The opinion of the court was delivered by: BRUCHHAUSEN
BRUCHHAUSEN, District Judge.
The plaintiffs, I. William Bianchi and Quentin B. Sammis, residents of the Towns of Brookhaven and Huntington, Suffolk County, State of New York, brought this action in their own behalf and in behalf of all other taxpayers and voters of the said County. Subsequently the Town of Huntington was made a party plaintiff.
Each of the ten individual defendants is an elected supervisor of his respective town. They collectively constitute the Board of Supervisors of the said County.
The plaintiffs, in their complaint, alleged that because of the gross disparity in population of the townships, each member of the said Board of Supervisors casts one vote in functioning as a County and a State official, resulting in an arbitrary impairment of the votes of the plaintiffs and all those similarly situated; that the system arbitrarily exalts the voting strength of persons residing in the less populous and rural townships with no justification other than the present invidiously discriminatory geographic classification and that such classification is in violation of the Fourteenth Amendment of the Constitution of the United States.
The plaintiffs' demand for relief, as stated in the complaint, is as follows:
(1) To declare void and invalid under the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution so much of Section 203 of the Suffolk County Charter enacted by the Legislature of the State of New York in the year 1958 as Chapter 278 of the Laws of that year, 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.
(3) To cause to be convened a three-judge court to hear and determine the case (28 U.S.C. § 2281 et seq.).
The defendants moved to dismiss the complaint upon the ground, amongst others, that no substantial federal question was raised. The motion was denied without prejudice to renewal before a three-judge court. See Bianchi v. Griffing, 217 F. Supp. 166 (E.D.N.Y.1963). Thereafter, a three-judge court was convened and a hearing was held, at which the motion to dismiss was renewed.
The first opinion of the three-judge court, dated February 1, 1965, is reported in 238 F. Supp. 997. The Supreme Court of the United States dismissed the appeal from the order entered thereon, 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11, for want of jurisdiction.
The second opinion of the three-judge court, dated June 15, 1966, is reported in 256 F. Supp. 617. The supplemental opinion order, dated August 4, 1966, is not reported. The defendants appealed therefrom to the United States Supreme Court. The said court, in an opinion, dated May 22, 1967, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681, held that the said Charter provision "is one of limited application, concerning only a particular county involved in the litigation" and that "a three-judge court was improperly convened" and vacated the judgment therein and remanded the cause to the court which heard the case (the court whereover Judge Bruchhausen presides) so that it might enter a fresh decree from which appellants may, if they wish, perfect a timely appeal to the United States Court of Appeals for this Circuit.
The plaintiffs now move this court to adopt all of the prior decisions, orders and judgments of the improperly convened three-judge court, or for other relief detailed in their notice of motion.
The defendants move to vacate all orders of the three-judge court, also for other relief. They also renew their motion to dismiss the complaint, made at the inception of this litigation.
The Charter under attack is a State statute, applying solely to Suffolk County.
The plaintiffs do not claim a violation of a federally protected right, whereby a person is denied his vote because of his race. Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110. See also Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656, United States Supreme Court, May 22, 1967.
The local government system in Suffolk County is not of recent origin. The County was formed in 1683 (See McKinney's Consolidated Laws). The election of Supervisors at annual Town meetings including representation of their Towns on the Board of Supervisors ...