Petition — Hathorn v. Lovorn

Pein”

PEF yg

In the Supreme Court of the -Uinitdd’ States.“

OCTOBER TERM, 1978

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

Fair AND Mayo

Post Office Box 509

Louisville, Mississippi 39339

WILuiaM A. ALLAIN

Post Office Box 22965

Jackson, Mississippi 39205

FRANK DERAMUS

Post Office Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

RE A hs ISSR

cece aatntateeideninistntiiiisecanbiscsurictyaninnmnanenniines

a ssnsisasdnhonsenneunnees

Le

Reasons for Granting the I la ctticeenahititttilburaccsansesine

SI eaccctansnaceee careneatn da ecesteneentaciindinenetinhestisndanigntinnnn

Appendix— .

“A”. Decision of the Supreme Court of Missis-

ND - icataeeiteildctenniaiecnatinteninietinninnain

“B”. Excerpts From Petition for Rehearing En

SET. ceceilaaiacedddtiacineeiintinatiadinaiabdedidipstinscnnnianncinevees

Table of Authorities

CASES

Allen v. Board of Education, 393 U.S. 544, 545 oo...

Connor v. Johnson, 402 U.S. 690 20... eeccccepeecceeeeeeeenee

Dougherty County, Ga. Bd. of Ed. v. White, ........ US.

eects Nee saccscnssansntsnceases

East Carroll Parish School Board v. Marshall, 424 U.S.

LL SLL

Horry Cty. v. United States, 449 F. Supp. 990 (1978) ....

Perkins v. Matthews, 400 U.S. 379 .uo.......ececececeesceseeeeeees

I ee II Mosc ncncncsccnccccsescscseressccscccescoscseees

II

STATUTES AND REGULATIONS

28 CFR §51.4(6)

Mississippi Code of 1972—

§37-7-203

§37-7-615

TAMARA ESAS ASEREESEES ESE EESESESSSSES EES SEES ESSE SEES EEE EES: CSEEES

-.

SU SSOM ERS R RRR e RET ES ESE H SEES EET OE SEES ES EEE SEES EESEeSeseseeseseee

SETTER O TERE R EERE H ERE E EER EEE ESSE EEE E EEE E ESSE Eeeeeeeseseeeeee

er 2, 4, 5,

6, 8, 9, 10

In the Supreme Court of the United States

OCTOBER TERM, 1978

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

Petitioners pray that a writ of certiorari issue to review

the decision of the Supreme Court of Mississippi rendered

on January 10, 1979

OPINION BELOW

The decision of the Supreme Court of Mississippi is

reported at 365 So.2d 947 and is appended hereto as Ap-

pendix “A”.

JURISDICTION

The decision of the Supreme Court of Mississippi was

entered on January 10, 1979. This petition for a writ

of certiorari is being filed within ninety days of that date.

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

$1257(3).

QUESTIONS PRESENTED

1. Whether the change from appointment by the

Board of Aldermen to election by the qualified electors

of three members of a five-member Board of Trustees

of a local school district in Mississippi is covered by Section

5 of the Voting Rights Act of 1965, as amended.

2. Whether the change from election at-large to elec-

tion by supervisors’ districts of two members of a five-

member Board of Trustees of a local school district in

Mississippi is covered by the Voting Rights Act of 1965,

as amended.

3. Whether a decree of a State Chancery Court in

Mississippi is within reach of Section 5 of the Voting

Rights Act of 1965, as amended.

STATEMENT OF THE CASE

Prior to July 1, 1960, the City of Louisville, Mississippi,

operated its Louisville Municipal Separate School District

inside the City Limits of Louisville, and the Winston

County School Board operated the County School System

governing the territory outside the City of Louisville. On

January 25, 1960, the Winston County Board of Education

entered an order abolishing the Winston County School

District requesting that its territory be added to and an-

nexed to the Louisville Municipal Separate School District.

The Board of Trustees of the Louisville Municipal Separate

School District consented to the territory of the County

School District being added and annexed to the Louisville

Municipal Separate School District, which annexation was

approved by the State Education Finance Commission on

April 4, 1960, said Commission making a finding that such

3

abolition and annexation would promote the educational

welfare of the entire county and the efficiency of operating

schools therein. The City of Louisville reserved and re-

tained the right, pursuant to applicable existing law,

to appoint three members of the five-member Board of

Trustees with two Trustees being elected at-large from

the added territory, even though other alternate methods

of the selection of Trustees were lawfully available. ,

Continuously from July 1, 1960, to date, the only school

district operating public schools in Winston County has

been denominated the Louisville Municipal Separate

School District with the Board of Trustees of this School

District appointed and elected in the manner aforesaid.

In 1964 the Mississippi Legislature enacted two statutes

which affected the School District. One section, being

$37-7-615, Mississippi Code of 1972, changed the method

by which the taxable property within the added territory

outside the municipal limits should be assessed. The other

change, being §37-7-203, Mississippi Code of 1972, required

all members of the Board of Trustees of the School District

to be elected from Supervisors’ Districts.

Immediately after the enactment of §37-7-615, Missis-

sippi Code of 1972, a suit was instituted by the City of

Louisville against the Board of Supervisors of Winston

County, Mississippi, challenging the constitutionality of

the change effected by §37-7-615.

The Chancery Court of Winston County, Mississippi,

by decree dated September 16, 1964, declared that the

said section was unconstitutional, since it was of a local

and private nature and, therefore, violated the Constitution

of the State of Mississippi. Although the municipality

did not attack in court said $37-7-203 which concerns

the change of the selection of the board members of

4

the District, the municipality was of the opinion that said

section was unconstitutional for the reasons given by the

Chancery Court and, therefore, did not implement the

change effected by §37-7-203. Therefore, the members

of the Board of Trustees of the Louisville Municipal Sep-

arate School District have continued to be selected in

the same manner as they were selected in 1960.

In 1975 certain citizens residing outside the corporate

limits of Louisville, Mississippi, filed an action in the Chan-

cery Court of Winston County requesting a mandatory

injunction to enforce the election of a five-member Board

of Trustees for the Municipal Separate School District

as provided by §37-7-203, Mississippi Code of 1972. The

Chancellor entered a Decree dismissing the action deter-

mining that said §37-7-203 was unconstitutional, since

it was of a local and private nature and, therefore, violative

of the Constitution of Mississippi. The Chancellor further

determined that the method of selecting members of the

Board of Trustees was not in violation of the one-person

one-vote principle.

The Plaintiffs appealed to the Supreme Court of Mis-

Sissippi, and that Court reversed the Chancellor as to his

declaration that §37-7-203 was unconstitutional. The

Court did not address the question as to one-person one-

vote.

Petitioners filed a Petition for Rehearing En Banc

and raised the question as to the applicability of §5 of

the Voting Rights Act of 1965, as amended. A copy of

that portion of the Petition and brief in support thereof

which addresses the §5 question is attached hereto as

Appendix “B”. Although the Supreme Court, in its opin-

ion, did not specifically discuss the $5 question, the Court

sub silentio rejected Petitioners’ contention, since it re-

manded the case for entry of a decree by the Chancellor

5

without the need or necessity of §5 preclearance. The

$5 question had not been previously raised, but, being

akin’ to a jurisdictional question, could be raised at any

stage of the litigation.

The Supreme Court remanded the case to the Chancel-

lor directing him to enter a decree requiring the School

Board members to be elected from Supervisors’ Districts

of Winston County, Mississippi. Therefore, in effect, the

Chancery Court is now mandated to require the selection

of members of the Board of Trustees of the Louisville

Municipal Separate School District in a manner different

from the manner of selection which existed as of November

1, 1964. Such is a violation of §5 of the Voting Rights

Act of 1965, as amended, since the local school district

has not obtained preclearance of such procedure from the

Attorney General of the United States or the United States

District Court for the District of Columbia.

REASONS FOR GRANTING THE WRIT

The writ of certiorari should be granted since the.

mandate of the Supreme Court of Mississippi requires

the Chancery Court of Winston County, Mississippi to enter

a decree requiring these Petitioners to violate §5 of the

Voting Rights Act of 1965, as amended.

Petitioners submit that the change in the selection

of members of the Board of Trustees of the Louisville

Municipal Separate School District mandated by the Su-

preme Court of Mississippi is a “standard practice or pro-

cedure with respect to voting” within the meaning of §5

of the Voting Rights Act of 1965, as amended. This Court

ia Dougherty County, Ga. Bd. of Ed. v. White, ........ US.

pie , 58 L.Ed.2d 269, surveyed prior cases of the Court

wherein the question as to what type of changes in voting

6

procedures were covered by §5 and concluded that said

section must be given a broad construction. This Court

has repeatedly determined that the central concern of Con-

gress in enacting §5 was to protect against changed prac-

tices which may affect Negro voters. This Court in Dough-

erty admonished that:

“Thus, in determining if an enactment triggers §5

scrutiny, the question is not whether the provision

is in fact innocuous and likely to be approved, but

whether it has potential for discrimination.”

Petitioners submit that the change required by the

decision of the Supreme Court of Mississippi has the poten-

tial for discrimination. This Court has previously deter-

mined that a change from an elected official to an appointed

official is covered by the Act, Allen v. Board of Education,

393 U.S. 545, but has not had the occasion to determine

whether a change from an appointed official to an elected

official is covered by the Act. We submit that such change

is covered. The United States District Court for the

District of Columbia has so decided. Horry Cty. v. United

States, 449 F.Supp. 990, 995 (1978). It takes little imagi-

nation to envision a situation by which Negro officials ap-

pointed by a City Council could not be elected if they had

to face a voter constituency which was predominately of

the Caucasian race. This Court is aware that many of the

gains made by blacks in government, be it federal, state

or local, have been through the appointive route.

The Attorney General of the United States has taken

the position that a change in the selection of a public

official in a covered state from the appointive method

to the elective method is covered by §5. The Attorney

General in developing procedures for the administration

of §5 has determined that “any action. . . changing the

method of selecting an. official” is covered by the Act.

7

28 CFR §51.4(6).* This interpretation should be given

consideration. Udall v. Tallman, 380 U.S. 1.

Petitioners further submit that the change from the

election at-large of the two members who reside outside

the corporate limits of Louisville, Mississippi, to election

by Supervisors’ Districts also has a potential of racial

discrimination. Again, it is not difficult to conceive of

a situation by which the two members, if elected at-large,

would be black; if elected by Supervisors’ Districts, one

may be black representing an overwhelmingly black dis-

trict, whereas the other member may be Caucasian coming

from a predominately white district. This Court has pre-

viously determined that any change from at-large elections

to district elections or the converse is covered by the

Act. Allenv. Board of Elections, 393 U.S. 544.

The fact that the Mississippi statute which the Su-

preme Court of Mississippi has mandated the Chancery

Court to require implemented was enacted prior to No-

vember 1, 1964, is of no moment. As previously stated,

this statutory scheme of selecting members of the Board

of Trustees of the local school district was never “admin-

istered” by the School District. On November 1, 1964,

the members of the local school district were being selected

in the same manner as they were selected in 1960, i.e.

three members were appointed by the City Council and

two members were elected at-large by the voters residing

outside the corporate limits. This Court has previously

held in Perkins v. Matthews, 400 U.S. 379, that the mere

date of enactment of a statute is not controlling, but that

the controlling date is that date when a covered political

hody “seeks to administer” the statute. In the action

*The above-stated position of the Attorney General of the

United States was confirmed by telephonic communication with

the Chief of the Voting Section of the Attorney General of the

United States.

8

sub judice the statute in question has never been admin-

istered and will not be administered until mandated by

a decree of the Chancery Court of Winston County, Missis-

sippi. Therefore, the local School District will be required

“to administer” a voting procedure different from that

existing on November 1, 1964.

This Court has previously declared that a decree of

a United States District Court is not within the reach

of §5 of the Voting Rights Act of 1965, as amended,

Connor v. Johnson, 402 U.S. 690, 691; East Carroll Parish

School Board v. Marshall, 424 U.S. 636, fn. 6, but has

never addressed the question as to whether the decree

of a covered state court is within the reach of §5. Peti-

tioners suggest that a covered state court decree is within

the reach of §5. Since Congress has determined that

§5 questions should be adjudicated by a Three-Judge

United States District Court, it would seem unlikely that

a decree of a covered state court would not be subject

to federal scrutiny, i.e. the Attorney General of the United

States or United States District Court for the District

of Columbia. The rationale for this Court’s determination

that the decree of a United States District Court is not

subject to §5 scrutiny is based upon the principle of

co-equal branches of the federal government. Such a de-

termination is not necessary when the court is dealing

with branches of two separate governments, one being

paramount to the other. Again, it is the position of the

United States that a decree of a covered state court is

within the reach of §5. The Attorney General has taken

the position that decrees of covered state courts approving

municipal annexations are within the reach of §5.

Petitioners submit that this question, in and of itself,

is of sufficient importance for this Court to grant the

requested writ of certiorari. Immediately after the release

of the 1980 Census figures numerous local governments

throughout the covered states will be required to redistrict

in order to comply with the one-person one-vote principle.

Many of the changes brought about by the 1980 Census

will be commenced by litigation. These states need to

have a definitive answer from this Court as to whether

decrees of their respective state courts requiring redistrict-

ing are within the reach of $5. Further, it is not incon-

ceivable that state court actions may be instituted in the

covered states as to reapportionment of the State Legis-

latures and redistricting of the Congressional delegations.

These states need guidance from this Court as to whether

such actions, once finalized, must still receive clearance

as provided for by §5.

CONCLUSION

Petitioners suggest that the Writ should issue since

the Supreme Court of Mississippi decided a federal question

in a way which conflicts with applicable decisions of this

Court and interpretations of the Attorney General of the

United States.

Further, the Mississippi Supreme Court has decided

an important question of federal law which has not been,

but should be, settled by this Court, i.e. whether a decree

of a state court in a covered state is within the reach

of $5 of the Voting Rights Act of 1965, as amended.

We submit to the Court that unless this Court issues

the prayed for writ of certiorari and settles the important

questions involved, the Petitioners will be placed in an

untenable position of either the disobeyance of a state

court injunction or the violation of a federal statute. It

is here noted that the Supreme Court of Mississippi in

its opinion not only reversed the Chancery Court, but

10

rendered judgment at the appellate level. This would

appear to foreclose any consideration on remand by the

Chancery Court of the applicability of §5 of the Voting

Rights Act of 1965, as amended. It would appear that

the Chancery Court is limited to the entrance of a decree

requiring the Petitioners “to administer” a voting practice

or procedure different from that which existed as of No-

vember 1, 1964, without preclearance from the Attorney

General of the United States or the United States District

Court for the District of Columbia.

For the aforementioned reasons, Petitioners are of the

opinion that the writ of certiorari should be granted and

that the questions here involved should be decided by

this Court as guidance for actions to be taken by govern-

mental units in the covered states.

Respectfully submitted,

FAIR AND Mayo

Post Office Box 509

Louisville, Mississippi 39339

WuuiaM A. ALLAIN

Post Office .30x 22965

Jackson, Mississippi 39205

FRANK DERAMUS

Post Office Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

Al

APPENDIX

APPENDIX ‘A”’

Mrs. Bobby LOVORN, Sammy Carter,

Joe Goodin, J. D. Eaves and

Prentiss Carter

Vv.

Ralph HATHORN, Mayor of

Louisville, et al.

No. 49446.

Supreme Court of Mississippi.

Oct. 4, 1978.

As Corrected On Denial of Rehearing

Jan. 10, 1979.

Action was brought against mayor and others seeking

mandatory injunction to enforce election of five-member

school board for municipal separate school district. The

Chancery Court, Winston Couniy, John C. Love, Jr., Chan-

cellor, dismissed bill of complaint, and complainants ap-

pealed. The Supreme Court, Lee, J., held that provision

of statute governing election of board of trustees in school

district embracing entire county which read “in which

Highways 14 and 15 intersect” was unconstitutional, al-

though remaining portion of statute was constitutional as

being rational and germane to subject matter.

Reversed, rendered and remanded.

A2-

Statutes (Key) 64(2), 96(4)

Portion of statute providing for election of board of

trustees for school district embracing entire county which

read “in which highways 14 and 15 intersect” was uncon-

stitutional as violation of prohibition on local, private or

special laws; however, with offending language stricken,

remaining portion of statute was constitutional as being

rational and germane to subject matter. Code 1972, §

37-7-203; Const.1890, § 90(p).

Laurel G. Weir, Philadelphia, for appellants.

Fair & Mayo, James Mayo, Louisville, William A.

Allain, Jackson, Frank Deramus, Louisville, for appellees.

Sara E. Gallaspy, Jackson, amicus curiae brief for

Mississippi Municipal Association.

En Banc.

LEE, Justice, for the Court:

Mrs. Bobby Lovorn, et al., filed their bill of complaint

against Ralph Hathorn, Mayor of Louisville, et al., in the

Chancery Court of Winston County, seeking a mandatory

injunction to enforce the election of a five-member school

board for the Louisville Municipal Separate School District.

The chancellor entered a decree dismissing the bill and

complainants below appeal and assign the following errors

in the trial:

(1) The chancellor erred in holding Mississippi Code

Annotated Section 37-7-203 (1972) to be unconstitutional.

(2) The chancellor erred in holding that the constitu-

tional rights of appellant were not being violated under

the one-man one-vote principle.

A3

(3) The chancellor erred in amending his decree after

an appeal had been perfected to the Mississippi Supreme

Court.

Since July 1, 1960, Louisville Municipal Separate

School District has covered all of Winston County and

has been the only school district in said county. Twenty-

six hundred seventy-five (2,675) pupils outside the Louis-

ville city limits and fourteen hundred eighteen (1,418)

pupils inside the city limits attend the schools of said

district. The population of Winston County is approxi-

mately eighteen thousand four hundred six (18,406) of

which number approximately seven thousand (7,000) live

within the City of Louisville. Taxes in the school district

are assessed and. collected by the Louisville City Tax As-

sessor and Collector, and the school district has issued

negotiable bonds for the purpose of funding construction

and maintenance of the schools. School taxes collected

inside the city amount to two hundred ninety-four thou-

sand nine hundred sixty-four dollars three cents ($294,-

964.03) and said taxes collected outside the city amount

to two hundred fifty-five thousand eight hundred twelve

dollars twenty-four cents ($255,812.24). There are fifty-

two (52) municipal separate school districts in Mississippi

and at least forty-eight (48) such districts have territory

located outside the municipality which is embraced within

the school district.

Since 1960, the Board of Trustees of Louisville Muni-

cipal Separate School District has been composed of five

(5) members, three (3) of which are appointed by the

governing authorities of the City of Louisville, and two

(2) of which are elected by the qualified electors of the

school district outside the city. That part of Mississippi

Code Annotated Section 37-7-203 (1972) as amended, which

A4

applies to this suit provides: “...in any county in which

a municipal separate school district embraces the entire

county in which Highways 14 and 15 intersect, one (1)

trustee shall be elected from each supervisors district.”

(Emphasis added).

It is not disputed that the underscored phrase applies

only to Winston County. Appellants’ suit was brought

to enforce election of one (1) trustee from each supervisor’s

district. They also contend that the method of selecting

trustees for said municipal separate school district violates

the one-man one-vote rule and that the right of individuals

residing outside the Louisville city limits to vote for trust-

ees was being unconstitutionally diluted in violation of

the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution. The chancellor found

the quoted part of the statute to be in violation of Section

90, Mississippi Constitution 1890, and unconstitutional. He

also held that the one-man one-vote rule was inapplicable

to the present case.

I.

Did the chancellor err in holding Mississippi Code

Annotated Section 37-7-203 (1972), as amended, to be un-

constitutional?

The basis of the chancellor’s ruling is that the part

of said statute referring to Highways 14 and 15 bears

no rational relationship to the means of electing trustees

in the school district, that it could not apply to any county

except Winston County and that it is a local and private

law in violation. of Section 90(p), Mississippi Constitution

1890, which follows:

“Section 90. The legislature shall not pass local,

private or special laws in any of the following enu-

A5

merated cases, but such matters shall be provided

for only by general law, viz:

* * *

(p) Providing for the management or support

of any private or common school, incorporating the

same or granting such school any privileges; .. .”

We held in Wilson v. Jones County Board of Super-

visors, 342 So.2d 1293 (Miss.1977), where the statute under

consideration involved levying an additional two-mill tax -

in a county having a population in excess of fifty-nine

thousand five hundred forty (59,540) and being traversed

by U. S. Highway 11. which intersected U. S. Highway

84 (Jones County), that the classification must bear a

rational relationship to the purpose of the section. We

said:

“It is the Court’s duty in passing on the constitu-

tionality of a statute to separate the valid from the

invalid part, if this can be done, and to permit the

valid part to stand unless the different parts of the

statute are so intimately connected with and dependent

upon each other as to warrant a belief that the legisla-

ture intended them as a whole, and that if all cannot

be carried into effect it would not have enacted the

residue independently. [Citing cases].

* * *

.. . We are therefore led to the inescapable con-

clusion that the legislature would have enacted the

valid part of the statute independently of the invalid

part because this is precisely what it did. The invalid

part of the statute may be separated from the

valid part and stricken out leaving a complete and

consistent plan whereby counties may levy additional

A6

taxes for general county purposes. We therefore hold

that the part of section 27-39-304 authorizing counties

to levy additional taxes for general county purposes,

and the part in the last paragraph prescribing the

procedure to be followed in making the levy, are con-

stitutional.” 342 So.2d at 1296, 1297.

An act providing that a county having two judicial

districts and being intersected by U. S. Highway 84 and

“Interstate 59 was held to be unconstitutional in Smith

v. Transcontinental Gas Pipeline Corporation, 310 So.2d

281 (Miss.1975). It was emphasized that the classification

must be germane to the subject matter of the legislation.

In Vardaman v. McBee, 198 Miss. 251, 21 So.2d 661

(1945), the Court stated:

“Class legislation, also often called local or private

legislation, is legislation limited in operation to certain

persons or classes of persons, natural or artificial, or

to certain districts of the territory of the State, and

statutes which make unreasonable or arbitrary classifi-

cations or discriminations violate provisions of Con-

stitutions prohibiting special laws granting any special

or exclusive privileges, immunities, or franchises, or

passed for the benefit of individuals inconsistent with

the general law of the land. 12 C.J., Sec. 855, p. 1128;

16A C.J.S. Constitutional Law § 489.

It is said in Ruling Case Law, ‘Where a law is

broad enough to reach every portion of the state and

to embrace within its provision every person or thing

distinguished by characteristics sufficiently marked

and important to make them clearly a class by them-

seves, it is not a special or local, but a general,

law, even though there may be but one member of

the class or one place on which it operates.” 198 Miss.

at 260, 21 So.2d at 664.

AT

The statute under consideration in Board of Education

v, Educational Finance Commission, 243 Miss. 782, 138

So.2d 912 (1962), provided:

“In cases involving two (2) counties, each of

which is organized on the county-unit basis, where

the students residing in one county have been attend-

ing and wish to continue attending the school situated

in the adjoining county which children from their

community have been attending for more than forty

(40) years and where the county line lies within one

thousand (1,000) yards of the school property, trans-

fers may be granted for a period of time not to exceed

five (5) years, subject to the approval of the two

(2) respective county boards of education. In case

the two (2) boards are unable to agree or in case

there is a popular objection to the decision of the

respective boards in the matter, appeals shall lie to

the state educational finance commission whose deci-

sion shall be final.’” 243 Miss. at 804, 138 So.2d at

921.

In holding that the statute was not unconstitutional, the

Court said:

“The appellant Benton County Board of Educa-

tion has invited the attention of this Court to the

Mississippi Legislative House Journal of 1960 at page

388 in order to prove that the amendment here com-

plained of was introduced by three representatives

from Marshall County, Mr. Ash, Mrs. Slayden and

Mr. Owen. It is further stated that the Court should

take judicial knowledge of the enactment and says:

‘There can be no question, but that this proviso was

inserted for the sole and express purpose of taking

care of the Potts Camp situation.’ This may well

A8

be true, but this Court has no right to assume such

facts. The burden is upon one who attacks the consti-

tutionality of a statute to show wherein it conflicts

with the Constitution. We find the foregoing rule

expressed in 11 Am.Jur. Constitutional Law, Sec. 132,

p. 796, as follows: ‘With regard to the duties cast

upon the assailant of a legislative enactment, the

rule is fixed that a party who alleges the unconstitu-

tionality of a statute normally has the burden of sub-

stantiating his claim and must overcome the strong

presumption in favor of its validity. It has been said

that the party who wishes to pronounce a law uncon-

stitutional takes on himself the burden of proving

this conclusion beyond all doubt, and that a party

who asserts that the legislature has usurped power

or has violated the Constitution must affirmatively

and clearly establish his position.’

In the case of State ex rel. Jordan, District Attor-

ney v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710,

at p. 714, this Court said: ‘Our own Court is com-

mitted to the proposition that a statute should be

so construed as to render its constitutional, if possible,

and a statute will not be declared invalid unless it

is clearly apparent that it conflicts with the organic

law after resolving all doubts in favor of its validity.’

It was also pointed out in State ex rel. Knox,

Attorney General v. Speakes et al., 144 Miss. 125,

109 So. 129, that where the meaning of a provision

in a statute is not ascertainable from the act itself,

it cannot be enforced by the courts, and certainly

courts cannot go outside of the amendment of 1960

in this case, and the record, to find some meaning

by which the amendment may be declared unconstitu-

tional. ,

AQ

We are reminded by the language set out in 16

C.J.S. Constitutional Law § 151(1), p. 738, that:

‘The power of the judiciary in determining the consti-

tutionality of a statute is limited to deciding whether

it is within the scope of the constitutional powers

of the legislative department. The judiciary will in-

terfere with acts of the legislative body only where

they are beyond the bounds prescribed by the constitu-

tion, and a legislative usurpation of power should

be clear, palpable, or oppressive, and the claimed in-

fringement of the constitution must be real to justify

interposition. Limitations on the power of the legisla-

ture which the people have been satisfied to leave to

the judgment, patriotism, and sense of justice of the

legislature are not within the control of the courts. It

is for the legislature and not for the courts to deter-

mine what means shall be employed to accomplish

ends within its constitutional powers, * * *’.” 243

Miss. at 812-814, 138 So.2d at 925-926.

Absent the provision referring to Highways 14 and

15 intersecting, the statute, which is a general statute,

appears to be constitutional. Even though Louisville Mu-

nicipal Separate School District encompasses all territory

of the county, there are statutory procedures whereby

any other county in the state could become similarly sit-

uated. Without the offensive part of Section 37-7-203, .

the statute appears to be rational and germane to the

subject matter.

We hold that the part of said statute under considera-

tion here which reads “in which Highways 14 and 15

intersect” is unconstitutional, that such offensive language

be stricken from the act and that the remaining portion

of the statute is constitutional. We further hold that the

chancellor erred in finding the entire portion of the statute

Al0

to be unconstitutional and the decree is reversed and judg-

ment entered here on said question.

Il.

Did the chancellor err in holding that the constitutional

rights of appellants were not being violated under the

one-man one-vote principle?

ITI.

Did the chancellor err in amending his decree after

an appeal had been perfected to the Mississippi Supreme

Court?

Appellants contend that their right to vote for trustees

is being unconstitutionally diluted in violation of the Equal

Protection Clause of the Fourteenth Amendment and that

the one-man one-vote rule is applicable to the election

of trustees for said school district. They cite Avery v.

Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d

45 (1968), and Hadley v. Junior College District of Metro-

politan Kansas City, Missouri, 397 U.S. 50, 90 S.Ct. 791,

25 L.Ed.2d 45 (1970). In Hadley, the Supreme Court

stated:

“Appellants argue that since the trustees can levy

and collect taxes, issue bonds with certain restrictions,

hire and fire teachers, make contracts, collect fees,

supervise and discipline students, pass on petitions

to annex school districts, acquire property by condem-

nation, and in general manage the operations of the

junior college, their powers are equivalent, for appor-

tionment purposes, to those exercised by the county

commissioners in Avery. We feel that these powers,

while not fully as broad as those of the Midland County

Commissioners, certainly show that the trustees per-

All

form important governmental functions within the dis-

tricts, and we think these powers are general enough

and have sufficient impact throughout the district to

justify the conclusion that the principle which we

applied in Avery should also be applied here.

* * *

. . . Thus in the case now before us, while the

office of junior college trustee differs in certain re-

spects from those offices considered in prior cases,

it is exactly the same in the one crucial factor—these

officials are elected by popular vote.

* * a

. . If one person’s vote is given less weight

through unequal apportionment, his right to equal vot-

ing participation is impaired just as much when he

votes for a school board member as when he votes

- for a state legislator. While there are differences

in the power of different officials, the crucial con-

sideration is the right of each qualified voter to par-

ticipate on an equal footing in the election process.

It should be remembered that in cases like this one

we are asked by voters to insure that they are given

equal treatment, and from their perspective the harm

from unequal treatment is the same in any election,

regardless of the officials selected.

* * *

It has also been urged that we distinguish for

apportionment purposes between elections for ‘legisla-

tive’ officials and those for ‘administrative’ officers.

Such a suggestion would leave courts with an equally

unmanageable principle since governmental activities

‘cannot easily be classified in the neat categories fa-

vored by civics texts,’ Avery, supra, 390 U.S. at 482,

Al2

88 S.Ct. at 1119, 20 L.Ed.2d at 52, and it must also

be rejected. We therefore hold today that as a general

rule, whenever a state or local government decides

to select persons by popular election to perform gov-

ernmental functions, the Equal Protection Clause of

the Fourteenth Amendment requires that each quali-

fied voter must be given an equal opportunity to par-

ticipate in that election, and when members of an

elected body are chosen from separate districts, each

district must be established on a basis that will insure,

as far as is practicable, that equal numbers of voters

can vote for proportionally equal numbers of officials.”

397 U.S. at 53-56, 90 S.Ct. at 794-795, 25 L.Ed.2d at

49-51.

Appellees argue that the one-man one-vote rule does

not apply and, among other decisions, cite Sailors v. Board

of Education of the County of Kent, 387 U.S. 105, 87

S.Ct. 1549, 18 L.Ed.2d 650 (1967), wherein the court said

that the rule did not apply since the county school board

members were elected by delegates from local school

boards and that the function of said school board was

administrative rather than legislative or governmental.

The Court further stated:

“We find no constitutional reason why state or

local officers of the nonlegislative character involved

here may not be chosen by the governor, by the leg-

islature, or by some other appointive means rather

than by an election. Our cases have, in the main,

dealt with elections for United States Senator or Con-

gressman...

* * *

. . . If we assume arguendo that where a State

provides for an election of a local official or agency—

whether administrative, legislative, or judicial—the re-

Al3

quirements of Gray v. Sanders [372 U.S. 368, 83 S.Ct.

801, 9 L.Ed.2d 821] and Reynolds v. Sims [377 U.S.

533, 84 S.Ct. 1362, 12 L.Ed.2d 506] must be met, no

question of that character is presented. For while

there was an election here for the local school board,

no constitutional complaint is raised respecting that

election.. Since the choice of members of the county

school board did not involve an election and since

none was required for these nonlegislative offices, the

principle of ‘one man, one vote’ has no relevancy.”

387 U.S. at 108, 111, 87 S.Ct. at 1552, 1553, 18 L.Ed.2d

at 653, 655.

The selection process here is neither fish nor fowl,

three members of the board being appointed in the city

and two members being elected outside the city. However,

since the decision on Question I decides this case, we

do not reach the problem presented by the one-man one-

vote rule, and it is not necessary that we pass on the

second and third questions here. Suffice it to say, we

call attention of the Bench, Bar and Legislature to the

question (which we do not decide) presented by the one-

man one-vote rule which may affect fifty-two (52) muni-

cipal separate school districts in the State of Mississippi.

After consideration of this case by a conference of

justices en banc, and for the reasons stated, the decree

of the trial court is reversed, judgment is rendered here

for appellants, and the case is remanded to the chancery

court for further proceedings not inconsistent with this

opinion.

REVERSED AND REMANDED FOR FURTHER PRO-

CEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C. J. SMITH and ROBERTSON, P. JJ.,

and SUGG, WALKER, BROOM and COFER, JJ. concur.

BOWLING, J., took no part.

Al4

APPENDIX “B”’

4,

The decision of this Honorable Court contains an error

of law in that the action by the Court in reversing the

lower Court and remanding the Cause to the Chancery

Court for further proceedings not inconsistent with the

Opinion of the Court contravenes, and is inconsistent with

and does not comply with the Voting Rights Act of 1965,

Section 5, 42 U.S.C.A., Section 1973 C, in that at all times

since July of 1960, the Trustees of the Louisville Municipal

Separate School District have been elected in a consistent

manner without change and for this Court by the decision

handed down or by judicial legislation or any further

procedure by this Court or the lower Court to change

the method and manner of the election of the Trustees

which existed prior to November 1, 1964, without the

approval of the Attorney General of the United States

or the United States District Court for the District of

Columbia, is as heretofore stated an error of law.

Since, at all times since 1960, the method and manner

of the election and selection of the Board of Trustees

of the Louisville Municipal Separate School District has

been consistent, your Appellees-Petitioners herein would

say that this Court or the lower Court is powerless to

change or seek to administer a change in the method

and manner of the election procedures of Winston County

or the Louisville Municipal Separate School District with-

out the approval of the Attorney General of the United

States or the United States District Court for the District

of Columbia because such action by this Court would be in

conflict with the Voting Rights Act of 1965, Section 5, 42

U.S.C.A. Section 1973 C. The Supreme Court of the United

Al5

States in Perkins v. Matthews, 91 S. Ct. 431 (1971) held that

any change in polling places or voting procedures by: the

City of Canton was within the meaning of Section 5 of

the Voting Rights Act and requires compliance with same

before implementing any change in election procedures.

The Canton case in analogous to the Louisville Municipal

Separate School case in that in 1962 the Legislature au-

thorized a change to at-large elections but for some reason

Canton ignored the mandate in the conduct of the 1965

municipal election and as in 1961, elected the Aldermen by

wards. Canton contends in its argument that it had no

choice but to comply with the 1962 Statute even though

there was no attempt to change same until 1969 and after

the Section 5 Voting Rights Act date of November 1, 1964.

The reason for Canton’s failure to conform its election

law to state law does not appear in the record; however,

on oral argument, Appellees’ Counsel stated that the lapse

was due to his overlooking the 1962 law and the Court

held at page 440:

“Consequently, we conclude that the procedure

in fact “in force or effect” in Canton on November

1, 1964, was to elect Aldermen by wards. That sufficed

to bring the 1969 change within Section 5. As was

the case in Allen, it is clear, however, that the new

procedure with respect to voting is different from

the procedure in effect when . . . [Canton] became

subject to the act; ... 393 U.S., at 570, 89 S.Ct.

at 834. The bearing of the 1962 statute upon the

change was for the Attorney General or the District

Court for the District of Columbia to decide.”

This case is exactly identical to the Canton case be-

cause even though the House Bill 655 was enacted at

the regular 1964 Legislative Session and prior to November

1, 1964, the change does not purport to go into effect

Al6

until after and thus Section 5 of the Voting Rights Act

must be complied with and, therefore, this Court or the

Court below is powerless to order or administer a change

in election procedures without complying with the Act.

Therefore, the decision handed down by this Honorable

Court contains an error of law.