The opinion
McINERNEY, Justice
(dissenting).
I dissent from the decision of the majority to accept jurisdiction in this original proceeding. I would deny the application to accept jurisdiction and leave Plaintiff to her remedy in the District Court.
A delay in the early determination of the question of public importance would not necessarily result. Our decision in Supreme Court case Martin et al. v. Oklahoma City, 477 P.2d 58 , decided this date, is an appeal from the District Court by two protestants to the identical bond election challenged in this original proceeding. The absence of a record in a true adversary proceeding coupled with the stipulation herein precludes inquiry into whether the status of Barbara J. Beauchamp as an unqualified voter in general obligation bond elections is self-imposed, 68 O.S.Supp.1965, §§ 2431, 24201, or legally imposed, Art. 10, § 27, Oklahoma Constitution. If the former, Plaintiff’s standing to institute this action is questionable.
There are only two reasons why the U. S. Supreme Court has held exclusion of non-property taxpayers unconstitutional. One is that it discriminates against the impoverished. See Harper v. Virginia State Board of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 , (1966). The other is that such an exclusion is irrational as applied to persons who indirectly pay such taxes through the form of higher rents to their landlords, and such. City of Phoenix v. Kolodziejski, 399 U.S. 204 , 90 S.Ct. 1990 , 26 L.Ed.2d 523 (1970).
Although the Plaintiff externally appears to come within the results of the foregoing cases, she fails to allege or prove that she comes within the reasons therefor. First, Plaintiff makes no plea of personal poverty. Harper, supra. Second, while Plaintiff correctly states that the U. S. Supreme Court has sustained the indirect payment of property taxes theory, Phoenix, supra, she totally ignores the fact that payment of personal taxes would by itself have been sufficient to entitle her to vote at the challenged election; and by the very nature of the personal tax there can be no “vicarious” or “indirect” payment of the tax (in the sense of property taxes paid hy landlords being passed on to their tenants in the form of increased rents, and the like).
It would appear, therefore, that Plaintiff has not based her failure to pay a personal tax (and hence her exclusion from the challenged election) upon the circumstance of grounds condemned by the U. S. Supreme Court as impermissibly discriminatory or irrational, i. e., poverty, or vicarious actual payment.
In the absence of any factual showing or adversary record of the Plaintiff’s standing, I am of the opinion that no adequate actual “case or controversy” has been properly demonstrated sufficient to invoke and sustain this Court’s jurisdiction; and I would, therefore, deny the application to assume jurisdiction.