The opinion
WISDOM, Circuit Judge
(dissenting).
I respectfully dissent.
I consider that Harper v. Virginia State Board of Elections, 1966, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 , controls the case before this court.
In Harper the Supreme Court found that “voter qualifications have no relation to wealth nor to paying or not paying this [poll tax] or any other tax”. 383 U.S. 666 , 86 S.Ct. 1081 . It is true that the tax itself was attacked in Harper and that a poll tax is a qualification limiting suffrage in an election to vote for political representatives. Here the qualification limiting voting to resident property taxpayers applies to a vote on the issuance of municipal revenue bonds. I recognize the differences in the two situations. But the basic similarity is more important than the differences. The common fact in both situations is that eligibility to vote rests on payment of a tax. But all citizens have a stake in government — federal, state, or local government — regardless of ownership of property as evidenced by payment of a tax. This interest entitles each citizen to a voice in all elections in his city or *829 state. As the Court said in Harper , “Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race * * * are traditionally disfavored”. 383 U.S. at 668 , 86 S.Ct. at 1082 . Here, in a bond election, a citizen’s lack of ownership of taxed real estate is not proof positive of his lack of interest in his city’s going into the utility business.
As my brother Rubin ably analyzes the issues, the case is not one to be settled by broad generalities. The issues reduce to the question whether the distinction between property owners and non-property owners is rational or arbitrary in fixing the qualifications for voting on the desirability of a city’s issuing revenue bonds to acquire and operate a public utility. The city has the legal authority to issue such bonds, even without asking the advice of any of its electors, but if a city should in advance of issuance of revenue bonds ask for the approval of its citizens the equal protection clause prohibits the city’s arbitrarily excluding from the election interested citizens.
Houma has a population of 35,000. As of October 24, 1967, there were 11.-606 registered voters. Only 4,680 were taxpayers owning property and the total assessed value of their property was only $5,988,627. Thus forty per cent of the resident voters owning taxed property constituted a class controlling the interests of all the citizens of Houma in the policy decision submitted to the voters in the bond election. 1,828 voters representing an assessed valuation of $2,736,258 voted in favor of issuance of the bonds; 896 representing an assessed valuation of $1,108,268 voted against the bond issue.
As citizens of Houma, non-property residents have the same proprietary interest in municipal properties as resident taxpayers. They have the same interest in the administration of city affairs. And they are no less interested in the amount of their light bills than are property-owners. Indeed, since they constitute sixty percent of Houma’s electors, they have a greater aggregate of interests than the property owners have in municipally owned utilities.
In the case before us, the discrimination against citizens not owning taxed property is exacerbated by the fact that the bonds are revenue bonds. The bonds are to be paid only from the operations of the utility; they are not a charge upon other income and revenues of the municipality and are not included in computing the indebtedness of the municipality for the purposes of any constitutional or statutory debt limitation. If the operations should be unprofitable, the property-owner will have no greater burden than anyone else. If the operations should be profitable, the profits go into the General Fund of the City of Houma and, presumably, will aid all the citizens in providing police protection, fire protection, and other city services.
There is a wide difference of opinion between the plaintiffs and the defendants as to whether the effect of Houma’s ownership of utilities will be an increase or decrease in light and gas bills. But certainly everyone in Houma who flicks on an electric light or whose wife turns on the gas in the kitchen has a genuine interest in the question — whether he is a landlord or tenant. The tenant should be able to protect that interest by a declaration in the form of a vote — if the proposition is put to his landlord. In one way or another, the tenant pays the bill.
There may have been a time when ownership of property as a voter’s qualification could have been defended as part of the American system of checks and balances. The vote of the property-owners could be looked to as a restraint on governmental operations financed by taxes. The framers of the *830 United States Constitution did not adopt this limitation on federal sufferage, but a number of the states did limit the vote to freeholders. Now, however, we are living in an age when there are utility taxes, sales taxes, cigarette taxes, gasoline taxes, income taxes, and a host of taxes, notions of which never crossed the minds of the Founding Fathers. It is a mistake therefore to put all property taxpayers in a class with veto power over governmental revenue bond issues, as if other classes of citizens pay no taxes to their city or state and have no legitimate interest in governmental operations.
The defendant’s argument that property owners have a special interest is enough in itself to destroy the rationality of the classification in a revenue bond election. In such an election, the vote is limited to persons whose property taxes will, by statute, not be increased if the revenues fall short of expectations. If the General Fund of the City should suffer, the greater share of the burden will fall on the excluded class of non-property owners, that is, sixty per cent of the resident voters. In final analysis, the requirement of property ownership invites the property owners, forty per cent of the voters, to vote themselves lower ad valorem rates or the continuance of existing rates while shifting the greater burden of carrying the City’s General Fund to the other sixty per cent of the resident voters.
I would hold that the distinction between property owners and non-property owners in an election to vote on the issuance of municipal revenue bonds is so arbitrary as to deny equal protection of the laws to the excluded non-property owning residents of Houma. Accordingly, I would grant the injunction and the requested declaratory judgment. Such a holding need not affect adversely bonds now outstanding. To protect the vested interests of cities and bondholders in bonds already issued, I would apply the decision — as I see it — prospectively only.