source: Caselaw Access Project

author: MR. Justice Powell delivered the opinion of the Court. Mr. Justice Blackmun, MR. Justice Rehnquist,

license: Public Domain

text:
    WEBER v. AETNA CASUALTY & SURETY CO. et al.
    No. 70-5112.
    Argued February 28, 1972
    Decided April 24, 1972
    Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Brennan, Stewart, White, and Marshall, JJ., joined. Blackmun, J., filed an opinion concurring in the result, post, p. 176. Rehnquist, J., filed a dissenting opinion, post, p. 177.

      Vanue B. Lacour argued the cause and filed a brief for petitioner.

      W. Henson Moore argued the cause and filed a brief for respondents.

      Norman Dorsen and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
   MR. Justice Powell delivered the opinion of the Court.

The question before us, on writ of certiorari to the Supreme Court of Louisiana, concerns the right of dependent unacknowledged, illegitimate children to recover under Louisiana workmen's compensation laws benefits for the death of their natural father on an equal footing with his dependent legitimate children. We hold that Louisiana’s denial of equal recovery rights to dependent unacknowledged illegitimates violates the Equal Protection Clause of the Fourteenth Amendment. Levy v. Louisiana, 391 U. S. 68 (1968); Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968).

On June 22, 1967, Henry Clyde Stokes died in Louisiana of injuries received during the course of his employment the previous day. At the time of his death Stokes resided and maintained a household with one Willie Mae Weber, to whom he was not married. Living in the household were four legitimate minor children, born of the marriage between Stokes and Adlay Jones Stokes who was at the time committed to a mental hospital. Also living in the home was one unacknowledged illegitimate child born of the relationship between Stokes and Willie Mae Weber. A second illegitimate child of Stokes and Weber was born posthumously.

On June 29, 1967, Stokes’ four legitimate children, through their maternal grandmother as guardian, filed a claim for their father’s death under Louisiana’s workmen’s compensation law. The defendant employer and its insurer impleaded Willie Mae Weber who appeared and claimed compensation benefits for the two illegitimate children.

Meanwhile, the four legitimate children had brought another suit for their father’s death against a third-party tortfeasor, which was settled for an amount in excess of the maximum benefits allowable under workmen’s compensation. The illegitimate children did not share in this settlement. Subsequently, the employer in the initial action requested the extinguishment of all parties’ workmen’s compensation claims by reason of the tort settlement.

The trial judge awarded the four legitimate children the maximum allowable amount of compensation and declared their entitlement had been satisfied from the tort suit settlement. Consequently, the four legitimate children dismissed their workmen’s compensation claim. Judgment was also awarded to Stokes’ two illegitimate offspring to the extent that maximum compensation benefits were not exhausted by the four legitimate children. Since such benefits had been entirely exhausted by the amount of the tort settlement, in which only the four dependent legitimate offspring participated, the two dependent illegitimate children received nothing.

I

For purposes of recovery under workmen’s compensation, Louisiana law defines children to include “only legitimate children, stepchildren, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204, and 205.” Thus, legitimate children and acknowledged ille-gitimates may recover on an equal basis. Unacknowledged illegitimate children, however, are relegated to the lesser status of “other dependents” under § 1232 (8) of the workmen’s compensation statute and may recover only if there are not enough surviving dependents in the preceding classifications to exhaust the maximum allowable benefits. Both the Louisiana Court of Appeal and a divided Louisiana Supreme Court sustained these statutes over petitioner’s constitutional objections, holding that our decision in Levy, supra, was not controlling.

We disagree. In Levy, the Court held invalid as denying equal protection of the laws, a Louisiana statute which barred an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The Court there decided that the fact of a child’s birth out of wedlock bore no reasonable relation to the purpose of wrongful-death statutes which compensate children for the death of a mother. As the Court said in Levy:

“Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.” Levy v. Louisiana, 391 U. S., at 72.

The court below sought to distinguish Levy as involving a statute which absolutely excluded all illegitimates from recovery, whereas in the compensation statute in the instant case acknowledged illegitimates may recover equally with legitimate children and “the unacknowledged illegitimate child is not denied a right to recover compensation, he being merely relegated to a less favorable position as are other dependent relatives such as parents . . . Stokes v. Aetna Casualty & Surety Co., 257 La. 424, 433-434, 242 So. 2d 567, 570 (1970). The Louisiana Supreme Court likewise characterized Levy as a tort action where the tortfeasor escaped liability on the fortuity of the potential claimant’s illegitimacy, whereas in the present action full compensation was rendered, and “no tort feasor goes free because of the law.” Id., at 434, 242 So. 2d, at 570.

We do not think Levy can be disposed of by such finely carved distinctions. The Court in Levy was not so much concerned with the tortfeasor going free as with the equality of treatment under the statutory recovery scheme. Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged. So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate children for their father were as great as those of the four legitimate children whom Louisiana law has allowed to recover. The legitimate children and the illegitimate children all lived in the home of the deceased and were equally dependent upon him for maintenance and support. It is inappropriate, therefore, for the court below to talk of relegating the unacknowledged illegitimates “to a less favorable position as are other dependent relatives such as parents.” The unacknowledged illegitimates are not a parent or some “other dependent relative”; in this case they are dependent children, and as such are entitled to rights granted other dependent children.

Respondents contend that our recent ruling in Labine v. Vincent, 401 U. S. 532 (1971), controls this case. In Labine, the Court upheld, against constitutional objections, Louisiana intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father’s estate. That decision reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders. Id., at 538. The Court has long afforded broad scope to state discretion in this area. Yet the substantial state interest in providing for “the stability of . . . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,” Labine v. Vincent, 229 So. 2d 449, 452 (La. App. 1969), is absent in the case at hand.

Moreover, in Labine the intestate, unlike deceased in the present action, might easily have modified his daughter’s disfavored position. As the Court there remarked:

“Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child.” Labine, supra, at 539.

Such options, however, were not realistically open to Henry Stokes. Under Louisiana law he could not have acknowledged his illegitimate children even had he desired to do so. The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them.

Both the statute in Levy and the statute in the present case involve state-created compensation schemes, designed to provide close relatives and dependents of a deceased a means of recovery for his often abrupt and accidental death. Both wrongful-death statutes and workmen’s compensation codes represent outgrowths and modifications of our basic tort law. The former alleviated the harsh common-law rule under which “no person could inherit the personal right of another to recover for tortious injuries to his body”; the latter removed difficult obstacles to recovery in work-related injuries by offering a more certain, though generally less remunerative, compensation. In the instant case, the recovery sought under the workmen’s compensation statute was in lieu of an action under the identical death statute which was at issue in Levy. Given the similarities in the origins and purposes of these two statutes, and the similarity of Louisiana’s pattern of discrimination in recovery rights, it would require a disregard of precedent and the principles of stare decisis to hold that Levy did not control the facts of the case before us. It makes no difference that illegitimates are not so absolutely or broadly barred here as in Levy; the discrimination remains apparent.

II

Having determined that Levy is the applicable precedent, we briefly reaffirm here the reasoning which produced that result. The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U. S. 457 (1957); Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Gulf, Colorado & Santa Fé R. Co. v. Ellis, 165 U. S. 150 (1897); Yick Wo v. Hopkins, 118 U. S. 356 (1886). Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny, Brown v. Board of Education, 347 U. S. 483 (1954); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?

The Louisiana Supreme Court emphasized strongly the State’s interest in protecting “legitimate family relationships,” 257 La., at 433, 242 So. 2d, at 570, and the regulation and protection of the family unit have indeed been a venerable state concern. We do not question the importance of that interest; what we do question is how the challenged statute will promote it. As was said in Glona:

“[W]e see no possible rational basis ... for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death.” Glona v. American Guarantee & Liability Insurance Co., supra, at 75.

Nor can it be thought here that persons will shun illicit relations because the offspring may not one day reap the benefits of workmen’s compensation.

It may perhaps be said that statutory distinctions between the legitimate and illegitimate reflect closer family relationships in that the illegitimate is more often not under care in the home of the father nor even supported by him. The illegitimate, so this argument runs, may thus be made less eligible for the statutory recoveries and inheritances reserved for those more likely to be within the ambit of familial care and affection. Whatever the merits elsewhere of this contention, it is not compelling in a statutory compensation scheme where dependency on the deceased is a prerequisite to anyone’s recovery, and where the acknowledgment so necessary to equal recovery rights may be unlikely to occur or legally impossible to effectuate even where the illegitimate child may be nourished and loved.

Finally, we are mindful that States have frequently drawn arbitrary lines .in workmen’s compensation and wrongful-death statutes to facilitate potentially difficult problems of proof. Nothing in our decision would impose on state court systems a greater burden in this regard. By limiting recovery to dependents of the deceased, Louisiana substantially lessens the possible problems of locating illegitimate children and of determining uncertain claims of parenthood. Our decision fully respects Louisiana’s choice on this matter. It will not expand claimants for workmen’s compensation beyond those in a direct blood and dependency relationship with the deceased and it avoids altogether diffuse questions of affection and affinity which pose difficult probative problems. Our ruling requires equality of treatment between two classes of persons the genuineness of whose claims the State might in any event be required to determine.

The state interest in legitimate family relationships is not served by the statute; the state interest in minimizing problems of proof is not significantly disturbed by our decision. The inferior classification of dependent unacknowledged illegitimates bears, in this instance, no significant relationship to those recognized purposes of recovery which workmen’s compensation statutes commendably serve.

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise.

Reversed and remanded.

Mr. Justice Blackmun,

concurring in the result.

For me, La. Civ. Code, Art. 204, is the provision in the State’s statutory structure that proves fatal for this workmen’s compensation case under the focus of constitutional measurement. The Article operated to deny Henry Stokes the ability even to acknowledge his illegitimates so that they might qualify as children within the definition provided by La. Rev. Stat. § 23:1021 (3). This is so because the decedent (inasmuch as he was then married to Adlay Jones Stokes and remained married to her the rest of his life) and the mother were incapable of contracting marriage at the time of conception and thereafter. This bar, indeed, under the Court’s decided cases, denied equal protection to the illegitimates. Cf. Labine v. Vincent, 401 U. S. 532, 539 (1971).

I thus give primary emphasis to the presence of Art. 204 and, I believe, far more emphasis than does the Court. If that statute did not exist or were inapplicable, the case might be a different one. While the Court refers to Art. 204, and to a degree relies upon it, ante, at 171 n. 9, it seems to me that it does so only secondarily. I read the opinion as flatly granting dependent unacknowledged illegitimate children full equality with dependent legitimate children and therefore as striking down the Louisiana statutory scheme even for the situation where the father has the power to acknowledge his illegitimates but refrains from doing so. In other words, the Court holds the Louisiana system unconstitutional with respect to illegitimate dependent children wholly apart from the barrier of Art. 204. Certainly, the first paragraph of the opinion is to this effect.

In deciding this case, I need not, and would not, go that far. I would let the resolution of that issue await its appropriate presentation.

MR. Justice Rehnquist,

dissenting.

This case is distinguishable from Levy v. Louisiana, 391 U. S. 68 (1968), and could be decided the other way on the basis of this Court’s more recent decision in Labine v. Vincent, 401 U. S. 532 (1971). Yet I certainly do not regard the Court’s decision as an unreasonable drawing of the line between Levy and La-bine, and would not feel impelled to dissent if I regarded Levy as rightly decided. I do not so regard it. I must agree with Mr. Justice Harlan’s dissenting opinion, which described Levy and its companion case, Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968), as “constitutional curiosities,” and called the Court’s method of reaching the result “a process that can only be described as brute force.” Id., at 76.

Since Levy was a constitutional holding, its doctrine is open to later re-examination to a greater extent than if it had decided a question of statutory construction or some other nonconstitutional issue. See Coleman v. Alabama, 399 U. S. 1, 22 (1970) (Burger, C. J., dissenting) ; Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 259 (1970) (Black, J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-410 (1932) (Brandeis, J., dissenting).

The Equal Protection Clause was adopted as a part of the Fourteenth Amendment in 1868. Five years later Mr. Justice Miller delivered this Court’s initial construction of that amendment in his classic opinion in SlaughterHouse Cases, 16 Wall. 36 (1873). After setting forth an account of the adoption of that amendment, he described the account as a “recapitulation of events, almost too recent to be called history, but which are familiar to us all.” 16 Wall., at 71. Referring to the Equal Protection Clause, he said:

“We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” 16 Wall., at 81.

In nearly 100 years of subsequent adjudication concerning this clause, the Court has adhered to the notion expressed in the Slaughter-House Cases that racial classifications are “suspect.” See, e. g., Loving v. Virginia, 388 U. S. 1 (1967). But during that same period of time, this Court has proved Mr. Justice Miller a bad prophet with respect to nonracial classification.

As noted in Levy, in the field of economic and social legislation, the Court has given great latitude to the legislatures in making classifications. Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955); Morey v. Doud, 354 U. S. 457 (1957). The test has been whether there is any rational basis for the legislative classification. See Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 556 (1947). “State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 425-426 (1961). Under this test, so long as the “discrimination is founded upon a reasonable distinction, or difference in state policy,” Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 528 (1959), the Court will not attempt to weigh its social value or determine whether the classification might have been more finely drawn. Ferguson v. Skrupa, 372 U. S. 726 (1963). However, this salutary principle has been departed from by the Court in recent years, as pointed out in its opinion here, where the Court has felt that the classification has affected what it conceives to be “fundamental personal rights.”

The difficulty with this approach, devoid as it is of any historical or textual support in the language of the Equal Protection Clause, is that it leaves apparently to the Justices of this Court the determination of what are, and what are not, “fundamental personal rights.” Those who framed and ratified the Constitution and the various amendments to it chose to select certain particular types of rights and freedoms, and to guarantee them against impairment by majority action through legislation or otherwise. While the determination of the extent to which a right is protected may result in the drawing of fine lines, the fundamental sanction of the right itself is found in the language of the Constitution, and not elsewhere. The same is unfortunately not true of the doctrine of “fundamental personal rights.” This body of doctrine created by the Court can only be described as a judicial superstructure, awkwardly engrafted upon the Constitution itself.

The Court’s experience with similar superstructures has not been a happy one. The first part of this century saw the evolution of the doctrine of “freedom of contract” which was held by the Court during part of that time to be a part of the Fourteenth Amendment’s requirement that no person be deprived of life, liberty, or property without due process of law. This doctrine had its just deserts in West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937), where Mr. Chief Justice Hughes, speaking for the Court, said:

“The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.”

In a similar vein it may be said that the Constitution does not speak of “fundamental personal rights,” but speaks of the equal protection of the laws and prohibits the denial thereof. Two years ago, this Court in Dandridge v. Williams, 397 U. S. 471 (1970), recognized that the broad latitude accorded state legislatures by both the contemporary history and the text of the Equal Protection Clause was not limited to statutes regulating business or industry. There, in a case dealing with the administration of public welfare assistance which, the Court noted, “involves the most basic economic needs of impoverished human beings,” the Court nonetheless quite properly applied the “rational basis” constitutional standard. 397 U. S., at 485. It reaffirmed the historically correct statement of the meaning of equal protection in these words:

“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis/ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U. S. 420, 426.”

The Court in today’s opinion, recognizing that two different standards have been applied in equal protection cases, apparently formulates a hybrid standard which is the basis of decision here. The standard is a twp-pronged one:

“What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?”

Surely there could be no better nor more succinct guide to sound legislation than that suggested by these two questions. They are somewhat less useful, however, as guides to constitutional adjudication. How is this Court to determine whether or not a state interest is “legitimate”? And how is the Court to know when it is dealing with a “fundamental personal right”?

While the Court’s opinion today is by no means a sharp departure from the precedents on which it relies, it is an extraordinary departure from what I conceive to be the intent of the framers of the Fourteenth Amendment and the import of the traditional presumption of constitutionality accorded to legislative enactments. Nowhere in the text of the Constitution, or in its plain implications, is there any guide for determining what is a “legitimate” state interest, or what is a “fundamental personal right.” The traditional police power of the States has been deemed to embrace any measure thought to further the well-being of the State in question, subject only to the specific prohibitions contained in the Federal Constitution. That Constitution of course contains numerous guarantees of individual liberty, which I would have no trouble describing as “fundamental personal liberties,” but the right of illegitimate children to sue in state court to recover workmen’s compensation benefits is not among them.

The relationship of the “legitimate” state interest and “fundamental personal right” analysis to the constitutional guarantee of equal protection of the law is approximately the same as that of “freedom of contract” to the constitutional guarantee that no person shall be deprived of life, liberty, or property without due process of law. It is an invitation for judicial exegesis over and above the commands of the Constitution, in which values that cannot possibly have their source in that instrument are invoked to either validate or condemn the countless laws enacted by the various States. In refusing to accept the breadth of meaning of the Fourteenth Amendment urged upon the Court in the Slaughter-House Cases, Mr. Justice Miller said:

“And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the •time of the adoption of this amendment.” 16 Wall., at 78.

Mr. Justice Harlan made clear in his dissent in Levy the exclusively statutory basis for wrongful-death actions as a matter of legal history, and the same may be even more emphatically said about claims for workmen’s compensation benefits. In spite of the Court’s statement of a test, one part of which requires the determination of the extent to which “fundamental personal rights” might be endangered by the Louisiana classification here, we are nowhere told in the opinion just what “fundamental personal right” it is that is involved, to say nothing of whether it is “endangered.” The Court says that, while society has long condemned “irresponsible liaisons beyond the bonds of marriage,” nonetheless “visiting this condemnation on the head of an infant is illogical and unjust.” A fair-minded man might regard it as both, but the Equal Protection Clause of the Fourteenth Amendment requires neither that state enactments be “logical” nor does it require that they be “just” in the common meaning of those terms. It requires only that there be some conceivable set of facts that may justify the classification involved.

In the instant case I cannot condemn as irrational Louisiana’s distinction between legitimate and illegitimate children. In a statutory compensation scheme such as this, the State must inevitably draw rather fine and arbitrary lines. For example, Louisiana declares that parents will have priority in this scheme over first cousins, regardless of the degree of dependency or affection in any given case. Surely, no one would condemn this classification as violative of the Fourteenth Amendment, since it is likely to reflect fairly the un-articulated intent of the decedent. Similarly, the State might rationally presume that the decedent would have preferred the compensation to go to his legitimate children, rather than those illegitimates whom he has not acknowledged.

Although the majority argues that “the state interest in minimizing problems of proof is not significantly disturbed by our decision,” ante, at 175 (emphasis added), it clearly recognizes, as it must, that under its decision additional and sometimes more difficult problems of proof of paternity and dependency may be raised. This is particularly true with respect to petitioner’s youngest child, who was not born until after the death of his father. I believe that a State’s desire to lessen these problems under its statutory scheme is a rational basis for difference in treatment of the two classes.

Finally, the majority apparently draws some comfort from the fact that the illegitimate children here could not have been acknowledged, since the decedent remained married to another woman while he raised these children. However, I do not believe that it follows from this fact that the statutory classification is irrational. On the contrary, this element of the statutory scheme points up another possible legislative purpose which I do not believe this Court should so freely dismiss. Louisiana, like many other States, has a wide variety of laws designed to encourage legally recognized and responsible family relationships. I believe this particular statutory provision, forbidding acknowledgment of illegitimate children when the parents were not free to marry (in this case because the father was already married to another woman), might be considered part of that statutory pattern designed to discourage formation of illicit family relationships. Whether this is a wise state policy, and whether this particular statute will be particularly effective in advancing it, are not matters for this Court’s determination.

Levy and today’s decision are not only inconsistent with the long line of earlier cases construing the Equal Protection Clause to forbid only irrational classifications; they are quite inconsistent with Dandridge v. Williams, supra, decided two years after Levy. If state welfare legislation involving “the most basic economic needs of impoverished human beings” is to be judged by the traditional “reasonable basis” standard, I am at a loss to see why that standard should not likewise govern legislation determining eligibility for state workmen’s compensation benefits.

All legislation involves classification and line drawing of one kind or another. When this Court expands the traditional "reasonable basis” standard for judgment under the Equal Protection Clause into a search for “legitimate” state interests that the legislation may “promote,” and “for fundamental personal rights” that it might “endanger,” it is doing nothing less than passing policy judgments upon the acts of every state legislature in the country.

        Stokes v. Aetna Casualty & Surety Co., 257 La. 424, 242 So. 2d 567 (1970).

       La. Rev. Stat. §23:1232 (1967) establishes the schedule of payment of workmen’s compensation benefits to various classifications of dependents as follows:
      “Payment to dependents shall be computed and divided among them on the following basis:
      “(1) If the widow or widower alone, thirty-two and one-half per centum of wages.
      “(2) If the widow or widower and one child, forty-six and one-quarter per centum of wages.
      “(3) If the widow or widower and two or more children, sixty-five per centum of wages.
      “(4) If one child alone, thirty-two and one-half per centum of wages of deceased.
      “(5) If two children, forty-six and one-quarter per centum of wages.
      “(6) If three or more children, sixty-five per centum of wages.
      “(7) If there are neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. If there are both father and mother, sixty-five per centum of wages.
      “(8) If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages with eleven per centum additional for each brother or sister in excess of one. If other dependents than those enumerated, thirty-two and one-half per centum of wages for one, and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.”

       La. Rev. Stat. §23:1021 (3). The relevant provisions for acknowledgment of an illegitimate child are as follows:
      La. Civ. Code, Art. 202 (1967):
      “Illegitimate children who have been acknowledged by their father, are called natural children; those who have not been acknowledged by their father, or whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown, are contradistinguished by the appellation of bastards.”
      La. Civ. Code, Art. 203:
      “The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.”
      La. Civ. Code, Art. 204:
      “Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception; however, such acknowledgment may be made if the parents should contract a legal marriage with each other.”

       See-n. 2, supra.

       232 So. 2d 328 (La. App. 1969).

        Stokes v. Aetna Casualty & Surety Co., see n. 1, supra.

       The affinity and dependency on the father of the posthumously bom illegitimate child are, of course, not cotnparable to those of offspring living at the time of their father’s death. This fact, however, does not alter our view of the case. We think a posthumously born illegitimate child should be treated the same as a posthumously born legitimate child, which the Louisiana statutes fail to do.

       The Court over a century ago voiced strong support for state powers over inheritance: “Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it.” Mager v. Grima, 8 How. 490, 493 (1850). See Lyeth v. Hoey, 305 U. S. 188, 193 (1938).

       La. Civ. Code, Art. 204, see n. 3, supra, prohibits acknowledgment of children whose parents were incapable of contracting marriage at the time of conception. Acknowledgment may only be made if the parents could contract a legal marriage with each other. Decedent in the instant case remained married to his first wife— the mother of his four legitimate children — until his death. Thus, at all times he was legally barred from marrying Willie Mae Weber, the mother of the two illegitimate children. It therefore was impossible for him to acknowledge legally his illegitimate children and thereby qualify them for protection under the Louisiana Workmen’s Compensation Act. See also Williams v. American Emp. Ins. Co., 237 La. 101, 110 So. 2d 541 (1959), where the Louisiana Supreme Court held that a posthumously born illegitimate child cannot be classified as a child entitled to workmen’s compensation benefits, as defined under La. Rev. Stat. §-23:1021 (3).

       See 391 U. S. 73, 76 (1968) (Harlan, J., dissenting in Glona v. American Guarantee & Liability Insurance Co., and Levy v. Louisiana).

       La. Civ. Code, Art. 2315.

       The most relevant sections of the Louisiana statutes defining dependency for purposes of workmen’s compensation recovery read as follows:
      La. Rev. Stat. § 23:1231:
      “For injury causing death within two years after the accident there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period of four hundred weeks. . . .”
      La. Rev. Stat. § 23:1251:
      “The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:

      “(3) A child under the age of eighteen years . . . upon the parent with whom he is living at the time of the injury of the parent.”
      The above section thus qualifies the illegitimate children in this case as dependents.
      La. Rev. Stat. §23:1252:
      “In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death . . . .”
      Naturally, the variations of dependency claims coming to Louisiana courts under these sections are many, but Louisiana has consistently required valid evidence of dependency for recovery. See, e. g., Sandidge v. Aetna Casualty & Surety Co., 29 So. 2d 522 (La. App. 1947), where children, living with their mother who was separated from the father, in order to receive the maximum compensation for the father’s death, must establish that they were wholly dependent upon the father for their support.

       See, e. g., Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U. Pa. L. Rev. 1 (1969). A comprehensive study of the legal status of illegitimacy and the effects thereof is H. Krause, Illegitimacy: Law and Social Policy (1971) ; reviewed by Wadlington, 58 Ya. L. Rev. 188 (1972).

       See Graham v. Richardson, 403 U. S. 365 (1971); Hunter v. Erickson, 393 U. S. 385 (1969); Brown v. Board of Education, 347 U. S. 483 (1954); and see also Hirabayashi v. United States, 320 U. S. 81 (1943).


author: Per Curiam.

text:
    VERMONT v. NEW YORK et al.
    No. 50,
    Orig.
    Argued February 29, 1972
    Decided April 24, 1972

      Fred I. Parker, Deputy Attorney General of Vermont, argued the cause for plaintiff. With him on the briefs were James M. Jeffords, Attorney General, and John D. Hansen, Assistant Attorney General.

      Philip Weinberg, Assistant Attorney General of New York, argued the cause for defendant State of New York. With him on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Paul S. Shernin and Irving Galt, Assistant Attorneys General. Taggart Whipple argued the cause for defendant International Paper Co. With him on the briefs were Richard E. Nolan and William H. Levit, Jr.

   Per Curiam.

The motion by Vermont for leave to file a bill complaint invoking our original jurisdiction against New York and against International Paper Co., a New York corporation doing business in New York, is granted. New York and International Paper Co. are given until June 19, 1972, to answer the bill of complaint.

So ordered.


author: Per Curiam. Mr. Justice Stewart,

text:
    SIXTY-SEVENTH MINNESOTA STATE SENATE v. BEENS et al.
    No. 71-1024.
    Decided April 29, 1972

       Together with No. 71-1145, Sixty-seventh Minnesota State Senate v. Beens et al., on appeal from the same court.

   Per Curiam.

These two appeals are taken by the Minnesota State Senate from orders of a three-judge Federal District Court reapportioning the Minnesota Legislature. The appeals do not challenge the District Court’s conclusion that the legislature is now malapportioned. And at this point they are not concerned with population variances or with other issues of the type customarily presented in reapportionment litigation. The controversy focuses, instead, on (a) the District Court’s refusal to honor the Minnesota statute fixing the number of the State’s legislative districts at 67 and (b) the court’s proceeding, over the initial opposition of all parties (but upon the suggestion of two amici, the Lieutenant Governor and a representative), to reduce the number of legislative districts to 35, the number of senators by almost 50%, and the number of representatives by nearly 25%. We conclude that the District Court erred in its rulings. Accordingly, we summarily vacate the court’s orders and remand the cases for further proceedings promptly to be pursued.

I

The Minnesota Bicameral Legislature was last effectively apportioned in 1966. Ex. Sess. Laws 1966, c. I. Section 2.021 of Minn. Stat. (1969), the very first section of the 1966 Act, states that, “until a new apportionment shall have been made,” the State’s senate shall consist of 67 members and its house of representatives of 135 members. Section 2.031, subd. 1, from the second section of the 1966 Act, prescribes 67 legislative districts for both the senate and the house. Sections 2.041-2.711, inclusive, then delineate these 67 districts. The State’s Constitution, Art. IV, § 2, provides a legislator-population minimum ratio (one senator for every 5,000 inhabitants and one representative for every 2,000 inhabitants) and states, “The representation in both houses shall be apportioned equally throughout the different sections of the state, in proportion to the population thereof.”

The 1970 federal census took place in due course. The Minnesota Legislature did not produce a reapportionment act during its regular session in 1971. One was passed on October 29, 1971, during the reconvening of an extra session called that year. The lawmakers adjourned sine die on October 30. The Governor, however, vetoed the act on November 1 and this 1971 reapportionment endeavor failed to become law. The Governor has not cálled the legislature to another extra session for more work on reapportionment, and it is not scheduled to meet again in regular session until January 1973. Minn. Const., Art. IV, § 1; Minn. Stat. § 3.01 (1969). The 1972 primary and general elections will take place in the interim. Minn. Stat. §§ 202.02 and 203.02 (1969). Thus, the 1966 statute remains as the State’s last effective legislative apportionment.

II

The original plaintiffs, who are among the appellees here, are three qualified voters of the State. By their complaint, filed in April 1971 and asserting jurisdiction under 28 U. S. C. §§ 1343 (3) and (4) and 42 U. S. C. §§ 1983 and 1988, they sought (a) a declaratory judgment that the 1966 Act apportioning the legislature violates the Equal Protection Clause of the Fourteenth Amendment, (b) an injunction restraining the Minnesota Secretary of State and all county auditors from conducting future elections for legislators pursuant to that Act, and (c) reapportionment of the legislature by the federal court itself. The three-judge court was convened. The appellant, the Sixty-seventh Minnesota State Senate, intervened as a party defendant under Fed. Rule Civ. Proc. 24 (a).

The District Court, after hearings and with the assistance of stipulations, issued three significant orders:

A. On November 15, 1971, it made appropriate findings, not challenged here as to their basic provisions, and declared the 1966 Act in its entirety, Minn. Stat. §§ 2.021-2.712 (1969), inclusive, violative of the Federal Constitution, enjoined the Secretary of State and the county auditors from conducting future elections under the Act, and appointed two Special Masters (a third was named later) to aid the court in formulating a new apportionment plan. See 336 F. Supp. 715, 718-719.

B. On December 3 it found “that it best can fulfill its duty of apportioning the Minnesota Legislature in accordance with the Constitution of the United States and with due regard for State policy” by dividing the State into 35 senatorial districts and dividing each senatorial district into three house districts, and ordered that the parties, intervenors, and amici could present plans for apportioning the legislature accordingly. In an accompanying memorandum the court said, “The only serious questions . . . are whether we have the authority to change the size of the Legislature; and if so, to what extent.” It answered the first of these questions ip the affirmative, quoting the following sentence from Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971):

“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” 402 U. S., at 15.

The court stated that the legislature could not be apportioned into 67 senate districts and 135 house districts without violating either the Federal Constitution or the Minnesota Constitution; that the existing practice of dividing one senate district into three house districts and all others into two cannot be continued without violating the requirements of equal protection; that the greater the population of each district, the more closely can the one man, one vote standard be met and still give effect to the state policy of adhering to the boundaries of political subdivisions; that state policy with respect to the legislature’s size “is difficult to discern”; that the Governor had recommended a reduction in size; that there is merit in having an odd-numbered senate and house where, as in Minnesota, the State has “two strong and rather evenly divided political parties”; that federal constitutional and state policy requirements can best be harmonized by having 35 senate districts and by dividing each senate district into three house districts; that there are persuasive arguments that “positive benefits to the State will accrue by substantially reducing the size of the Senate and moderately reducing the size of the House”; and that “it is not our desire to fix for the future the size of the Senate and the House in Minnesota,” for the legislature, if it wishes, may appropriately reapportion. See 336 F. Supp., at 720-721.

C. On January 25, 1972, it entered its “Final Order and Plan of Apportionment” by which it adopted a plan therein described. The court also modified its injunction of November 15 so as to enjoin the state secretary and county auditors from conducting any future elections for the legislature under any plan other than the one adopted by the court “or a constitutional plan adopted after this date by the State of Minnesota.” In accord with Minn. Const., Art. IV, § 24, 1972 elections under the new plan for all positions in the senate and house were ordered. 336 F. Supp. 715, 732.

The senate, as intervenor, first appealed from the orders of November 15, 1971, and December 3, 1971 (case No. 71-1024), and then from the order of January 25, 1972 (case No. 71-1145). Both appeals are under 28 U. S. C. § 1253. We denied the senate’s motion to expedite the appeals, but granted its motion to consolidate them. 405 U. S. 985 (1972). We then granted its application for a temporary stay pending further order of the Court. Post, p. 905.

Ill

The appellees have moved to dismiss. Two grounds are asserted:

A. That the senate lacks authority and standing to prosecute the appeals. It is said that the senate’s authorizing resolution does not entitle its counsel to take the appeals; that the resolution relates only to legislative district boundaries and not to their number; that the Office of Senate Counsel speaks only for certain members of the senate and not for the whole; that it is the legislature, and not just the senate, that is the legal entity concerned for purposes of the appeals; and that only the legislature has standing.

The authorizing senate resolution, however, is in broad terms:

“BE IT RESOLVED, by the Senate of the State of Minnesota, that the Office of Senate Counsel be and it is hereby authorized and directed to take such steps as may be necessary to represent the interests and will of this body to the extent deemed necessary in both state and federal court actions involving the prescription of the bounds of senatorial and representative districts, the apportionment of senators and representatives among those districts, and the orderly process of elections therefrom . . . .” Journal of the Minnesota Senate 1971, 39th Day, p. 460.

The resolution was adopted July 31, 1971, by a 56-to-0 vote. A motion to reconsider made two and a half months later failed by a vote of 33-31. Id., 40th day, at 492.

We are not inclined to read this authorizing resolution restrictively, as the appellees suggest. Certainly the present appeals are in a federal court action that concerns apportionment “and the orderly process of elections therefrom.” And certainly the senate is directly affected by the District Court’s orders. That the senate is an appropriate legal entity for purpose of intervention and, as a consequence, of an appeal in a case of this kind is settled by our affirmance of Silver v. Jordan, 241 F. Supp. 576 (SD Cal. 1964), aff’d, 381 U. S. 415 (1965), where it was said:

“The California State Senate’s motion to intervene as a substantially interested party was granted because it would be directly affected by the decree of this court.” 241 F. Supp., at 579.

A group of senators thus had the right to intervene. The concurrence of the house was not necessary as it would have been to enact legislation.

B. That the appeals are not from orders granting or denying injunctive relief, within the requirement of 28 U. S. C. § 1253. Although the orders of November 15, 1971, and January 25, 1972, specifically enjoin state and county officers, the appellees assert that the restraining portions of those orders are not now attacked and are conceded by the appellant. This, in our view, is too narrow an analysis. The order of November 15 clearly enjoins the state and county officers “from holding or conducting any future elections under the present Apportionment Statutes.” That of January 25 does the same except with respect to the plan then adopted by the court or one thereafter validly adopted by the State. The court’s injunctive holding applies to §§2.031 and 2.021, respectively fixing the number of legislative districts and the number of senators and representatives, as well as to the succeeding sections determining the boundaries of the 67 districts. The appellant’s appeal relates to §§ 2.031 and 2.021. The court’s injunction with respect to those sections is sufficient to justify a direct appeal under § 1253. Gunn v. University Committee, 399 U. S. 383 (1970), cited by the appellees, is inapposite.

IV

That the three-judge federal court possesses the power to reapportion the State’s legislature when the applicable state statutes fall short of constitutional requirements is not questioned. Reynolds v. Sims, 377 U. S. 533, 586-587 (1964). The 1966 Minnesota apportionment legislation, the court found, in the light of the 1970 census figures no longer provided a constitutionally acceptable apportionment of either house. No one challenges that basic finding here, and we have no reason to rule otherwise. The 1971 legislature had endeavored to reapportion and, thus, to fulfill the requirement imposed upon it by Art. IV, § 23, of the State’s Constitution. See Magraw v. Donovan, 163 F. Supp. 184, 187-188 (Minn. 1958), and Honsey v. Donovan, 236 F. Supp. 8 (Minn. 1964). The legislature’s efforts in that direction, however, were nullified by the Governor’s veto of the Act it passed, an action the executive had the power to take. Duxbury v. Donovan, 272 Minn. 424, 138 N. W. 2d 692 (1965). The net result was the continuing applicability of the 1966 act. Under these circumstances judicial relief was appropriate.

The three-judge court, however, was not content with devising judicial apportionment within the framework of the existing and otherwise valid statutory structure. Instead of recognizing the provision in Minn. Stat. § 2.021 (I960), that the state senate “is composed of 67 members and the house of representatives is composed of 135 members,” and the further provision in § 2.031 that the senators and representatives “are apportioned throughout the state in 67 legislative districts,” the court declared those sections invalid along with §§ 2.041-2.711, the provisions that delineate the boundaries of the specified 67 legislative districts.

We need not review at length the several pronouncements of this Court relating to state legislative reapportionment. The pertinent cases, particularly those of June 15, 1964, and the guidelines they provide are well-known. It suffices to note that in Reynolds v. Sims, 377 U. S. 533, the Court stated that apportionment “is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites . . . .” 377 U. S., at 586. But we also stated, “With respect to the operation of the Equal Protection Clause, it makes no difference whether a State’s apportionment scheme is embodied in its constitution or in statutory provisions,” and, then, “Clearly, courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.” 377 U. S., at 584. And the Minnesota Constitution, Art. IV, § 23, vests the legislature with power to reapportion.

It follows from this that a federal reapportionment court should accommodate the relief ordered to the appropriate provisions of state statutes relating to the legislature’s size insofar as is possible. We do not have difficulty, as the District Court professed to have, in discerning the State’s policy as to the legislature’s size. That policy, long in effect in Minnesota and restated no longer than six years ago in § 2.021, is for 67 senators and 135 representatives, and, in § 2.031, is for 67 legislative districts. These are figures that have been determined by the legislature and approved by the Governor of the State. The present Governor’s contrary recommendation, although certainly entitled to thoughtful consideration, represents only the executive’s proffered current policy, just as the reapportionment plan he vetoed on November 1, 1971, represented only the legislature’s proffered current policy.

We note, in repetition, that the District Court invalidated the entire 1966 Act, §§ 2.021-2.712, despite the fact that the details of the legislative districts’ configurations are included only in §§ 2.041-2.711. Section 2.021 merely specifies the number of senators and representatives; § 2.031 calls for the apportionment of those legislators throughout the State in 67 districts; and §2.712 provided the effective date of the 1966 act, the efficacy of which, for the period prior to the 1970 census, is not at issue here. In the light of the State’s policy of statutory severability, Minn. Stat. §645.20 (1969), and recognizing that this specific number of legislative districts has been in effect in Minnesota since 1913 and through two succeeding reapportionments, we necessarily conclude that the District Court’s invalidation of the six-year-old reapportionment law swept too broadly in nullifying statutory sections that are capable of standing alone.

We know of no federal constitutional principle or requirement that authorizes a federal reapportioning court to go as far as the District Court did and, thus, to bypass the State’s formal judgment as to the proper size of its legislative bodies. No case decided by this Court has gone that far and we have found no district court decision that has employed such radical surgery in reapportionment. There are cases where judicial reapportionment has effectuated minor changes in a legislature’s size. Nearly all those cases reflect an increase or decrease of only a few seats and most appear to have been justified by a state constitutional demand, agreement of the parties, the observance of geographical boundaries, or mathematical convenience. We do not disapprove a court-imposed minor variation from a State’s prescribed figure when that change is shown to be necessary to meet constitutional requirements. And we would not oppose the District Court’s reducing, in this case, the number of representatives in the Minnesota house from 135 to 134, as the parties apparently have been willing to concede. That action would fit exactly the 67-district pattern. But to slash a state senate’s size almost in half and a state house’s size by nearly one-fourth is to make more than a mere minor variation. If a change of that extent were acceptable, so, too, would be a federal court’s cutting or increasing size by 75% or 90% or, indeed, by prescribing a unicameral legislature for a State-that has always followed the bicameral precedent. We repeat what was said recently in another legislative apportionment case: “The remedial powers of an equity court must be adequate to the task, but they are not unlimited.” Whitcomb v. Chavis, 403 U. S. 124, 161 (1971).

In summary, the number of a State’s legislative districts or the number of members in each house of its legislature raises no issue of equal protection unless the number so prescribed occasions significant and invalidating population deviations.

“Determining the size of its legislative bodies is of course a matter within the discretion of each individual State. Nothing in this opinion should be read as indicating that there are any federal constitutional máximums or mínimums on the size of state legislative bodies.” Reynolds v. Sims, 377 U. S., at 581 n. 63.

See also Connor v. Johnson, 330 F. Supp. 506, 507 (SD Miss.), order stayed on other grounds, 402 U. S. 690, opinion on remand, 330 F. Supp. 521 (SD Miss. 1971) ; Bannister v. Davis, 263 F. Supp. 202, 208 (ED La. 1966) ; Dungan v. Sawyer, 250 F. Supp. 480, 489 (Nev. 1965).

We conclude that the action of the three-judge court in so drastically changing the number of legislative districts and the size of the respective houses of the Minnesota Legislature is not required by the Federal Constitution and is not justified as an exercise of federal judicial power.

Our ruling here, of course, is no expression of opinion on our part as to what is desirable by way of legislative size for the State of Minnesota or for any other State. It may well be that 67 senators and 135 representatives make a legislature of unwieldy size. That is a matter of state policy. We certainly are not equipped — and it is not our function and task — to effectuate policy of that kind or to evaluate it once it has been determined by the State. Neither is it the function and task of the Federal District Court. Size is for the State to determine in the exercise of its wisdom and in the light of its awareness of the needs and desires of its people.

The orders of the District Court are vacated and the cases are remanded for further proceedings consistent with this opinion. The District Court is instructed to give this matter priority and to act promptly and forthwith so that the State's 1972 electoral process may get under way with assurance as soon as possible. It is already late in the day, but the maintenance of legislative districts long in effect provides a minimum of disruption even now.

The judgment in these cases shall issue forthwith.

It is so ordered.

Mr. Justice Stewart,

dissenting.

It is undisputed here that the apportionment of the Minnesota State Legislature violated the Equal Protection Clause of the Fourteenth Amendment. Thus, it was incumbent upon the three-judge federal court to devise a constitutional reapportionment, unless and until the Minnesota Legislature and Governor could agree upon and enact a new and constitutional reapportionment of their own. The only question presented by these appeals is whether the three-judge court abused its equitable discretion by devising the reapportionment plan that it did — a plan that called for a reduction in the size of both houses of the state legislature.

There is no doubt that “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15. At the same time “[t]he remedial powers of an equity court . . . are not unlimited.” Whitcomb v. Chavis, 403 U. S. 124, 161. In the reapportionment context, it is the duty of a court seeking to remedy an unconstitutional apportionment to right the constitutional wrong while minimizing disturbance of legitimate state policies.

In these cases, the three-judge court appears conscientiously to have undertaken this task. It clearly recognized that the size of the houses of the Minnesota Legislature set by state statute was a state policy deserving respect. But it also recognized that there were several other legitimate state policies at stake — for one, the conformance of legislative district boundaries to political jurisdictional boundaries. The three-judge court also found that these policies were, unfortunately, in conflict. It stated:

“The larger the population of each Senate and House District, the more closely can the equal protection (one man-one vote) requirements be met and still give effect to the State policy of adhering to the boundaries of political subdivisions. Conversely, the smaller the population of each district, the greater the likelihood that the deviations will be higher than are acceptable or that artificial boundaries will result.”

Faced with this perceived conflict among legitimate state policies, the three-judge court weighed those policies and decided that preservation of political jurisdictional boundaries should take precedence over preservation of the present size of the senate and the house.

Perhaps the three-judge court’s assessment of the relative weights of what it saw as competing state policies was mistaken. Perhaps its accommodation of those policies was also mistaken. But those judgments by the three-judge court were based on long and careful study of the distribution of population in Minnesota and of the possible alternative apportionments of the legislature.

This Court chooses to act on these appeals summarily. Yet we do not have before us all the population statistics and jurisdictional and district maps that were before the three-judge court. We do not have the benefit of the reports of the Special Masters that were available to the three-judge court. We do not even have briefs on the merits of these cases. And, of course, we have not heard oral arguments. For these and other reasons we are simply not able at this point even to begin to evaluate the three-judge court’s exercise of its remedial power in equity.

Surely, if state policies are in real conflict and if, as the three-judge court found, equal protection requirements cannot be met without sacrificing one of these policies, then the cases are very difficult. I certainly cannot say, on the basis of the information before us, that the three-judge court clearly overstepped its equitable discretion in its resolution of the problem. As the Court recognizes today, there is no rigid and absolute limit on a court’s equitable discretion to order changes in the size of legislative bodies in order to remedy an unconstitutional apportionment. Every case is different, and these questions are inevitably questions of degree.

I have disagreed with the Court’s Procrustean view of the Fourteenth Amendment’s substantive requirement of “one man, one vote.” But until and unless those established requirements are modified, the federal courts are often going to be faced with hard remedial problems such as those presented here. Difficult problems pro-ducé solutions that are difficult to review, even after full briefing and oral argument. I cannot believe that summary action here is either wise or appropriate, and I therefore respectfully dissent.

       This was the ninth general reapportionment in Minnesota since the adoption of the State’s Constitution in 1857. Initially there were 26 districts, 37 senators, and 80 representatives. Minn. Const. 1857, Schedule § 12 (both versions). The succeeding plans, and the number of districts and legislators they specified, were
      Districts Senators Representatives
      Laws 1860, c. 73 21 21 42
      Laws 1866, c. 4 22 22 47
      Laws 1871, c. 20 41 41 106
      Laws 1881, c. 128 47 47 103
      Laws 1889, c. 2 54 54 114
      Laws 1897, c. 120 63 63 119
      Laws 1913, c. 91 67 67 130
      Ex. Sess. Laws 1959, c. 45 67 67 135
      By Laws 1917, c. 217, the number of representatives was increased by one (the 65th district), but there was no accompanying general reapportionment.
      Throughout this entire period of more than a century, the Minnesota Constitution, Art. IV, §23, has called for reapportionment at the first legislative session after each federal census. See also Magraw v. Donovan, 163 F. Supp. 184 (Minn. 1958), and Honsey v. Donovan, 236 F. Supp. 8 (Minn. 1964).

       “2.021 NUMBER OF MEMBERS. For each legislature, until a new apportionment shall have been made, the senate is composed of 67 members and the house of representatives is composed of 135 members.”

       “2.031 APPORTIONMENT. Subdivision 1. The representatives in the senate and house of representatives are apportioned throughout the state in 67 legislative districts.”

       Sections 2.041-2.711 were §§ 3-70, inclusive, of the 1966 act.

       A legislative reapportionment act is subject to executive veto under Minn. Const., Art. IV, §§ 11 and 12, and Art. V, § 4. Duxbury v. Donovan, 272 Minn. 424, 138 N. W. 2d 692 (1965).

       Power is vested in the Governor to convene both houses of the legislature “on extraordinary occasions.” Minn. Const., Art. V, § 4. This power is also recognized by Art. IV, § 1, of the Constitution.

       Art. IV, § 23. “The legislature shall have the power to provide by law for an enumeration of the inhabitants of this State, and also have the power at their first session after each enumeration of the inhabitants of this state made by the authority of the United States, to prescribe the bounds of congressional, senatorial and representative districts, and to apportion anew the senators and representatives among the several districts according to the provisions of section second of this article.”

       In the companion case of Maryland Committee v. Tawes, 377 U. S. 656, 676, the Court observed again that “primary responsibility for legislative apportionment rests with the legislature itself.”

       “645.20 CONSTRUCTION OF SEVERABLE PROVISIONS. Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.”
      The 1966 act did not state that its provisions shall not be severable. In contrast, Minnesota’s immediately preceding apportionment act, Ex. Sess. Laws 1969, c. 45, did contain in its § 72 an express non-severability provision; that provision was repealed by c. 1, § 71, of the 1966 act. The legislative intent in 1966 is thus apparent.

        Sims v. Amos, 336 F. Supp. 924, 936, 937 (MD Ala. 1972) (house reduced from 106 to 105 so as to have three times the number of senate seats); Schaefer v. Thomson, 251 F. Supp. 450 (Wyo. 1965), aff’d, 383 U. S. 269 (1966) (senate increased from 25 to 30 on agreement of the parties and in accord with the state constitution) ; Klahr v. Goddard, 250 F. Supp. 537 (Ariz. 1966) (senate reduced from 31 to 30 and house from 80 to 60. The preservation of county lines, as prescribed by the State’s constitution, Art. 4, pt. 2, § 1, was an announced consideration in this substantial house reduction which no one opposed. No appeal was taken); Herweg v. Thirty Ninth Legislative Assembly, 246 F. Supp. 454 (Mont. 1965) (senate reduced from 56 to 55 and house increased from 94 to 104. A constitutional provision, Art. VI, § 3, prohibiting the division of counties, was thereby observed); Paulson v. Meier, 246 E. Supp. 36 (ND 1965) (senate reduced from 53 to 49 and house from 106 to 98. The State’s constitution, Art. II, § 26, mandated a senate of 49 members).
      In other cases federal courts have altered the size of existing legislatures by approximating the number of legislators specified in new plans that the courts were nullifying. Swann v. Adams, 263 F. Supp. 225 (SD Fla. 1967); WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (SDNY 1965), aff’d, 382 U. S. 4 (1965). The state policy thus has been effectuated despite the invalidity of the legislature’s proposed plan.

       The 1972 general election in Minnesota will take place November 7. The primaries are scheduled for September 12. Candidates may file between July 5 and July 18. A legislative candidate must establish residence in his district by May 7. Minn. Stat. §§203.02, 202.02, 202.04; Minn. Const., Art. IV, §25. Inasmuch as the Minnesota Legislature is nonpartisan, Minn. Stat. §202.03, subd- 1, the earlier dates for political party precinct caucuses and party conventions have no relevance in these cases. If time presses too seriously, the District Court has the power appropriately to extend the time limitations imposed by state law. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971).

       The court also was careful to recognize another state policy — that there should be an odd number of legislators in each house so as to minimize the risk of tie votes.

       See, e. g., Lucas v. Colorado Gen. Assembly, 377 U. S. 713, 744; Swann v. Adams, 385 U. S. 440, 447. See also Wells v. Rockefeller, 394 U. S. 542, 549.