Moody v. Flowers

256 F. Supp. 195, 1966 U.S. Dist. LEXIS 9890

• Court: District Court, M.D. Alabama
• Decided: June 14, 1966
• Docket: Civ. A. 860, 693
• Status: Published

Opinions

LYNNE, District Judge.

Consolidated for purpose of trial, these actions involve common questions of law and fact. Positing jurisdiction upon the provisions of 42 U.S.C.A. §§ 1983 and 1988 and 28 U.S.C.A. § 1343 (3) each complaint seeks judicial intervention in the internal political affairs of a county.

No. 860-S (Houston County, Alabama)

The relevant facts may be severely capsulated. Houston County is divided into fourteen election precincts, commonly referred to as “Beats.” Its Board of Revenue and Control (Board) consists of five members, each elected by the qualified electors of the district of which he is a resident. In tabular form the five districts are described as follows:

District No. 1, comprising Beats 1, 2 and 4, contains 1,224 electors;

District No. 2, comprising Beats 5, 6, 7 and 11, contains 1,722 electors;

District No. 3, comprising Beats 10, 12 and 14, contains 1,450 electors;

District No. 4, comprising Beats 8, 9, and 13 contains 1,368 electors;

District No. 5, comprising Beat 3 (the City of Dothan), contains 9,046 electors.

According to the 1960 census the total population of Houston County was 50,718 and that of the City of Dothan was 31,440, or about 61% of the total. While an exact head count is not available, it may be inferred that the population of Districts 1, 2, 3 and 4 approximates the ratio of its qualified electors to the total population of the county, less that of the City of Dothan, as compared with the ratio of qualified electors within such city to its known population.

The above-described division of the county into districts and apportionment of membership of the Board resulted from the enactment of Act No. 9 of the 1957 Regular Session of the Legislature of Alabama (Acts of Alabama, Reg.Sess. 1957, No. 9, p. 30), effective May 24,. 1957. Its constitutionality when tested by the equal protection clause of the fourteenth amendment is attacked by plaintiffs.

From official records it appears that the total assessed value of property within the county for ad valorem tax purposes is $30,621,030, of which amount property within the City of Dothan accounts for $21,217,120. There being no substantial evidence of hostile treatment of the City of Dothan by the Board, the facts suggest but one arguable contention of proscribed discrimination. Sixty-one per cent of the population of the county, owning 69% of the assessed value of the property therein, are represented by only one of five Board members and therefore have only a 20% voice in the levying of taxes and the expenditure of monies collected therefrom by the county.¹

No. 693-E (Randolph County, Alabama)

Randolph County is divided into fourteen election precincts (Beats). Its Court of County Commissioners consists of four members, each elected by the qualified electors of the district of which he is a resident. The four districts are described as follows:

District No. 1, comprising Beats 1, 6 and 14, having a population of approximately 3,800;

District No. 2, comprising Beats 2, 3, 7 and 13, having a population of approximately 2,350;

District No. 3, comprising Beats 4, 5 and 11, having a population of approximately 4,300;

District No. 4, in which the City of Roanoke is situated, comprising Beats 8, 9, 10 and 12, having a population of approximately 9,500.

This division of the county into districts and apportionment of membership of the court resulted from interplay of the provisions of Acts Nos. 299 and 300 of the Regular Session of the Legislature of Alabama, each effective August 10, 1965. When Act No. 299 was ratified by a county-wide referendum on November 30, 1965, Act No. 300 became operative.

From official records it appears that the total assessed value of property within the county for ad valorem taxes is $15,539,840, of which amount property situated within District No. 4 accounts for $9,984,590. The only possible constitutional argument which plaintiffs can muster is that because, after the general election in November, 1966, the residents of District No. 4, constituting 49% of the total population and owning 64% of the total assessed value of property in the county, will have only a 29% voice in the levying of taxes and the expenditure of monies collected therefrom by the county,² the acts producing this result are violative of the equal protection clause of the fourteenth amendment.

The prayers of plaintiffs for ultimate relief in these two cases are identical: (1) that the underlying acts of the Alabama Legislature be declared unconstitutional; (2) that it be required that the members of board and court be elected at large by the votes of all qualified electors within the county, or (3) that the elective districts by judicial fiat be reapportioned on the basis of population.

In the final analysis, plaintiffs are forced to fall back upon the argument that a purely mechanical application of the “one person, one vote” apothegm of Gray v. Sanders ³ to non-sovereign political subdivisions of a state is required by the equal protection clause of the fourteenth amendment. No opinion of the Supreme Court has suggested such a basis for judicial intervention in a state’s gébgraphical distribution of electoral strength among its political subdivisions.⁴ On the contrary, militating against such an openhanded approach is the reasoning of Mr. Chief Justice Warren in Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964):

“Political subdivisions of States — . counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151, these governmental units are ‘created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them,’ and the ‘number, nature, and duration of the powers conferred upon [them] * * * and the territory over which they shall be exercised rests in the absolute discretion of the state.’ ” (Emphasis addéd.)

As we read Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny, to justify judicial penetration of the “political thicket,” there must co-exist a serious wrong, as for example the long-continued failure of a legislature through inertia, apathy, or willful refusal to reapportion itself in obedience to the mandate of the state law,⁵ the whimsical relocation of the boundary lines of a local government for the obvious purpose of depriving Negroes of their right to vote,⁶ or the absence of a political remedy resulting from the “stranglehold” of a minority on the legislative processes.⁷

The numerical imbalance demonstrated by simple statistics falls far short of proving invidious discrimination. The Houston County Board, as presently constituted, has been in existence for less than ten years, and the Randolph County Court, under the acts complained of, will not come into being until after the general election in November of this year. Neither has the power to reapportion itself. The Legislature of Alabama, which alone has the power to redistriet these counties, has never been advised by any definitive mandate that it has a duty to do so.

Moreover, of equal if not greater importance, in the Houston County case the plaintiffs and the urban voters they represent have a clearly available political remedy. Surely the 61% of the qualified electors of Houston County who reside within the City of Dothan have the power at the ballot box to elect representatives to the state legislature and through them, under the prevailing rule of local courtesy, obtain the desired redistricting.

It is our considered opinion that so long as the people of a state are afforded equal protection by true equality of representation in the state legislature the courts ought not to interfere with county governments of limited, as distinguished from general, power, and which have been created by the legislature as involuntary political subdivisions of the state.⁸ This is especially true where such governments are not granted the power to reapportion themselves,

When the Alabama Legislature shall have been constitutionally reapportioned in conformity with the standards explicated in Sims v. Frink,⁹ to it may safely be committed the decision as to whether all county governments should be apportioned strictly according to population or whether in some counties, including these two, there exists “a rational justification” for some other form of districting.¹⁰

It is not for us to forecast the likelihood that the Supreme Court will ultimately extend the principles of Reynolds v. Sims, supra, to the tens of thousands of subordinate political units of the states to which have been delegated some power to which the label “legislative” may be attached. Some courts have essayed to do so,¹¹ while others have been content to await the development of judicial standards in this comparatively uncharted area of constitutional law.¹² A warning to make haste slowly may be read into refusal by the Supreme Court on two occasions to consider cases involving the contention that the federal constitution requires local governmental bodies below the state level be apportioned on a population basis.¹³

An analysis of the powers delegated to courts of county. commissioners in Alabama for the purpose of affixing the labels, “judicial,” “executive,” “legislative,” “administrative” and “ministerial” would be a profitless exercise in semantics. In broad summary, the legislative power of such courts may be described as (1) granted by the legislature; (2) quasi-legislative in the sense that it has less than the power to make fundamental law; (3) limited in scope to, and operating within, only the areas authorized by the legislature for county action; (4) exercised by a body vested with judicial power; (5) neither administrative nor executive nor judicial.¹⁴

It is our firm opinion that the limits imposed by the Alabama constitution on the delegation of power by the state legislature prevent such courts from having or exercising the qualitative or quantitative legislative power which is significant under Baker v. Carr. Section 44 thereof vests legislative power in the legislature and the constitutional power to make laws may not be delegated.¹⁵

We therefore conclude that plaintiffs have been deprived of no rights under ■ the prevailing rationale of pertinent Supreme Court opinions, epitomized by Mr. Justice Black as follows: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” (Emphasis added.)¹⁶ Accordingly, an order will be entered dismissing each of these actions without prejudice.

1 . An Alabama county has no inherent power to tax. It can impose only such tax, on such subject, under such circumstances, and within such rate as the state authorizes.

The ad valorem tax on property, available for payment of general county expenses, is prescribed by section 215 of the Alabama constitution, and the maximum rate is there set. Ala.Code tit. 51, § 71 (1940) (Recomp.1958) directs the board to levy this tax and for what purposes and on what property valuations. The language is mandatory and the levy is part of a detailed statutory scheme for valuation assessments, appeals therefrom, and assessment of escapes. Failure of the board to levy could be the subject of mandamus. Slaughter v. Mobile County, 73 Ala. 134 (1882).

With respect to the levying of special taxes, the power of the board is severely limited by the Alabama constitution. Thus, amendment 208 provides that no county in Alabama is authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one per centum, except that for debt created for the erection of necessary public buildings, bridges, or roads, a county may levy and collect special taxes not to exceed one-fourth of one per centum. Amendment 202 provides for the levy of an educational tax and amendments 59 and 72 provide for the levy of hospital taxes only upon a vote of the people without regard to districts.

Ala.Code, tit. 12, § 130 (1940) (Re-comp.1958) provides that, out of the proceeds of any road tax levied by a county governing body, one-half of the money collected on property within the municipality must be paid to the municipality for use by it in maintaining its streets.

Finally, it is settled law in Alabama that the county’s authority to tax is derived from the legislature and may be withheld, withdrawn, or modified (subject to intervening contractual rights). Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487 (1948).

2 . See the discussion in note 1 supra.

3 . 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) .

4 . Prior to 1962, federal courts historically had refused to interfere with the arrangement of internal political subdivisions of the states. In South v. Peters, 339 U.S. 276, at 277, 70 S.Ot. 641, at 642, 94 L.Ed. 834 (1950), in a per curiam opinion, the Supreme Court stated:

“Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions [citing cases].”

5 . Burns v. Richardson, (U.S. 86 S.Ct. 1286, April 25, 1966) ; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.24 568 (1964) ; Maryland Comm. v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964) ; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964) ; Roman v. Simcock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964) ; Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964).

To the foregoing authorities dealing with legislative apportionment may be added Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (apportionment of congressional districts) and Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (county-unit system as applied in a statewide election).

6 . Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

7 . Cases cited in note 5, supra.

8 . Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 54 So.2d 442 (1951) ; Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938) ; Montgomery v. State, 228 Ala. 296, 153 So. 394 (1934) ; Askew v. Hale County, 54 Ala. 639 (1875).

9 . 208 F.Supp. 431 (M.D.Ala.1962).

10 . Baker v. Carr, 369 U.S. 186, 235, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

11 . Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945 (D.Md.1964) ; Simon v. Lafayette Parish Police Jury, 226 F.Supp. 301 (W.D.La.1964) ; Bianchi v. Griffing, 217 F.Supp. 166 (E.D.N.Y.1963) ; Brower v. Bronkenia, Cir. Ct. for Kent County, Michigan (Sept. 11, 1964) ; Seaman v. Fedourich, 45 Misc.2d 940, 258 N.Y.S.2d 152 (Sup.Ct.1965) ; Goldstein v. Rockefeller, 45 Misc.2d 778, 257 N.Y.S.2d 994 (Sup.Ct.1965) ; State ex rel. Sonneborn v. Sylvester, 25 Wis.2d 177, 130 N.W.2d 569 (1964).

12 . McMillan v. Wagner, 239 F.Supp. 32 (S.D.N.Y.1964) ; Johnson v. Genesee County, Michigan, 232 F.Supp. 567 (E.D.Mich.1964) ; Tedesco v. Board of Supervisors of Elections for the Parish of Orleans, 43 So.2d 514 (La.Ct.App.1949) ; Glass v. Hancock County Election Comm’n, 250 Miss. 40, 156 So.2d 825 (1963).

13 . Glass v. Hancock County Election Comm'n, 378 U.S. 558, 84 S.Ct. 1910, 12 L.Ed.2d 1035 (1964) (per curiam) ; Tedesco v. Board of Supervisors of Elections for the Parish of Orleans, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950) (per curiam).

14 . By Ala.Code, tit. 12, § 5 (1940) (Recomp.1958) the court of county commissioners is constituted a court of record. Sections 11 and 12 define its original jurisdiction and spell out many of its powers. Commingled are powers which may be characterized as judicial, executive and legislative. See State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166 So. 36 (1936) ; Tuscaloosa County v. Alabama Great Southern RR., 227 Ala. 428, 150 So. 328 (1933) ; State ex rel. Chilton County v. Butler, 225 Ala. 191, 142 So. 531 (1932) ; Askew v. Hale County, supra, note 8. In State ex rel. McIntyre v. McEachern the Supreme Court of Alabama described such court as an administrative body, as a court, and “sometimes it acts somewhat in a legislative capacity.” 231 Ala. at 612, 166 So. at 38.

15 . Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529 (1893).

16 . Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).