Moody v. Flowers

• Decision Date: 14 June 1966
• Docket Number: 693.,Civ. A. No. 860
• Parties: Earl C. MOODY et al., Plaintiffs, v. Richmond M. FLOWERS et al., Defendants. John B. STEVENSON et al., Plaintiffs, v. Richmond M. FLOWERS et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

256 F. Supp. 195

Earl C. MOODY et al., Plaintiffs, v. Richmond M. FLOWERS et al., Defendants.

John B. STEVENSON et al., Plaintiffs, v. Richmond M. FLOWERS et al., Defendants.

Civ. A. Nos. 860, 693.

United States District Court M. D. Alabama.

June 14, 1966.

Civ. A. No. 860-S:

C. R. Lewis, Dothan, Ala., for plaintiffs.

Richmond M. Flowers (pro se), Atty. Gen., State of Alabama, Gordon Madison and Walter Turner, Asst. Attys. Gen., State of Alabama, Montgomery, Ala., for defendant Richmond M. Flowers.

Roy Mayhall, Jasper, Ala., pro se.

Sam C. Pointer (Brown, Pointer & Pointer), Birmingham, Ala., for Thomas H. Brigham and Alfred J. Saliba, defendants.

John C. Godbold (Godbold, Hobbs & Copeland), Montgomery, Ala., W. G. Hardwick and Jere C. Segrest, Dothan, Ala., for defendants Carl E. Sellers, James Herring, W. G. Bond, J. W. Calhoun, W. H. Hicks, W. E. Yance.

William G. Hause, Dothan, Ala., pro se.

Civ. A. No. 693-E:

Lewis H. Hamner, Jr., Roanoke, Ala., for plaintiffs.

Richmond M. Flowers (pro se), Atty. Gen., State of Alabama, and Gordon Madison, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendant Flowers.

Sam C. Pointer (Brown, Pointer & Pointer), Birmingham, Ala., for Alfred W. Goldthwaite successor to Thomas H. Brigham, defendant.

Paul J. Hooton (Hooton & Hooton), Roanoke, Ala., for defendants C. W. Thompson, Grover L. Poole, Sam Carpenter, Jr., Fred McCain, Gay Foster, Guy Henderson, and W. C. Beverly.

Roy Mayhall, Jasper, Ala., pro se.

Stell Benefield, Wedowee, Ala., pro se.

James Peek, Roanoke, Ala., pro se.

Before GEWIN, Circuit Judge, and LYNNE and JOHNSON, District Judges.

LYNNE, District Judge.

Consolidated for purpose of trial, these actions involve common questions of law and fact. Positing jurisdiction upon the provisions of 42 U.S.C.A. §§ 1983 and 1988 and 28 U.S.C.A. § 1343 (3) each complaint seeks judicial intervention in the internal political affairs of a county.

No. 860-S (Houston County, Alabama)

The relevant facts may be severely capsulated. Houston County is divided into fourteen election precincts, commonly referred to as "Beats." Its Board of Revenue and Control (Board) consists of five members, each elected by the qualified electors of the district of which he is a resident. In tabular form the five districts are described as follows:

District No. 1, comprising Beats 1, 2 and 4, contains 1,224 electors;

District No. 2, comprising Beats 5, 6, 7 and 11, contains 1,722 electors;

District No. 3, comprising Beats 10, 12 and 14, contains 1,450 electors;

District No. 4, comprising Beats 8, 9, and 13 contains 1,368 electors;

District No. 5, comprising Beat 3 (the City of Dothan), contains 9,046 electors.

According to the 1960 census the total population of Houston County was 50,718 and that of the City of Dothan was 31,440, or about 61% of the total. While an exact head count is not available, it may be inferred that the population of Districts 1, 2, 3 and 4 approximates the ratio of its qualified electors to the total population of the county, less that of the City of Dothan, as compared with the ratio of qualified electors within such city to its known population.

The above-described division of the county into districts and apportionment of membership of the Board resulted from the enactment of Act No. 9 of the 1957 Regular Session of the Legislature of Alabama (Acts of Alabama, Reg.Sess. 1957, No. 9, p. 30), effective May 24, 1957. Its constitutionality when tested by the equal protection clause of the fourteenth amendment is attacked by plaintiffs.

From official records it appears that the total assessed value of property within the county for ad valorem tax purposes is $30,621,030, of which amount property within the City of Dothan accounts for $21,217,120. There being no substantial evidence of hostile treatment of the City of Dothan by the Board, the facts suggest but one arguable contention of proscribed discrimination. Sixty-one per cent of the population of the county, owning 69% of the assessed value of the property therein, are represented by only one of five Board members and therefore have only a 20% voice in the levying of taxes and the expenditure of monies collected therefrom by the county.¹

No. 693-E (Randolph County, Alabama)

Randolph County is divided into fourteen election precincts (Beats). Its Court of County Commissioners consists of four members, each elected by the qualified electors of the district of which he is a resident. The four districts are described as follows:

District No. 1, comprising Beats 1, 6 and 14, having a population of approximately 3,800;

District No. 2, comprising Beats 2, 3, 7 and 13, having a population of approximately 2,350;

District No. 3, comprising Beats 4, 5 and 11, having a population of approximately 4,300;

District No. 4, in which the City of Roanoke is situated, comprising Beats 8, 9, 10 and 12, having a population of approximately 9,500.

This division of the county into districts and apportionment of membership of the court resulted from interplay of the provisions of Acts Nos. 299 and 300 of the Regular Session of the Legislature of Alabama, each effective August 10, 1965. When Act No. 299 was ratified by a county-wide referendum on November 30, 1965, Act No. 300 became operative.

From official records it appears that the total assessed value of property within the county for ad valorem taxes is $15,539,840, of which amount property situated within District No. 4 accounts for $9,984,590. The only possible constitutional argument which plaintiffs can muster is that because, after the general election in November, 1966, the residents of District No. 4, constituting 49% of the total population and owning 64% of the total assessed value of property in the county, will have only a 29% voice in the levying of taxes and the expenditure of monies collected therefrom by the county,² the acts producing this result are violative of the equal protection clause of the fourteenth amendment.

The prayers of plaintiffs for ultimate relief in these two cases are identical: (1) that the underlying acts of the Alabama Legislature be declared unconstitutional; (2) that it be required that the members of board and court be elected at large by the votes of all qualified electors within the county, or (3) that the elective districts by judicial fiat be reapportioned on the basis of population.

In the final analysis, plaintiffs are forced to fall back upon the argument that a purely mechanical application of the "one person, one vote" apothegm of Gray v. Sanders³ to non-sovereign political subdivisions of a state is required by the equal protection clause of the fourteenth amendment. No opinion of the Supreme Court has suggested such a basis for judicial intervention in a state's geographical distribution of electoral strength among its political subdivisions.⁴ On the contrary, militating against such an openhanded approach is the reasoning of Mr. Chief Justice Warren in Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964):

"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, 46, 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.'" (Emphasis added.)

As we read Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny, to justify judicial penetration of the "political thicket," there must co-exist a serious wrong, as for example the long-continued failure of a legislature through inertia, apathy, or willful refusal to reapportion itself in obedience to the mandate of the state law,⁵ the whimsical relocation of the boundary lines of a local government for the obvious purpose of depriving Negroes of their right to vote,⁶ or the absence of a political remedy resulting from the "stranglehold" of a minority on the legislative processes.⁷

The numerical imbalance demonstrated by simple statistics falls far short of proving invidious discrimination. The Houston County Board, as presently constituted, has been in existence for less than ten years, and the Randolph County Court, under the acts complained of, will not come into being until after the general election in November of this year. Neither has the power to reapportion itself. The Legislature of Alabama, which alone has the power to redistrict these counties, has never been advised by any definitive mandate that it has a duty to do so.

Moreover, of equal if not greater importance, in the Houston County case the plaintiffs and the urban voters they represent have a clearly available political remedy. Surely the 61% of the qualified electors of Houston County who reside within the City of Dothan have the power at the ballot box to elect representatives to the state legislature and through them, under the prevailing rule of local courtesy, obtain the desired redistricting.

It is our considered opinion that so long as the people of a state are afforded equal protection by true equality of representation in the state legislature the courts ought not to interfere with county governments of limited, as distinguished from general, power, and which have been created by the legislature as involuntary political subdivisions of the state.⁸ This is especially true where such governments are not granted the power to reapportion themselves.

When the Alabama Legislature shall have been...