# Cooper v. Leslie Salt Co.

> California Supreme Court · March 20, 1969 · 70 Cal. 2d 627

URL: https://www.frixlaw.com/law-library/cases/9629180

## Case

- **Full name:** WALTER S. COOPER, Plaintiff and Appellant, v. LESLIE SALT COMPANY Et Al., Defendants and Respondents; WALTER S. COOPER, Plaintiff and Appellant, v. T. JACK FOSTER Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** March 20, 1969
- **Citations:** 70 Cal. 2d 627; 75 Cal. Rptr. 766; 451 P.2d 406
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Burke, Mosk
- **Cited by:** 113 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MOSK, J.
I concur in part and dissent in part. On the basis of the complaints in these proceedings and in the companion' ease, there arise suspicions that all is not well with the management of the Estero community. But suspicions, however strong, are inadequate for pleading purposes. Thus I concur in much of the majority opinion.
Many of the problems giving rise to plaintiff’s dissatisfac *639 tion would dissolve if the people of the district had been, as everyone should be in a democratic society, the masters of their own destiny. Here the effective political and economic power rests not with the residents of the district, but with a regency. Like a vicarious government during a monarch’s childhood, this district is ruled as if the people required protective guidance during their minority. However tolerable in another milieu, such paternalism is undesirable and invalid in this year 1969.
Therefore I dissent from that portion of the majority opinion which holds that because “the transfer of control from owners to resident voters will be completely accomplished by 1971 no occasion is shown for interference by this court with the programming spelled out by the Legislature. ’ ’
In my view, the Estero Act, as it presently exists, unquestionably violates the precepts laid down in Avery v. Midland County (1968) 390 U.S. 474 [ 20 L.Ed.2d 45 , 88 S.Ct. 1114 ], and the majority’s holding that compliance with those constitutional principles may be deferred until a future date cannot be justified. I would hold that the Supreme Court one-man, one-vote command is not satisfied by the one-man, three-fifths-of-a-vote practice now prevailing in the Estero community. (Maj. Opn. fn. 3.)
In Avery the Supreme Court held that the one-man one-vote principle enunciated in Reynolds v. Sims (1964) 377 U.S. 533 [ 12 L.Ed.2d 506 , 84 S.Ct. 1362 ], is applicable to districts of local government and that the Constitution permits no substantial variation from equal population in establishing units of local agencies having general governmental powers. The Midland County Commissioners Court, the elective body involved in Avery , was empowered to establish a courthouse and jail, appoint numerous minor officials, fill vacancies in the county offices, let contracts in the name of the county, build roads and bridges, administer the county’s public welfare services, perform numerous duties in regard to elections, set the county tax rate, issue bonds, adopt a budget, serve as a board of equalization, and build and operate various public facilities.
The local governing body in Avery had the “power to make a large number of decisions having a broad range of impacts on all the citizens of the county” and to make “long-term judgments” affecting the future development and the present needs of the county. The opinion states, “Were the Commissioners Court a special purpose unit of *640 government' assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such bodies may be apportioned in ways which give greater influence to the citizens most affected by the organizations’ functions. That question, however, is not presented by this case, for . . .. the relevant fact is that the powers of the Commissioners Court include the authority to make a substantial number of decisions that affect all citizens” of the county. Similarly, in Pierce v. Village of Ossining (S.D.N.Y. 1968) 292 F.Supp. 113 , a statute limiting the right to vote in local elections to property owners was held to constitute a denial of equal protection of the laws.
In California we have applied the one-man, one-vote principle of Reynolds v. Sims (1964) supra, 377 U.S. 533 , to elections for county boards of supervisors which serve local legislative and administrative functions. (Miller v. Board of Supervisors (1965) 63 Cal.2d 343, 348 [ 46 Cal.Rptr. 617 , 405 P.2d 857 ].)
While the present case does not involve the problem of malapportionment of elective districts but discrimination between voters who own and those who do not own real property within the district, as well as between small and large landowners, it is inescapable from the holding of Avery that if the district’s board may exercise general governmental powers over the residents of the district, the voters therein must be accorded equal voting rights on a one-man, one-vote basis, without regard to whether or not they own property within the district or the amount thereof. (See Thompson v. Board of Directors (1967) 247 Cal.App.2d 587, 590-592 [ 55 Cal.Rptr. 689 ].)
An analysis of the terms of the Estero Act establishes that the district is not a “special purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents. ’ ’ Indeed it is difficult to contemplate a broader spectrum of general governmental functions than those bestowed upon the Estero community.The district is empowered to acquire, construct and maintain facilities for street lighting, collection and disposal of sewage, production and distribution of water, parks, playgrounds and drainage works, and may reclaim submerged or other land by watering or dewatering (Estero Act, §77). It may acquire or construct a private small craft harbor and utilities useful to its operation (§78). It may also operate *641 and equip fire and police departments (§79), construct gas. telephone and electrical facilities (§ 79a), hold or dispose of property within or without the district (§80), and exercise the right of eminent domain for the condemnation of private property for public use in the same manner as the legislative body of a city (§81). It may make such contracts as appear necessary or proper (§83) and make and enforce regulations necessary to the exercise of the functions given it by the act. A violation of these regulations constitutes a misdemeanor (§97).
The governing board has very broad financial powers. It may borrow money (§85), issue general obligation bonds (§105 et seq.) and revenue bonds (§135), and cause special assessments to be levied and issue bonds to represent unpaid assessments (§93). Taxes to pay the principal and interest on the bonds and to defray expenses incidental to the district’s powers are levied, under the act, on the real and personal property in the district (§ 160 et seq.).
This comprehensive range of authority is in some respects more embracive than that accorded the Commissioners Court in Avery and most, if not all, of the powers affect all residents of the district alike, without regard to the amount, if any, of real property they own in the district. Under these circumstances there seems little doubt that plaintiff and other residents of the district are deprived of equal protection of the laws by the requirement that a certain number of members of the governing board be elected only by landowners and that voting power among landowners should be divided according to assessed valuation. As stated in Harper v. Virginia Board of Elections (1965) 383 U.S. 663, 666 [ 16 L.Ed.2d 169, 172 , 88 S.Ct. 1079 ]: “. . . a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter ... an electoral standard. Voter qualifications have no relation to wealth. ...”
The majority holds that even if present methods of voting are of dubious validity, the Legislature has provided for the gradual transfer of control of the district to the residents by elections to be held in November 1971, and we are not justified in tampering with this scheme. 1 The only authority cited for *642 this proposition is Silver v. Brown (1965) 63 Cal.2d 270, 274-275 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ], and Miller v. Board of Supervisors (1965) 63 Cal.2d 343, 350 [ 46 Cal.Rptr. 617 , 405 P.2d 857 ]. Both these cases, decided in September 1965, not only fail to support the majority’s holding but they teach us that dilatoriness and deferred reapportionment plans are unacceptable. In Silver we held that although the California Senate and Assembly should be accorded an opportunity to reapportion themselves since they had previously failed to agree upon a plan and since a delay until the next regular session was not justified, this court would itself promulgate a reapportionment plan for the forthcoming election unless a special session of the Legislature passed a constitutionally adequate reapportionment plan in time for that election. In Miller we ordered invalidly apportioned supervisorial districts to be reapportioned by the Board of Supervisors of Santa Clara County within 90 days so that the next election would be based upon the newly apportioned districts. In neither Silver nor Miller would this court tolerate procrastination; in both instances we insisted upon one man, one vote at the immediately forthcoming election, although the factors involved in reapportionment were complicated _and politically volatile. Moreover, in Silver respondents urged cogent reasons for delaying reapportionment, i.e., that compliance with certain provisions of the Elections Code was difficult because of the time factors involved, but we resolutely held nevertheless that a delay was not justified. Finally, in both Silver and Miller no constitutional reapportionment plans were then in existence, and this court, although reluctant to undertake formulation of a program, was willing to do so if necessary to preserve the constitutional rights of the voters at the next election.
Here we are presented with a much stronger case for immediate implementation of the voting rights of citizens than in either Silver or Miller , for, by contrast, no new reapportionment plan need be designed. The Legislature itself has passed a complete scheme to effectuate the voting rights of the district’s residents down to the details regarding the manner in which both regular and special elections should be conducted, but has provided that the statute, passed in 1967, should not be fully implemented until the elections to be held in Novem *643 ber 1971. (Stats. 1967, eh. 1511.) There are no complicated policy questions here relating to whether the Legislature should be given an initial opportunity to carry out the constitutional mandate before this court acts. The only reason advanced by the majority for holding that the district’s residents are not entitled to an equal vote until 1971 is that there were no residents in the district when it was originally formed and that the Legislature has made a determination that when substantial numbers of voters move into the district the voting power should gradually shift to the residents.
The flaw in the program, unanswered by the majority, is the lack of justification for waiting until November 1971, if there are a substantial number of resident voters long before that date. The uncontroverted fact is that there are now more than 8,000 persons residing in the district and the steady influx indicates there will be many more prior to the time an election is held in November 1971. No one can deny that there are a substantial number of registered voters among the residents. It seems hardly necessary to note parenthetically that if the legislative bodies involved in the Silver and Miller eases had passed valid reapportionment measures but had delayed their effectiveness for four years because it was their judgmen't'that the equal voting rights of citizens should be implemented gradually, this court would not have countenanced such a dilatory arrangement.
Indeed, a recent case involved just that situation. In Petuskey v. Rampton (1965) 243 F.Supp. 365, 369-374 , the Utah Legislature was reapportioned by an act, passed in 1965, but not to be effective until 1969. The court held this provision to be in violation of the federal Constitution and ordered that the reapportionment become effective at the next election at which it was mechanically possible to put the plan into operation.
Silver and Miller are not the only cases which have recognized the urgency of prompt action in order to assure that voters are not deprived of their rights one day longer than necessary. Reynolds v. Sims (1964) supra, 377 U.S. 533 , states (at p. 585 [ 12 L.Ed.2d at p. 541 ]) that “. . . once a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual ease in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.” 2 A number of commentators have also emphasized the *644 necessity for promptness because “every day that a legislature elected under an invalidated system is allowed to sit results in the perpetuation of the wrong for which a remedy is sought.” (The Case for District Court Management of the Reapportionment Process, 114 U.Pa.L.Rev. 504, 510; McKay, Reapportionment (1965) 161-162.) Many courts have taken heroic measures in order to avoid an undue postponement of relief. For example, state constitutional measures setting forth “time lock” provisions have been bypassed (Buckley v. Hoff (D.Vt. 1964) 234 F.Supp. 191, 198 ), deadlines have been set, such as those in Silver and Miller , and even where practical considerations have called for permitting elections to be conducted on the basis of invalidly apportioned districts some courts have reduced the terms of the representatives elected under the unconstitutional system. (Hughes v. WMCA, Inc. (1965) 379 U.S. 694, 695 [ 13 L.Ed.2d 698, 699 , 85 S.Ct. 713 ]; for a summary of some remedial measures adopted by the courts see The Case for District Court Management of the Reapportionment Process, supra, 114 U.Pa.L.Rev. 504.)
■ In the present case no obstacles to the immediate conduct of elections on a one-man, one-vote basis exist, and only the statutory postponement of the exercise of those rights until 1971 impedes implementation. This action was filed in 1966, before the Legislature had made any provisions for elected representation of nonlandowners on the board. Three years have elapsed since that time and almost three more years will pass before the composition of the board complies with constitutional mandates. To wholly or partially deprive more than 8,000 residents of their constitutional right to an equal vote is unjust. That the injustice is to be cured in the future makes it no less unjust today.
Peters, J., and Sullivan, J., concurred.
Appellant’s petition for a rehearing was denied April 17, 1969,' and the opinion was modified to read as printed above. Peters, J., Mosk, J., and Sullivan, J., were of the opinion that the petition should be' granted.
This is somewhat reminiscent of the noblesse oblige evidenced by the court in People v. Sacramento Drainage Dist. (1909) 155 Cal. 373 [ 103 P. 207 ], when it approved creation of a governmental agency to carry out a single purpose, and said (at p. 382): “It is in accord with the progressive spirit of our government to give to the people, or any part of them, the largest possible control in matters peculiarly affecting them *642 and their interests. It is a coneession to this spirit, and not the compulsion of the law, which prompts the legislature to give the landowners so large a voice in the management of these affairs.”
This injunction is qualified by the further statement that “in award- *644 big or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws” and that ‘‘a.court'can reasonably • endeavor to' avoid a disruption of the election- process which might result -from requiring precipitate changes that could make unreasonable • or embarrassing demands on a State in.adjusting to the .requirements', of "the court’s decree.” ( 377 U.S. at p. 585 [12 L.Ed.2d at-p. 541].) No "claim is made that any of the foregoing factors justifying a delay are present here:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629180. Public record. Not legal advice.