Holt Civic Club v. City of Tuscaloosa

Mr. Justice Stevens,

concurring.

The Court today holds that the Alabama statutes providing for the extraterritorial exercise of certain limited powers by *76municipalities are not unconstitutional. While I join the opinion of the Court, I write separately to emphasize that this holding does not make all exercises of extraterritorial authority by a municipality immune from attack under the Equal Protection Clause of the Fourteenth Amendment.

The Alabama Legislature, which is elected by all of the citizens of the State including the individual appellants, has prescribed a statewide program pursuant to which residents of police jurisdictions are subject to limited regulation by, and receive certain services from, adjacent cities. In return, those residents who are engaged in business are charged license fees equal to one-half those charged to city businesses. In my view, there is nothing necessarily unconstitutional about such a system. Certainly there is nothing in the Federal Constitution to prevent a suburb from contracting with a nearby city to provide municipal services for its residents, even though those residents have no voice in the election of the city’s officials or in the formulation of the city’s rules. That is essentially what Alabama has accomplished here, through the elected representatives of all its citizens in the state legislature.1

Of course, in structuring a system, neither a contracting suburb nor an enacting legislature can consent to a waiver of the constitutional rights of its constituents in the election process. For “when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process.” Avery v. Midland County, 390 U. S. 474, 480.

*77But the fact that these appellants are subject to certain regulations of the municipality does not itself establish that they are “qualified to vote.” Unlike the residents of the National Institutes of Health enclave at issue in Evans v. Cornman, 398 U. S. 419, appellants are not without any voice in the election of the officials who govern their affairs. They do vote for the county, state, and federal officials who exercise primary control over their day-to-day lives. And even as to their interaction with the government of the city, appellants are not completely without a voice: through their state representatives, they participate directly in the process which has created their governmental relationship with the city. The question then is whether by virtue of that relationship created by state law, the residents of Holt and all other police jurisdictions in the State are entitled to a voice “equally effective” with the residents of the municipalities themselves in the election of the officials responsible for governing the municipalities.

In my judgment, they are not. A State or city is free under the Constitution to require that “all applicants for the vote actually fulfill the requirements of bona fide residence.” Carrington v. Rash, 380 U. S. 89, 96. While it is not free to draw residency lines which deny the franchise to individuals who “are just as interested in and connected with electoral decisions ... as are their neighbors” who are entitled to vote, Evans v. Cornman, supra, at 426, the Alabama statutes, at least on their face, do not do so. The powers of extraterritorial jurisdiction granted by the challenged statutes are limited. Tuscaloosa, for example, does not tax the residents of Holt, nor does it control the zoning of their property or the operation of their schools. Indeed, many of the powers traditionally exercised by municipalities — the provision of parks, hospitals, schools, and libraries and the construction and repair of bridges and highways — are entrusted here to the county government, which is fully representative of Holt. Nor is *78there any claim that residency lines have generally been drawn invidiously or that residents of the police jurisdictions have been charged unreasonable costs for the services they receive. In sum, appellants have shown no more than that they and all residents of police jurisdictions in Alabama are subject to some — but by no means all — of the regulations and services afforded by the cities to their residents, in return for which they pay license fees half as great as those paid by city residents. Such a showing is plainly insufficient to justify a holding that the Alabama statutes are unconstitutional and cannot be applied anywhere in the State.

This is all that the Court decides today. For this suit was brought under the then-applicable three-judge-court jurisdiction as a challenge to the constitutionality of the Alabama statutes.2 Appellants did not merely challenge the statutes as applied in the Tuscaloosa police jurisdiction. Rather, they sought to represent all Alabama residents living in contiguous zones, and to have the statutes at issue here declared unconstitutional in all their applications throughout the State. It was for this very reason that the Court of Appeals for the Fifth Circuit, concluded that three-judge-court jurisdiction was proper in this case. See Holt Civic Club v. Tuscaloosa, 525 F. 2d 653, 655 (1975). And it is for this reason that our holding is necessarily a limited one. The statutory scheme created by the Alabama Legislature is not unconstitutional by its terms, but it may well be, as the opinion of the Court recognizes, ante, at 72-73, n. 8, that that scheme or another much like it might sometimes operate to deny the franchise to individuals who share the interests of their voting neighbors. No such question, however, is presented by this appeal from the decision of the three-judge District Court. See Moody v. *79Flowers, 387 U. S. 97; Rorick v. Board of Comm’rs, 307 U. S. 208.

1 recognize that there is a difference between a suburb’s decision to contract with a nearby city and a decision by the state legislature requiring all suburbs to do so. In some situations that difference might justify a holding that a particular extraterritorial delegation of power is unconstitutional. It does not, however, justify the view that all such delegations are invalid.

28 U. S. C. § 2281 (1970 ed.), repealed by Pub. L. 94-381, § 1, Aug. 12, 1976, 90 Stat. 1119.