting Wood, inap- in Broom v. Fourteenth D.C. S.D.Miss., F.Supp. 134, statutory plicable. No whose position gives any provision effect sustained elector numerically equal United States in Wood in a district vote Broom, supra: every congressional inhabitants ” * * * (1 F.Supp. at district. connection, be I have Amendments dismissed. In by this Article ”* * * separately not considered the affidavits Federal Constitution. to the 711) plaintiffs, submitted I have since (p. may concluded deter- that be the motion in Wisconsin Court The upon complaint (including mined ex- Zimmerman, ex Thomson rel. attached) hibits alone. N.W.2d 264 Wis. provid- EQUITY WANT OF statute AND WANT OF held that a N.W.2d figured ing at JUSTICIABILITY that area shall be 30% establishing population in at 70% insufficiency If the of the com entitled the 33 districts each of which is plaint adequate require be not to dismis representative senate state to a is, complaint, sal of the as I it believe protec- equal deprive did not citizens of equity then the want relief contrary Four- tion to the of the laws sought, or, differently, slightly to view it teenth federal Con- Amendment of the justieiábility, clearly want of demands it lies with stitution. “We consider that dismissal. people determine the state to State, already In New York enun- upon legislative basis which districts ciated, legislative present system will be established and their apportionment, may whatever its mer- be final.” its, has been in a con- imbedded state charge approved stitution of New plaintiffs has been the State systematic referendum of “purposeful and the voters who sub- with a have York plan” sequently against certain voted to retain constitution discriminate persons. adopted in which the geographic classes of method is contained. areas and legislative However, wholly the The complaint) (Par. acts are in accord 17 of general with require- en with constitutional rule is reference ments. that bodies all actments of excep cannot, certain with courts may whatever manner we view inquire tions, motives of into the basis of Justice Frankfurter’s admoni- Hing Crowley, legislators. Soon tion in Green, supra, that. 703, 710, ought “Courts political not to enter this good knowledge faith of 1145. thicket,” proposed unprecedented question. open legislature are a direction a of the state legis conclusively presumed It is provisions respect to- knowledge, acts full lature good legislative apportionments síate would Des United States v. faith.” far-reaching initiate a revision fed- Ry. Company, Nav. & Moines relationships. eral-state Efforts to con- 308, 317, 510, 544, 12 trol the basic law of the states in such Sonzinsky v. United See also matters impose imponderable would States, 506, 513, 1937, 300 U.S. upon burden nearly the federal courts in McGowan State all of the states of this union. The in- Maryland, impracticabilities herent of such a course- 6 L.Ed.2d 393. demonstrate the ticiability jus- want procedure. in such a therefore, I, complaint find state a claim which relief Whether the fails granted accordingly, disposing can must be United Baker v. Anthony Apportion only system (Legislative representation. Lewis based Courts, entirely population, regard and the Federal without Harv.L. 1057, April proportional geography, stated: would be one Rev. has popula- Representation representation. interests than based on important equal may devising sys- approximately popu- districts representation. geo- example, For accommodate tends both tem lation graphic geographic interests.” areas and numerical inter- suggest their use units of ests 754 pear reargued now supra, recently Carr, to hold that do have courts federal jurisdiction judice, Tennessee that the to sub will decide rule on Constitutional provi- propriety legislative apportion- under constitutional of voters federal state right enforce- jurisdiction ment but that sions have this should only constitu- be state exercised the Tennessee most com- of under the yet pelling apportionment provisions, is tional circumstances. question involves That to be determined. scope com The breadth plan. specific case This effectuation of a support ex pelling reasons which would with the enforce- involves interference jurisdiction been have not ercise of this specifically provisions state ment of n v. Gomillio defined but consequential ill- but

as well some Lightfoot, supervision formation and defined (1960), to car seems 5 110 L.Ed.2d plan. enactment of a substitute attempt ry implication that an teachings abridge operate decisions of The or state the vote against any Court show that want of par effectively discriminate justiciability through fixing the dismissal demands group ticular class believe, factors, legis I this suit. These boundaries or internal revealed decisional rationale lie within election districts lative will complaint cases dis- compelling this area Apparent circumstances. missed “want because of of a sub- patent of the 15th violation question” stantial federal specific or because in or of Amendment junction Colegrove equity.” “want v. See .would then of the Constitution Green, supra; Colegrove Barrett, v. su- propriety action lift the of state ; MacDougall pra Green, supra; v. South political sphere. the so-called Peters, supra; Remmey Smith, v. pra. su- no claim There is here that the made apportionment formula us or the before Thus, equity and'justiciability want of apply laws enacted to it effect a discrim- sought. demand denial of the relief against any particular ination racial or foregoing, view the it is unneces- religious group. complaint is that sary pass upon the motion to gives dismiss the method rise plaintiff W.M.C.A., solely Inc. purely geographi- to territorial or ground standing. of lack of grossly cal discrimination which dilutes urban complaint vote of dwellers. Judicial in- is dismissed. terference federal courts with the Judge po- (concurring). state to internal RYAN, create District geographical litical or boundaries affect- Judge I with LEVET and the concur ing suffrage sup- can not be reached conclusions he has ported mere territorial discrimination jurisdiction has to entertain this nothing more. complaint that the should be dis- suit and on its merits. missed Court, possessing jurisdic- This while Although authority argu- tion, undisputed there is on the facts before us federal courts lack ment that should not interfere in what Mr. Justice legisla- propriety pass on the “po- Frankfurter has characterized as a Colegrove apportionment, Green, Judge tive I litical thicket”. concur exercising jurisdiction 66 90 L.Ed. LEVET in and in subsequent (1946), dismissing ap- complaint. 1432 decisions1 744; Duckworth, F.Supp. 68 Thurman dismissed 1 appeal 540; Gary, D.C., dismissed 329 U.S. Radford L.Ed.2d 596; Peters, F.Supp. South v. aff’d 352 U.S. 77 S. F.Supp. 540; Magraw aff’d Ct. L.Ed.2d McCanless, D.C., Donovan, Kidd v. 40, appeal 200 Tenn. S.W.2d Judge (con- litigation WATERMAN, this or similar future Circuit event should curring). v. Green controlling authority, cease to be denying the com- relief to concur I appropriate do for me to I not think it plainants. express any reference to views with majority must follow the I believe we present appor- whether Colegrove Green, in result vio- tionment of New York the State (1946). lates the Fourteenth adopting deny Whether we relief United States Constitution. labeled who rationale of the three Justices Therefore, plaintiffs inasmuch as the “political ques matters have failed which to state a claim by adopting Mr. Justice tions” or my granted, relief can concur with I Rutledge thought should who the Court colleagues dismissing complaint. jurisdiction, decline to its exercise present same case is the the result complaint without

—a dismissal of the

reaching issues the merits because adjudication.” Frank

are “not meet for Lightfoot, furter, J., in Gomillion v. 5 L.Ed.2d (1960), explaining in Cole the decision

grove v. Green. having colleagues My deny relief after POSTER, Petitioner, Jerome I do taken of the case. directly them, quarrel but because Murray DIAMOND, M.D., Medical Of- A. litigation justiciable this I believe Charge, ficer Health U. S. Public point appropriate it I think Hospital, Lexington, Kentucky, Service Frankfurter of Mr. admonition Justice Respondent. “jurisdiction” him in relative to stated Colegrove. United States District Court Kentucky, E. D. “We are of the Lexington. petitioners Court what is ask of this March grant. beyond competence of those demands on

This is one

judicial power cannot be met fencing ‘jurisdic-

by verbal about must be resolved con-

tion.’ It this

siderations the basis of which time,

Court, has refused from time to It has

to intervene controversies. regard so because due refused to do working of our for the effective Gov- this issue to be of revealed

ernment peculiarly nature judicial for de- not meet

therefore

termination.” recognizes Judge LEVET also

Colegrove may require us to dismiss this justiciability. lack of I concur

case part opinion. I cannot con- his in this however, opinion, full for I his cur unnecessary and undesirable at think justiciability pass on time to

Case Details

Case Name: W. M. C. A., Inc. v. Simon

Court Name: District Court, S.D. New York

Date Published: Jan 11, 1962

Citation: 202 F. Supp. 741

Court Abbreviation: S.D.N.Y.