The opinion of the court was delivered by: WEBER
This action is based on a complaint of denial of equal protection of the law under the 14th Amendment of the Constitution of the United States. Jurisdiction of the United States District Court is founded on the provisions of 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343(3). Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
There is no question raised here of the application of the provisions of 28 U.S.C. § 2281, requiring a three judge district court, because there is no claim here that the Pennsylvania statute, under which defendants purport to act, offends the Equal Protection Clause of the 14th Amendment. See Ellis v. Mayor and City Council of Baltimore, 234 F. Supp. 945 (D.C.Md.1964); Simon v. Lafayette Parish Police Jury, 226 F. Supp. 301 (W.D.La.1964). In fact the Pennsylvania statute has the requirement of the equal protection clause as to equal voting rights incorporated in its very language.
A suggestion of the defendants in the later stages of this proceeding that the Attorney General of the Commonwealth of Pennsylvania was a necessary party to the action resulted in both parties submitting notice and copies of pleadings and briefs to that officer and he declined their invitation to intervene. We hold that he is not a necessary party to this Federal action.
The Pennsylvania "New School Reorganization Act" of 1963, Aug. 8, P.L. 564, Act No. 299; 24 P.S. § 3-303 provided for the creation of new school districts by the consolidation of former ones. It provided that in school districts of the 2nd, 3rd and 4th class there should be a school board of nine members, elected at large in the new district, except as otherwise provided in the Act.
The exception is contained in Art. III, § 4(b), 24 P.S. § 3-303(b) which provides that the interim operating committee of a new school district may, if it so chooses, develop a plan to divide the school district into three or nine regions.
Where a three region plan is adopted, three directors are to be elected from each region. Where a nine region plan is chosen, one director is to be elected from each region.
There is no language in this section that any other factors, such as topography or geography, prior local districts, or other such matters than pure population and existing election districts shall be considered. Other sections of the Act, Art. I, § 3 (24 P.S. § 2-290 et seq.), provide for consideration of factors of topography, pupil population, community characteristics and the like. These apply solely to the composition and boundaries of the new school district to be formed, and have no application to the elective representation within the district. An administrative procedure in the State Board of Education is provided to examine and pass on these factors.
The plan of elective representation selected by the within Defendant Interim School Board provided for nine regions, each to elect one representative as school director. The regions and their populations are as follows:
REGION AREA INCLUDED POPU-
I First and Second Wards, Borough of Tyrone,
Blair County 2257
II Third, Fourth and Fifth Wards, Borough of Tyrone,
Blair County 2876
III Sixth and Seventh Wards, Borough of Tyrone,
Blair County 2467
IV First District, Township of Snyder, Blair County 1720
V Second District, Township of Snyder, Blair
VI Township of Tyrone, Clair County 659
VII Township of Taylor, Centre County 508
VIII Township of Warriors Mark and Borough of
Birmingham, Huntingdon County 1169
IX Township of Franklin, Huntingdon County 410
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