Hyden v. Baker

PHILLIPS, Circuit Judge

(dissenting).

I find no invidious discrimination in a statute which permits the voters of each incorporated town in a county to elect a member of the county governing body, which in Tennessee is the Quarterly County Court. Nor do I see any invidious discrimination in Article 6, § 15 of the Constitution of Tennessee which provides that: “The Legislature shall have power to provide for the appointment of an additional number of Justices of the Peace in incorporated towns.”

In the absence of invidious discrimination there is no violation of the Equal Protection Clause of the Fourteenth Amendment. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656.

*486In Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, the Supreme Court said:

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

This language was quoted by the Court in Sailors v. Board of Education, 387 U.S. 105 at 107-108, 87 S.Ct. 1549, 18 L.Ed.2d 650. In the same case the Court said: “Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.” 387 U.S. at 109, 87 S.Ct. at 1553. “Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation.” 387 U.S. at 110-111, 87 S.Ct. at 1553.

The three statutes of state-wide application involved in the present case, T.C. A. §§ 19-101, 19-102, and 19-103, are based upon experimentation combined with long experience. They have been in force for more than a century. These same code sections were a part of the Code of 1858, Tennessee’s first official code, and originated with statutes enacted at various legislative sessions between 1835 and 1856.

This is not a case in which Tennessee has manipulated “its political subdivisions so as to defeat a federally protected right, as for example, by realigning political subdivisions so as to deny a person his vote because of race. Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110.” Sailors v. Board of Education, supra, 387 U.S. at 108-109, 87 S.Ct. at 1552. The framers of the State constitution concluded that the Legislature should have the power to authorize the selection of Justices of the Peace to represent incorporated towns as members of Quarterly County Courts. The Legislature exercised this power by enacting a general statute to the effect that the voters of each incorporated town, regardless of population, are entitled to elect one member of the Quarterly County Court.

Many problems of local government are of concern both to incorporated municipalities and- the counties in which they are located. This is true regardless of the population of the municipalities. Incorporated towns and cities both large and small have a community of interests with their county government. Cooperation between municipal and county governments can inure to the public benefit, while friction and duplication of effort can be detrimental to the public interest. For more than a century Tennessee has recognized that its incorporated towns and cities have an important stake in the county government and are entitled to representation by election of Justices of the Peace or magistrates to serve as members of the Quarterly County Court.

As a matter of mathematical pratieality representation of incorporated municipalities on county governing boards cannot be accomplished on a “one man, one vote” basis. As pointed out in the majority opinion, application of the “one man, one vote” rule to the towns and cities of Shelby County would require the allotment of almost one thousand Justices of the Peace to the City of Memphis. An examination of the population of the cities and towns of Tennessee under the *487Federal Census of 1960 demonstrates the mathematical impossibility of providing representation of incorporated municipalities on Quarterly County Courts on a “one man, one vote” formula.

In the absence of invidious discrimination, I view the apportionment of municipal representation on Quarterly County Courts as a legislative and not a judicial prerogative. Following the decision of the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, the Tennessee Legislature has been reapportioned on a constitutional basis. Baker v. Carr, 247 F.Supp. 629 (M.D.Tenn.). Shelby County, one of the two counties involved in the present litigation, has the largest legislative delegation of any county in the State, consisting of six State Senators out of thirty-three and sixteen Representatives out of ninety-nine. Washington County has two Representatives elected from that county alone and contains the majority of the voters in the senatorial district of which it is a part.

It is to be emphasized that the Legislature is empowered by Article 6, § 15 of the State Constitution to provide more than one Justice of the Peace from an incorporate town. For example, under the terms of a private Act of the Legislature, Johnson City, the largest town in Washington County, elects five Justices of the Peace to the Quarterly County Court rather than one as provided by T.C.A. § 19-101. These five Justices are in addition to the two elected from the Civil District in which Johnson City is located. Thus, the Legislature, which now is a constitutionally apportioned body, has the power to alleviate any problems of malapportionment it may find in election of members of Quarterly County Courts. In my opinion the number of Justices of the Peace to be elected from each incorporated town is a matter which should be resolved by the Legislature and not by the courts.

In my opinion the destruction of the right of a city to elect a representative to serve on the Quarterly County Court of the county in order to apply the “one man, one vote” rule places entirely too much emphasis upon mathematics and fractions. The provision that the voters of each incorporated municipality shall elect an additional Justice of the Peace constitutes legislative recognition that with respect to representation on the Quarterly County Court municipalities have special interests which are distinct from the interests of individual voters.

For the reasons stated with respect to T.C.A. § 19-101, I would hold that there is nothing unconstitutional per se in T.C.A. § 19-103, which provides for the election of three Justices of the Peace from the civil district in which the county seat is located.

In my dissenting opinion in Strickland v. Burns, 256 F.Supp. 824, 836 (M.D. Tenn.), I expressed the view that the “one man, one vote” rule does not apply to a county school commission which is a local administrative agency possessing no legislative powers.

The Supreme Court has not yet applied Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 72 L.Ed.2d 506, to local arms and instrumentalities of the State government, whether possessing legislative powers or only administrative powers. In Sailors v. Board of Education, supra, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, and Dusch v. Davis, supra, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, the comments of the Court on this subject were predicated on the assumption arguendo that the requirements of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, must be applied to local governments. I interpret these decisions as reserving judgment on this issue.

There can be no doubt that, although Quarterly County Courts possess limited legislative powers delegated by the Legislature, the counties of Tennessee are nothing more than arms and agencies of the State. Bayless v. Knox County, 199 Tenn. 268, 287, 286 S.W.2d 579, 588; *488Henderson County v. Wallace, 173 Tenn. 184, 189, 116 S.W.2d 1003, 1005.

In Cunningham v. Broadbent, 177 Tenn. 202, 207, 147 S.W.2d 408, 410, the Supreme Court of Tennessee said:

“The County is a subdivision and arm of the State, and the parties were dealing with governmental purposes and objects. Neither the Constitution of Tennessee, nor of the United States, imposes any restraint upon legislation affecting the contractual relations between the State and its political subdivisions, entered into in their governmental capacities and dealing with governmental functions. In such functions the County has no rights which the Legislature may not subsequently modify or abrogate. City of Trenton v. New Jersey, 262 U.S. 182 [43 S.Ct., 534], 67 L.Ed. 937, 29 A.L.R. 1471; City of Memphis v. Memphis Water Co., 52 Tenn. 495, 5 Heisk. 495; State ex rel. Bell v. Cummings, 130 Tenn. 566 [172 S.W., 290, L.R.A. 1915D, 274]; Robertson v. Town of Englewood, 174 Tenn. 92 [123 S.W.2d, 1090].”

Pending a decision by the Supreme Court as to whether Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, is to be applied to local governments, and, if so, to what extent, I express no opinion as to the constitutionality of T.C.A. § 19-102 or of the private statutes affecting Shelby and Washington Counties involved in this case, as applied to civil districts of malapportioned population in a given county.

I agree with the majority opinion that a three-judge court was properly convened, since an attack is made upon State statutes and a provision of the Constitution of Tennessee applicable to all counties of the State having the Quarterly County Court form of government. Sailors v. Board of Education, supra, 387 U.S. 105, 107, 87 S.Ct. 1549, 18 L. Ed.2d 650.

Further, I concur with the majority opinion that the class represented is limited to the qualified voters of Shelby and Washington Counties, respectively, and that plaintiffs are not entitled to maintain a class action on behalf of citizens of other counties of Tennessee.

I would dismiss the complaints in both cases.