
    Lawrence Franklin et al., Respondents, v. Elbert Mandeville, as Clerk of the Board of Supervisors of the County of Nassau, et al., Appellants, and Michael N. Petito et al., Respondents.
    Argued December 4,1969;
    decided January 14, 1970.
    
      
      George G. Pratt and Harold E. Collins for appellants.
    I. The courts below erred in holding the Nassau County system of modified weighted voting unconstitutional based solely on a comparison of populations with one town’s percentage of the total vote of the Board of Supervisors. The constitutionality of an operating system of local government cannot be determined by reference solely to sterile, theoretical, mathematics; other factors reflecting the flexibility, diversity and experimentation which is necessary and desirable at the local government level must be considered. (Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244; Seaman v. Fedourich, 16 N Y 2d 94; Baker v. Carr, 369 U. S. 186; Wesberry v. Sanders, 376 U. S. 1; Reynolds v. Sims, 377 U. S. 533; Avery v. Midland County, 390 U. S. 474; Sailors v. Board of Educ. of County of Kent, 387 U. S. 105; Dusch v. Davis, 387 U. S. 112.) II. Even assuming that mathematics is the “sole criterion” of constitutional validity for weighted voting plans, the courts below applied the wrong system of mathematics. (Augostini v. Lasky, 46 Misc 2d 1058; Shilbury v. Board of Supervisors, 46 Misc 2d 837; Grove v. Chemung County Bd. of Supervisors, 50 Misc 2d 418.) III. Special Term erred in determining this case on a motion for summary judgment. A trial is required to determine the “ voting power ” of the Nassau Supervisors. IV. If factors other than mathematics may enter into a determination of constitutionality, a trial is required. V. Should the court reverse and order a trial in this action, the burden of proof should rest upon the plaintiffs. VI. The courts below erred, even on their own premises, in granting judgment to four of the five plaintiffs and to the cross-claiming defendants.
    
      
      Seymour H. Kligler and Michael L. Goldstein for plaintiff-respondents.
    I. Weighted voting is illegal, per se. (Graham v. Board of Supervisors of Erie County, 18 N Y 2d 672; Morris v. Board of Supervisors of Herkimer County, 50 Misc 2d 929; WMCA v. Lomenzo, 238 F. Supp. 916, 382 U. S. 4; Bannister v. Davis, 263 F. Supp. 202; Abate v, Mundt, 59 Misc 2d 809, 33 A D 2d 660.) II. The section 104 plan as applied to Hemp-stead’s Supervisors is invalid. (Reynolds v. Sims, 377 U. S. 533; Avery v. Midland County, 390 U. S. 474; Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244; Ambro v. Board of Supervisors of Suffolk County, 55 Misc. 2d 1019; Seaman v. Fedourich, 16 N Y 2d 94; Kirkpatrick v. Preisler, 394 U. S. 526; Wells v. Rockefeller, 394 U. S. 542.) III. The section 104 plan as applied to other supervisors is invalid. (Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244.) IV. The section 104 plan as applied to all supervisors is invalid. (Town of Greenburgh v. Board of Supervisors of Westchester County, 30 A D 2d 708; Dobish v. State of New York, 54 Misc 2d 367.) V. Summary judgment was proper. (Gray v. Sanders, 372 U. S. 368.) VI. Section 153, (subd. 4), of the County Law is unconstitutional.
    
      Morris H. Schneider, County Attorney (A. Thomas Levin and John M. Armentano of counsel), for defendants-respondents.
    I. The constitutional mandate of “ one person, one vote ” applies to local legislative bodies. (Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244; Seamam v. Fedourich, 16 N Y 2d 94; Avery v. Midland County, 390 U. S. 474; Ambro v. Board of Supervisors of Suffolk County, 55 Misc 2d 1019.) II. The apportionment of the Nassau County Board of Supervisors violates the constitutional mandate of “ one person, one vote.” Weighted voting is unconstitutional per se. (Reynolds v. Sims, 377 U. S. 533; Seaman v. Fedourich, 16 N Y 2d 94; WMCA v. Lomenzo, 238 F. Supp. 916, 382 U. S. 4; Bannister v. Davis, 263 F. Supp. 202; Abate v. Mundt, 59 Misc 2d 809, 33 A D 2d 660; Morris v. Board of Supervisors of Herkimer County, 50 Misc 2d 929; Shilbury v. Board of Supervisors of Sullivan County, 46 Misc 2d 837, 25 A D 2d 688; Lucas v. Forty-Fourth Gen. Assembly of Col., 377 U. S. 713; Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244.) III. Weighted voting as presently employed in Nassau County is constitutionally defective. IV. If Hempstead must be allowed more than half the votes of the board, section 104 (subd. 2) of the charter must be declared invalid. Where one portion of a statutory provision is invalid, other integrally related parts must fall with it. (People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48.) V. If Hempstead is allocated votes on a strict population basis, thereby receiving 72 total votes, the resulting system of apportionment and voting is also constitutionally defective. VI. The apportionment provisions of the County Law, which would govern the representation on the board in the absence of charter provision, are invalid as applied to Nassau County. VII. This court should speak on the question of per se unconstitutionality of weighted voting. (Graham v. Board of Supervisors of Erie County, 18 N Y 2d 672; Abate v. Mundt, 59 Misc 2d 809, 33 A D 2d 660; Dobish v. State of New York, 54 Misc 2d 367.)
    
      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowits of counsel), in his statutory capacity under Section 71 of the Executive Law. Upon the record in this case the Nassau County Government Law ([L. 1936, ch. 879 as amd.] § 104), should not have been held unconstitutional. Special Term failed to hold a hearing in accordance with this court’s decision in Iannucci v. Board of Supervisors of County of Washington, 20 N Y 2d 244 (1967), to evaluate the “voting powers ” of each of the members of the Board of Supervisors. The Appellate Division disregarded this failure and erroneously deemed it to be unnecessary to take the testimony required by the Iannucci decision. (Avery v. Midland County, 390 U. S. 474; Sailors v. Board of Educ. of County of Kent, 387 U. S. 105; Kramer v. Union School Dist., 395 U. S. 621; Dusch v. Davis, 387 U. S. 112.)
   Gibson, J.

The plaintiffs in this reapportionment case attack the present weighted voting plan under which the Board of Supervisors of Nassau County has long operated. Upon motion, Special Term awarded summary judgment declaring the plan ‘ ‘ illegal, invalid and inconsistent with the equal protection clauses of the State and Federal Constitutions ” and directing that, within six months, the appropriate defendants “ adopt local laws containing plans for apportionment of the Nassau County Board of Supervisors which are legal, valid and consistent with the equal protection clauses The Appellate Division unanimously affirmed, finding inescapable ” its conclusion that the residents of the Town of Hempstead were unconstitutionally deprived of their right to substantial equality of representation.

Concededly, the Town of Hempstead’s population constituted, 57.12% of the county’s population but that town’s representatives may cast but 49.6% of the board’s vote. Important as is the fact of the present inequality, it is of even greater moment that inequality in some degree is mandated and, indeed, perpetuated by the charter provision: nor shall the supervisor or supervisors of any town, or city be entitled to cast more than fifty per centum of the total vote of said board.” (L. 1936, ch. 879, § 104, subd. 2.) This provision has survived two attempts at reapportionment, proposals therefor having been defeated in referendums conducted in 1965 and 1967; and clearly violates the one man, one vote principle. The phenomenal population growth in Hempstead, as in Nassau County generally, points up the inequality created and perpetuated by the charter provision. Not only are the Hempstead Supervisors presently barred from exercise of a majority vote, but section 104 would continue to deprive them, or the residents of any other town or city subsequently containing a majority of the county population, from majority representation, regardless of how great their majority may presently be or may in future become. This is the vital factor which distinguishes the case from Abate v. Mundt (25 N Y 2d 309), recently decided.

Thus, it was proper to direct reapportionment but it seems unwise and unnecessary to proceed thereto on the basis of the 1960 census.

The order appealed from should be modified so as to direct that a valid .reapportionment plan be adopted by the Board of Supervisors within six months after public announcement of the enumeration of the inhabitants of Nassau County in the Federal census of 1970 and that meanwhile the present plan remain in effect, as a temporary measure, and, as so modified, the order should be affirmed.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs. 
      
      . Nassau County Govt. Law (L. 1936, ch. 879, as amd.), § 104;
     
      
      
        . Reapportionment (subject, however, to the basic plan, and its infirmities) would be mandatory following the 1970 census, under the charter provision requiring that “ [t]he assignment of votes among members of the board of supervisors shall be readjusted within sixty days after the public announcement of the enumeration of the inhabitants of the county in each federal and state census if there be one.” (L. 1936, ch. 879, § 104, subd. 3.)
     