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February 1, 1965

I. William BIANCHI, Jr., and Quentin B. Sammis, Plaintiffs,
Evans K. GRIFFING, William P. Bain, Lester M. Albertson, William .j. Leonard, Stephen F. Meschutt, Ralph J. Flynn, Arthur M. Cromarty and Thomas J. Harwood, constituting the Board of Supervisors of Suffolk County, New York, Defendants

The opinion of the court was delivered by: MOORE

Plaintiffs, I. William Bianchi, Jr., and Quentin B. Sammis, residents of the Towns of Brookhaven and Huntington, Suffolk County, State of New York, bring this action in their own behalf and in behalf of all other taxpayers and voters of Suffolk County, against the ten individual defendants, each of whom is an elected Supervisor of his respective town and who collectively constitute the Board of Supervisors of Suffolk County (1) to declare void and invalid as violative of the Fourteenth Amendment of the United States Constitution so much of Section 203 of the Suffolk County Charter, Laws 1958, c. 278 as provides that each Supervisor shall have one vote as a member of the Suffolk County Board of Supervisors; (2) to enjoin the defendants from acting as the Board of Supervisors unless and until a change in their voting strength is made; and (3) to cause to be convened a three-judge court to hear and determine the case (28 U.S.C. ยง 2281 et seq.). A motion was made to dismiss the complaint upon the ground, amongst others, that no substantial federal question is raised. The motion was denied without prejudice to renewal before a three-judge court, Bianchi v. Griffing, 217 F.Supp. 166 (E.D.N.Y.1963). Thereafter, a three-judge court was convened and a hearing was held, upon which the motion to dismiss was renewed.

Many cases have been pending in the Supreme Court and in other courts arising out of the decision in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) but despite the plethora of cases filed and the Supreme Court decisions of June 1964, there has been found no Supreme Court case which overturns the principle announced by that Court that section 2281 does not apply where 'although the constitutionality of a statute is challenged, the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.' Ex parte Collins, 277 U.S. 565, 568, 48 S. Ct. 585, 586, 72 L. Ed. 990 (1928). See also Rorick v. Board of Com'rs, 307 U.S. 208, 59 S. Ct. 808, 83 L. Ed. 1242 (1949); Ex parte Public Nat'l Bank, 278 U.S. 101, 49 S. Ct. 43, 73 L. Ed. 202 (1928).

 The recent Supreme Court decisions (June 15, 1964) *fn1" have decided that 'the seats in both houses of a bicameral state legislature must be apportioned on a population basis.' Reynolds v. Sims, 377 U.S. 533, 568, 84 S. Ct. 1362, 1385, 12 L. Ed. 2d 506 (1964); that such apportionment must be 'sufficiently on a population basis to be constitutionally sustainable.' WMCA, Inc. v. Lomenzo, 377 U.S. 633, 653, 84 S. Ct. 1418, 1428, 12 L. Ed. 2d 568 (1964); and 'the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a court of equity to refuse to act.' Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713, 736, 84 S. Ct. 1459, 1473, 12 L. Ed. 2d 632 (1964). The Court found 'no significance in the fact that a non-judicial, political remedy (such as initiative and referendum) may be available for the effectuation of asserted rights to equal representation in a state legislature.' Ibid. In other words, the fact that 'a majority of the people choose to do so,' and that a 'legislative apportionment plan was approved by the electorate is without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection Clause, as delineated in our opinion in Reynolds v. Sims.' Id., 377 U.S. at 737, 84 S. Ct. at 1474.

 However, these cases all dealt with the election of state legislative bodies. To date the Court has not had to consider whether the Equal Protection Clause applies as well to the method of electing the officials of hamlets, villages, school, fire, sewerage and water districts, towns, cities or counties, whether, that is, the right to vote is protected by the Equal Protection Clause in its every exercise, or only in some restricted class of definably important voting occasions.

 This Suffolk County case does not involve the election of members of the houses of the state legislature. It does attack, however, the provision of the Suffolk County Charter whereby the County Board of Supervisors, which has a local legislative authority, is to consist of the elected Supervisors of each of the county's ten towns.

 The basic theory of the action is disparity of representation. Concerning disparity, there can be no question. The ten towns of Suffolk were never of equal population; town lines were not drawn on a population basis and did not profess to be so drawn. In addition, over the years radical population changes as a result of economic and industrial developments have taken place in eastern Long Island. The location of large defense plants in this area has brought thousands of families into the westerly towns of Suffolk County. The eastern area remains thinly populated; the western has become rather densely populated. Thus, for example, the town of Shelter Island finds itself about as it was 150 years ago with its population stabilized at some 1,300 persons whereas the towns of Islip, Huntington and Babylon, to take extreme cases, have some 172,000, 126,000 and 142,000 *fn2" persons, respectively.

 Each town has elected its chief executive officer (the supervisor) and no fault can be found with this practice. The trouble arises, so aver the plaintiffs, because the supervisors of the ten towns constitute the Board of Supervisors of the County which is the legislative body of the County. Little mathematical ingenuity is required to prove plaintiffs' thesis that the vote in County management affairs by the Supervisor from Shelter Island is representative of 1,300 persons whereas the equal vote of the supervisor of the town of Islip is representative of over 172,000 persons. The individual vote ratio is over 100 to 1 in favor of Shelter Island and against Islip. If county government within the States must conform to the Equal Protection Clause, as must congressional and legislative districts in the various States, then obviously Baker v. Carr, supra, and the June 1964 cases, supra, call for action. But first there is the fundamental question of how far should the federal judiciary go, or interest itself, in extending Reynolds v. Sims to local governmental bodies in states the legislatures of which are now required to be apportioned on a population basis. The question is not easy to decide. Like so many legal problems, the solution may well be dependent upon degree.

 Baker v. Carr and kindred cases presented fairly simple situations. State constitutions providing for a definite system of representation according to numbers were completely ignored. The legislatures which under their own constitutions should have made the changes required flagrantly refused to obey their own constitutional mandates. In view of such refusals, there seemed to be no other alternative than for the courts to assume this function. Thus, at one end of the popular representation spectrum there is the congressional and state district equality-of-vote-doctrine. At the other end could be taken the logical extreme of the election of village trustees from wards of unequal population: it may be doubtful that the federal judiciary would declare the method unconstitutional and forthwith order a general election by the village at large, *fn3" at least where a re-apportioned legislature exists and change is in the wind.

 Between these two extremes lie the many minor governmental units referred to such as fire, water, sewer, school districts, towns, villages and cities. Somewhere in the middle ground falls this Suffolk County case. *fn4"

 Pursuant to its constitutional authority, N.Y. Const., Art. IX, the New York State legislature has given to the counties of the State the right to have a county charter. Such a charter was enacted for Suffolk County and in 1958 (election of November 4, 1958) the people of the county overwhelmingly adopted it. That Charter provides in section 201 for a County Board of Supervisors to consist of the supervisor of each town. By popular approval of the Charter in this form, defendants argue, the people of the county expressed themselves clearly and if there is to be any vestigial remainder to a government 'of the people, by the people and for the people,' such a vote should be sufficient proof of the wishes of the voters. But, if Lucas is to apply at all levels of local government and is not to be restricted to state legislative apportionment, voter approval would be of no value. Moreover, it may well be that in voting for the 'charter,' the voters expressed only their approval of its general 'home rule' advantages over the earlier system, or it may be that the voters had no clear conception of the fact that the charter preserved the power of a comparatively small percentage of the county's population to elect a potential majority of the county's legislative body. Had the spotlight of publicity been focused on this latter point, the argument from the vote at the 1958 polls would be more convincing


 Defendants by their motion to dismiss raise the question of the power of a three-judge federal court to act in the premises. Assuming justiciability, is this provision of the Suffolk Charter of such statewide interest as to be within the jurisdiction of such a court? Relatedly, is a substantial federal question now presented? And is the case, in any event, ripe for injunctive intervention? The cases which have had to deal with the problem of allegedly unequal representation in local-government elections have by no means given it uniform treatment.

 In Tedesco v. Board of Supervisors of Elections, 43 So.2d 514 (C.A.La., 1949), a resident of the Third District of New Orleans complained that approximately one-half the people of the City lived in the Third and Sixth Districts and were represented by only two-sevenths of the Commissioners in whom were vested administrative and executive powers for the City of New Orleans, and that the Louisiana statute producing the result violated the Fourteenth Amendment (United States Constitution). More specifically, the 8,508 voters of the Fifth District elected one Commissioner whereas the voters of the Third District numbering some 48,020 also elected one Commissioner. The court concluded that the statute was not violative of any provision of the Federal Constitution and affirmed the judgment dismissing the suit. An appeal to the Supreme Court was 'dismissed for want of a substantial federal question.' 339 U.S. 940, 70 S. Ct. 797, 94 L. Ed. 1357 (1950).

 In Michigan (Johnson v. Genesee County, Michigan, etc., 232 F.Supp. 567 (E.D.Mich.1964)), the plaintiffs questioned the validity of a sewer improvement authorized by the affirmative vote of the Board of Supervisors of Genesee County on the ground that the Supervisors so voting represented less than a majority of the population of the county. There were serious imbalances in population representation on the Board, illustrated by one township having some 30,000 inhabitants, another 2,000, yet each having one member on the Board. City representation showed an even wider disparity. The court denied the claim for injunctive relief and dismissed the amended complaint. In the opinion it noted the June 15, 1964, rulings of the Supreme Court and the docketing there of Glass v. Hancock County Election Commission, 156 So.2d 825 (Miss.1963) (appeal dismissed, 378 U.S. 558, 84 S. Ct. 1910, 12 L. Ed. 2d 1035 (1964)), in which case the question was raised as to whether the failure to redistrict county supervisor districts, like the failure to reapportion state legislative districts, violated the Fourteenth Amendment where there is population disparity. The Supreme Court of Mississippi had affirmed the denial of injunctive relief on the theory that there was an adequate remedy at law, namely, available statutory procedure for redistricting. ...

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