The opinion of the court was delivered by: CROAKE
Plaintiff, a resident of the Town of Clarkstown, County of Rockland, State of New York, brought this action in the New York State Supreme Court in and for his county, seeking a declaratory judgment
"that Article 4 of the County Law [McKinney's Consol.Laws, c. 11] of the State of New York * * * [is] illegal, invalid, void and unconstitutional"
"that the defendant immediately reconstitute and formulate a plan wherein and whereby the vote of the BOARD OF SUPERVISORS be proportionate to the number of persons each member represents in relation to the Township and the County population respectively."
After removal by the defendant, the plaintiff moved for summary judgment and the defendant sought to:
(1) add parties claimed to be indispensable, the State of New York, and the other towns in the county, contending that the county cannot reapportion without enabling legislation of the state and that any order of the court will directly affect the five towns in the county, and (2) refer "the motion to be heard and determined by a district court of three judges on the ground that the constitutional questions are such that the appeal from any order should be directly to the U.S. Supreme Court."
The intervenor supported the application of the defendant. The motions came on to be heard before the undersigned in the motion part of this court on November 16, 1965, and after some consideration, in a memorandum filed January 17, 1966, the request to convene a panel was granted and the remaining applications were denied without prejudice to renewal before the panel. In an order filed simultaneously with the memorandum, the Hon. J. Edward Lumbard, Chief Judge of the Court of Appeals for this Circuit designated that the Hon. Leonard P. Moore, United States Circuit Judge, and the Hon. Dudley B. Bonsal, United States District Judge for the Southern District of New York, sit with the undersigned in the statutory court. Argument was heard by the panel on February 16, 1966, and in a per curiam opinion filed simultaneously herewith, the matter was resubmitted to me.
It is the practice of the undersigned to confine opinions to only those matters upon which comment must of necessity be made. However, in the instant circumstances, in the light of the importance of the approach manifested by the statutory court, and in view of the full and hearty agreement of this court with that approach, the temptation to speak shall not be resisted.
In the Suffolk County Reapportionment case, Bianchi v. Griffing, 238 F. Supp. 997 (E.D.N.Y.1965), app. dismissed, 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11 (1965), the court retained
"jurisdiction of the action with leave to the plaintiffs, in the event an appropriate governing body has not been created for Suffolk County within the permitted standards for representation, to apply for further relief. At this time, it cannot be said that the legislature is unaware of the problem nor, in the light of current court pronouncements, can it now be said that it has failed to act." 238 F. Supp. 1005.
"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 ...