Shilbury v. Board of Sup'rs of Sullivan County

• Decision Date: 26 June 1965
• Citation: 260 N.Y.S.2d 931,46 Misc.2d 837
• Parties: Kurt M. SHILBURY, Plaintiff, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN and the State of New York, Defendants.
• Court: New York Supreme Court

Page 931

260 N.Y.S.2d 931

46 Misc.2d 837

Kurt M. SHILBURY, Plaintiff, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN and the State of New York, Defendants.

Supreme Court, Special Term, Sullivan County.

June 26, 1965.

Milton Levine, County Atty., of Sullivan County, Monticello, for defendant Board of Supervisors of County of Sullivan.

Louis J. Lefkowitz, Atty. Gen., of the State of New York (Robert W. Imrie and Thomas La Rosa, Asst. Attys. Gen., Albany, of counsel), for defendant State of New York.

Louis Tieger, Monticello, for plaintiff, Kurt M. Shilbury in pro. per.

Royall, Koegel & Rogers, New York City, for Association of Towns of the State of New York, amicus curiae.

LAWRENCE H. COOKE, Justice.

Plaintiff, a resident and elector of the Town of Delaware in Sullivan County, has instituted this action for a declaratory judgment that article 4 of the County Law is unconstitutional and void, that it is the duty of defendant Board of Supervisors of said County to formulate a system under which the vote of each supervisor would be proportionate to the number of persons represented by him and for such other and further declaration of the legal rights of the parties as shall be necessary and proper. Defendant Board has moved to dismiss the complaint on the grounds that it does not state facts sufficient to constitute a cause of action and that the court does not have jurisdiction to grant the relief requested. Plaintiff has asked that summary judgment be granted in his favor. By previous court direction, the State of New York was made a party defendant and it had been agreed that the application at hand apply also to the supplemental summons and amended complaint.

Section 150 of the County Law, entitled 'Board of supervisors constituted', provides: 'The supervisors of the serveral cities and towns in each county, when lawfully convened, shall constitute the board of supervisors of the county.' Subdivision 2 of section 153 of the County Law states that: 'A majority of the whole number of the members of the board of supervisors shall constitute a quorum for the transaction of business, but a less number may adjourn'; and subdivision 4 thereof reads in part: 'Whenever in this chapter or other general, special or local law, the board of supervisors is authorized or required to act, and no proportion of the voting strength for such action is otherwise prescribed, such action shall be taken by the affirmative vote of a majority of the total membership of the board.'

The material facts are not in dispute. Sullivan County consists of 15 towns of widely varying populations, each of which has one supervisor (Town Law, § 20) with one vote on the Sullivan County Board of Supervisors.

Amendment XIV of the Constitution of the United States declares that no state may 'deny to any person within its jurisdiction the equal protection of the laws'; and sections 1 and 11 of article I of the New York State Constitution provide that 'No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers' and 'No person shall be denied the equal protection of the laws of this state or any subdivision thereof.'

We have been told by the highest court in the land: that legislators represent people, not trees or acres; that the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system; that weighting the votes of citizens differently by any method, merely because of where they happen to reside, is not justifiable and impairs basic constitutional rights under the Fourteenth Amendment; that each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies; and that the conception of political equality can mean one thing--one person, one vote (Reynolds v. Sims, 377 U.S. 533, 562, 563, 565, 566, 84 S.Ct. 1362, 12 L.Ed.2d 506; Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821; cf. WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Comm. for Fair Rep. v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth Gen. Assem. of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663).

The 'one person, one vote' principle is applicable to the apportionment of elected members of boards of supervisors and other legislative bodies of governmental units below the level of state legislatures (Matter of Goldstein v. Rockefeller, 45 Misc.2d 778, 783, 257 N.Y.S.2d 994, 1001; Bianchi v. Griffing, D.C., 238 F.Supp. 997; State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249; Brouwer v. Bronkema, Circuit Court, Kent County, Mich., Sept. 11, 1964, Searl, J.; Seaman v. Fedourich, 45 Misc.2d 940, 943, 258 N.Y.S.2d 152, 155; Ellis v. Mayor and City Council of Baltimore, D.C., 234 F.Supp. 945.)

According to the 1960 United States census, the population in the 15 towns of Sullivan County is as follows:

                Bethel      2,366  Liberty         8,676
                Callicoon   2,176  Lumberland        538
                Cochecton   1,070  Mamakating      3,356
                Delaware    2,141  Neversink       1,565
                Fallsburgh  6,748  Rockland        4,216
                Forestburg    356  Thompson        8,792
                Fremont     1,047  Tusten          1,087
                                                  ------
                Highland    1,138       Total --  45,272
                

Thus, 356 residents in one town have as much representation on the Board as do 8,792 in another and eight supervisors, representing slightly less than 20% of the County's population, can prevail over seven representing slightly more than 80% of the population. Conversely, three supervisors, representing slightly more than 53% of the population, have but 20% of the present representation on the Board. Clearly, the present scheme of apportionment of the members of defendant Board does not conform to the 'one person, one vote' principle and is in violation of the Fourteenth Amendment of the Constitution of the United States and sections 1 and 11 of article I of the Constitution of the State of New York. Whether or not the present apportionment is a beneficial one is now an academic question, since there has been a recent avalanche of judicial opinion definitely indicating its constitutional invalidity.

Defendant Board, in an affidavit and in its brief, concedes that plaintiff is a resident of the Town of Delaware and defendant State, in its brief, in effect makes the same concession. Public records also show that plaintiff voted at the last general election in the Town of Delaware (see People v. Herkimer, 4 Cow. 345; Browne v. City of New York, 213 App.Div. 206, 233, 211 N.Y.S. 306, 330, affd. 241 N.Y. 96, 149 N.E. 211; Brown v. Sentinel Investigations Serv., 39 Misc.2d 635, 636, 241 N.Y.S.2d 716, 717). It is urged that the population of said Town is 2,141, which is less than one-fifteenth of the total population of the County, and that, therefore, plaintiff is not disenfranchised but enjoys and advantage. The argument overlooks the fact that there are seven towns with populations less than Delaware but which have representation equal to it on the county board and, in this respect, the votes in Delaware have been diluted and undervalued. As stated in Reynolds v. Sims, 377 U.S. 533, p. 563, 84 S.Ct. 1362, p. 1382: 'Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.'

The court does have jurisdiction of the subject matter of the action (N.Y.Const., art. VI, § 1; Seaman v. Fedourich, 45 Misc.2d 940, 942, 258 N.Y.S.2d 152, 154). As recently as June 1, 1965, the United States Supreme Court in Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 447, declared: 'The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.'

Here, defendant Board has asked, not only for dismissal of the complaint but for 'such other and further relief as to the Court may seem just and proper' and plaintiff, in his papers and on argument, has asked for summary judgment. The relevant facts are the questioned provisions of the County Law and matters of public record such as census records, concerning which there is no question of fact (cf. Adams v. Elwood, 176 N.Y. 106, 110, 68 N.E. 126, 127; Taylor v. City of White Plains, Sup., 135 N.Y.S.2d 773, 775). Under the circumstances present here...