Avery v. Midland County, A--11272

• Decision Date: 13 July 1966
• Docket Number: No. A--11272,A--11272
• Citation: 406 S.W.2d 422
• Parties: Hank AVERY, Petitioner, v. MIDLAND COUNTY, Texas, et al., Respondents.
• Court: Texas Supreme Court

Page 422

406 S.W.2d 422

Hank AVERY, Petitioner, v. MIDLAND COUNTY, Texas, et al., Respondents.

No. A--11272.

Supreme Court of Texas.

July 13, 1966.

Rehearing Denied Oct. 12, 1966.

William A. Olson, Houston, for petitioner.

Stubbeman, McRae, Sealy & Laughlin, F. H. Pannill and W. B. Browder with above firm, R. Harrell Moore, Midland, for respondents.

STEAKLEY, Justice.

Article V, Section 18, of the Texas Constitution, Vernon's Ann.St., requires a division of the counties of Texas 'from time to time, for the convenience of the people * * * into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner * * *' This case presents for decision the question of the constitutional validity of such division in Midland County, Texas. The county was last redistricted by order of its commissioners court dated August 31, 1963, effective January 1, 1964. This suit by Petitioner, a resident property owner, taxpayer and qualified voter of Precinct No. 1, Midland County, attacks the division and seeks a redistricting. The judgment of the trial court set aside the current and previous orders dividing Midland County into commissioners precincts and ordered a redistricting of the county on the basis of equality of population in the precincts. The Court of Civil Appeals reversed the judgment of the trial court and rendered a take-nothing judgment against Petitioner. 397 S.W.2d 919. We reverse the judgments below and remand the case to the trial court for further proceedings.

The findings of the trial court in its judgment, and the decretal portions thereof, will be helpful to an understanding of our holding and disposition of the cause. We quote from the findings of the trial court:

'* * * Further, that on the date (August 31, 1963) of such Order and at all other relevant times, Midland County, Texas, had a population of approximately seventy thousand (70,000) persons and that in excess of ninety-five per cent (95%) of such population resided in said new Commissioners' Precinct No. 1 and that the remaining population of said County was distributed among said new Commissioners' Precincts Nos. 2, 3, and 4. The court further finds that on the date of such Order and at all other relevant times in excess of ninety-seven per cent (97%) of the qualified voters of said County shown on the certified lists of qualified voters * * * resided in said new Commissioners' Precinct No. 1 and the remaining qualified voters of said County shown on said lists of qualified voters were distributed among said new Commissioners' Precincts Nos. 2, 3, and 4. Further, that on the date of such Order and at all other relevant times other pertinent factors, such as land area and taxable values of said County, were grossly disproportionate among such new Commissioners' Precincts of said County. * * *

'The Court further finds that on the date of such Order and at all other relevant times the County of Midland could have been divided into Commissioners' Precincts on a basis or plan taking into proper account population, number of qualified voters, land area, taxable values, and other pertinent factors, which would have been and which would be practical and for the convenience of the people.

'The Court further finds that in passing and approving the Order of August 31, 1963, the Defendants * * * did not give due and proper consideration to the aforementioned factors or to any other factors which should have been considered in effecting any division of said County into Commissioners' Precincts. Further, that there was no evidence on the date of such Order or at any other relevent time justifying or supporting the division made by said Order. Further, that the principal purposes of Defendants * * * in passing and approving the Order of August 31, 1963, were for political expediency, to maintain the status quo, and to insure that the rural areas of Midland County, Texas, would continue to elect the majority of the members of the Commissioners' Court of said County.

'The Court further finds that in passing and approving the Order of August 31, 1963, the Defendants * * * acted arbitrarily, capriciously, unreasonably, unfairly, and wrongfully, and in gross abuse of their discretion, and that such action constituted invidious discrimination. Further, that the division of said County * * * was not for the convenience of the people of Midland County * * *.'

The decretal portions of the judgment, however, were as follows:

'IT IS, THEREFORE, ADJUDGED AND DECREED by the Court that the order of the Commissioners' Court of Midland County, Texas, passed and approved on the 31st day of August, 1963, dividing and redistricting said County into new Commissioners' Precincts, and all prior orders of the Commissioners' Court of said County dividing the same into Commissioners' Precincts, be and they are hereby, in all things, set aside.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that not later than the next succeeding July or August term of the Commissioners' Court of Midland County, Texas, that said Commissioners' Court * * * divide said County into four Commissioners' Precincts for the convenience of the people of said County And in so doing to establish such Commissioners' Precincts So that each will have substantially the same number of people.' (Italics added)

Petitioner attacks the current and prior orders of the commissioners court dividing Midland County into commissioners precincts as invalid under Article V, Section 18, Article I, Section 3, and Article I, Section 19, of the Texas Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution, because of the gross population disparity. He argues that these constitutional provisions require equality of population in the precincts. Respondents assert, on the other hand, that Petitioner did not state or show a cause of action, or establish a justiciable interest or right to bring this suit as representative of a class, because equality of population in the precincts is not required but only that the precinct division be for the convenience of the people in the terms of Article V, Section 18, of the Texas Constitution.

Petitioner as a voter in the county has a justiciable interest in matters affecting the equality of his voting and political rights. Cf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363 (1937); Dubose v. Woods, 162 S.W. 3 (Tex.Civ.App.1913, no writ hist.). We agree with the holding of the trial court that the current order of the commissioners court redistricting Midland County is not supportable under the requirements of the Texas and the United States Constitutions for the reasons stated by the trial court in its judgment findings. We are not in agreement, however, with the judgment of the trial court to the extent that it orders a redistricting of the county on the sole basis of equality of population.

Article V, Section 18, of the Texas Constitution provides:

'Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts * * * Divisions shall be made by the Commissioners Court provided for by this Constitution. * * * Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.'

Article I, Section 3, reads as follows:

'All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.'

The county is a subordinate and derivative branch of state government. Its governmental body is the commissioners court composed of the four county commissioners with the county judge as the presiding officer. See Articles 2351 et seq., Vernon's Ann.Civ.Stats., for an enumeration of the statutory powers and duties of the commissioners court. The appellation 'court' is a misnomer in the accepted meaning of the designation. See 11 Tex.L.Rev. 518 (1933). The commissioners are elected by the qualified voters of the precincts; the county judge is elected by the qualified voters of the entire county. The primary function of the commissioners court is the administration of the business affairs of the county. See Ehlinger v. Clark, 117 Tex. 547, 8 S.W.2d 666 (1928). Its legislative functions are negligible and county government is not otherwise comparable to the legislature of a state or to the federal Congress where the 'one man, one vote' principle is asserted in its most exacting and compelling sense. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ¹; Westberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

This Court has not written upon the specific duty of the commissioners court under Article V, Section 18, to divide the county from time to time into four commissioners precincts for the convenience of the people. There are four cases in which the Courts of Civil Appeals have done so: Lewis v. Harris, 48 S.W.2d 730 (Tex.Civ.App.1932, writ ref.); Ward v. Bond, 10 S.W.2d 590 (Tex.Civ.App.1928, no writ hist.); Williams v. Woods, 162 S.W. 1031 (Tex.Civ.App.1914, no writ hist.); Dubose v. Woods, 162 S.W. 3 (Tex.Civ.App.1913, no writ hist.)....