FORTAS, J., dissenting.

390 U.S.

over the entire area of the county. But this is more form than reality.

Substance, not shibboleth, should govern in this admittedly complex and subtle area; and the substance is that the geographical extent of the Commissioners Court is of very limited meaning. Midland County's Commissioners Court has its primary focus in nonurban areas and upon the nonurban people. True, the county's revenues come largely from the City of Midland. But the Commissioners Court fixes the tax rate subject to the specific limitations provided by the legislature. It must spend tax revenues in the categories and percentages which the legislature fixes. Taxes are assessed and collected, not by it, but by an official elected on a countywide basis. It is quite likely that if the city dwellers were given control of the Commissioners Court, they would reduce the load because it is spent primarily in the rural area. This is a state matter. If the State Legislature, in which presumably the city dwellers are fairly represented (Reynolds v. Sims), wishes to reduce the load, it may do so. But unless we are ready to adopt the position that the Federal Constitution forbids a State from taxing city dwellers to aid their rural neighbors, the fact that city dwellers pay most taxes should not determine the composition of the county governing body. We should not use tax impact as the sole or controlling basis for vote distribution. It is merely one in a number of factors, including the functional impact of the county government, which should be taken into account in determining whether a particular voting arrangement results in reasonable recognition of the rights and interests of citizens. Certainly, neither tax impact nor the relatively few services rendered within the City of Midland should compel the State to vest practically all voting power in the city residents to the

474

STEWART, J., dissenting.

virtual denial of a voice to those who are dependent on the county government for roads, welfare, and other essential services.

III.

I have said that in my judgment we should not decide this case but should give Texas a chance to come up with an acceptable result. Texas' own courts hold that the present system is constitutionally intolerable. The 1963 population estimates relied upon in this case show that the district which includes most of the City of Midland with 67,906 people has one representative, and the three rural districts, each of which has its own representative, have 852; 414; and 828 people respectively. While it may be that this cannot be regarded as satisfying the Equal Protection Clause under any view, I suggest that applying the Court's formula merely errs in the opposite direction: Only the city population will be represented, and the rural areas will be eliminated from a voice in the county government to which they must look for essential services. With all respect, I submit that this is a destructive result. It kills the very value which it purports to serve. Texas should have a chance to devise a scheme which, within wide tolerance, eliminates the gross underrepresentation of the city, but at the same time provides an adequate, effective voice for the nonurban, as well as the urban, areas and peoples.29

MR. JUSTICE STEWART, dissenting.

I would dismiss the writ as improvidently granted for the reasons stated by MR. JUSTICE HARLAN and MR. JUSTICE FORTAS.

29 Cf. Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col. L. Rev. 21, 40-49 (1965).

STEWART, J., dissenting.

390 U.S.

Since the Court does reach the merits, however, I add that I agree with most of what is said in the thorough dissenting opinion of MR. JUSTICE FORTAS. Indeed, I would join that opinion were it not for the author's unquestioning endorsement of the doctrine of Reynolds v. Sims, 377 U. S. 533. I continue to believe that the Court's opinion in that case misapplied the Equal Protection Clause of the Fourteenth Amendment-that the apportionment of the legislative body of a sovereign State, no less than the apportionment of a county government, is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic. My views on that score, set out at length elsewhere,* closely parallel those expressed by MR. JUSTICE FORTAS in the present case.

*Lucas v. Colorado General Assembly, 377 U. S. 713, 744 (dissenting opinion).

Per Curiam.

JOHNSON v. MASSACHUSETTS.

CERTIORARI TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS.

No. 702. Argued March 6-7, 1968. Decided April 1, 1968.

After hearing oral argument and studying the record of this case involving the issue of the voluntariness of a confession, the Court dismisses the writ of certiorari as improvidently granted.

352 Mass. 311, 225 N. E. 2d 360, certiorari dismissed.

John M. Harrington, Jr., argued the cause for petitioner. With him on the briefs was John A. Pike.

Brian E. Concannon, Special Assistant Attorney General of Massachusetts, argued the cause for respondent. With him on the brief were Elliot L. Richardson, Attorney General, John M. Finn, Deputy Assistant Attorney General, and Howard M. Miller, Assistant Attorney General.

PER CURIAM.

In 1964 petitioner was tried and convicted in a Massachusetts Superior Court for murder, armed robbery, and other offenses. The conviction was affirmed by the Supreme Judicial Court of Massachusetts. Commonwealth v. Johnson, 352 Mass. 311, 225 N. E. 2d 360. We granted certiorari because there appeared to be substantial questions concerning the voluntariness of a confession of petitioner which was admitted in evidence at his trial. After oral argument and study of the record, we have reached the conclusion that the record relevant to the constitutional claims now asserted is insufficient to permit decision of those claims.* The writ is there

*Petitioner's claim on voir dire was that his confession was beaten out of him by police. The trial judge found as a fact that it was not. At the trial itself petitioner did not attack the voluntariness

MARSHALL, J., dissenting.

390 U.S.

fore dismissed as improvidently granted. Cf. Smith v. Mississippi, 373 U. S. 238; Massachusetts v. Painten, 389 U. S. 560.

It is so ordered.

MR. JUSTICE MARSHALL, with whom THE CHIEF JUSTICE and MR. JUSTICE FORTAS join, dissenting.

Petitioner was convicted of the first-degree murder of a police officer and sentenced to death. He urges that an involuntary confession was used in evidence against him, in violation of due process.

The facts concerning the making of the statement are not in controversy. After the shooting of the police officer in the evening of August 1, 1963, petitioner drove off in a car. He was seen by other police officers who had been called to the scene by a police alarm and who proceeded to pursue him in their car. After a chase at high speeds for several blocks, during the course of which petitioner's automobile struck a wall and caromed off several parked cars, petitioner crashed into a bus. He limped away from the heavily damaged car in an attempt to flee but was almost immediately apprehended by the police.

Petitioner was taken to a police station and booked at 9:35 p. m. He was first placed in a cell and then taken to police headquarters sometime after 10:15 p. m. Between midnight and 5 a. m. he was placed in a lineup

of the confession on any other ground, or raise the other constitutional challenges argued in this Court. The defense at the trial was primarily directed at persuading the jury not to impose the death penalty. The petitioner made an unsworn statement to the jury at the close of summations in which he said, "all the evidence which the prosecutor presented to you was true. There was no sense in my taking the stand because all the evidence points to All that I ask is just clemency . . . . I put my life into your hands. Please recommend clemency, life imprisonment."

me.