Dusch v. Davis, 724

Decision Date22 May 1967
Docket NumberNo. 724,724
Citation387 U.S. 112,18 L.Ed.2d 656,87 S.Ct. 1554
PartiesFrank A. DUSCH et al., Appellants, v. J. E. Clayton DAVIS et al
CourtU.S. Supreme Court

Harry Frazier III, Richmond, Va., for appellants.

Henry E. Howell, Jr., Norfolk, Va., for appellees.

Fraci § X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, pro hac vice, by special leave of Court.

Mr. Justice DOUGLAS delivered the opinion of the Court.

In 1963 the City of Virginia Beach, Virginia, consolidated with adjoining Princess Anne County, which was both rural and urban; and a borough form of government was adopted. There are seven boroughs, one corresponding to the boundaries of the former city and six corresponding to the boundaries of the six magisterial districts. The consolidation plan was effected pursuant to Virginia law1 and the charter embodied in the plan was approved by the legislature.2

Three boroughs—Bayside, Kempsville, and Lynnhaven—are primarily urban. Three—Blackwater, Princess Anne, and Pungo—are primarily rural. The borough of Virginia Beach, centering around its famous ocean beach and bay, is primarily tourist.

Electors of five boroughs, having exhausted attempts to obtain relief in the state courts,3 instituted this suit against local and state officials claiming that the consolidation plan in its distribution of voting rights violated the principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and asking for the convening of a three-judge court. The three-judge court held that its jurisdiction had not been established because the issue was local in character and transferred the cause to the District Court.

The District Court held the original allocation invalid as denying voter equality and stayed further proceedings to allow the city an opportunity to seek a charter amendment at the 1966 session of the State Legislature. The charter was amended to provide for the Seven-Four Plan now being challenged. 4 Under the amended charter, the council is composed of 11 members. Four members are elected at large without regard to residence. Seven are elected by the voters of the entire city, one being required to reside in each of the seven boroughs. Pursuant to leave of the District Court, appellees filed an amended complaint challenging the validity of the Seven-Four Plan. The District Court approved this plan. The Court of Appeals reversed, 361 F.2d 495. The case is here on appeal (28 U.S.C. § 1254(2)) and we postponed the question of jurisdiction to the merits. 385 U.S. 999, 87 S.Ct. 706, 17 L.Ed.2d 540.

For the reasons stated in Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, the case is not one for a three-judge court, the charter being local only and not of statewide application.

In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, we reserved the question whether the apportionment of municipal or county legislative agencies is governed by Reynolds v. Sims. But though we assume arguendo that it is, we reverse the Court of Appeals. It felt that Reynolds v. Sims required 'that each legislator, State or municipal, represent a reasonably like number in population,' 361 F.2d, at 497, pointing out that Blackwater, where 733 people live, will have the same representation as Lynnhaven with 23,731 and Bayside with 29,048 and Kempsville with 13,900. The Court of Appeals reaffirmed what it had decided in Ellis v. Mayor and City Council of Baltimore, 4 Cir., 352 F.2d 123, 128, that 'the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.' And the court held that the provision for four city-wide members 'does not remedy or in any way affect the disproportion of representation of the 7 borough members.' 361 F.2d, at 497.

The Sevn- Four Plan makes no distinction on the basis of race, creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 501, 13 L.Ed.2d 401:

'It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district's senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in fact he is the county's and not merely the district's senator.'

By analogy the present consolidation plan uses boroughs in the city 'merely as the basis of residence for candidates, not for voting or representation.' He is nonetheless the city's, not the borough's, councilman. In Fortson...

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159 cases
  • Holloway v. City of Va. Beach
    • United States
    • U.S. District Court — Eastern District of Virginia
    • March 31, 2021
    ...The newly formed city included urban boroughs of the old city and the rural boroughs of the old county. Dusch v. Davis , 387 U.S. 112, 113, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967).4. In addition to the decennial census, the Census Bureau publishes one-, three-, and five-year estimates of popul......
  • Krzewinski v. Kugler, Civ. A. No. 1011-71.
    • United States
    • U.S. District Court — District of New Jersey
    • February 4, 1972
    ...court. While a municipal ordinance standing alone is not a "statute" within the meaning of 28 U.S.C. § 2281, Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Moody v. Flowers, 387 U.S. 97, ......
  • Hyden v. Baker
    • United States
    • U.S. District Court — Middle District of Tennessee
    • February 13, 1968
    ...18 L.Ed.2d 643 (1967), Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), and Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), cannot be regarded as foreclosed by prior decisions and, therefore, that the complaints herein come within the ru......
  • Turner v. Fouche
    • United States
    • United States Supreme Court
    • January 19, 1970
    ...643; cf. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 92—95, 55 S.Ct. 678, 679 680, 79 L.Ed. 1322; and see Dusch v. Davis, 387 U.S. 112, 114, 87 S.Ct. 1554, 1555, 18 L.Ed.2d 656; Sailors v. Board of Education, 387 U.S. 105, 107, 87 S.Ct. 1549, 1551, 18 L.Ed.2d 650. The appellants cannot ......
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3 books & journal articles
  • Local Government Litigation: Some Pivotal Principles - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 55-1, September 2003
    • Invalid date
    ...Law (3d ed. 1977). 5. Moody v. Flowers, 387 U.S. 97, 104 (1967); Sailors v. Bd. of Educ., 387 U.S. 105, 111 (1967);Duschv. Davis, 387 U.S. 112, 114(1967). For treatment of these cases, see Sentell, supra note 4, at 604, 632, 636. 6. Avery v. Midland County, 390 U.S. 474, 479 (1968). For tre......
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    • United States
    • Stanford Law & Policy Review Vol. 33 No. 1, March 2022
    • March 1, 2022
    ...that candidates for specific seats live within certain districts, but nonetheless have them be elected statewide, Cf. Dusch v. Davis, 387 U.S. 112 (1967) (election plan that used boroughs with unequal population as a basis for candidate residency, but not for voting or representation, did n......
  • TOWARD FAIRER REPRESENTATION IN STATE LEGISLATURES.
    • United States
    • Stanford Law & Policy Review Vol. 33 No. 2, June 2022
    • June 22, 2022
    ...that candidates for specific seats live within certain districts, but nonetheless have them be elected statewide, Cf. Dusch v. Davis, 387 U.S. 112 (1967) (election plan that used boroughs with unequal population as a basis for candidate residency, but not for voting or representation, did n......

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