Avery v. Midland County

PETITIONER:Avery
RESPONDENT:Midland County
LOCATION:Telephone Booth

DOCKET NO.: 39
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Supreme Court of Texas

CITATION: 390 US 474 (1968)
ARGUED: Nov 14, 1967
DECIDED: Apr 01, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1967 in Avery v. Midland County

Earl Warren:

Number 39, Hank Avery, Petitioner, versus Midland County, Texas et al.

Mr. Olson

Lyndon L. Olson:

Mr. Chief Justice and may it please the Court.

This action is before the Court by writ of certiorari to the Supreme Court of Texas.

The question before the Court is whether the principle of one man, one vote as established in Reynolds versus Sims applies to the governing body of Midland County, Texas.

We respectfully submit that the function of the County Government in Texas and the facts in this case suggest that the question be answered in the affirmative.

Midland County, Texas is located in West Central Texas.

It’s approximately square in size, contains 900 acres, has 70,000 people —

Earl Warren:

900 acres?

Lyndon L. Olson:

900 square miles, I’m sorry, Your Honor, 900 square miles.

And it’s governed by a governing body that’s established by Article V, Section 18 of the Constitution of Texas.

This provision of the Constitution provides that the governing body shall consist of a county commissioners court composed of a county judge and four county commissioners, each county commissioner to be elected from a commissioners precinct and to be elected for a term of four years.

The county commissioner’s precincts are boundaries to the county commissioners precinct or established by the Commissioners Court.

The original county commissioners precincts were established in 1885 and in the late 1800s and the early 1900s, there we’re two or three minor changes made and no further changes were made in the boundaries of the county commissioners court until 1963.

Now in 1952, Mr. Hank Avery, the petitioner here and the plaintiff below, appeared before the county commissioners court of Midland County and pointed out to the Court at this time the disparity of population between the commissioner’s precincts and the county.

Mr. Avery pointed out that commissioner’s precinct won of which he was a resident, contained over 95% of the population of Midland County and elected only one member to the Commissioners Court.

That commissioners precincts numbers two, three, and four, contained less than 5% of the population of the county, and elected three members of the commissioners court.

And therefore, he did not have — the citizen did not have an equal voice in the Government, governing body of Midland County, and asked that county be redistributed in accordance with the population.

His request was denied.

In 1963, Mr. Avery filed a lawsuit in Midland County, Texas against the Commissioners Court to require the entry to District Midland County in accordance with substantial numerical quantity.

After this lawsuit was filed, the Commissioners Court held what they designate as public hearings in an attempt to resolve this issue and Mr. Avery appeared at these public hearings and presented a plan to the Commissioners Court whereby the county could be divided so that it would be equal in population.

Substantially equal insofar as miles of county roads, areas, taxable values, and so forth.

The proposition of Mr. Avery was rejected.

The Commissioners Court made only very slight changes in the commissioners precincts.

No substantial changes in an area or in population.

These changes were made in August 1963 effective January 1, 1964.

We filed an amended pleading after this action of the commissioners court and the case was tried in the spring of 1964.

Now, in the amended pleading, the amended pleading showed and proof substantiated in this case that Mr. Avery was a resident citizen of Precinct Number 1 of Midland County, a qualified voter and taxpayer.

It further showed that the county, Midland County, were divided into four commissioners precincts numbered one, two, three, and four, and at each elected one member to the Commissioners Court.

The pleadings and the proof further showed that over 95% of the population of Midland County elected one member of the Commissioners Court.

Lyndon L. Olson:

And that precincts number two, three, and four, which contained less than 5% of the population of the county, elected three members to the Commissioners Court.

It further showed that county judge even though elected by the citizens throughout the county, and was a presiding officer voted only in the event of the time.

The pleadings further set forth that this constituted invidious discrimination and denied to the petitioner here equal protection under the laws as guaranteed to him by the Fourteenth Amendment to United States Constitution.

The trial court in Midland found the above facts to be true and further found that the county knew this, the county governing body knew these facts to be true and if they could divide Midland County in accordance with population so that each commissioners precinct would have substantially the same number of people.

Then the Court order — the Court further found that its failure to do so constitute invidious discrimination, and ordered the County Commissioners Court of Midland County to redistrict Midland County in the commissioners precincts, so that each commissioners precinct would have substantially the same number of people.

After this order was entered by the trial court, an appeal was taken to the Court of Civil — by the respondents here in the appendix below to the Court of Civil Appeals at El Paso.

The Court of Civil Appeals at El Paso held that the Equal Protection Clause of the Fourteenth Amendment was not applicable to the governing body of Midland County and reversed and rendered the case.

We filed an application for a writ of error to the Supreme Court of Texas which was granted.

The Supreme Court of Texas reverse the Court of Civil Appeals and held that the action of the Commissioners Court of Midland County was arbitrary unreasonable and capricious.

It further held — it further reversed the trial court in part and held that there was no invidious discrimination.

It held that the Equal Protection Clause of the Fourteenth Amendment, the United States Constitution was not applicable to the County Government of Midland County, Texas.

The basis for this apparently was there was a variance between the condition of the people that live in rural areas and urban areas.

Potter Stewart:

I didn’t understand the — or maybe I misunderstood but I — it is not been my misunderstanding that the Supreme Court of Texas had held that that provision of the Federal Constitution is not applicable to Midland County, Texas but that provision of Constitution required was not what you said it required.

Lyndon L. Olson:

That’s correct, Your Honor.

I’ve probably stated that loosely —

Potter Stewart:

I thought you understand?

Lyndon L. Olson:

— an effort to cover background.

Supreme Court did not told if it was not applicable but said that the Equal Protection Clause of the Fourteenth Amendment did not require that the Midland County be divided equally insofar population is concerned.

The Supreme Court of Texas further held that this Court, the Supreme Court, did not have authority to redistrict Midland County that the trial court did not have authority to redistrict Midland County but that this authority was vested solely in the Commissioners Court and entered an order directing the trial court to enter an order based upon this judgment of the Supreme Court of Texas.

Byron R. White:

Well, could the Supreme Court of Texas specifically improve that a particular apportionment that was in effect?

Lyndon L. Olson:

No, sir

Byron R. White:

Did it say the existing apportionment was alright?

Lyndon L. Olson:

They held, Your Honor, specifically in regard to this matter of population that we disagree with the judgment of the trial court and its requirement that Midland County be redistricted in the commissioners precinct solely upon the basis of population.

Now, they held in that case that the Supreme Court of Texas be held that the rural residence of Midland County Texas had a different — stood in a different place in the county government than the urban residence of Midland County Texas.

And held that if the one vote — one man, one vote principle of Reynolds versus Sims were — was applied to Midland County Texas, the voice of the rural area would be lost.

And therefore, they held that they disagreed with the trial court in its finding that the one man, one vote principle applies.

William J. Brennan, Jr.:

Mr. Olson, what part do you think in the Supreme Court’s conclusion was played by what it says speaking of the commissioner and the body, its legislative functions are negligible and county government is not otherwise comparable with the legislature of the State or the Federal Congress.

And then later, that theoretically the Commissioners Court is the governing body, it represents all the residents both urban and suburban that developments during the year have greatly narrowed the scope of the functions of the Commissioners Court and limited major responsibilities in non-urban areas.

It has come to pass that the city government with its legislative executive and judicial branches is the major concern.

Would you believe that?

Lyndon L. Olson:

Well, if it please the Court, I do not agree with the statement of the Supreme Court of Texas and I’ll point out that to the Court —

William J. Brennan, Jr.:

You mean you don’t agree with the statement its legislative functions are negligible?

Lyndon L. Olson:

The course is hard to define what constitute legislative functions are hard for me to define.

What constitute legislative functions and what constitutes the administrative functions?

William J. Brennan, Jr.:

Well, this raises a nice question.

Lyndon L. Olson:

Yes, sir.

William J. Brennan, Jr.:

If the Supreme Court of Texas says that the — a unit of Texas government function has only negligible legislative function, how much may we go behind that?

Lyndon L. Olson:

Well, I think that this Court when it looks at the statutory and the constitutional duties and responsibilities, they’re vested in the Commissioners Court of Midland County, can for itself make this decision that the Supreme Court has passed overheard me.

Byron R. White:

Do you have home rules down in Texas in the sense that the City of Midland is an independent district?

Lyndon L. Olson:

Yes, sir.

We do have home rule insofar as city is concerned and the City of Midland is the home rule city.

Byron R. White:

And that the county board has no jurisdiction over the areas in Midland?

Lyndon L. Olson:

No, sir.

That is not correct.

They have quite a lot jurisdiction over there, same City of Midland.

Byron R. White:

Right.

Lyndon L. Olson:

One being they have — they establish a tax rate that applies to all of the taxable values of property both inside and outside the City of Midland.

They specifically have authority to bill a numerous public buildings inside or outside.

Byron R. White:

But don’t they just have to take the — don’t they just have to take the amount of money — what the city says about that, about the tax rates?

Lyndon L. Olson:

No, sir.

They do not — under the —

Byron R. White:

Let say the city says, we need X dollars for the property tax.

Now, is the county commissioners that say — the county board says, “Oh!

We’re sorry, but you’re not going to get X dollars from the property tax.”

Lyndon L. Olson:

No, the Constitution provides certain rights to the city to levy an ad valorem tax and also to county.

Byron R. White:

Alright.

So they levy there — they levy their own tax.

Lyndon L. Olson:

Yes, sir.

The county levies its own tax and the city levies its own tax.

Byron R. White:

And the — but the tax, the county levies his — applies to the city?

Lyndon L. Olson:

No, sir.

That money is used with the operation of the county government which in the year —

Byron R. White:

But the city — city property is taxed?

Lyndon L. Olson:

All of the property — not owned by the city itself but owned by all the residents of the city and were also residents of Midland County Texas.

Hugo L. Black:

How does the county fix the rate?

You said fixes the rate?

Lyndon L. Olson:

The County fixes the rate by a majority of vote at the Commissioners Court.

Hugo L. Black:

So commissioners what?

So that’s some what percentage of the real estate value or (Voice Overlap) —

Lyndon L. Olson:

Yes, sir.

Hugo L. Black:

— property value?

Lyndon L. Olson:

Yes, sir.

The rate of tax is fixed by the governing body of the City of Midland.

The figure that this is —

Hugo L. Black:

That applies in the City of Midland?

Lyndon L. Olson:

No, of the County of Midland.

Hugo L. Black:

Yes.

Lyndon L. Olson:

And the value of the property is established by the governing body of Midland County sitting as a Board of Equalization.

And all property is to be tax in accordance with it cash market value.

The Board of Equalization which is a Commissioners Court can establish this value of 100% of actual cash market value at 20% of actual cash market value or whatever they like.

And this —

Hugo L. Black:

And you mean by fixing the rate?

Lyndon L. Olson:

No, sir, fixing the value of the property.

If we have a fix property that has a cash market value of $10,000.

The rate to be applied against this value is established by the Commissioners Court sitting as the Board of Equalization established by the Commissioners Court.

Then they convene as the Board of Equalization and determine what value shall be placed on the tax rules whether a 100% of value, 20% of value, 60% of value or what percent this tax rate will be applied.

Hugo L. Black:

When you say fix the rate?

Do you mean that the legislative body provides that the citizens of that county to pay a fix rate on that real estate?

Lyndon L. Olson:

Yes, and personal property.

Hugo L. Black:

They can repeal the tax law?

Lyndon L. Olson:

Well, the maximum rate of course is set by Constitution.

I believe it’s $1.10 or $1.25 by the Constitution.

That’s a maximum rate that the county government shall set.

Hugo L. Black:

It’s required to do that.

Lyndon L. Olson:

Yes, sir.

To operate the county government.

Hugo L. Black:

So that the basic rate is fixed by the State Constitution?

Lyndon L. Olson:

Well, the maximum is fixed by the State Constitution.

The rate is fixed by the governing body of Midland County.

Hugo L. Black:

What does the Constitution say about that?

Lyndon L. Olson:

The Constitution says that it shall be established by the governing body of the county but that it shall not be in excess.

The only thing the Constitution does is set the top tax rate that a county can charge.

In Midland County, in — during the trial this case, they we’re charging it $1.05 per $100 valuation.

Hugo L. Black:

Well, that would be a different courts that fixing the rate to the administration.

The tax assessor would do that.

That wouldn’t be levied —

Lyndon L. Olson:

No, sir, the rate that is fixed by the Commissioners Court.

I think that it is — it gets into the realm of the legislative-administrative function.

My opinion is the establishment of the tax rate which is a very important function that affects all the citizens of Midland County and the establishment of tax values to which this rate is applied is a legislative function.

Byron R. White:

Establishment of tax values?

I thought that would be by a tax assessor?

Lyndon L. Olson:

No, sir.

Well, the tax assessor as a matter of administration sets a value and then all of these values once a year come before the county commissioners court sitting at the Board of Equalization.

And if they think these values are too low, they raise them.

If they think these values are too high, they lower them.

That’s the function of the Board of Equalization in Texas.

Hugo L. Black:

Is that — it’s totally the standard legislative functions that the board exercises?

Lyndon L. Olson:

No, sir.

In my opinion, it is not.

I think one of the most important legislative functions that is exercised by the governing body of Midland County, Texas is the very thing is before this Court today and the courts of Texas has construed this being a legislative function, and that is establishing a precinct boundaries within the county.

Lyndon L. Olson:

They also established the constable boundaries within the county and also established the precinct boundaries of the justices of peace which is our Court of lowest resort in Texas.

Potter Stewart:

What are the constabulary boundaries?

What does that mean?

Lyndon L. Olson:

Constable is a —

Potter Stewart:

The constable boundaries?

Lyndon L. Olson:

— a constable it’s a — a police officer of the containing serves, processes, and has general police function such as the sheriff’s own.

Potter Stewart:

There is — the counties have sheriffs?

Lyndon L. Olson:

Yes, sir.

They have a sheriff.

Potter Stewart:

Are they elected?

Lyndon L. Olson:

They’re elected —

Potter Stewart:

Or appointed by the county?

Lyndon L. Olson:

No, no.

The sheriff is elected by all of the citizens of Midland County.

Potter Stewart:

Well —

Lyndon L. Olson:

Of course –-

Potter Stewart:

Voting at large within the county?

Lyndon L. Olson:

Yes, sir.

Voting at large.

Of course —

Potter Stewart:

And then eyes of the city, Midland — Midland is the city and it has a city police department, I assume.

Lyndon L. Olson:

Yes, sir, it does.

It certainly does, yes.

Hugo L. Black:

Constable says that in precinct, is it not?

Lyndon L. Olson:

In precinct, yes.

Hugo L. Black:

And you have a justice of the peace?

Should have a justice of the peace court?

Lyndon L. Olson:

Yes, sir.

Hugo L. Black:

And the constable serves this basis.

Lyndon L. Olson:

Yes, sir, that’s correct.

Lyndon L. Olson:

And these precinct boundaries are the number of constables and a number of justices of peace are determined by the county commissioners court.

Abe Fortas:

Are there any constables in the city?

Lyndon L. Olson:

No sir.

Well, of course, there could be because all of the precinct lines for constable justice of the peace and for the Commissioners Court include the whole of the county without regard to what portion of it is an incorporated city, town or village.

Abe Fortas:

You mean a — what you call I think that constabulary districts?

Lyndon L. Olson:

Well, a constable’s a district —

Abe Fortas:

Constable Districts are personally defined so as to include the city?

Lyndon L. Olson:

Yes, sir.

Abe Fortas:

But the constables don’t serve any city?

Lyndon L. Olson:

Well, yes, sir.

They serve in the city and outside of the city so far as serving a process like Mr. Justice Black pointed out that both inside and outside that the corporate limits of the city —

Abe Fortas:

So that — so within the city had both the police force and the constable?

Lyndon L. Olson:

And the sherif and the Texas Highway Patrol, yes sir.

Potter Stewart:

Pretty well policed.

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

The Supreme Court opinion, whereas as important that this administrative body customizes the roads and bridges.

Does that defines with the permission of the Court that lays out where the roads shall be and lays out where bridges shall be or is it just that this is a responsibility to maintain existing roads in repair or bridges or which or which?

Lyndon L. Olson:

Both, Your Honor.

I think generally, they’re referring there to the maintenance and repair but it is their duty and responsibility to suggest the new road areas and to maintain —

William J. Brennan, Jr.:

Well, may they do more than suggest, may they actually determine where a new road shall go?

Lyndon L. Olson:

Yes, sir.

William J. Brennan, Jr.:

And where a new bridge shall go?

Lyndon L. Olson:

Yes, sir.

And the statutes in Texas specifically provide that they can build these roads —

William J. Brennan, Jr.:

Oh!

Would that include the city as well?

Lyndon L. Olson:

Yes, sir.

William J. Brennan, Jr.:

The city as well as the county?

Lyndon L. Olson:

Yes, sir.

That’s what I was basically pointing out.

Lyndon L. Olson:

The statute specifically provides that the Commissioners Court shall have authority to construct bridges.

But again may construct for roads either with that — within or without the corporate limits.

William O. Douglas:

Do they perform zoning functions?

Lyndon L. Olson:

Sir?

William O. Douglas:

Do they form zoning functions?

Lyndon L. Olson:

No, sir.

They do not.

The county government does not in Midland County.

Abe Fortas:

Where do they get the money to build the roads?

Lyndon L. Olson:

From taxes, from all the people of the Midland —

Abe Fortas:

Levied by the county commissioners?

Lyndon L. Olson:

Yes, sir.

Levied by the county commissioners.

Abe Fortas:

Levied by them.

Lyndon L. Olson:

Yes, sir.

Levied by them on all of the property in Midland County.

Abe Fortas:

That’s not a state function, it’s a county function?

Lyndon L. Olson:

It’s a county function.

Now, they do have their own certain roads that are designated state roads.

The State of Texas does contribute to the cost of construction and also the State of Texas has a Foreign Market — what we call a Foreign Market Road Program, where they on a certain designated Foreign Market Roads or they call it Ranch to Market Roads in Midland areas.

Byron R. White:

Oh, does it?

Lyndon L. Olson:

The state will pay a portion or all the cost of construction and the responsibility of the county is to furnish the right of way.

Abe Fortas:

Let me see if I’m clear about this, the county commissioners can decide to build a road from point A to point B within the county?

Lyndon L. Olson:

Yes sir.

Abe Fortas:

And then they can go ahead and is — levy taxes.

The proceeds to those taxes, these property taxes use them to construct the road.

Lyndon L. Olson:

Yes, sir.

Abe Fortas:

Is that what you’re telling us?

Lyndon L. Olson:

Yes, sir.

Abe Fortas:

A self-contained system?

Lyndon L. Olson:

Yes, sir.

Or of course, they have authority to vote and issue bonds, to be paid for by taxes, levied against all the citizens of Midland County to pay for the construction and maintenance of these roads.

Earl Warren:

Mr. Olson, may I just refer for a moment to the budgetary and the taxation functions of the Board.

Do I understand that the Board has the power and complications to fix the amount of the budget, the number of dollars that are to be spent for all county purposes?

Lyndon L. Olson:

Yes, sir.

Earl Warren:

And that do — do I understand also that they have the authority to determine how that money is to be expended for what purpose?

Lyndon L. Olson:

Yes, sir.

This whole discretion.

Earl Warren:

Then do I understand that they fix the rate at which this money is to be collected.

In other words, your State Constitution says that a tax cannot exceed $1 per $100.

Lyndon L. Olson:

Yes, sir.

Earl Warren:

And they say that it must be 20, 30, or 40 cents on a $100 —

Lyndon L. Olson:

Yes, sir.

Earl Warren:

— or whatever it may take.

Lyndon L. Olson:

Yes, sir.

Earl Warren:

And then do they also have the final authority for determining all values of personal and real property in the county?

Lyndon L. Olson:

Yes, sir.

Earl Warren:

Do they have the authority then to determine how much the city property shall be evaluated that and how much the county property may evaluate that?

Lyndon L. Olson:

Yes, sir.

That’s correct.

And of course, for the record in this case reflects that there was a great disparity between the percentage of value that was applied to city property and rural property.

But that is a matter to be determined by the county governing body.

Earl Warren:

That’s very well.

That’s —

William J. Brennan, Jr.:

I noticed page 15 of your appendix Mr. Olson.

The Commissioners Court of many county may establish, maintain, and operate within the respective county free library.

Lyndon L. Olson:

Yes, sir.

William J. Brennan, Jr.:

If they establish one under that provision in the City of Midland?

Lyndon L. Olson:

Yes, sir.

There is at the present time a county free library located in Midland.

William J. Brennan, Jr.:

How about hospital?

Lyndon L. Olson:

There is — they have the authority to create nor not to create and —

William J. Brennan, Jr.:

Within the City of Midland as well as outside?

Lyndon L. Olson:

Yes, sir.

But there is no one in Midland County but the Commissioners Court if they so desire could create a county hospital they pay the taxes.

Byron R. White:

Who runs the school system?

Lyndon L. Olson:

We have —

Byron R. White:

The school board — is that a separate administrative structure?

Lyndon L. Olson:

Yes, sir.

There’s two independent school districts in Midland County.

Byron R. White:

How about sewers?

Lyndon L. Olson:

Sir?

Byron R. White:

How about sewers and plants?

Lyndon L. Olson:

They have — they have the authority, the Board of Commissioners Court of Midland County have the authority to establish a sewer system and have the authority to establish a garbage collection —

William J. Brennan, Jr.:

Within the city as well as outside?

Lyndon L. Olson:

Well, — yes, they would have that authority.

They do not —

Byron R. White:

Well, then a home rule — you say, a home rule in Midland doesn’t mean much if the county can perform all these municipal services inside the city to the extent — override what the city wants to do, does it?

Lyndon L. Olson:

Well, there is the overlapping of jurisdiction in a number of areas between the city government and the county government there in Texas.

Byron R. White:

How about parks?

Lyndon L. Olson:

Yes, sir.

These — by statutes specifically, the county has authority to create a park and recreation area, anywhere within the county of Midland.

Byron R. White:

Do they have a county park?

Lyndon L. Olson:

They do not.

Of course, numerous counties in Texas do have but Midland does not.

Now, the City of Midland does but Midland County had not designated any park or recreation area.

Of course, the area there is a reservoir.

Byron R. White:

Are there county headquarters in Midland?

Lyndon L. Olson:

They operate out of the county court house which is located in the City of Midland.

Byron R. White:

And that there is county office building in there that’s the courthouse?

Lyndon L. Olson:

Yes, sir.

The courthouse is the county office building and in —

Byron R. White:

Do they have a police force?

Lyndon L. Olson:

Sir?

Byron R. White:

Does the county have a police force or a sheriff?

Lyndon L. Olson:

Yes, sir.

They have a sheriff and constables.

Byron R. White:

What — does he operate out of the city?

Lyndon L. Olson:

The sheriff operates out of the courthouse and the constables operate out of the various —

Byron R. White:

Is there any need for law enforcement jurisdiction inside the city?

Lyndon L. Olson:

No, there’s no overlapping of jurisdiction between the various law enforcement officers.Of course as a practical manner, large portion of the sheriff’s responsibilities are serving papers along with the constable.

Byron R. White:

Well now, the city council admit on there whatever it is wants to establish a library and since there ought to be — it ought be on the west side of town and the county commissioners — the county court thinks that there ought to be a library there but it ought to be on the east side of town, who wins?

Lyndon L. Olson:

They can each establish their own library.

Byron R. White:

I see.

Lyndon L. Olson:

And the County Commissioners Court are the governing body of Midland County has the authority to levy taxes against all of the citizens of Midland County to establish its land there and of course the City of Midland would have authority to levy taxes against the citizens of the City of Midland.

William J. Brennan, Jr.:

That’s the same property.

Lyndon L. Olson:

Yes, sir.

It’s the same property.

Byron R. White:

How about liquor licenses?

Lyndon L. Olson:

About what sir?

Byron R. White:

You don’t have — don’t you have liquor license in Texas?

Lyndon L. Olson:

Yes, sir.

We have a liquor license not by the drink but to go —

Byron R. White:

Who should go?

Lyndon L. Olson:

Well, of course the —

Byron R. White:

Is the county will have — does the county have anything to do with it?

Lyndon L. Olson:

Yes.

Byron R. White:

Well, Texas has local options, doesn’t it?

Lyndon L. Olson:

Yes, sir.

Texas —

Byron R. White:

And make it all the way down the precinct, doesn’t it?

Lyndon L. Olson:

Yes.

That’s — yes, sir.

Texas has local options.

That was — there’s one — see this — this is an interesting area, Mr. Justice White.

They have — there’s one — these commissioners precincts or the areas that determine the wet-dry issue and there is one, I think it’s commissioners precinct number 4 in Midland County that’s dry and the other three are wet for the sale of liquor.

Byron R. White:

I see.

Earl Warren:

Mr. Olson, who administers the welfare programs of the county?

Lyndon L. Olson:

The county has authority under the statute to operate a welfare program.

They have authority to provide medical care for the indigent which they are providing at the present time.

Midland County is providing a medical care for the indigent.

Earl Warren:

That’s all over the county?

Lyndon L. Olson:

All over the county including the City of Midland.

Now, they can establish a cooperative program and the city county help unit which they have numerous areas and have in Midland County.

Potter Stewart:

What does that mean, a city county cooperative?

Lyndon L. Olson:

A city — they cooperate together on this — on matters such as Mr. Justice White pointed out on a library that you could have a library on the west side and the east side or the city can cooperate with the county and establish one library which they’ve done in numerous counties.

A part can establish one health unit to provide the care for the indigent and have a city county help officer as paid partly by the county and partly by the city and provide services to all of the citizens in Midland County regardless of —

Potter Stewart:

What funds?

I understood you say at the out set that the county commissioners —

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

— county court as I call consisting of a county judgment or commissioner —

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

— which is involved in this case —

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

— is the taxing authority for the entire county including the city?

Lyndon L. Olson:

It is but city also is a taxing authority, Mr. Justice Stewart.

Potter Stewart:

The city has its own court?

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

And the city has its own power to tax?

Lyndon L. Olson:

Yes, sir.

Lyndon L. Olson:

That’s correct.

Potter Stewart:

Do all of the funds go to state capital and then get returned to the city and county?

Lyndon L. Olson:

No, sir.

They do not.

None of them go to the state capital where the exception of the recently established city sales tax was authorized in Texas.

Its required only to —

Potter Stewart:

City sales tax.

Lyndon L. Olson:

— but that’s not in this case.

Potter Stewart:

Yes, right.

Lyndon L. Olson:

But none of it goes to the state in its return.

It’s all — there is a county, tax assessor, and collector.

There is a city county tax — city tax assessor and collector.

Potter Stewart:

That is — and a resident of Midland pays both city and county tax?

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

And both city and the county therefore have funds.

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

So that’s okay.

Lyndon L. Olson:

Now, it is the position of the petitioner herein that the one man, one vote principle as set forth in Reynolds versus Sims applies to the governing body of Midland County, Texas.

The members of its governing body are elected and perform both legislative and administrative functions.

William J. Brennan, Jr.:

I told you before hand that only be permitted to tax, would you still take that position?

Lyndon L. Olson:

I would, Your Honor.

My opinion is that this matter was pretty well decided — what were decided by this Court in Gray versus Sanders, and I feel that a person is not —

William J. Brennan, Jr.:

That involve exclusively legislative by the relief?

Lyndon L. Olson:

Well, my —

William J. Brennan, Jr.:

You think not?

Lyndon L. Olson:

— recollection was it involves some high state officials other than just —

Potter Stewart:

Actually, Gray involved a Supreme Court judge of the state.

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

That case involved a judicial officer.

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

Among others, isn’t it?

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

So, they don’t have any legislative power at all?

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

Although, some critics say otherwise.

Lyndon L. Olson:

That was my understanding of it —

Byron R. White:

But isn’t it critical to your position that there — that the members of the county court are elected?

Lyndon L. Olson:

Yes, sir.

It certainly is.

I think under the two issues decided by this Court at the last term, the Sailors case and the Dusch case that it’s a very significant.

I think under those cases is that they were not elected.

That this doctrine would not apply.

Byron R. White:

Do you think the state that provide for the appointment by the governor, the members of this Court?

Lyndon L. Olson:

They could by constitutional amendment but it would take the constitutional amendment and of course — well we never have constitutional amendment in Texas is by two-thirds vote of both houses submitted the vote of people but I think that they could, yes, sir.

I don’t want to be repetitious on this pointed out some of the duties and responsibilities of the Commissioners Court but I think for the continuity of this, I’d like to go hardly over this.

Article V, Section 18 of the Constitution provides that the Commissioners Court shall have such powers and duties overall county business as it’s established by the Constitution in the states.

Now, I would point out that this time, Mr. Justice Stewart made a mention about the designation of this body as a Court, this is a misnomer and the Supreme Court of Texas so held in its opinion —

Potter Stewart:

You mean on my part or on the part of your Texas Constitution.

Lyndon L. Olson:

No, sir.

Not on your part, Your Honor.

On the part —

Potter Stewart:

If that is what is called exactly.

Lyndon L. Olson:

Yes, sir.

It’s what’s called but it’s a misnomer according to the Supreme Court of Texas and that it provides no judicial functions as such.

It’s a misnomer that was placed by the Texas Constitution.

Potter Stewart:

Chairman is also called the county judge, isn’t it?

Lyndon L. Olson:

Yes, Your Honor.

And of course, the county judge does perform some judicial functions.

We have a jurisdiction governed by the county judge, probate manners, and then within $200 to $500.

And $500 and $1000 have concurrent jurisdiction with that.

Hugo L. Black:

If the judge would believe it must be a lawyer?

Lyndon L. Olson:

No, sir.

Not in Texas.

The county judge does not have to be a lawyer.

Now, the County Commissioners Court is a sole governing body in Midland County.

There is no other governing body of Midland County.

Now, the authority of the setup in this Board is both setup by the Constitution and setup by the statute but the Constitution says it — it says it shall have control of all of the county government.

As I pointed out, it has the authority of taxation to set tax rates set as a Board of Equalization to adjust the ad valorem values offered then.

It has the authority to establish a budget which in the trial of this case in 1963 was something under $2 million.

Potter Stewart:

Does it have anything to do with the schools, public schools?

Lyndon L. Olson:

No, sir.

It does not.

We have two independent school districts in Midland County, Midland Independent and Great —

Potter Stewart:

Which will not connect within the city or the county government?

Lyndon L. Olson:

That’s correct.

Yes.

Now, in regards to this budget, there’s some very significant factors.

The Supreme Court of Texas in its opinion said that there were some case countywide of officers that were elected by all of the people.

That’s true in the county there — that perform ministerial functions such as the sheriff.

The county tax assessor and collector, the district clerk in the county survey.

But —

Hugo L. Black:

Was that judged?

Lyndon L. Olson:

Sir?

Hugo L. Black:

Were they judged, all of those?

Lyndon L. Olson:

Yes, sir.

In a probate judge.

I think it’s very significant in this regard that the salaries of these officials are set by the Commissioners Court, the governing body of Midland County, and the salary of all of their employees, if any, set by the Commissioners Court.

So if the Commissioners Court doesn’t feel like that they want anything other than a sheriff in the county, they can just not approve a budget for any deputies.

And of course, the same thing can apply to tax assessor and collector’s office, and so forth so on.

In fact, they established a budget that runs all of the Government.

Lyndon L. Olson:

They even insofar as these elected officials who perform ministerial duties.

Potter Stewart:

How much in fact — how much a function do these county officers have inside the city limits?

I’m talking now about the sheriff and the deputy as distinguished from a city police force inside the city.

Lyndon L. Olson:

They have the same authority —

Potter Stewart:

Will they in fact exercise it?

Lyndon L. Olson:

On occasion they do, yes sir.

Potter Stewart:

Or do they spend most of their time to perform most of their duties that are outside the city limits.

Lyndon L. Olson:

Yes sir, they perform most of the duties outside the city.

Potter Stewart:

Because that — the only place for is outside the city, outside of the Texas rangers and the —

Lyndon L. Olson:

And highway patrol.

Potter Stewart:

— and the highway patrol.

Lyndon L. Olson:

Yes.

Potter Stewart:

But they’re the only local police outside the city?

Lyndon L. Olson:

Well, except for the constable, and of course, they do have the designated function of serving all judicial papers.

The city police force has no authority to serve any judicial papers —

Potter Stewart:

Is there a municipal court in Midland?

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

Doesn’t it have court officers to the serve process?

Lyndon L. Olson:

Yes.

It serves the police — the municipal corporation court in Midland has — of course, the police officers have authority to serve the various writs in connection with that Court.

Potter Stewart:

Inside the city?

Lyndon L. Olson:

Yes, sir.

Which incidentally has concurrent jurisdiction with the justice court, the precincts of which are established by the County Commissioners Court.

Potter Stewart:

For a misconduct inside the city?

Lyndon L. Olson:

Yes, sir.

Inside or outside, 200 — misdemeanor fine is $200 or less and no jail sentence.

Abe Fortas:

Mr. Olson, I want to interrupt you.

I would like to ask you that, you said that — let’s take approximately $2 million as a budget —

Lyndon L. Olson:

Yes, sir.

Abe Fortas:

— and I suppose a tax — how much would have been raised by taxes, county taxes in respect to that budget?

Abe Fortas:

Are they about the same or –?

Lyndon L. Olson:

I would say it would be about the same.

There may be some portion of that that was received from the State of Texas for highway or road construction but most of it comes from taxes.

Abe Fortas:

Now, can you give you us some idea as to the division of the receipts from county taxes as between the city and the western county?

Lyndon L. Olson:

The —

Abe Fortas:

You would get it at that way.

Lyndon L. Olson:

Yes, sir.

The testimony in this case show that approximately 65% was received from what do we have in Precinct Number 1, which is the City of Midland.

And the remainder came from precincts number 2, 3, and 4, which is outside the city, I mean 65%.

Abe Fortas:

Is there any way of getting rough approximation of the budget?

How much of the budget was spent within the city limits and how much outside?

Lyndon L. Olson:

Well, it would be hard to do, Your Honor.

However, there is a connected with this record, the budget of the City of Midland County for the years up to 1964 which would show that where the expenditures were made, now of course, the budget would not disclose what portion of it was used within the corporate limits of the City of Midland.

Abe Fortas:

Thank you.

Lyndon L. Olson:

Yes, Your Honor.

In addition to —

Earl Warren:

In most of the metropolitan area of the city, in the boundaries of the city or is there a suburban area of the Constitution?

Lyndon L. Olson:

Yes, sir.

There is a substantial suburban area outside the incorporated limits of the City of Midland which is in Commissioners Precinct Number 1.

Earl Warren:

Do you happen to know in 1960 what the actual population of Midland was?

Lyndon L. Olson:

Yes, sir.

It’s pretty well-established by the —

Earl Warren:

What I was going to ask was how much was in the city and how much was suburban?

In that metropolitan area, do you happen to know that?

Lyndon L. Olson:

No, sir.

I don’t have those exact figures but the — a substantial portion of it or the large portion of it was within the corporate limits of the City of Midland in Commissioner Precinct Number 1.

Potter Stewart:

That part which is outside, that is the suburbia of the metropolitan area, is that all in one other precinct?

Lyndon L. Olson:

No, sir.

It’s all — it’s also in Commissioners Precinct Number 1.

Potter Stewart:

It’s all —

Lyndon L. Olson:

Yes, sir.

Potter Stewart:

All at number one?

Lyndon L. Olson:

95% of the population –-

Potter Stewart:

Yes.

Lyndon L. Olson:

— of Midland County is in Commissioners Precinct Number 1.

Abe Fortas:

So, in Precincts 2, 3, and 4, there is none of the — even the outside the city limits metropolitan area of Midland, is that right?

Lyndon L. Olson:

No, sir.

It’s not exactly right, Your Honor.

There is a small portion, I think, they have this in this case show about 400 people live inside the corporate limits of the City of Midland and are located in Commissioners Precinct Number 4, I believe it is.

This is the airport when the City of Midland took in its airport it run a land, it took in the airport and it’s out from town.

Abe Fortas:

Alright.

Potter Stewart:

You have townships also?

Lyndon L. Olson:

Sir?

Potter Stewart:

You got — what are called east townships in this county?

Lyndon L. Olson:

No, we do not have a township, this is an incorporated city —

Potter Stewart:

But in elsewhere in the county, you have?

Lyndon L. Olson:

No, sir.

This is the only one.

The City of Midland is the only incorporated city, town and village in Midland County.

Now, in addition to these authorities of taxation and physical — fiscal matters, now the county has authority to create a hospital, medical care for the indigent, garbage collection, bearing it offers these various similar functions.

They have numerous safety functions such as we pointed out the deputy sheriff, constables, fire protection.

They have the authority to create a public facility such as public libraries, which they have in Midland.

They have the authority to create airports, public housing, waterworks, park, and recreation areas, auditoriums, coliseums, and the sole authority to either create these or not to create these in the governing body of Midland County Texas.

They have the authority to construct bridges and roads either within or without the corporate limits of the City of Midland and they have the general authority of eminent domain.

They have authority to issue in both — to issue and sell bonds, and to control the subdivision of land throughout the county.

Earl Warren:

Control the subdivision of land?

Lyndon L. Olson:

Yes, sir.

Earl Warren:

Would you explain that just a little because as I thought — I understood you say that they didn’t have the power to zone but now you say they have the power to control subdivision —

Lyndon L. Olson:

Yes, sir.

Earl Warren:

— in what way, Mr. Olson?

Lyndon L. Olson:

That’s a — it may be construed as zoning in the sense, Your Honor.

The statute provides that before land can be sold according now as lot and block rather than the general type field note descriptions, the plan must be filed of record with the county clerk.

Now, the plan cannot be file a record with the county clerk if it’s located outside in the incorporated city town or village or within five miles unless it’s approved by the County Commissioners Court.

They, in this, can require such thing —

Abe Fortas:

You said it’s located inside the city?

Lyndon L. Olson:

No, sir.

Out — if it’s located inside the city, it does not have to be approved by the County Commissioners Court.

But it’s located outside the city and not within five miles to the city, it must be approved by the County Commissioners Court and they can require a certain portion of this area to be set aside for park and recreation purposes, a certain portion to be set aside for roads, and that sort of thing before they would approve the plan.

Now, there are several significant facts that are firmly established in this case.

One is that the governing body of Midland County is important in the lives of all of the citizens of the county.

The governing body of Midland County performs legislative and administrative functions that daily affect the lives and welfare of all the citizens.

The governing body of Midland County is controlled by less than 5% of the people who elect three members to the governing body.

There is no effective way for the voice of over 95% of the citizens of Midland County to be heard insofar as our county governing body is concerned since they can elect only one member to the Commissioners Court.

And we feel that this condition will remain unless it’s changed by this Court.

Now, it’s the position of the petitioner here that each citizen of Midland County is entitled to an equal vote in the election of the county governing body.

How else can we have representative government?

We earnestly submit that each man regardless of the color of his skin or the cut of his coat or the place of his residence is entitled to an equal vote.

Abe Fortas:

But Mr. Olson, if you turn this around and apply what you have just said.

That means that the 95% of the votes would be cast by people within Precinct Number 1, mostly by the Senate, isn’t that right?

Lyndon L. Olson:

Yes, sir.

Actually 97% of the qualified —

Abe Fortas:

97%.

Now, if one would put possibly the worst construction on this, it might lead to the inability of people in the county to get roads and schools, and libraries, and restaurants.

In other words, isn’t it conceivable, I suppose that the system deliberately designed so as to promote the development of the entire county even though the people within the city after subsidizing a bit.

Just as the people of the United States, I suppose, people of New York State let’s say do subsidize somewhat federal payments that go to the development of the — of a less developed states and some of the sovereign states.

Now, I suppose that this is — could be said to be conscious policy and I guess the question which you are pointing out to us is whether constitutional principle requires that this system for the subsidization, if you wish, of the rural areas at the expense both voting and financial perhaps, the city wether that system, when the Constitution forbids that kind of system.

Do you have a comment on what I’ve just said?

Earl Warren:

I suppose you answer that after we have the recess.

Lyndon L. Olson:

May it please the Court.

Mr. Justice Fortas prior to the luncheon recess have asked me a question in regard to the — whether or not there were some rationale for providing the governing body for Midland County in regard insofar as the rural population is concerned.

Lyndon L. Olson:

In answer sir to that question, my statement would be that Article V, Section 18 the Texas Constitution provides that the commissioners precinct line shall be changed from time to time for the convenience of the people.

It doesn’t say rural people and it doesn’t say urban people.

I feel that the governing body of Midland County affects all of the people of county and it should be divided accordingly.

I would point out that apparently this same question was raised before the Court in Reynolds versus Sims that if the “one man, one vote” principle were applied and the voice of the rural area would be heard.

The Court in that case provided that we are advised that states can rationally considers the facts other than population in apportioning legislation representation.

Our answer is this, a denial of the constitutionally protected rights demand judicial protection.

Our oath in our office require no less to the extent that the citizen’s right to vote is the base, he is that much less a citizen.

The fact that a citizen lives here or there is not a legitimate reason for overweighting or deluding his vote.

A citizen, a qualified voter is no more or no less so because he lives in the city or on a farm.

This is a clear and strong command of our Constitution of the Equal Protection Clause.

If it please the Court, we respectfully submit that the logic as so clearly set forth in Reynolds versus Sims is applicable to the county government of Midland County Texas.

Earl Warren:

Mr. Beytagh?

Francis X. Beytagh, Jr.:

Mr. Chief Justice and may it please the Court.

I suppose there’s a little need to remind the Court that the issue involved here is the same one that was before the Court in four local government cases last term.

The Government participated amicus in those cases and we continue our participation here because we feel that the case involves the question that’s of fundamental importance to our democratic society.

Essentially the question of ensuring fair and full participation at all levels of Government for all people.

Initially and just in passing, I’d like to mention a jurisdictional issue that was raised at one point in this case.

As we understand it, the respondents at the petition stage question whether there was a final judgment in this case.

We developed some pages in our brief to this question.

We think that it’s clear that the Texas Supreme Court’s judgment was a final one both under Texas law and under this Court’s precedence.

And that therefore, the Court’s certiorari jurisdiction was invoked, properly invoked.

Now, it’s clear that the Texas Supreme Court did remand case to the trial court but the remand was very limited one.

It was for entry of a judgment in accordance with the opinion.

And we feel that it’s also clear that the Texas Supreme Court did pass on the federal constitutional issue that was raised and then of course, is essential that this Court exercise of jurisdiction because the Texas Supreme Court stated and held that the Equal Protection Clause did not require population-based districting in Midland County, Texas.

That was in the face of a trial court judgment which had ordered the commissioners to redistrict on a basis of population.

So, we think it’s clear that this Court’s jurisdiction is properly invoked and that there was a final judgment despite the limited remand.

Potter Stewart:

Mr. Beytagh —

Francis X. Beytagh, Jr.:

Yes, Your Honor.

Potter Stewart:

— accepting the premise that you’re entirely right as to the technical question of jurisdiction.

There still remains, does there not, something of a practical problem because we do not now have before us any precinct division by the county commissioners.

Potter Stewart:

And so far as we know, the commissioners may now go ahead and effectuate and putting the operation a planned depended, a precinct division plan depended entirely upon population.

Francis X. Beytagh, Jr.:

I think that’s —

Potter Stewart:

All — all of the Texas I have in mind this that all of the Texas Supreme Court said was that in its opinion, the Equal Protection Clause does not require in all cases, it does not — do not require a commissioners precinct division of Texas county on this basis in all cases dependent of course, in each case upon the existence and effect of other relevant factors such as those that we have mentioned.

And the commissioners may now go ahead and come to conclusion that those other relevant factors adding them all up on that bounds come out so that they’re going to now put it on a plan dependent entirely on population.

That certainly is well within the realm of possibility as a practical manner, is it not?

Francis X. Beytagh, Jr.:

I don’t think it is, Your Honor.

Potter Stewart:

Why?

Francis X. Beytagh, Jr.:

First, they spend an awful lot of time in their brief upon the merits arguing that that was not the kind of plan that was suitable in Midland County.

And second, it seems to me that if anything is clear from the Texas Supreme Court’s opinion, it is that the equal population principle of Reynolds should not be applied at least in this county.

Potter Stewart:

Not that — I thought that what it held was that because the Federal Constitution does not require in every single case of each of the 254 Texas counties that Reynolds against Sims be slavishly followed.

And but if — and then it remanded the case to the trial court which in turn is going to enter a judgment consistent without opinion which will simply leave them with the commissioners the job now of coming up with the new plan and until or in less there’s a new plan, what do we — how do we know what the new plan can contain?

Now, this is quite a part from any technical concept of jurisdiction.

I’m just addressing my question to the practical problem.

We don’t have any plan in front of us now?

William O. Douglas:

Well, if they came up with just a pure population then, how would they satisfy the standard laid down with the Supreme Court, lined areas, geographies, miles of county road, taxable values, and so on?

Francis X. Beytagh, Jr.:

I don’t think they could satisfy that —

Potter Stewart:

I do not understand that the Texas Supreme Court said that the Constitution required the commissioners to consider that.

I thought it simply said they might consider it without violating the Constitution.

Abe Fortas:

Well, Mr. Beytagh —

Potter Stewart:

Do I misread its opinion?

Francis X. Beytagh, Jr.:

No.

I don’t think you misread the opinion but it seems to me that the Texas Supreme Court made it clear that it did not think that the Equal Protection Clause of the Federal Constitution required the one man, one vote rule –

Potter Stewart:

And flexibly at each one of the 254 counties.

Francis X. Beytagh, Jr.:

But it was writing that opinion in the context of the case involving Midland County, this county.

And it said that, other factors should be taken into account.

Now, as we point out, I —

Hugo L. Black:

It could be taken into account, couldn’t it?

Francis X. Beytagh, Jr.:

It could be taken into account.

Potter Stewart:

Could it be constitutionally taken into account?

And that — wasn’t that what they’re saying?

Francis X. Beytagh, Jr.:

Yes.

And I think that if there’s any realistic possibility that the Midland County commissioners might be thought to — upon remand to take into account these factors and yet, say, they all work out so that population ought to be the standard if there’s a realistic possibility of that that’s there’s a cause of concern.

But I don’t think that —

Abe Fortas:

I don’t think that we understand saying.

I think the point is that, we are in the business of forecasting what they’re going to do.

The question is what did the Supreme Court of Texas tell them to do?

And I’m impressed rather than surprised if I know this correctly understood your characterization of the Court’s opinion because as I read it, the Supreme Court of Texas said that and I think the clearest place is at the bottom of page 149 of the record that the convenience of the people and the particular circumstances of a county may require and constitutionally justify a rational variance from the quality and population of commissioners precinct from the basis of additional relevant factors which the Court then enumerates.

As I read this, the Texas Supreme Court has held, Number one, that — that’s in the first full paragraph on page 150, it is held that there is obvious arbitrariness of the current districting order because of the great malapportionment of the commissioners precincts in Midland County.

And it’s held that this is malapportioned.

It is also held, as I understand it, that the correct way to go about this is to start with the one man, one vote principle and then to make a rational variance when it calls rational variance were indicated by the — were required by particular circumstances in county on factors have that are numerous.

Do you agree with my characterization of this opinion or do you think that the Court rejected the one man, one vote principle totally as applied here?

Francis X. Beytagh, Jr.:

I think it rejected it as applied to Midland County Texas.

Otherwise, it would have affirmed the judgment —

Abe Fortas:

I think — I have to frankly say to you that I can read it that way.

I don’t say any total out loud rejection of that principle, although I do think, I think it presents a sharp issue that is why that which is whether there can be a departure from that principle taking into account the other factors.

That’s a different thing in my mind in what you’ve said.

Francis X. Beytagh, Jr.:

But — but this is against the background of a trial court decision in order requiring that the district can be on a population basis.

We pointed out on our brief that the factors that Texas Supreme Court enumerates to be taken into account either cut in favor of the people that live in the city or they’re the kind of factors that the Court in Reynolds versus Sims held were not properly to be taken into account.

William O. Douglas:

But you see, the second full paragraph on page 150 in the record is a court statement that they disagreed with the judgment of the trial court in its requirement that the county be redistricting the commissioners precinct solely on the basis of population.

I suppose that they came back with a new plan solely on the basis of population, that they would be reversed again?

Francis X. Beytagh, Jr.:

I think it’s pretty clear that they would be reversed again.

And I think it’s also pretty clear that commissioners aren’t going to do anything like that anyhow.

I think in the main that we should leave the question of the powers and the functions and the duties of this Board of the parties who are in a position to know far better than the Government exactly how this particular body functions.

We do point out that the body does have a general taxing authority overall the people in the county whether they live in the city or out in the rural areas, and that they have a power of equalizing tax assessment, determining what value is to be placed on property and that there is some indication in the record that this particular power has been used and certainly at least can be used in the future of use.

Should point out I think that the argument and the discussion this morning, I think, points out to our way of thinking the basic utility of pursuing some kind of distinction based upon whether the body is legislative or administrative or something else.

I just don’t think that that’s a meaningful way to pursue the inquiry.

As a matter of constitutional law, we don’t think that Reynolds versus Sims and the other cases were grounded on anything that was peculiar to State legislatures as distinguished from other kinds of representative bodies.

Gray versus Sanders was mentioned this morning.

That case didn’t involve legislative officers and yet the Court applied the Equal Protection Clause there.

For practical reasons, however, we think that the distinction is just an illusory one.

Francis X. Beytagh, Jr.:

What this kind of bodies and this is a typical one.

Some have more extensive powers, some have less.

I suppose that — and we mentioned that perhaps a de minimis rule could be evolved as to some of these bodies that they don’t do important or significant things.

And that they would be said not to be within the principle.

But when a body has a general taxing authority over the people and it has a number of other important functions, the matter in which they’re exercised and what kind of label or characterization might be placed on them whether legislative or administrative, or what, it seems to us to introduce into our courts and almost never ending inquiry as to how to do this?

What attributes do you focus upon?

And finally, I’m not convinced that even if the judiciary spends the time in this inquiry, the results will be meaningful or coherent and of course, this Court will be in a position of trying to give some consistency and some coherence to these distinctions.

And therefore, we developed that greater length in our brief that we don’t think a legislative administrative line distinction is a feasible one or a justifiable one.

One might say, “Well, let’s just find out how the Board functions.

Does it enact to ordinances?

And if it does then, that’s a lawmaking kind of function.

Why don’t we say that’s the test?”

Well, we think that whether a body, the local level has a power to enact to ordinances or not, it depends so much on the vagaries of state law that you had — if you focus on this, you would have attached to own that would not produce sensible or meaningful results.

And therefore, we feel that the power to enact ordinance is the form through which the body acts is not a — should not be a determined one.

We also should point out that in suggesting that a legislative, administrative line of distinction not be drawn as to the applicability of Reynolds at the local level.

We don’t mean that all distinction should be cast aside.

It seems to us, first, that if some such line is going to be drawn, perhaps a better focus would be on whether the body is a policy making body or whether it is essentially is ministerial in character.

This is a line of distinction that has been worked out to some extent in some state as the municipal law matter.

We don’t think that that would be — that’s much easier to apply but at least I think it might focus on the importance and the independence and whatever of the particular body.

We also suggest and develop at some length what we consider to be a significant and important consideration that stems from Reynolds versus Sims.

And that is this, that Reynolds versus Sims assumes since it’s grounded on the Equal Protection Clause and grounded on the protection of the individual’s right to cast an equally weighted vote that all citizens are situated in a substantially similar way, insofar as their state legislature is concerned.

Now, this is a traditional except that Equal Protection Clause concept that classifications are valid if people are situated in a substantially different way but classifications are not valid if people are not and discrimination comes in.

Now, we suggest that at least just to some so-called special districts and by this Act mean sewage and drainage and conservancy districts, bodies that in the main are set up to perform a single function and yet under the laws of some states are — have a body that is elected by the people from districts.

That it may be that the Equal Protection Clause and Reynolds versus Sims do not require equal districting because the nature and the function of what this particular body does, does not relate generally to all of the people.

It relates to this certain discrete identifiable classes of people.

Now, it may be difficult to apply this in some cases, we refer to in passing a couple of Arizona statutes that relates to drainage districts several.

They even point out there that the drainage district governing board is elected from districts but those districts are based on land area instead on people.

But it seems to us that that may be a sensible line of distinction because the functions that those bodies apparently perform relate directly and specifically to only those people in their own land to be drained.

It seems to us though that you can push this too far.

If the body nevertheless has a general taxing power and can affect importantly the lives of all the people in the area, then I don’t think that we would carry this line of distinction and that before we but suggest then the people are basically situated in a similar way.

Francis X. Beytagh, Jr.:

This is a tough line of distinction.

It seems to us that it’s a pertinent consideration in deciding, how and when, and where, and why Reynolds versus Sims should be applied at the local level.

Now, this immediately raises the question and I think that it’s fairly presented by the Texas Supreme Court’s opinion.

Why shouldn’t this apply to general function units, this line of distinction?

You say that people are not similarly situated whether the rural and the urban people here are similarly situated.

And our answer would be, yes, that they are in this situation would apply almost across the board to all general function units.

Here, we suggest they’re similarly situated because this body does have powers and does exercise functions that affect all of them in an important way.

It seems to us that the rather hoary motto “No Taxation without Representation” is not to be so likely cast aside.

If the body can tax these people and can use this money in ways that it sees fit, and it seems to me that those people wherever they live in the area, whether they live in the city or out in the rural areas, have an important and substantial interest.

One might say, okay, they have an important and substantial interest but it is — it is so important and so substantial that they have to be given equality in the weight of their vote.

Well, I don’t think that that is unnecessary and indispensable constitutional requisite but as a practical matter, I don’t think that it can be worked out in any other way.

Now, this sounds harsh but it seems to us at some states have adjusted to this situation.

Our own experience right across the river in Virginia indicates that independent cities can be created and established.

And in there, if the particular state feels that this problem that we refer to is overlapped in jurisdiction, it’s a difficult one their ways available in the political and legislative process to deal with it.

But, we think that it’s quite clear that as to this kind of body whether you call it legislative or whatever, it does things that affect the people that live in Midland in an important way.

Now, I’d like to discuss in passing at least some of the arguments that are made against defining Reynolds versus Sims at the local level.

Some people say states have a plenary power over local bodies.

They can create them or do a way with them or do whatever they want.

Well, that’s — that’s true but that doesn’t carry today.

All that we suggest here, is that whether the state creates local bodies whose members are to be elected from districts, those districts are required under the Equal Protection Clause to be substantially put in population.

Some people say they just so many of these bodies that the thing is unmanageable.

We pointed out that the Bureau of Census indicates there’s somewhere in the neighborhood of 90,000 of these bodies.

A recent publication, they put this out every five years, indicates that the number has been reduced to somewhere in the neighborhood of 80,000.

As you’ve pointed out, that almost all of the reduction indeed more than the difference in the reduction is in consolidated school districts.

We suggested last term that is insofar as the principle, we suggest to be applied that it would affect somewhere in the neighborhood of 20,000 of these bodies.

We think, however, that while there are a large number of these, the principle is manageable.

The Court is not writing on a blank sheet here.

We pointed out and discussed at length that seven state courts of last resort have already applied the population principle to local bodies.

And this includes states like New York and California, the two largest states in our country.

These states of this State Court of last resort have found that these are full and practicable to handle this.

Francis X. Beytagh, Jr.:

Indeed in one of the cases, the Wisconsin case, there was a State statute that was involved and the Wisconsin Supreme Court pointed out that its decision would have of course affect in one stroke all of the counties in the state rather than to have litigation as to each and everyone.

Now, we feel that for the reasons developed more fully and what we refer to this is our Sailors brief of last term that the matter is a manageable one.

We think that this is confirmed by this Court’s decisions in Bianchi and Moody cases last term which the Court held that three-judge courts would not be required in the federal system in most of these situations since the involved statutes of limited applicability.

We also note that the Court in the opinions written last term express to concern with innovation and experimentation at the local level and of the state for interfering with that.

We think that is well-advised if we don’t think that the rule of applying Reynolds at the local level will do a way with innovation and experimentation.

Most of these malapportioned situations have not come about through experimentation or innovation.

They’ve come about through a resistance to change.

The trial court here pointed out that and made a finding that the purpose behind this scheme was political expediency to maintain the status quo.

That was true in the state cases and that’s true at the local level.

And we think that it would be a rather plural irony of experimentation and innovation were used to uphold the schemes on the hope that someday this would develop.

We think also that it’s quite clear that the Court hasn’t resolved the question presented here and yet, we keep running into Tedesco and cases like that.

We’ve explained in our brief the limited significance in our view of pre-Baker decisions.

We also pointed out that the several per curiam decisions not on the merits involving local government are certainly not controlling either otherwise a lot of us would have been wasting a lot of time.

Last term’s decisions it seems to me deserve comment but to it we handle on jurisdictional grounds, we think that has absolutely no effect.

The other two cases Sailors and Dusch, the Virginia Beach case, you indicate that in the particular and peculiar circumstances involved there, the Court didn’t feel that the Equal Protection Clause apply to require equally populated districts.

But in Sailors, the Court pointed out that there wasn’t even elective scheme.

The Court focused on the system for determining County School Board members and said that that was in an appointive system and also pointed out that at least to non-legislative offices such an appointive system was valid.

But here we have an election system, so no question can be raised about that decision controlling.

Also in the Virginia Beach case, we had a large election scheme, here we don’t.

We have an election from districts.

I think it’s clear also that whatever else might be said about the Virginia Beach decision, we pointed out at some length our concern for that decision being applied sweepingly and across the board.

But whatever might be said about it, it doesn’t have any bearing here.

I’d like, in conclusion, to refer just in passing to what we consider apart from a legal argument some policy considerations that are quite important here.

We, of course, don’t need to be told that this is a time of crisis in our governmental institution as the demands on government have never been as great and this includes the local level.

And it seems to us if our society, our system, is to meet the demands or urbanization and population growth, we need responsive and viable local instruments of government.

Now, it’s also clear that malapportionment impairs the effectiveness of the bodies to operate in a responsive way and to a deal with the problems and the needs of the citizens.

We think that this is particularly so as to local bodies.

They touch and involve people in the most direct way.

For many people they are the government because they deal with those problems that people are most concerned about, local taxation and zoning, and the condemnation, and things like that.

And we think it’s also quite clear that if malapportionment at the local level continues, some of the bright promise of the Voting Rights Act of 1965 might well be deemed.

Francis X. Beytagh, Jr.:

Therefore, in our view, these policy considerations combine with what we feel to be logical and sound constitutional principles to argue in favor of applying the equal population principle of Reynolds at the local level.

We submit, therefore, that since Texas Supreme Court under our reading of its opinion rejected the application of the equal population principle that its decision was wrong, and therefore, ought to be reversed.

Byron R. White:

Mr. Beytagh, what do you do with the Supreme Court of Texas finding although theoretically the Board of County has general jurisdiction at the matter of actual experience down to the areas of the county board really is governing body for the rural area rather than the urban area, if the urban runs itself?

Is that of any significance to the states —

Francis X. Beytagh, Jr.:

I think it is of some significance, Your Honor.

This Court has consistently paid attention to the state law determinations and statements of state courts.

But on the other hand, it seems to us as Mr. Olson pointed out that that statement was made in passing and it was made in the face of a vast array of statutes which confer on this body —

Byron R. White:

If that statement we refer that the other gentlemen was justly passing remark they have minimal authorities that on — if later in the opinion, the Court had some at considerably more at length says that the — that the Commissioners Court has limited its major responsibilities to the non-urban areas in the county, that’s a practical matter experience.

That’s the way they operate.

And that the city government takes care of its own concern.

Now, let’s assume that were true as a matter of fact in Texas, would you still — what would you say that has no — should had no impact on the apportionment of the standards?

Francis X. Beytagh, Jr.:

I suggest that it should have no impact if it’s clear that the body still has important powers and functions over the people that live in the city.

I think that that’s entitled to wait but it seems to me that this Court has never counted so bound —

Byron R. White:

Do you say that it’s enough that as long as the county board actually taxes city people that that in itself is enough to say that the equal population principle applies to the local even if 99% of its functions are concerned with the rural areas alone?

Francis X. Beytagh, Jr.:

Well that’s pushing it.

I don’t think you generally going to find that situation but if you isolate that one aspect, I would think so.

I would think that that need not necessarily follow in all cases if you could seize upon some sensible way to work this out.

Maybe a computer could do it.

You’ve weighed to be different but I don’t think the mind of man or a judge would be able to.

Thank you.

Earl Warren:

Mr. Browder.

W. B. Browder, Jr.:

Mr. Chief Justice, if the Court please.

This case has in it certain drawn issues, narrow issues, if you please.

This involves Midland County Texas and the question as to what Midland County can be subdivided as directed by the Texas Supreme Court without considering solely equal population.

This case is not what might be called a one man, one vote case.

In fact, Your Honors, we do not find one man, one vote as a rule of Reynolds versus Sims.

We tried to say that the rule of Reynolds versus Sims is what is said by this Court in the Dusch versus Davis case.

When this Court said on the assumption that Reynolds versus Sims controls the constitutional test under the Equal Protection Clause is whether there has been invidious discrimination.

We believe that the question here is and first to be decided is whether the Court has jurisdiction, possibly that has been decided finally against respondent.

In any event, it is a question because this case has been sent back to the trial court.

W. B. Browder, Jr.:

In Texas, that’s a District Court and the Commissioners Court for division of this county without discrimination.

The Texas Supreme Court has said that under the United States Constitution and the Texas Constitution, there cannot be division of the counties in a discriminatory manner.

That is invidious discrimination or as we read the opinions the vision without reason.

The Texas Supreme Court has followed what we believe is the law and ordered a remand of the course for division of the county into four precincts; population and other factors, in other words, division with population in mind and without discrimination.

Byron R. White:

I gather that the — I gather that you think that if the — that part of that the Supreme Court remanded to let the County Commissioners Court redistrict and that the — they came back with a population-based plan with the — is it possible the Supreme Court will approve it?

W. B. Browder, Jr.:

Certainly.

If the county commissioners divide Midland County into four precincts, considering the convenience of the people, considering population, and reasonable consideration, reasonable factors, then the District Court would first decide whether there had been invidious discrimination.

Then if the District Court passed upon the matter then on the appellate courts in Texas.

In other words, as Mr. Justice Stewart asked, what is the status of this course now?

We believe that’s the first question for the Court.

I don’t want to dissect the question because the question here is, “Does this Supreme Court of the United States wish to say “We will not permit this matter to be decided by the Texas courts on the basis outlined by the Texas Supreme Court?”

Byron R. White:

Well, if the court below did say that there were other factors which you would testify deviation from the population principle.

That makes it clear as been there?

W. B. Browder, Jr.:

Yes, sir.

And I want —

Byron R. White:

And — but it did — but I gather it said or incurred that if these other factors were present, the population-based plan would be plan would be fully satisfactory.

W. B. Browder, Jr.:

I think that’s rather —

Byron R. White:

But otherwise, the non-population base plan would be arbitrary?

W. B. Browder, Jr.:

Yes, sir.

I think that’s right.

And now, as Mr. Justice Fortas raised the question —

Hugo L. Black:

Do you read out formal cases that require population that these are predominant considerations?

W. B. Browder, Jr.:

Yes, sir.

I believe I —

Hugo L. Black:

Can you give me a court opinion as telling the lower courts to redistrict with basis — with the — on the basis that population is a predominant consideration?

W. B. Browder, Jr.:

I do, if you apply the rule to the substate governments.

Your Honor please, we take position here.

Hugo L. Black:

I don’t see what difference it would leave.

What I’m asking you if the opinion of the court in your judgment leaves the trial court free to redistrict always having in mind that population is the predominant consideration.

W. B. Browder, Jr.:

I think the Texas Supreme Court has said to the lower courts, “You must have population in mind.”

W. B. Browder, Jr.:

Under the Texas court, I believe it does.

Hugo L. Black:

Did it have this meaning that it must be the predominant consideration?

W. B. Browder, Jr.:

I believe it does.

But now I want to say that the Texas Supreme Court says that you can consider other factors.

Now, if Your Honor please, I want to come —

Hugo L. Black:

So you say — do you construe this meaning if they can consider other factors even though that prevents population being a predominant consideration?

W. B. Browder, Jr.:

I doubt it.

I would say this that they could consider other factors.

Hugo L. Black:

(Voice Overlap) that’s really the difference between you and you’re your Court has found and what the trial opinions have said?

W. B. Browder, Jr.:

I don’t believe there’s any difference between what this Court’s opinion has said and what the Supreme Court says.

I think the Supreme Court of the United States says, “We look to see if there’s invidious discrimination, not merely one man, one vote.”

I believe that’s what the Texas Supreme Court —

Hugo L. Black:

You don’t think that the predominant thing that we directed must be considered?

W. B. Browder, Jr.:

I think it must be considered.

Hugo L. Black:

Predominantly?

W. B. Browder, Jr.:

I believe so.

But I do not believe solely and only.

I want to get to Mr. Justice Fortas’ question because I think that’s the narrow issue here that he has asked.

The Texas Supreme Court disagreed with the trial court.

The Texas Supreme Court says that this Court’s opinions do not require that the county in every case, those words are used, Your Honor, by the Texas Supreme Court, that the 254 Texas counties do not have to be divided in every case solely on equal population basis.

Now, if Your Honor please, this is important, we believe, for this reason.

The petitioner has squarely joined issue with respondent on this question.

Petitioner realizes that the Texas Supreme Court has reversed and remanded this course to be divided without discrimination, divided on a rational basis.

Petitioner brought the case here —

Hugo L. Black:

That’s substituting — is that not substituting the idea of reasonable basis, a non-arbitrary basis for the test that we put in our cases that the first consideration must be population?

W. B. Browder, Jr.:

I do not believe so, Your Honor.

I believe there’s a big difference, reasonable difference.

When this Court says that the question, as we understand the Court in Dusch to Sailors, the question is not one man, one vote, the question is whether there is invidious discrimination.

Let me —

William O. Douglas:

Well, many of the last —

Abe Fortas:

I think that as far as these arguments, and I understand this that the Supreme Court not entirely clear.

And you — I don’t mind the opinion the way you do.

You say now up to this that the opinion of the Texas Supreme Court merely present sends the case back for redistricting and it says, the only inescapable requirement is unless being discrimination, fraud, arbitrariness or due to some discretion, is that right?

W. B. Browder, Jr.:

I believe so as I understand your —

Abe Fortas:

Well, that’s not the way I read it because that’s the last sentence in the opinion on page 150 of the record.

And what the Court says is the following, in no event is a population disparity sustainable against a showing of discrimination for arbitrariness or abuse of discretions.

And then on preceding tangible record, the Court says that, “equal rights and equal protection of laws require equality and political rights.

And there may be circumstances under which the quality and population is essential to equality and voting rights.”

So that the Court had mention there are situations, I read this and it’s not entirely clear.

There are situations in which there has to be mathematical equation, one man, one vote.

Then it goes on and it says, I see it, on the other hand, the convenience on the people in a particular circumstances they encountered may require and constitutionally justify a rational variance, a rational variance from the equality and population and the commissioners precincts, upon the basis of additional, relevant factors such as numbers of qualified voters, land areas, geography, etcetera.

And as I read this, it seems to me and perhaps you’re speaking for Texas, aren’t you for the county, aren’t you?

W. B. Browder, Jr.:

I am speaking only for Midland County as it gets three or three county commissioners, if you please, and Midland County, not for the other Texas counties.

Abe Fortas:

But as I read this it meant that the basic standard was population, one man, one vote variations are possible in the particular circumstances of the county and that the Constitution is justifiable.

Then we go down to the last sentence, “but in no event is a population disparity sustainable against the showing of discrimination, fraud and fairness and so on, that you think it means something different than you write?

W. B. Browder, Jr.:

I think that’s exactly what it means, Your Honor.

Your Honor please, I did not want to equivocate in answering Mr. Justice Black.

I think there’s only one question before this Court.

If Your Honor, I believe you phrased it in prior argument, the only ruling made by the Texas Supreme Court which is the law of this case.

And if that be a final judgment, then so it be.

And that is the one question for decision here and we believe the only question.

The one holding that’s the law of this case.

We disagree with the judgment of the trial court in its requirement that Midland County be redistricted into commissioners precincts solely upon the basis on population.

That is what I’ve tried to get over.

That’s —

Abe Fortas:

What you’re saying then and what goes by that order that is with this testimony procedure would made this and he gave him undue credit for and perhaps what the issue before us is whether the Supreme Court’s ruling that there may be a variation from a strict population of standard —

W. B. Browder, Jr.:

That is the issue.

Abe Fortas:

— you tell me permissible, I think that is the issue here.

W. B. Browder, Jr.:

Your Honor, let me first say as I’ve tried to say before as I understood Mr. Justice Stewart.

I think the first question that must be decided, will this Court say, the Texas Courts will not follow the law?

W. B. Browder, Jr.:

The Texas trial court or Commissioners Court and the District Court will not follow the Texas Supreme Court.

The trial court will permit discrimination.

The Texas appellate courts will permit discrimination.

Is this Court going to say that first, because you have before you now, not an appeal from any final judgment?

You do have before you an appeal from a Texas Supreme Court which we must admit.

Thus, make the law of this particular case.

So that if the Court wishes to step into this case at this time, which apparently it does having granted the petition.

Then the question arises, are we to hold that in every substate government in Texas, every one of the counties in Texas there must be a division solely on equal population?

Your Honor, this in Texas in West Texas, we were in the middle of West Texas.

We have county after county.

We have counties larger than any state.

We have counties Brewster County with Alpine as its county seat.

The Big Bend Country with their Presidio, the county seat, one town in a county with thousands of miles of ranches and farms.

Are we going to say that every one of these counties must be divided with precincts centering in the town, centering in the city because you cannot otherwise divide these counties?

Midland County cannot be divided into four precincts of equal population unless you put the center of that division in the City of Midland and let the city, and let everyone of the commissioners.

That is what the Texas Supreme Court was talking about, we believe.

Your Honor please, let me for just a few remarks —

Earl Warren:

On the other hand, might you not have the situation where one of your billion-acre ranches down there controls the entire county?

W. B. Browder, Jr.:

If you permitted precincts to some extent, yes.

But this is safeguard against that and that hasn’t been called at this Court’s attention.

Mr. Chief Justice, you asked the question here earlier, who levies the taxes for the county’s business?

You we’re told that the Commissioners Court had the authority.

That is true.

You asked, who are handles these salaries finally?

I know in the particular at work, this is a Commissioners Court and a system of government of courts, of judicial bodies.

Anything the Commissioners Court thus is subject to supervision and control of the District Court.

May I elaborate upon that for just a minute?

In Texas, we have the Texas Supreme Court and equal with it, the Court of Criminal Appeals, the Texas Supreme Court under it, our Courts of Civil Appeals, 16 or 18 of them.

Under that, we have the District Court such as a trial court or the Circuit Court in so many States.

But under Article V, Section 8 of the Texas Constitution, the District Court is given supervision and control over the Commissioners Court.

W. B. Browder, Jr.:

The same article of our Constitution sets up the Commissioners Court which has many judicial functions, many judicial functions.

Earl Warren:

Can the District Court supervise the fixing of the budget?

W. B. Browder, Jr.:

Yes, sir.

If it is discriminatory.

Yes sir.

Earl Warren:

They can say that they have appropriated too much money or having appropriated enough?

W. B. Browder, Jr.:

Or that they have penalized some and favored others, anything where discrimination is shown.

Your Honor please, you we’re told that the Commissioners Court has legislative functions, the fixing of taxes.

This Court we thought fast on that in the Sailors suit.

That just a mere — that was a boarder, the school board, the mere ability to tax is not strictly legislative, I thought we read that.

But here we would —

Earl Warren:

They didn’t have elective system then the Court held, did it not?

W. B. Browder, Jr.:

I believe they did in part, yes sir.

But the Court said this day that this is not a legislative board, if that makes the difference.

We believe it does.

Let me go to one other point.

You were told that this Court had legislative functions because it divided the county or could divide the county into four precincts.

To me this is a judicial function.

No better proofs of the control of the people have than this very redistricting or districting of the county.

This county was redistricted and a direct appeal to the District Court, the district judge elected by the people throughout the county.

These are set up in Texas is for all the people of the county.

The city runs nine-tenths of the election votes now.

Under the Texas law, you have as the arm of the state the county and its officers.

You have the district judge, elected countywide.

He has the supervision of this Commissioners Court.

You have the county judge, elected countywide.

Earl Warren:

He can’t even vote unless there’s a tie, can he?

W. B. Browder, Jr.:

The county judge?

Earl Warren:

Yes.

W. B. Browder, Jr.:

He cannot if this it’s two and two.

W. B. Browder, Jr.:

However, he can exercise influence, the chief judge of the Court bringing up matters or not bringing them up and having them where he does see fit.

But more important, Your Honor, in a county where you have a city such as Midland, where there are 60,000 people, 50,000, 40,000 votes.

There is a great weight on any of these Commissioners.

By the varying numbers of the city voters, if you please, by the county judge, the county sheriff, elected countywide.

You talk about the Commissioners Court having authority.

You see what we get into when we argue about the Commissioners Court of Texas.

You have the gentleman here in and utmost good faith arguing Texas statutes.

And then you have us for the respondents arguing Texas statutes.

We submit that the Texas statutes have been construed by the Texas Supreme Court.

Hugo L. Black:

May I ask you, if the state at this injunction if you will, easier, it would be easier.

You have four precincts, isn’t it?

W. B. Browder, Jr.:

Yes, sir.

Hugo L. Black:

Four districts?

W. B. Browder, Jr.:

Four — yes, sir.

Hugo L. Black:

Now, would you mind telling me how many voters there are in each one?

W. B. Browder, Jr.:

At the present time, about 95% of the voters in the City of Midland Precinct 1, about 5% or 6% in the other three precincts, about 2% —

Hugo L. Black:

So what you have is a system in which three of the four of the majority of the controlling body of the county elected by 5% of the voters.

W. B. Browder, Jr.:

Your Honor please, we’ve already allot — Your Honor, I do not think so.

Hugo L. Black:

But why — I thought you said war?

W. B. Browder, Jr.:

We have lost that war.

The Texas Supreme Court has held against us in that point.

We do not have that — sir?

Hugo L. Black:

Is that the way it’s divided now?

W. B. Browder, Jr.:

It is since 1963 and this matter went to the Court.

The Texas Supreme Court entered its order, it was brought here.

We have not recommended or I will say the Commissioners Court has not change, I don’t know what to do yet until this case is decided here.

Hugo L. Black:

Well, if it’s not decided of that recording with the predominant consideration being given population, why would it be that way again?

W. B. Browder, Jr.:

Because the Texas court will not permit under its present decision.

Potter Stewart:

As I understand the present situation, it is that you use to have the situation that you just described with Mr. Justice Black.

But that knowledge you have is an order of the Supreme Court of Texas saying and I’m quoting that there is obvious arbitrariness in the current districting order because of the shaded malapportionment of the commissioners precincts of Midland County.

Potter Stewart:

Unless you can now have that set aside and that the whole thing is now in limbo, a new determination of this Court whether or not we agree or disagree with the Supreme Court of Texas, isn’t that right?

W. B. Browder, Jr.:

That is right.

Potter Stewart:

We couldn’t be back to this —

W. B. Browder, Jr.:

We can’t do anything else, Your Honor.

Potter Stewart:

We couldn’t be back to this unless we reverse the Supreme Court of Texas instead of —

W. B. Browder, Jr.:

Under the Supreme Court of Texas opinion, we thought we knew what we had to do or rather what the Commissioners Court had to do.

When it comes near, if you hold that the county must be divided solely on equal population basis, it will be so divided.

Abe Fortas:

Well, if you know what you’re supposed to do under the Texas Supreme Court, would you mind telling us?

Tell us what you’re supposed to in mandate.

W. B. Browder, Jr.:

I think that we are supposed to go back to the District Court and then to the Commissioners Court.

I was to be clear about that.

I think that Texas Supreme Court had to send it back to the Commissioners Court just as this Court would send to a federal district court.

I don’t know that you might go through a Court of Appeals.

Abe Fortas:

Yes I think I’m with you.

Glad to find that —

W. B. Browder, Jr.:

Now, when you get to the Commissioners Court, those four gentlemen are going to have to follow the law as made by this opinion.

And they are going to be advised that this is the law.

We are all lawyers.

We are all houses of the Court.

Abe Fortas:

I’m still with you.

Now, will you go on?

W. B. Browder, Jr.:

Now, then these Commissioners whether they divide solely on a population basis or take into consideration roads, the amounts of roads and things like that, of course, is up to them.

And I cannot —

Potter Stewart:

Well, I thought that was up — what you mean up to them.

You just told us that they are bound by what the Supreme Court of Texas said.

W. B. Browder, Jr.:

It is up to them what division they make based on population and in consideration to other factors.

Potter Stewart:

You mean, you certainly can’t mean that the Supreme Court of Texas said, “Gentlemen, it’s up to you.

You do whatever you want.”

W. B. Browder, Jr.:

No, they did not.

Potter Stewart:

Then what do you understand that they are required to do, whether you order the Supreme Court of Texas?

W. B. Browder, Jr.:

You must consider population and equality of population.

You may consider as making a variance of equal population, this matter of roads, taxable value, and preserving the voice of the rural people.

Now, I don’t want to digest the issue either.

We believe that the voice of the rural people must be preserved to some extent.

I do not take the Solicitor General’s brief to be at the contrary.

Now, the petitioner is, petitioner takes the position as I understand it that in every county, there must be division solely on equality of population.

We believe that as was shown in hearing, this Commissioners Court had hearings, town hall meetings practically for about six days.

They heard different recommendations.

One of them was, “Well, in this county let’s have two precincts in the city and two in the county.”

Maybe they would do that.

I don’t know what this Commissioners Court would do.

There was one —

William J. Brennan, Jr.:

Well, they can’t do that and pay much attention to the population basis, can they?

I think you told us that it might —

W. B. Browder, Jr.:

Yes, sir, they could.

They might take —

William J. Brennan, Jr.:

But that is if they took two precincts in the city —

W. B. Browder, Jr.:

They would have to bring the two country in their apartment.

William J. Brennan, Jr.:

Well, that’s it?

W. B. Browder, Jr.:

Yes, sir.

Byron R. White:

They can’t have separate ones.

W. B. Browder, Jr.:

Not very good.

Now, the other plan was and the one that might well be considered fair by the Texas court is three commissioners precincts in the city and one in the country, which is Solicitor General even suggested.

William J. Brennan, Jr.:

But they have seven in the city and one in the country?

W. B. Browder, Jr.:

Four —

William J. Brennan, Jr.:

It has to be on —

W. B. Browder, Jr.:

— three — four constitutionally under the Texas Constitution.

Answering Your Honor’s question, I cannot presume to say what this Court, this lower court would do.

I would not attempt to do but I say this, if there is discrimination, these petitioners have their remedy in the Texas court unless —

Earl Warren:

May I ask you this question?

W. B. Browder, Jr.:

Yes, sir.

Earl Warren:

Do you accept the principle of Reynolds versus Sims in this case?

W. B. Browder, Jr.:

I do not want to.

Earl Warren:

No, but do you?

W. B. Browder, Jr.:

Mr. Pannill wishes to argue that it does not apply.

And if you will permit it, we will argue that it does not apply.

Earl Warren:

But I want to know what your position is, you’re trying to tell us what Reynolds versus Sims means.

You’re trying to tell us how the Supreme Court of Texas applied.

Now, are you going to accept the principle of Reynolds versus Sims or are you saying you’re not bound by it?

One of the two, I think you got to do.

W. B. Browder, Jr.:

Your Honor, we believe that we can argue that Reynolds versus Sims and Baker versus Carr should not be applied to substate governments.

Earl Warren:

You do argue that.

W. B. Browder, Jr.:

We do want to argue that.

Mr. Pannill will argue it.

Earl Warren:

Now let me ask you what you conceive the basis of the Supreme Court decision.

I understood you to say that they did accept the principle of Reynolds versus Sims.

W. B. Browder, Jr.:

The Texas Supreme Court says that under the Constitution of the State of Texas and the Constitution of the United States, there has been discrimination here.

Under the two constitutions, we do not believe the state is required or that the state law requires that the county commissioners be divided into four precincts in every case solely on population.

We say —

Earl Warren:

You say that that is a departure from Reynolds versus Sims or as you said a little while ago as I understood you that that was in conformity with Reynolds versus Sims.

W. B. Browder, Jr.:

I think it is not inconsistent.

It might be a better phrase.

Earl Warren:

It is not inconsistent with it?

W. B. Browder, Jr.:

It is not inconsistent with it.

My argument that I have tried to present –-

Earl Warren:

Do you feel that the Supreme Court of Texas intended to conform to the principle of Reynolds versus Sims?

W. B. Browder, Jr.:

Insofar as it would apply one man, one vote, I would have to say, no.

Insofar as it requires no invidious discrimination, I would say, yes.

I’m not trying to equivocate with Your Honor.

Earl Warren:

Well, I’m not accusing you.

Earl Warren:

Well, I did understand you to say to Mr. Justice Black that you did concede that the population would have to be the predominant feature or the reorganization law?

W. B. Browder, Jr.:

I think the Texas Supreme Court has said that.

Earl Warren:

Yeah.

And you argue that?

W. B. Browder, Jr.:

I think that the Texas Supreme Court has said that and that that would be a big factor in determining whether it had been in indiscrimination.

I think that is a fair amount factor in determining the Texas Constitution uses the words “for the convenience of the people”.

Earl Warren:

Yes.

W. B. Browder, Jr.:

And we also have a clause in our Constitution about republican form of government.

I think it would violate these, if it does violence to the — with no consideration to population.

Earl Warren:

With not you’re — not with no consideration but it should that be predominant?

W. B. Browder, Jr.:

I personally think it must.

Earl Warren:

Yes, and what do you think your Court demands?

W. B. Browder, Jr.:

I don’t know.

I think the Court meant you will consider population as what it says.

You may vary from population if you have good grounds and reason to do so.

So I think that meant you must give — I think the word predominant would be correct.

Earl Warren:

You wouldn’t go so far as to say it could subordinate population to these other things.

W. B. Browder, Jr.:

No, sir.

No, sir, I would not.

Earl Warren:

That was done here of course but as you say, that has been described by your court.

W. B. Browder, Jr.:

Right.

Your Honor, as I say, the second part of our argument which we thought proper to get first, because we did pick it up from the latter opinions.

We say only assumption, the Reynolds versus Sims control.

Then the constitutional test is whether there’s invidious discrimination and under the opinion of the Supreme Court, petitioner has failed to show discrimination unless, Your Honors please, unless this Court is to now hold that in every case, the Commissioners Courts of Texas must be divided solely on a population basis.

May I say this; I was really very —

Potter Stewart:

I just confer it before you and you say, the petitioners failed to show discrimination and now failed to show discrimination in what?

We don’t have any districting now before us.

W. B. Browder, Jr.:

That’s right.

Potter Stewart:

So, what did you mean when you said he’s —

W. B. Browder, Jr.:

I mean that was a large part of —

Byron R. White:

He succeeded in showing discrimination.

To the satisfaction of the Supreme Court of Texas and that Court has set aside your present districting.

W. B. Browder, Jr.:

That’s right.

Byron R. White:

And that’s the present status of the case.

So what did you mean he’s failed to show discrimination and if so, in what?

W. B. Browder, Jr.:

I meant that he has failed to show discrimination and that this case is ordered back to the trial court to divide without discrimination.

That’s where it is but, I added this.

And we must admit this opinion by the Texas Supreme Court will be the law of the case in the trial court.

So the law of the case as made by the Texas Supreme Court is you will consider this population.

You will consider the states — the United States Constitution.

But you do not have to be confined to this straitjacket of dividing solely on equal population.

Now, petitioner says that has discrimination.

Petitioner must take the position that is itself invidious discrimination unless you will give division on equal population alone, as a matter of law you have invidious discrimination.

Now, this is not the issue as I understand it —

— argue for the State of Texas straight forward proposition of Reynolds versus Sims should not be extended to the local government units.

W. B. Browder, Jr.:

Yes sir, we do.

Who’s going to argue with it?

W. B. Browder, Jr.:

Mr. Pannill, I ask you to do that now.

So you haven’t said a word about it.

W. B. Browder, Jr.:

May he argue on that, Your Honor.

But I don’t want to shut you off.

Earl Warren:

Mr. Pannill.

F. H. Pannill:

Mr. Chief Justice Warren, and may it please the Court.

We would consider ourselves remiss and our duties as counsel here, if we failed to call the Court’s attention to two things, the causal relationship or connection between them being for the Court to determine.

One is that in the way the American System of Government is structured.

There is a special relationship between the states and a county such as Midland County which is a political subdivision of and a creature of the state and its legislature or other municipal corporations.

The other is that the United States Constitution is applied differently to local governmental subdivisions and municipal corporations than to individuals or private corporations.

Now, I make those two statements as a matter of fact as to what the structure of the United States Government is and as to what this Court in past opinions has held.

It has been recognized by this Court from its earliest history that governmental subdivisions and municipal corporations are creatures of and agents of the state, created by it for the purpose of carrying out and effectuating its law.

There are administrative agencies or enforcement agencies they have been created by the states for that purpose.

F. H. Pannill:

The states which create these governmental subdivisions and within the other local governmental agencies have power over them which is virtually complete and except, and unless, and until of course, such power is exercised in a way as to run counter to some plainly written and established federal constitutional prohibitions.

Specifically, a government — a state would have the power and its will or wish or whim to abolish a municipal corporation or a county, or to divide it into two or to consolidate and merge it.

But certainly under the decisions of this Court, a state could not exercise that power in such a way as to leave its creditors high and dry because that would run counter to and bring the states actually in conflict with the Contract Clause, likewise as in the case of Gomillion versus Lightfoot, which is cited with some degree of relish by petitioner in this brief.

Admittedly, a state may not exercise this control which it has over its municipal corporations and its governmental subdivisions, in such a way as to run counter two the Fifteenth Amendment and bring in about a discrimination in voting based on race.

But subject to those specific constitutional restraints, the states have plenary power over their municipal corporation and likewise over the officials who served those corporations.

There are decisions which we have cited in this brief to the effect that the states have the power in the federal system to provide such officers and officials as they may choose.

To confer on these officers and officials, such power as the state chooses to give them or to take that power away to provide that they may be selected by appointment or by election, or by combination of both.

Or the states have power to abolish these officers all together.

Potter Stewart:

Is it your points insofar as the Equal Protection Clause of the Fourteenth Amendment goes in this area that so long as you have a legislature, apportioned in accord with the rule of Reynolds against Sims, then is the constitutional matter that legislature can be entrusted.

That legislature responsive as it is to the people proportionally and equally.

It can be trusted constitutionally to delegate its power such part of its power wherever it wants to.

Does that it — that if the majority of the people in Texas with a precisely apportioned legislature in accordance of Reynolds against Sims want to give to each of these 254 counties this that of the other power, they can constitutionally do so and they can constitutionally take it away, and can be trusted to take it away with the legislature responsive to the rule Reynolds against Sims?

That’s suppose to —

F. H. Pannill:

Yes, sir.

I would say that the legislature of Texas structured in that way still has the plenary power to confer on and take from its political subdivision such powers with these governmental functions as it choses to confer upon —

Potter Stewart:

And is there a constitutional danger there so long as you have a constitutionally apportioned basic statewide legislature?

F. H. Pannill:

I wouldn’t —

Potter Stewart:

Is that your point?

F. H. Pannill:

— say no sir, that there’s no constitutional danger.

It might take it away in such a way as they run counter to the Contract Clause or take it away in such a way as to —

Potter Stewart:

I’m talking about the an equal (Voice Overlap) —

F. H. Pannill:

— run counter to the Fifteenth Amendment but the decisions which have been cited here and which have been decided by this Court.

And they are admittedly decisions of sometime in the past.But they haven’t particularly the case of Hunter against Pittsburgh and have been cited by this case as recently as latest term in its consideration of the Sailors case.

Byron R. White:

Mr. Pannill —

F. H. Pannill:

Yes, sir.

Byron R. White:

— the difficulties with that is that the Texas Constitution seems to intervene in this argument —

F. H. Pannill:

It does sir.

Byron R. White:

— and there isn’t very much of Texas legislature whether it’s malapportioned or not can do about what the powers of the county court are or of cities either.

These are controlled in the Constitution, I take it, and the composition of this county court is controlled by the Constitution.

F. H. Pannill:

Well —

Byron R. White:

I mean there are four people and they have certain power.

F. H. Pannill:

Their powers, sir, are knocked out conferred entirely by the Constitution of the State.

There are many of the powers and functions of the Commissioners Court which are conferred by the statutes enacted by the legislature and for all anybody has developed in briefing this could be taken away at will by the legislature, many of these powers in function.

Earl Warren:

Powers of taxation?

F. H. Pannill:

Powers of taxation?

Yes, sir.

I would say that the legislature would have the power to supersede the county’s taxing functions.

Hugo L. Black:

To do what?

F. H. Pannill:

To — it certainly has a power to limit and circumscribe and regulate the exercise by the county of its taxing functions.

The legislature of the state does have in —

Hugo L. Black:

But you’re arguing something like this, against the states create the county.

The states can operate without the county as it desires.

It could operate with agents of the state.

And that it could appoint four people to run the affairs as the agent of the state.

It need not have an election —

F. H. Pannill:

That is — that is —

Hugo L. Black:

— that’s the basic principle on which you are arguing here.

F. H. Pannill:

It sounds —

Hugo L. Black:

Let’s assume that’s true.

F. H. Pannill:

Alright, sir.

Hugo L. Black:

Suppose the state does not chose to operate in that fashion but chooses to operate by creating governments where the people are subjected to the government of those elected by them, would your argument apply then?

F. H. Pannill:

Well, yes, sir.

I would say that let me try again to answer in this way.

It may be essentially here play on words to say whether or not, to say that the Equal Protection Clause of the United States Constitution does not apply or that it does apply but it applies in a way which is so different from its application to state governments and the individuals that this particular case or the particular decision and action of the State of Texas in this case is supported.

For instance, I would say this, this Court has established many times and as recently as last term in the Sailors case that local governmental official may be chosen by appointment and it has said that in here as I read and understand that opinion that that power of appointment of the State of Michigan can be delegated.

And can be delegated to groups or voters and can be delegated to groups or voters which differ from each other markedly and materially in population, in numerical context.

Abe Fortas:

Well, the problem — well, the problem is about this argument as I see it is that this Commissioners Courts are not to create creature of the legislature but that the creature of the Constitution.

And your State Constitution creates this Commissioners Courts and it’s in your State Constitution says that they should be divided into precincts and that State Constitution says, they should be divided at the four commissioners precincts.

And the State Constitution as your legislature says that, the divisions of the precinct shall be made by the Commissioners Court after legislature.

I suppose as far as the legislature however ultimately apportioned it might be does not have the power to overrule the Commissioners Court decision with respect to the definition or division of the county and the precincts.

F. H. Pannill:

No, sir.

The legislature would not have that power but the judicial system of the State of Texas does have that power and has exercised that in this case.

Abe Fortas:

That’s exactly what we’re concerned with here.

The judicial power, not legislative that in fact the legislature here may be precisely apportioned in the accordance to constitutional requirements where it doesn’t meet the necessities of the situation, I suggest?

F. H. Pannill:

Sir, when I answered that question, I thought I was talking about the powers which are delegated to and exercised by the Commissioners Court and not the existence of the Court.

If I have here stated in this argument that the legislature of Texas has the power to abolish Commissioners Court then it was entirely —

Abe Fortas:

So you started — you’re precisely about — you started off that way and then we asked you some question for defense and wait you along and fought for it until I hit you with the Constitution?

F. H. Pannill:

Well, it is not disputed by me of all people that the legislature of Texas has no power to abolish the Commissioners Court.

It is asserted by me that the legislature of Texas has a plenary authority as to the functions which shall be delegated to it and which shall be exercised by it.

Byron R. White:

Well, does the statute required four separate precincts?

F. H. Pannill:

It says four precincts —

Byron R. White:

How many do the Constitution requires, four precincts?

F. H. Pannill:

That’s what it says in the four precincts for convenience of the people and it has been — I have heard it argued as to whether they could overlapped or over —

Byron R. White:

I take it that within the present constitutional provisions for example, the county court could follow the Sailors or the Dusch scheme.

They could say we’re going to have certain precincts but could they elect at large — could they elect it large and say that three of them have to live in the city and one of them in the country?

F. H. Pannill:

Sir, there is no judicial authority.

I’ve heard there’s the point argued and we have no judicial authority on it.

All the Constitution says is that it shall be divided into four precincts for the convenience of the people.

It does not specifically say that these precincts cannot overlap or conceivably that these precincts might not all in compose exactly the same territory so that you could either have it larger than that.

Byron R. White:

Sometime in your argument, I hope you will suggest why the Dusch’s formula for inserting rural voice by means of elect of large with the resident’s requirement wouldn’t satisfy, wouldn’t satisfy the needs for rural representation in Midland County, Texas?

F. H. Pannill:

I think it would.

I think under the Supreme Court’s opinion, the —

Byron R. White:

Well, of course the Texas is certainly — if Texas — if the Supreme Court is right that the County Board has more to do with the country than with the city, as a matter of actual operation and wholly aside in what the statute say.

There’s certainly would seem to be rational basis for having a county voice on the Board.

It just wouldn’t be a wholly factious thing that has county representation.

And certainly the Texas could adopt the — I mean it’s free to try to adopt anyway the Sailors or the Dusch scheme.

F. H. Pannill:

The State of Texas is free to adopt it.

Yes, sir, it is.

And that part of the Texas court’s opinion in which it mentioned there are a lot of possible lost of the voice of the rural residents entirely, if equal population and only equal population were applied.

Was if I mind a reference to or a suggestion of a County Board composed as Your Honor, suggests.

Hugo L. Black:

I’m interested in your equal protection argument.

I agree with you at the beginning, that the state has the right to control the county created if it sees fit and to control the people in that type of that, but do you agree that law passed by the Constitution of the State are just as much subject to the Federal Constitution has any other?

F. H. Pannill:

Oh, yes.

And the state provision –

Hugo L. Black:

But if that is true and you do have a system setting up an election, whether it might or it might not value the Equal Protection Clause.

How can you say that the Equal Protection Clause which is an amendment which says that no state surpass the law of denying equal protection?

It doesn’t apply to state laws made by the Constitution the same as it does state law is made by the legislature.

F. H. Pannill:

Well, it was an advantage, Your Honor, that the Equal Protection Clause requires equal population and there isn’t any doubt about it.

I mean —

Hugo L. Black:

In other words, you do not proceed with your argument that the Equal Protection Clause is not applicable to a law in effect particularly to its Constitution.

F. H. Pannill:

No.

No, sir.

Hugo L. Black:

So that Equal Protection Clause must be considered, must it not?

F. H. Pannill:

Yes, sir.

Hugo L. Black:

In determining whether or not in setting up this system of coding.

The State has denied equal protection to be considered.

F. H. Pannill:

Well, in the terms of this case, it would — the charge or complaint would have to be that the Supreme Court of Texas in its opinion failed to require equal population amongst the commissioners precincts and such failure constitutes a denial of equal protection.

Hugo L. Black:

So you get back to that question after all, do you?

F. H. Pannill:

Mr. Justice Black, it seems to me that that there must be distilled out of this Court’s reapportionment cases.

If there is an effort rather on the part of petitioner to distill out of this Court’s reapportionment cases, a new principle of constitutional law to the effect that any time, any election is held for any elected official to serve from a district, his district, must be the same size as everybody else’s state, local, or what not.

Now —

Hugo L. Black:

What you held as I understood it more that in absolute equality is impossible.

F. H. Pannill:

That’s right.

Hugo L. Black:

But that you should approximate that equality.

And then approximating that equality, you can consider other matters relevant in order to make this merely the same as possible, but that always that should be the agency, the idea of the equal one vote or one person so near as it’s possible.

F. H. Pannill:

The decisions so held.

The decisions —

Hugo L. Black:

Now, what you are arguing here is that that held it with reference to certain state elections.

F. H. Pannill:

That is correct.

Hugo L. Black:

But that it should not be carried down to local elections?

F. H. Pannill:

That is correct.

And has not been —

Hugo L. Black:

Which is an appealing argument but I have not yet heard you tell us why we could do that.

F. H. Pannill:

Well, may I ask — may I suggest sir?

Hugo L. Black:

Well it could by considering the fact that the state has power to govern its county as it sees fit but does it — if it does have power to govern its county as it sees fit have a right to conduct election in a way which deprives part of the people of therefore privileged voters.

F. H. Pannill:

Well, sir, may I answer the question in this way.

As I read this Court’s opinion in the Sailors case, it permitted the selection of a county school board by other board members who came from unequally populated district.

As I understand —

Hugo L. Black:

The remote nothing?

F. H. Pannill:

Yes, sir.

As I understand it this Court’s opinion and decision in Gray against Sanders, that same type of the elective process would not be permitted by this Court as to the governor of the state.

That is my reading of those two decisions that the governor of the state could not be chosen by delegates selected from unequally populated districts or divisions but that a local county school board can be appointed or selected.

Hugo L. Black:

Local county school board went one step further, didn’t it?

It held that the officials of those districts couldn’t do the electing.

The officials of those districts, wasn’t it?

F. H. Pannill:

Yes, sir.

It was officials coming from or selected from —

Hugo L. Black:

One kind of a county —

F. H. Pannill:

— unequally populated districts.

And that leads me to the conclusion stated here previously and that is that under these decisions as I read the Equal Protection Clause applies differently to local governmental subdivisions.

Now, whether you say it applies or but allows a more latitude and allows more getting of greater weight in consideration to such factors as geography and roads which are not proper factors to be considered in a legislative district in case.

Or whether you say that it just doesn’t apply to the elections at all, it seems to me that in the context of this particular case — just a different way of saying the same thing.

Hugo L. Black:

How could we say that the logic or reasoning, maybe we could but how could we that you must apply that rule with the election of the governor.

You must apply to the election of a senator or a congressman but you need not apply to the election of local officials that touched the lives of the people and that this might as the larger officials?

F. H. Pannill:

You could apply, Your Honor, logically and rationally in this way, that we have at the basis of our entire governmental system, the doctrine that the ultimate sovereign power is reposed in the people.

And that each person, each citizen, exercises certain rights of sovereign — sovereignty in proper times and in proper ways.

At the same time, the same citizen is a subject or subject to the laws and rules, and regulations of the state which he has created to carry out his sovereignty.

And so that when a citizen actually in a dual capacity, he is sovereign and he is also a subject and that when he votes, he very well may vote in one capacity and not in the other.

And that when — and in the voting cases which this Court has considered up until this time, concern only state officials who exercise the inherent sovereign power of the state.

And that when a citizen is acting as a sovereign and voting for someone who is a state official, and who has inherent sovereign power, then he must be permitted to exercise his pro rata part of the sovereign power and if he is not permitted, he is denied equal protection.

F. H. Pannill:

When that same citizen cast a vote in a bond election or a school board election, or a county commissioners court election, then that same citizen is that — that entity is not a sovereign.

And as to that entity, he is not exercising his sovereign power.

He is choosing an official which could well be chosen in some other ways.

He is merely acting as a good citizen and selecting an official who is to perform a subordinate and inferior function.

And that if you give him less then his pro rata part of the vote there you have not entailed his exercise of his basic citizen sovereign power.

It can in my mind be rationalized in that way.

Hugo L. Black:

Have we ever applied the rule yet?

An official who is not in some way recognized directly or indirectly by the Constitution of the United States?

F. H. Pannill:

Have you ever applied this rule of the so-called rule of Reynolds versus Sims?

Hugo L. Black:

Yes, one vote, one person in —

F. H. Pannill:

I know of no case in which this one man, one vote so-called has been applied at anything below the state level.

Am I answering your question, Your Honor?

Hugo L. Black:

Another way, — in a way, it’s an absolute subject in a difficult case.

Problems are articulated but–

F. H. Pannill:

Yes, sir.

Hugo L. Black:

— I would assume that if there is in the government, it can be viewed to the fact of the basic principle of this country that there’s a difference between the state and Federal Government, and that he had to forward if it’s true.

We have only applied this principle to officials of such level and dignity, they have been in some way recognized as officials by the Federal Constitution.

F. H. Pannill:

Well, it might go to the point beyond that, Mr. Justice Black because as I understand this argument on the part of the petitioners and on the part of the Government, they admit that there are some governmental subdivisions and agencies which are not subject to this so-called one man one vote rule.

The petitioner’s brief, as I read it, against the jury of distinction between legislative and administrative officials or districts, or powers, and attempts to establish that this particular one is exercising legislative power.

The Government in its brief, it attempts to draw it at some kind of a distinction between a general purpose and special purpose districts.

But this whole case has been submitted to this Court on the agreement as I comprehend the position of the party, it’s attached to the agreement that there is a point in local government to which this so-called one man, one vote rule does not extend.

Hugo L. Black:

Does not extend in connection with elections or?

F. H. Pannill:

Yes, sir.

As I understand their position, it does not extend in connection with the legislative.

Hugo L. Black:

What elections do they indicate where the alignment be drawn?

F. H. Pannill:

The Government draws a line as to special purpose districts?

Hugo L. Black:

As to what?

F. H. Pannill:

Special purpose districts such as water conservation districts or something like that and draws the line to the effect that where you have a group of citizens which has a special interest or is particularly affected by the action of that government, then considerations other than population would be predominant.

Byron R. White:

That would be somewhat like a water conservancy district or something like that?

F. H. Pannill:

Well I –-

Byron R. White:

Something of that nature?

F. H. Pannill:

Something of that nature, I think they probably included school districts in there.

That probably would be the most in numerous type of district that there is with this Court last term had a school district when you had taxing power.

And as I understand it, they did not apply the decision in the same way that it had been or would be applied on a state level.

Abe Fortas:

What would you do about the city council of a — say New York City and suppose it has a counsel or Los Angeles with budget in billions in dollars ordinance making power, police force, how to determine where the people or instead liberty or to go to jail within certain restrictions and in effect, perhaps, it would be unfair to say the powers of state legislature on the small scale in a restricted area.

Do you think that that fits within your category of state legislature for this purpose or is it something that this doctrine of our cases should not reach?

F. H. Pannill:

I would say that the argument which I have made couldn’t be made to sustain and unequally apportion council in that type of government.

I would hasten to add that I do not represent that this Court’s decision in this case is made to depend upon on this argument which I am making.

We are here resisting the relief which this petitioner seeks.

And we resisted on whatever grounds we may reasonably argue.

If this Court in its wisdom choses to draw a distinction between legislative and administrative functions or districts, then we would say that we are exempt or immune, if you please, under that exception or distinction because we do not have a legislative district.

Abe Fortas:

Well, I’d rather understand that but do you — would — the thrust of your theory carve out from the so-called one man, one vote rule.

The elected city counsel or city like New York or Los Angeles, or Chicago?

F. H. Pannill:

Yes, Your Honor.

To be candid with the Court, the argument which I have made would be equally applicable to that, always denying that that is our case —

Abe Fortas:

I understand that.

F. H. Pannill:

— or decision of this particular kind.

Abe Fortas:

It will be applicable to constables, election of the constables?

F. H. Pannill:

Election of the constables?

Abe Fortas:

Constable, yes.

F. H. Pannill:

Well –-

Hugo L. Black:

People who said justice of the peacemakers.

F. H. Pannill:

The constables in with which I’m familiar are elected from a precinct, a single —

Hugo L. Black:

Yes, little precinct.

F. H. Pannill:

— precinct and heard any division within the precinct.

Hugo L. Black:

That’s the state — your argument would take them out, would it not?

F. H. Pannill:

I don’t understand sir that that they could ever be brought in.

I mean the citizen and voters —

Hugo L. Black:

Well, you have an election — if you have an election and picture them in some way where everybody doesn’t have an equal vote, would apply isn’t it?

F. H. Pannill:

Within a precinct, the constable with which I’m familiar are elected by all of the voters in a certain precinct —

Hugo L. Black:

Suppose they were not?

F. H. Pannill:

Well, you would just have the parallel of this county commissioner state who would in my mind, he would have —

Hugo L. Black:

You would still — you would argue that the state has the right to do that?

F. H. Pannill:

The argument which I have made would support that from the —

Hugo L. Black:

In other words, you are trying to draw a line and you are seeking to draw a line, isn’t it especially if you’re on the statewide level, those who recognize by the Constitution which of great importance to the state and nation and those who are peculiar live within the range of the state’s activities perform the — practically state duties for the state.

F. H. Pannill:

Yes sir, I submit that the cases as decided have been divided along that line and that they may rationally be divided along that line for the reasons which I here suggest and present to the Court.

There has been a suggestion here as to a policy argument.

We would call the Court’s attention to the fact that we had refrained from giving any policy arguments basing off – base on the type of — or the amount of litigation which may result from this.

We have kept ourselves above that.

There is a policy argument which I believe applies to that and it simply is this, that a citizen’s right to participate in the creation or making of the law is not the same as his right to participate in the administration of the law.

The policy which I suggest and argue to Your Honors on — in this particular case is simply one which would ask this Court not to, at the request of individual citizens, insert this doctrine into administrative functions of local officials contrary to a state’s own determination as to their distribution and the distribution of their powers, and the manner of their selection where there has been no showing of any independently existing basic constitutional rights of the petitioner having been valid.

Thank you, Your Honor.

Earl Warren:

Mr. Olson, do you have any —

Lyndon L. Olson:

We have nothing further, Your Honor.

Earl Warren:

Very well.

We’ll adjourn.