Hank AVERY, Petitioner, v. MIDLAND COUNTY, Texas, et al., Respondents, 406 S.W.2d 422

STEAKLEY, Justice.

Article V,

Section 18, of the Texas Constitution, Vérnon’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 relevant 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 jus-ticiable 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.J, 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) ; 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.).

In Harris, 20 per cent of the people of the county elected three of the four commissioners and the taxable values in the one precinct containing 80 per cent of the population substantially exceeded those of the three other precincts combined. The suit was for a mandamus to compel a redistricting.

It was held that such facts did not show that the discretion of the commissioners court had been abused by arbitrary action, the court saying: “As applied to different situations, the phrase ‘convenience of the people,’ as used in the Constitution may have different meanings, but in our opinion it cannot properly be construed as imposing upon a commissioners’ court the absolute duty of rearranging the boundaries of commissioners’ precincts, from time to time, so as to accord to each precinct representation upon and power of control of the commissioners’ court in proportion to their respective populations, voting strengths, and taxable valuations. * * * ” Ward v.

Bond considered a division order redistricting the county into new commissioners precincts equal in area but unequal in population to the extent that 54.5 per cent of the voters elected one commissioner, with 45.5 per cent electing the other three commissioners. The Court of Civil Appeals affirmed the action of the trial court sustaining the division order.

The Court stated that disparity in population was not a sufficiently serious consideration to justify a reversal of the trial court judgment but pointed out that the disparity in population would shortly disappear as the result of the construction of a railroad through the county. The Court also sought to distinguish the Dubose and Williams cases on the ground that the new division lines in these cases practically deprived some voters of their right of franchise. The Williams and Dubose cases were sequels and county districting orders were held invalid in each case.

In Williams, Dunn County was divided in such manner that 500 voters would elect two commissioners and 120 voters would elect two commissioners. There was a similar disparity in area. It was recognized by both parties that the precincts had been divided along ethnic lines, the Court saying: “The great disparity in acreage and population is sought to be justified only on the ground that the county should be so divided as to give the Anglo-Saxons a part of the precincts and the Mexican population the others.

Convenience of the voter did not enter the consideration of the court, but divisions of the territory were made that will tend to foment strife among citizens of different races.” Dubose involved a division of Dunn County under which 500 voters elected one commissioner and 140 voters elected the remaining three commissioners, together with similar disparity in area and public roads. Moreover, the precincts were drawn so as to deprive two towns in the county of polling places where they had been located for the past thirty years.

The Court said: “The facts alleged in the sworn petition show conclusively that as to neither class of precincts is the division of the county one which is convenient to the people of said county; and in fact such division is so arbitrary and wrong that the court should not for a moment tolerate the same. * * * When considered as commissioners’ precincts, it is manifest that wrong was committed in making the districts largely disproportionate as to acreage and population. * * * The government of the county will be taken away from the majority of the voters. * * * ” The requirements of

Article V,

Section 18, of the Texas Constitution are to be construed and enforced consistently with

Article I,

Section 3, commonly referred to as the equal rights or equal protection clause of the Texas Constitution. Cf. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). Equal protection of laws is not secured if persons are deprived of equality in political rights or otherwise subjected to an arbitrary exercise of governmental powers. See Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944); Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931); Glasgow v. Terrell, 100 Tex. 581, 102 S.W. 98 (1907). This Court considered the terms “convenient” and “convenience of the people” appearing in

Article V,

Section 18, in Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922), involving an order of the commissioners court creating an additional justice of the peace precinct. Two principles relevant here were there recognized, namely, that in discharging the requirements of

Article V,

Section 18, the commissioners court was given some discretion to meet the “changing needs of the people” but such must be “exercised in good faith and without fraud, not arbitrarily, nor in gross abuse of discretion.” The basic problem of Texas counties in the respects under review is the extent of political power which the metropolitan areas should have in relation to the rural areas. The very fact of population concentration enables the city voters to elect the county-wide officers. We recognized in Pritchard & Abbott v.

McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961), that the county commissioners court is not charged with the management and control of all of the county’s business affairs; and that the various officials elected by all the voters of the county have spheres that are delegated to them by law and within which the commissioners court may not interfere or usurp. The voice of the rural areas will be lost for all practical purposes if the commissioners precincts of counties are apportioned solely on a population basis except, perhaps, in those few sparsely settled counties without a concentration of urban centers.

Yet, important affairs of the county administered by the commissioners court — such as roads, bridges, taxable values of large land areas — disproportionately concern the rural areas. Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county.

It has come to pass that the city government with its legislative, executive and judicial branches, is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers. As we have said, equal rights and equal protection of laws require equality in political rights and there may be circumstances under which equality in population of political subdivisions electing representatives to an overall governing body is essential to equality in voting rights.

On the other hand, the convenience of the people in the particular circumstances of a county may require — and constitutionally justify— a rational variance from equality in population in commissioners precincts upon the basis of additional relevant factors such as number of qualified voters, land areas, geography, miles of county roads and taxable values. The trial court in its judgment found that such considerations could have been taken into account in the precinct division in Midland County, notwithstanding which he ordered a redistricting to achieve substantial equality of population.

We agree with the holding of the trial court that there is obvious arbitrariness in the current districting order here under attack because of the patent malapportionment of the commissioners precincts of Midland County. The judgment findings of the trial court show the absence of any rational basis therefor. We disagree with the judgment of the trial court in its requirement that Midland County be redistricted into commissioners precincts solely upon the basis of population.

For the reasons before stated, we are of the opinion that the equal protection of the law clauses of the Texas and the United States Constitutions do not require a commissioners precinct division of Texas counties on this basis in all cases, dependent, of course, in each case upon the existence and effect of other relevant factors such as those we have mentioned. But neither this Court nor the district court has the power to redistrict Midland County into commissioners precincts.

This is the responsibility of the commissioners court and is to be accomplished within the constitutional boundaries we have sought to delineate. In no event is a population disparity sustainable against a showing of discrimination, fraud, arbitrariness or abuse of discretion. The judgments of the Court of Civil Appeals and of the trial court are reversed and the cause is remanded to the trial court for the entry of judgment in accordance with this opinion at a time not to interfere with the 1966 general election process. HAMILTON, J., not sitting.

SMITH, J., dissenting. . “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, 62 L.Ed. 151, [159] 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.’ The relationship of the States to the Federal Government could hardly be less analogous.” Reynolds v.

Sims, supra, 377 U.S. at 575, 84 S.Ct. at 1388. . “No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Amend. XIV, § 1, United States Constitution. See Tedesco v. Board of Supervisors, 43 So.2d 514 (La.App.), appeal denied, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1960), and the clarification in Baker v.

Carr, 369 U.S. at 235, 82 S.Ct. 691, of the dismissal of the appeal in Tedesco for want of a substantial federal question, to wit, there was a rational justification for the population disparity in the dis-tricting of city council seats.