Jurisdictional Statement — Cipriano v. City of Houma

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SUPREME, COURT. in ee aa ~ NO® 1. 1968

IN THE

| sup EME COURT OF THE UNITED STATES

; | OCTOBER TERM, 1968

m 705

<a

. JOSEPH Q, CIPRIANO, |

| : Appellant, —

versus

CITY OF HOUMA, G. LESLIE BROUSSARD, Mayor, —

_ CHRISTIAN L. OLIVIER, CHARLES DAVIDSON,

PETER BOURGEOIS, JR., SAMUEL LUSCO and.

WILBERT P. BONVILLAIN,

: .

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On ail from the United States istrict Cust for the .

Eastern eased of Louisiana. | !

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STATEMENT AS TO JURISDICTION.

KENNETH WATKINS,

WATKINS, WATKINS & WALKER,

. 415 Goode Street,

Houma, Louisiana

eae Counsel for Appellant.

. Franklin Printing Company, Inc. * 209 Magazine St. * New Orleans ° 522-9654.

INDEX a

e ins Page

OPINIONS BELOW 2

JURISDICTION | KAD

' QUESTIONS PRESENTED _.. 4

STATEMENT OF THE CASE _ sae f

THE QUESTIONS PRESENTED ARE fe i

SUBSTANTIAL . Se ihe 7 f

a a ee ‘ll

CERTIFICATE... petite |

APPENDIX A—STATUTES AND CONSTITU- | i

TIONAL PROVISIONS _... 13

B—OPINION AND JUDGMENT

BELOW 35

C—DISSENTING OPINION -.... AT

aa [

CITATIONS 2 | i

| §

- Constitutions | f

United States Constitution, Fourteenth f

Amendment 4 € E85

Louisiana Constitution of 1921, Art. 14,

Sec. 14(m) . | 8, 4, 5, 7 |

Statutes

United States Code

Title 28, :

Sec. 1258 __... eee ae ol cee eae =

a a aes 6

Sec. 210 cae ae 7

Sec. 2102 ____ ORD ee Moa BA Reser 6 {

See, 281 plete RA lin Me 2 | |

ER ee aca een reer ret 3

r

L

te ets (heme ae ns aa

>

CITATIONS (Continued)

Statutes (Continued)

: ere | | Page

ie : ae

' See. 1981-1985 EREDAR , : 6

Louisiana Revised Statutes of 1950

Title 33, ; |

_ See. 4251-4262 Bo” UNnanae Oae 3, 4,8

See. 4252, 4253 __. 8,9

Sec. 4258 Roa 5

Title 39, -_ | ae

Sec. 501-518 © * 3,4,8

Sec. 508 __.. | | | 5

<_s ‘ ete : ; ®

Florida Lime & Avocado Growers Inc. v. Jacobsen, °

362 U.S. 73, 80 S. Ct. 568 (1960) 3

Harper v. Virginia State Board of Elections, 383 U. S..

663, 86 S. Ct. 1079 (1966) . 9,11

Radio Corp. of America v. Mees 51 States, 341 U.S.

412, 71S. Ct. 806 (1960) — 3

: Miscellaneous .

United States Supreme Court Rules 13(2),.15 _ 3

Federal Rules of Civil Procedure,

Rule 23 svete 5, 6

Rule 65 ae 6

c

eg

ii

IN THE

~ SUPREME COURT OF THE UNITED S STATES.

OCTOBER TERM, 1968

\

No.

JOSEPH Q. CIPRIANO,

Appellant,

versus

CITY OF HOUMA, G. LESLIE BROUSSARD, Mayor,

» CHRISTIAN L. OLIVIER, CHARLES DAVIDSON,

PETER BOURGEOIS, JR., SAMUEL LUSCO and

: ~ WILBERT P. BONVILLAIN,

Appellees.

On Appeal from the United States District Court for the .

Eastern District of Louisiana.

STATEMENT AS TO JURISDICTION.

May It Please the Court:

The appellant, pursuant to United States Supreme

Court Rules 13(2) and 15, files this his jurisdictional

statement on-the basis of which it is contended that the

Supreme Court of the United States has jurisdiction on a

direct appeal to review the final decree of a threé-Judge

District Court for the. Eastern District of Louisiana, en-

tered on July 23, 1968, denying a permanent -injunction

and refusing to declare certain: provisions of Louisiana

| : .

42

law, under which a bond election was held, mn be in viola-

tion of the Constitution of the: United States, ‘and that a -

substantial question is presented.

OPINIONS BELOW

The District Court delivered a written opinion and

dissenting opinion on July 15, 1968, and entered J udgment

on July 23, 1968.:The > Judgment and opinions are reported

in’ 286, F. Supp: 823 (1968). Copies of the opinions and -

judgment are attached to this jurisdictional statement, ©

as Appendices B and C.

JURISDICTION |

The appeal herein is from a final decree made and

entered by the United States District Court for the Eastern

District of Louisiana specially constituted under 28 U.S.

Code, Sections 2281 and 2284 upon the plaintiff’s applica-

tion for a temporary and: permanent injunction to restrain

the enforcement, administering, execution of, or the giving

effect to provisions of the Constitution and statutes of the

State of Louisiana which require the ownership of prop-

erty and the payment of taxes thereon as a qualification

or a condition precedent to voting in elections in Louisiana

as repugnant to the due process and equal protection

clauses of the Fourteenth Amendment of the a

of the United States.

The application of plaintift further sought a Judg-

ment declaring the aforementioned provisions of the Con-

stitution and statutes of the State of Louisiana to be void

for repugnance to the same clauses of the Fourteenth

Amendment of the Constitution of the Unitec States and

particularly declaring void an election held by the City of

Houma, Louisiana on October 24, 1967, pursuant to the

iy

nnn | 3 :

aforementioned constitutional and -caeaaaed provisions of

the State of Louisiana.

The final deers appealed from was made:on July 23,

1968 and entered on July 25, 1968. Notice of appeal was

filed in the United States Districj@eurt for the Eastern

District of Louisiana on September 6, 1968.. |

The Supreme Court of the United States has —" ,

tion to review by direct appeal the Judgment complained

of by the provisions of 29_U.S. —_ Sections 1253 and

2101 (b).

~ ‘The following decisions are believed to sustain the

- jurisdiction of the Supreme Court to review the Judgment

on. direct appeal in this case. Florida Lime and Avocado

Growers, Ine. v. Jacobsen, 362 U. S. 73, 80 S. Ct. 568

(1960) and Radio Corp. of America v. United States, 341

U.S. 412, 71 S. Ct. 806 (1950).

Statutes and constitutional provisions are Louisiana

Constitution Article.14, Section 14 (m) (West La. Const.-

Vol. 3, Page 42) ; Sub-Part C—Part I, Chapter 10, Title

33 of the Louisiana Revised Statutes (West LSA-R.S.

$3 :4251-4262,° Vol. 20A, Pages 178-186), and Part II,

Chapter 4, Subtitle II, Title 39 of the Louisiana Revised

Statutes (West LSAAR.S. 39:501-518, Vol. 22, Pages 685-

730), all of the above: cited being annexed hereto, as Ap-

pendix A.

The three-judge District Court held the above statutes

not to be unconstitutional, with a dissent to said decision

rendered by the panel Judge from the Fifth Circuit Court

of Appeals.

Sonne erarehlapaie ail

4

QUESTIONS PRESENTED

Article 14, Section 14(m) of the Louisiana Constitu-

tion of 1921 provides that “. . . The Legislature may, in

its discretion, require an election by the tax-paying voters _

of the subdivision or district as a condition precedent to

the issuance of such bonds, in which case the voters’ quali-

fee ge es bé governed by the provisions of this Section

XIV perfaining to other bond elections... . .”

_ Pursuant to the above constitutional provisions, La.-

R.S. 33:4251-4262 were enacted<and which, by reference,

incorporated La. RS. 39 :501-518.

_ ‘ The above cited constitutional and statutory provi-

sions set forth the procedure for revenue bond elections in

corporate municipalities in the State of Louisiana, which

provisions require that the voters be property-owning tax-

payers. The applicable statutes provide that any bonds is-

sued thereunder shall be repaid solely and exclusively from

the income and revenues of the utility acquired, con-

structed, or improved with the monies derived from the .

sale of such bonds. The principal question presented is:

Whether the above cited constitutionak and

statutory provisions of the State of Louisiana are

unconstitutional and in violation of the due process

and equal protection requirements of the Fourteenth

Amendment of the Constitution of the United States

insofar as they require the ownership of property

and the payment-of taxes thereon as a qualification |

to vote in a revenue bond election, which election

cannot, either directly ‘or indirectly, impose any

. tax or other burden on property-owning tax-payers.

STATEMENT OF THE CASE

_ Joseph Q. Cipriano, appellant herein, is a duly regis-

tered and qualified voter in the City of Houma, Parish’ of

o~

5

Cevdente, State of Louisiana but does not own any-real

property nor does he pay any municipal ad valorem taxes-

on any such property. Qn September 12, 1967 the defen-

dants, the Mayor and Board of Aldermen of the City of

Houma, Louisiana adopted the resolution ordering and

—, a special election to be held in the City of Houma,

Stat@of Louisiana pursuant to Part II, Chapter 4, Title

89, Section 508 (La. R.S. 39:508), and Sub-Part C, Part

I apter 10, Title 33, Section 4258 (La. R.S. 33:4258)

of the Louisiana Revised Statutes of 1950, and Article 14,

pater 14(m) of the Louisiana Constitution of 1921 to

authorize the issuance of utility revenue bonds by said city

- in the amount of $10,000,000.00. Under the terms of the

above resolution the election was specifically limited to

resident property taxpayers of the City of Houma.

The election was held on October 24, 1967, pursuant

to the resolution adopted on September 12, 1967 and fur-

ther pursuant to the authorities hereinabove stated. The

Mayor and Board of Aldermen met on October 25, 1967

and canvassed the retirns of the election and declared the

results thereof. In Said election 1,828 voters representing

$2,736,258.00 in assessed valuation voted in favor of the

proposition and 896 voters represent ting $1,108,268:00. in

assessed valuation voted against the proposition.

.Appellant is a member of a class of 6,926 duly qui

ified and registered non-property-taxpaying voters in the

City of Houma, all of whom are similarly situated and

entitled to bring a class action under Rule 23 of the Fed-

eral Rules of Civil Procedure. Appellant and all members

of this class were prohibited from voting in the election .

held in the City of Houma on October 24, 1967 because |

of the statutory provisions of Laquisiana law requiring that

a voter be a qualified resident property taxpayer of the

City of Houma.

6

_ During: the year 1967 the total number of. residerits

of the City of Houma was approximately 35,000. The total

number of registered voters in the City of Houma on°

_ October 24, 1967 was 11,606. The total number of prop-

erty taxpaying voters on October 24, 1967 in the City of

Houma: was 4,680. The total number of non-property-tax-

paying registered voters on October. 24, 1967 in the City

of Houma was 6,926.

Plaintiff, appellant herein, brought this action in the’

United States District Court for the Eastern District of

‘Louisiana, New Orleans Division, as a class action under

Rule 23 of the Federal Rules of Civil Procedure.

Appellaglt sought a Declaratory Judgment under Title

28, Sections 2101 and 2102 to have declared void and un-*

constitutional and in conflict with the. equal protection,

and due process clause of the Fourteenth Amendment of

the Constitution of the United States, the provisions of

the statutes and Constitution of Louisiana which have

the effect of requiring ownership of property and the

payment of taxes thereon as a condition of voting in elec- .

tions as set forth in said statutes.

_ Appellant -further sought an injunction under: the

provisions of Title 28 of the United States Code, Section

1343 (3), (4), Title 42, United States Code, Sections 1981

through 1985 and under the provisions of Rule 65 of. the__

Federal Rules of Civil Procedure to enjoin the defendants

from issuing bonds pursuant to said election of October 24;

* 1967 and further enjoining the defendants from enforcing,

_ administering or giving any effect to the cited. provisions

_ of the Constitution and statutes of Lauisiana.

| The Ttial Court, in a divided opinion, found for the -

defendants holding that the cited constitutional and statu-

ND

tory provisions of Louisiana were not so arbitrary or irra-

tional as to be in violation of the Fourteenth ee

of the United States Constitution.

THE QUESTIONS ARE SUBSTANTIAL

The issue involved in this proceeding has not been —

passed upon by this Court and is of importance to each

qualified voter-in the United States. It also directly affects

the individual states and all county,. municipal or other

political subdivisions. The issue is directly concerned with

the ownership of. property as a requirement or condition

of voting in a non-tax-election, and indirectly is concerned

with the just and proper distribution of the tax burden

between eee owning and non-property owning cit-

izens. “wf vee ees" Raat

1. Appeliant and all other non-property-taxpaying

voters, who: are otherwise duly qualified and registered

‘and who,are residents of the City of Houma, Louisiana,

have a proprietary interest in the municipal utility prop-—

‘erties owned and operated by the City of Houma and rev-

enues derived therefrom that is equal to the interest of all

other resident voters: These. utility revenues go into the

General Fund of the City of Houma and therefore go

towards providing general city services for all citizens.

The issuance of the bonds authorized by the abovemen-

tioned election held on October 24, 1967 would create a .

_ lien and privilege upon the revenues of the utilities owned

and operated by the City of Houma. Obviously, all regis-

tered voters should have been given an equal opportunity |

to vote on the proposition submitted. Just as obvious is the

fact that the ownérship of. property and the payment of

taxes thereon have no relevancy or reasonable connection

with one’s ability to vote intelligently on the proposition.

Article 14, Section 14, Sub-Section: m of the Louisiana

oe Per 7 “sr

? batt Mata teats Pp

Ce ee eee

8

Constitution of 1921, and La. R.S. 33:4251 et seq., and

La. R.S. 39:501 et seq., insofar as they set forth the re-

quirement of property ownership and the payment of

> taxes thereon to vote in ‘a non-tax election, are in violation

of the dye process and equal protection .clause of the

Fourteenth Amendment of the Constitution of the United

States.

2. Permitting the property owner the exclusive fran-

chise to vote the passage of revenue bonds contemplated i in

the cited statutes results in a clear invitation to vote fav-

orably upon increasing the General Fund of the municipal-

ity while at the same time protecting the favorable low

tax rate on his property. This is clearly discriminatory

against appeMant and members of his class who together

represent more than 59% of the registered voters of the

City of Houma. :

We make special note of the fact that this is a utility

_ revenue bond election called and held under the provision

of Sub-Part C—Part I, Chapter 10, Title 33 of the Louisi-

ana Revised Statutes (La. R.S. 33 :4251-4262). The cited

statutes provide that the bonds authorized by this election

to be issued may be repaid only or exclusively from the

income and revenues derived from the operation of the utili-

ty, and therefore, by said limitation, effectively : prohibit

the imposition of any taxes, ad valorem or otherwise, which

may be used, in whole or in part, to retire-any portion of

the bonds. Because of this, a property owner should have

no greater stake or interest in this election than a non-

property owner as neither his property nor his property

rights can in any way be adversely affected by the outcome

of this election.

La. R.S. 33:4252 provides that the bonds do not con-

stitute an indebtedness or pledge of the general credit of

9

the issuing authority. La. R.S. 33:4253 provides that the |

‘only. security of these bonds is a pledge of the revenues

of the utility and does not provide for the mortgaging of

any physical assets of the utility or the issuing authority.

In the event of default the only recourse is receivership

of the utility and payment of the bonds from the revenues

_. derived from the operation of said utility. Palpably, then,

the full faith and credit of the issuing authority is in no

way at stake. |

The case relied upon by appellant as controlling in

this instance is the case of Harper v. Virginia State Board

of Elections, 383 U.S. 668, 86 S. Ct. 1079 (1966). The

Harper case was concerned with the requirement of the

payment of a poll tax as a qualification to vote. This case

~ is concerned with the requirement of the payment of a

property tax as a qualification to vote.

i “In the Harper case the Supreme Court concluded that

a state violates the equal protectioy clause of the Fourteenth

Amendment of the Federal Constitution whenever it makes

the affluence of the voter or the payment of any fee an

electoral standard: “Voter qualifications have no relation

- to wealth nor to paying or not paying | this or any other tax.”

The Court further declared that “ .. we must remem-

ber that the interest-of the State when it comes to voting,

is limited to the power to fix qualifications. Wealth, like

- race, creed, or color, is not germane: to one’s ability to par-

ticipate intelligently in the electoral process. Lines drawn

on the basis of wealth or property, like those of race. : . are

traditionally disfavored.” (Emphasis ours)

The ruling and reasons of the Harper case are appli-

cable here. All qualified voters must have an equal right

and opportunity to vote in any election whether it be to

PRE ere eterna nee rererrmetenaysraneees

° -

elect a candidate, to adopt a constitutional amendment or

to. declare on a.proposition. No state has the right to

impose any qualification or standard which arbitrarily, .

unfairly or unreasonably discriminates. In the instant case

the voter qualification imposed has no relationship to

either the intelligent use of the ballot or to the protection

of any legitimate interest. The requirement of property

ownership and the payment of. taxes ‘thereon to vote in

elections such as the subject election invidiously allows

and invites the property owner to vote himself a lower

- ad valorem tax rate while imposing the burden of the

City’s operation on his fellow: citizens who are > generally

of less affluence.

If the objective of debt. limitation is desirable as a

general proposition, the requirement of property owner-

ship and tax payment thereon as a qualification to vote

in a revenue bond election can in no way achieve that

objective but in fact militates against the achievement

_ of that objective and actually induces the property own-

ing taxpayer to vote favorably on the revenue issue, with

its consequent increase in debt, because of his desire to

increase the general revenues of the City from a source

other than the property tax, and thereby insuring and pro-

tecting his low property tax rate at the obvious expense

of the non-property-owning voter.

As a result of the statutes and Trial Court’s decision,

there is discrimination amongst citizens who have an equal

‘ interest in the general revenues of the City and some cit;-

zens, without reasonable or rational basis for distinction,

are deprived of their right to vote. There is equality of in-

terest amongst all of the citizens of the City of Houma in

a revenue bond election and yet there is no equality in. vot-

ing rights. The degree of this discrimination is neither

ee enreeewe wowseeenben ee

11

minute nor irrelevant. The Supreme Court in the Harper.

case, declared “. . to introduce wealth or the payment of a

fee as a ‘measure of voter’s qualification i is-to introduce a

‘capricious or irrelevant factor. ‘The degree of the discrim-

ination is irrelevant.” (Emphasis ours)

; 3. The majority opinion below made no specific find-

~ ings of fact relative tothe purpose for the distinction be-

tween property owners and non-property owners. The Dis-

_trict Court erred ih surmising as to what might have been

the legislative reasons for the distinction without, in any

manner, determining or making any finding as to the rel-

__ evancy of the reasons surmised. As an example, conceding

arguendo, that the reasons surmised by the Court were in

fact the true legislative intent, what possible relevancy

could tlie fact that a developer may bear the cost of in-

stalling the utility service have to the question of relative

ability or inability to —w. vote in the subject

election.

CONCLUSION >

It is submitted that the District Court erred in find-

ing that there exists a reasonable or rational basis for

prohibiting non-property owners from voting in a non-

property-tax election.

Respectful

ENNETH WATKINS,

415 Goode Street,

Houma, Louisiana

Counsel for Appellant.

12

\ CERTIFICATE

‘TI hereby certify that a copy of the foregoing juris-

_ dictional statement has been served on opposing counsel

_&f record by depositing such in the United States Mail,

_ postage pre-paid, addressed to their addresses of record.

—

« scythe wd RE TO NS Na aac

13

APPENDIX A =,

STATUTES AND CONSTITUTIONAY,

PROVISIONS 7

I. LOUISIANA CONSTITUTION OF 1921

Article 14—Parochial and Municipal Affairs

Section 14—Subdivisions of State; creation; indebtedness;

Bond issues; special taxes

(m). Revenue bonds; acquisition, etc., of utilities.

' For the purpose of constructing, acquiring, extending or

improving any revenue-producing public utility, the -Leg-

islature may authorize municipal corporations to issue

bonds secured exclusively, principal and interest, by mort- .

gage on the lands, buildings, machinery and equipment and

by pledge of the income and revenues of such public utility.

Such bonds shall not be a charge upon the other income

and revenues of the municipality and shall not be included

in computing the indebtedness of the municipality for the

purpose of any limitation herein.’

For the purpose of constructing, acquiring, extend- —

ing or improving any revenue producing public utility, as

defined by the Legislature, the Legislature may authorize

any political subdivision or taxing. district authorized to

issue bonds under the authority of this Section 14, -ex-

cluding municipal corporations, to issue its revenue bonds;

which bonds shall be ‘fully negotiable, shall bear interest

at a coupon rate not exceeding six per cent per annum,

shall mature sérially or- otherwise not later than forty

years from their date, shall not be a charge upon any in-

come or revenue of the district or municipality not de-

rived from the utility, and shall not be included in com-

puting the indebtedness of the subdivision or district, for ~

the purpose of any limitation contained in the Constitu- —

\

SOT gen came oN

14

4 tion. The Legislature shall provide that any bonds issued

heretiider shall be secured bya conventional mortgage on

the entire utility SO constructed, acquired, extended or im-

proved, and by pledge of the income and revenues thereof,

sufficient in amount to pay principal of and interest on

said bonds as they severally mature; which security may ©

be foreclosed by seizure and sale of the encumbered prop-

erty -in- the manner provided ‘by law for the foreclosure

.of conventional mortgages, including the right to execu-

tory process; and the Legislature shall provide for the

granting of a franchise to the purchaser at foreclosure

sale, if any, which franchise shall run for a period not

exceeding forty years from the date of such sale And shall

be subject to any other constitutional or statutory limita-

tions pertaining to the granting of-municipal franchises.

The Legislature shall also provide that when bonds are

issued hereunder, the issuing subdivision or district must

impose rates for the services rendered by the utility fully

sufficient to operate and maintain the utility, to pay prin-

cipal of and interest on the bonds, and to provide an ade-

quate fund for depreciation, improvements and extensions,

and provisions may be made for encumbering two or more

utilities for the construction, acquisition, extension or

-improvement of any one or more of the utilities encum-

- bered. The Legislature may, in its discretion, require an

election by the tax-paying voters of the Subdivision or dis-

trict as a condition precedent to the issuance of such ._

bonds, in which case the voters’ qualifications shall be

governed by the provisions of this Section XIV pertaining

to other bond elections. If the validity of-any bonds issued

hereunder be not questioned in litigation commenced with- .

in thirty days from the date of publication of the ordi-

nance or resolution authorizing the issuance of such bonds,

the authority to issue the bonds, the legality thereof, and

the security therefor, shall be conclusively presumed and

7 .

15

no court shall thereafter have authority to inquire into

such matters. Any law or laws enacted by the Legislature

for the purpose of putting this added paragraph to Sub-

section (m) into effect and which may have been finally

passed by the Legislature after the passage of the joint

_resolution proposing this amendment and prior to the

adoption of said amendment by the electors of Louisiana,

shall be valid and fully effective if and when said pro-

posed amendment be adopted.

II. LOUISIANA REVISED STATUTES OF 1950

A. Title 33—Municipalities and Parishes

Chapter 10—Public Utilities

Part I—Ownership, Operation and Financing |

SUB-PART C. PLEDGE OF REVENUES OF UTILITY

§ 4251. . Bond issue

- Any municipal corporation or any parish or any other —

political subdivision or taxing district authorized to issue

bonds under Section 14, Article 14, of the Constitution of

~ Louisiana, all of which are hereinafter in’ this Sub-part

‘referred to as “municipal corporation” or “municipality”

may, in order to construct, acquire, or improve a revenue

producing public utility, either within or without its boun-

daries, abtain funds for the purpose by issuing revenue

bonds. For the purposes of this Sub-part, the governing

body of the municipal corporation shall be the body em-

powered to authorize and issue other bonds of the munic-

ipal corporation under the provisions of Section 14, Article

14, of the Constitution of Louisiana and Title 39, Sub-

title 2, Chapter 4. 7

:

§ 4252. Requisites of bonds |

Bonds issued under this Sub-part shall be authorized

ares teeerey Mer ae meLNTiCR eC ragieS my To 41% a

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eas. +15 we ache |

Sle 0018

16

by resolution of the governing body and shall be payable

solely from the income and revenues to be derived frem the

operation of the utility. The bonds shall not constitute an

indebtedness or pledge of the general ‘credit of the munic-

ipal corporation within the meaning of any constitutional

or statutory limitation of indebtedness and shall contain

a recital to that effect: They shall be in coupon form

but may be’ made registerable as. to principal if so pro-

vided in the resolution authorizing the issuance. The bonds

shall be in the denomination of one hundred dolta¢s or a

multiple thereof, shall bear interest at a coupon rate not

exceeding six per cent per annum, shall mature serially

or otherwise in the manner provided by the governing

body, but not later than forty years from their ‘date, and’

_ Shall be made payable at the place provided by the govern-

ing body. They may be made redeemable at the option of.

the. issuing municipality prior to maturity at the premium

(not greater than ten per cent of the principal amount °

thereof) which the governing body determines. The bonds

shall be signed by the presiding officer and attested by the ©

secretary or clerk of the municipality under the official

seal of the municipality, in the manner provided in the

. resolution authorizing their issuance. Interest coupons to

be attached thereto may be executed with the facsimile

signature of the officers, and in the event that any officer

whose signature appears on the bonds or coupons ceases

to hold office before the delivery of the bonds to the pur-

chaser, his signature shall nevertheless be valid and suf-

-- ficent for all purposes. The bonds shall be sold in. the man-

ner and at the times which the governing body determines,

except that in no event shail the bonds be sold at a price ©

‘ of less than par or bear an interest rate of greater than

six per centum per annum.

acme

§ 4253. Pledge of revenues of utility; sinatihadliley.

Any bonds issued under this Sub-part shall be payable

from and secured by the pledge of the revenues derived

from the operation of the utility constructed, acquired, ex-

tended or improved with the proceeds thereof, subject only

to the prior payment of the reasonable and necessary ex-

penses of operating and maintaining the utility. Any hold-

er of the bonds or of any of the coupons thereto attached

may by appropriate legal action compel performance of

all duties required of the governing body and officials of

the municipal corporation by the provisions of this Sub-—

part. If any bond issued hereunder is permitted to go into

default as to principal or interest, any court of competent

. jurisdiction may pursuant to the application of the holder —

of the bond, ‘appoint a receiver for the utility, which re-

ceiver shall be under the duty of operating the utility and

collecting and distributing the revenues thereof pursuant -

to the provisions and Reyeremnents ° - the resolution auth-

— the bonds. .

If more than one series of bonds is issued hereunder

payable from the revenues of any utility, priority of lien

on such revenues shall depend on the time of delivery of

the bonds, each series enjoying a lien prior and superior

to that enjoyed by’ any series of bonds subsequently deliv-

ered, except that where provision is made in the proceed-

ings authorizing any issue or series.of bonds for the is-

suance 6f additional bonds in the future on a parity there-

with pursuant to procedure or.restrictions provided in such

proceedings, additional bonds may be, issued-in the future

on a parity with such issue or series in the manner so pro-

-vided in such proceedings. (As amended Acts 1955, No. 72,

§ 1; Acts 1956, No. 17, §1.)

PE PLE OP ER Ie

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fn tor wae

Bs cn eeana eee io ee ee eh en Ne eS ee En

i8

§ 4254. Bonds to constitute negotiable instruments

All bonds issued under the provisions of this Sub-part

shall constitute negotiable instruments within the mean- / (™)

ing of the nagetiante instruments law.

_ § 4255. Sinking fund

Any resolution authorizing the issuance of bonds here-

under shall provide for the creation of a sinking fund into

which shall be paid from the. revenues of the utility, sub-

ject only to prior payment of the reasonable and necessary

expenses: of operating and maintaining the utility, sums

. fully sufficient to pay the principal and jnterest of the

bonds, and to create such reserve for contingencies as may

be required ‘by the resolution. The ‘moneys in the sinking

fund shall be applied to the payment of interest on and

‘principal of the bonds or to the purchase or retirement

of the bonds prior to maturity in the manner provided in

the resolution.

The resolution authorizing their issuance may contain

~ such covenants with the future holder of the bonds as to -

(1) the management and operation of the utility,

(2) the imposition and collection of fees and charges

for the products, commodities or services furnished

thereby,

(3) the disposition of such fees and, revenues,

(4) the issuance of future bonds and the creation of

future liens and encumbrances against the-utility and the

revenues thereof,

(5) the carrying of insurance on the properties con-

stituting the utility,

(6) the disposition of the proceeds of any such insur-

ance, and

19

(7) other pertinent matters, deemed necessary by the.

governing body to assure the marketability of the bonds,

provided such covenants are not inconsistent with the pro-—

visions of this Bab-part.

§ 4256. Charges for snninnlities or services provided by

utility

When any municipality has issued bonds and has

pledged the revenues of any utility for the payment thereof

as herein provided, the municipality shall impose and col-

lect fees and charges for the products, commodities and_:*

services furnished by the utility, including those furnished

to the municipality itself and its various. agencies and de- |

partments, in such amounts and at such rates as shall be

fully sufficient at all times to (1) pay the expenses of op-

_erating and maintaining the utility, (2) provide a sinking

fund sufficient to assure the prompt payment of principal

of and interest on the bonds as each falls due, (3) provide -

~ such reasonable fund for contingencies as may be required.

by the resolution authorizing the bonds, and (4) provide

an adequate depreciation fund for repairs, extensions and

improvements to the utility necessary to assure adequate

ahd efficient service to the public. No board or. commis-.

. sion other than the governing body of the municipality

shall have authority to fix or supervise the making of

these fees and charges. |

§ 4257. Property of two or more utilities may be pledged

The governing body of the municipality may authorize

bonds under this Sub-part payable from the revenues to be

derived from two or more utilities. owned and ‘operated by

the municipal corporation (whether or ‘not such utilities

are related or used in conjunction) for the purpose of con-

structing, acquiring, extending or anpryeng any one or

‘more of the utilities.

.)

De ee eee

= ae

20

§ 4258. Election to authorize issuance of bonds

Before the resolution authorizing the issuance of

bonds under this Sub-part is adopted by the governing

body, the question of the issuance of the bonds shall be

submitted to and approved by votes of a majority in num-

ber and amount of the property taxpayers who vote at an

election held hereunder. The proposition may be submitted

at either a special or general election and all matters per-

taining thereto, including thé qualifications of voters and

the manner of calling and conducting the election and can-

vassing and promulgating the results thereof, shall be gov-

erned by the provisions of Chapter 4, Sub-title 2, Title.39.

§ 4259. Refunding bonds

The governing body of any municipality which , has

heretofore issued or hereafter issues bonds payable’ from

utility revenues under the provisions of this Sub-part or

» any other law may authorize the issuance of bonds for the

purpose of refunding, extending and unifying the whole

‘orvany part of the principal, interest’ and redemption pre-

-miums on the outstanding bonds. The refunding bonds

may either be sold and the proceeds applied to or de-

posited in escrow for the retirement of the outstanding

bonds, or may be delivered in exchange for the outstanding

bonds. The refunding bonds shall be authorized in all re-

‘spects as original bonds are herein required to be author- —

ized, except that no election shall be necessary in the event

the refunding bonds are sold at publie sale after adver-

tisement in the manner provided by R.S. 39:570 and the

' annual princfpal and interest on-the refunding bondé is

less than the combined annual principal and interest on

the bond issue or issues being so refunded, extended and

unified. The governing body, in authorizing the refunding

bonds, shall provide for the security of the bonds, the

sources from which the bonds are to be paid and for the

21

rights of the holders. thereof in all respects as herein pro- |

vided for other bonds issued under the authority of this

Sub-part. The governing body may also provide that the

refunding bonds shall have the same priority of lien on

the revenues pledged for their payment as was enjoyed

by the bonds refunded. (As amended Acts 1962, No. 224, .

§ 1.)

§ 4260. Contesting election and bonds; prescription

For a period of sixty days from the date of the pro-

mulgation of the result of any election held hereunder,

any person in interest may contest the legality of the elec-

tion, aftey which time no one shall have any cause of action

to contest the regularity, formality or legality of the elec-

‘tion for any cause whatever, it shall be conclusively pre-

sumed that every legal requirement has been complied

with, and_no court shall have authority to inquire into such

matters after the lapse of sixty days. The resolution auth-

orizing the issuance of bonds shall be published once in a

newspaper published in the municipality, or if no news-

paper is published therein, theri in a newspaper published

in the parish in which the municipality is lecated, or if no

newspaper is published in the parish then in a newspaper

published in an adjoining parish. For a period of thirty

days from the date of the publication any person in in-

terest may contest the legality of the resolution and of the

bonds to be issued pursyant thereto and the provisions

_ securing the bonds. After the expiration of thirty days no

one shall have any right of action to.contest the validity

of the bonds ¥r thé provisions of the resolution pursuant

to which the bonds were issued, and all the bonds shall be

conclusively presumed to be legal, and no court shall there-

after have authority to inquire into such matters.

§ 4261. Service charge for sewerage and garbage facilities

Where the revenues pledgeéto the payment of bonds

ONL LIP LINEA t

ee

22

under this Sub-part are revenues of a utility comprised of

sewerage facilities, or garbage facilities, the governing

authority of the municipality may each year impose

against the owners of all real property in the municipality

a service charge for the facilities afforded by the utility,

which charge shall not be a-lien upon the property. The .

charges shall be sufficient to provide-for the cost of -oper-

ating and maintaining the utility and paying the interest

and principal of the bonds secured by the revenues of the

utility. No charges shall be made against the owner of

any property which is not benefited by the utility. A list

of the names of all owners against whdm charges are so

made and the amounts of the charge made against each

owner shall be certified by the governing authority to the

official charged with the assessment of taxes against the

property at such time and in such manner in each year

as to permit the amount of the charge to be carried upon

the assessment roll of the real property in the municipality.

Each charge shall be carried on the roll as a special item

due by the owner of the property individually and shall

' be identified on the roll as “Special Sewerage or Garbage

Charge of — (inserting the name of the munic- .

ipal corporation)”. The charges shall be.paid to the official

who collects the general taxes assessed against the real

property located in the municipality, and shall be paid at

the same time and in the same manner as the general

taxes are paid. Where the ownership of any real property

_ changes, the municipality may require any subsequent

owner seeking sewerage or garbage service to apply there-

for, whereupon the charges imposed’ against the owner

shall be assessed and collected in the manner hereinabove

provided. The municipality may pay the tax collecting

official the same commission on the amounts collected by

him as he receives for the collection of ad valorem taxes, ©

and may pay the assessing official a sum sufficient to re-

23

imburse him for additional expenses occasioned by reason

of listing the charges on the assessment roll. The amounts

to be paid to the assessor and collector shall be considered

one of the costs of operating and maintaining the utility.

§ 4262. No restriction of acts authorized

' This Sub-part shall constitute full authority for the

accomplishment of all acts herein authorized to be done.

No other law restricting the carrying out of the acts au-

thorized to be done shall be construed as applying to any

proceedings had or acts done pursuant to this Sub-part.

B. Title 39—Public Finance

Chapter 4—Bonded Indebtedness and Special Elections

PART II. ELECTIONS

§ 501. . Elections

Except as otherwise provided in special cases, no sub-_

division may incur any debt, issue any bonds, levy any

special tax, or assume any indebtedness unless it has been

authorized by vote of a majority in number and amount

of the property taxpayers qualified to vote under the con-

stitution and laws of this state who vote at an election

hereunder. The governing authority of any subdivision

may call a special election for. any of ‘hese purposes at

any time; and it shall call an election for any of these

purposes when requested so to do by the petition in writing

of one-fourth of the property =a eligible to vote

at the election.

§ 502. Resolution calling election

The election shall be ordered by resolution which shall

state the purpose for which it is called.

If the proposition is to incur debt and issue nege-

tiable bonds under Part III of this Chapter,’ the purpose

a

CD teeta titer cr ace oem ne

24

for which the debt is to be incurred, the amount of the

debt, the number of years for which the bonds are to run,

and the maximum rate of interest to be paid shall be

stated. |

If the proposition is to levy a special tax under Part

IV of this Chapter,* the rate, object, and pufpose for which

the tax is to be levied, and the number of years it is to run

must be stated. (*R.S. 39:551—39:670. *R.S. 39:701—

39 :706.) ie

-§ 503. Notice of election

| Notice of the election shall be given embracing sub-

stantially all matters required to be set forth in the reso-

lution ordering the election, and shall set forth further

that the authorities ordering the election will, in open

session, at an hour and place named, proceed to open the

ballot boxes, canvass the returns and declare the result.

The notice shall be published for thirty days in a news-

_ paper published in the subdivision; or if there is no news-

paper published therein, in a newspaper published in the

parish; or if there is no newspaper published in the -par-

ish, in a newspaper published in an adjoining parish,

and by posting in three public places in the subdivision

ordering the election. Four publications in a newspaper

once a week, shall-constitute a publication for thirty days;

provided thirty days intervene between the date of the first

publication and the date of the election.

§ 504. Polling places; ballots

The governing authority ordering the election, shall

designate the polling places; provide the ballot boxes; bal-

lots; valuations of property and compiled statement of

the voters in number and amount, and fix the compensa-

25

tion of the election officers. It shall appoint for each

polling place, three commissioners: and one clerk of elec-

tion, all of whom shall be registered voters. j

§ 505. Election officers; substitutes ;

If any commissioner or clerk of election is unable, or

if he fails or neglects to attend or serve at the polling place

designated, at the hour fixed for opening, or within one

hour thereafter, the commissioners present shall appoint,

or in the absence of all commissioners the voters present

shall elect the necessary number of commissioners and

clerks, who shall have the same powers, compensation and

duties, as other commissioners and clerks and: shall serve

in the place and stead of the absentee or delinquent ap-

pointees. — |

_

§ 506. Election officers; oaths

Commissioners and clerks of elections, before opening

the polls, shall be sworn to ‘perform all the duties incum- -

bent on them as such, the oath to be taken before any of-

ficer authorized to administer oaths, or by the clerk, and

each commissioner before any other commissioner. The

‘commissioners of election may administer any oath and

receive any affidavit provided for in this Chapter.

§ 507. Penalty for violations

The commissioners and clerks of elections held under

the provisions of this Chapter shall have the same powers

and duties in conducting the elections and in preserving

order at the polls as are conferred and imposed upon sim-

ilar officers under the general election laws of this state.

Whatever is declared in the general election laws to be a

felony, other crime or misdemeanor, shall be the same for

POLE ELS ERT LE RO |

EE i reg lle er er "

26

any election held under the provisions of this Chapter and |

shall be pes in the same manner.

Any wilful failure or neglect to —e with the re-

quirements of this Chapter or any wilful violation by any .

officer, agent or employee of any subdivision, availing it-

self of the provisions of this Chapter, shall be punished by

a fine of not less than twenty-five dollars nor more than

five hundred dollars or by imprisonment not exceeding one

year, with or without hard labor, or by both fine and im-

prisonment:

-§ 508. Qualifications of voters

- Only property taxpayers qualified as electors under

the constitution and laws of this state are entitled to vote -

in any election held under the provisions of this Part. The

qualifications of taxpayers as voters are those of age, resi-

dence, and registration as voters, withowt regard to sex.

There shall be no voting by proxy.

With reference to Part IV of this Chapter/ if the lim-

its and boundaries of any municipal corporation has been

extended and the assessment roll that is to include the

property in the extended limits has not already been made

for the municipal corporation, those who have become prop-

_ erty taxpayers by the extension of the limits and who are

otherwise -qualified to vote shall be permitted to vote in

the election and the assessed valuation of their property

shall be ascertained by reference :to the last assessment

roll of the parish. (*R.S. 39:701-39 :706.)

§ 509. Use of tax receipts

A. In all elections held under the provisions of this

Part and in all other elections whatsoever held under any

other laws of this state where the only question submitted

27

‘is the incurring of debt and issuing of bonds or other evi-

dences of debt and/or the question of levying special taxes,

the voter shall use his tax receipt as obtained from the tax

collector’s office in determining the amount of assessment

that shall be voted.

B. The registrar of voters shall furnish to the election

commissioners appointed to hold such election the precinct

binders showing those eligible to vote in said election. A

taxpayer entitled to vote in said election shall present to

the commissioners of election his tax receipt with the valu-

ation of such taxpayer’s property as shéwn by the assess-

ment roll last made and filed prior to such election; pro-.

vided, however, that when it is impossible for any tax-

payer to present his tax receipt to show the valuation of

his property, he shall. be permitted to vote by the use of |

the copy of the tax receipt, which the commissioners shall

find in the precinct binders. In case of loss of the original’

tax receipt and copy thereof, the commissioners of election

may receive affidavits of such taxpayer’s right to vote and

of the proper assessed valuation of his property, which

affidavits shall be attached to such taxpayer’s ballot. -

C. The tax collector in each of the sixty-four parishes

shall make tax receipts for each taxpayer at the time the

taxes are paid. Such tax receipts shall be made in a mini-

mum of, an original and three copies. The original shall go

to the taxpayer and one copy to the registrar of voters,

which shall be placed in the proper precinct binder and

forwarded to the polls on election day. The additional cop-

ies shall be for the use of the tax collector.

D. Notwithstanding any provision of any law to the

contrary, the provisions of this Section, with regard to the

use of tax receipts shall be applicable at each election in

this state in which there is submitted to the qualified prop-

ket Sa Ree

NT Oot Ae oe tm ni 9m get aman

ok iiacat meas eaten

EIN MR OY TORR Ht no AN MME EMT TR HL NERF

‘ ?

. S id

.

AIEEE oe

.

‘28

erty taxpayer of any atea of the state the question of in-

curring debt and issuing bonds or other evidences of debt

therefor or the question of levying any tax. (As amended

Acts 1964, No. 399, § 2; Acts 1966, No..500, §§ 2, 3.)

§5 hallenging votes

If the vote of any taxpayer is challenged, the commis-

sioners of election shall permit him ‘to vote and shall re-

ceive in writing the grounds of challenge signed by the

challenger, together with the challenged taxpayer’s state-

ment of his asserted right to vote and the challenge and

statement shall be attached to the ballot.

§ 511. Form of ballot

If more than one proposition is submitted at, the same

special election, each proposition shall be so submitted as

to enable the voter to vote thereon separately. The ballots

to be used at special elections shall be in substantially the

following form: |

+

A. FOR THE INCURRING OF BONDED ay

ma INDEBTEDNESS

Shall

(ileane of Subdivision)

incur debt and: issue bonds to the amount of

YES

Dollars,

to run neces _. years,

from date thereof, with interest, at the maximum rate

of

per cent per annum for the purpose of

NO

“99

Taxable valuation $. wionos

| (Signature of Voter) .'

Notice to Voters: To vote in favor of the proposition sub-

mitted on this ballot, place a cross (X) mark in the square

after the word “YES”; to vote against it, place a similar

' mark after the word “NO”. ‘

B. FOR.THE LEVYING OF ATAX \

Proposition to levy a. |

a Rate)

mill | : |

tax on all the property subject to State taxation 4

in ie | | : : neinielinies YES ;

. (Subdivision)

_ for the period of | :

; _ (Term).

. for the purpose of |

NO

(Here state the purpose of the tax)

Taxable valuation $ __ |

* (Signature of Voter)

Notice to Voters: To vote in favor of the proposition

submitted upon this ballot place a cross (X):mark in the

square after the word “Yes”; to vote against it place a

similar mark after the word “No”. .

§ 512. Voting

Each voter’s name shall be written on his ballot. The

commissioners of election shall receive the ballot of each

Ce eee teeter

. ’

weet wee

30

voter, check his name on the list of voters furnished by the

registrar, enter and number his name on the list of tax-

payeys voting, and immediately deposit his ballot in the

bgHot box, reserving to each voter the right to so fold his

ballot that it shall not be known at the time of voting

whether he voted for or against the proposition gy prop-

ositions submitted. If the election is being held in a parish

where the permanent -registration laws are in force, the

procedure in connection with the precinct registers shall

be the same as that provided for in Part X of Chapter 1 of

- Title. 18 of the Louisiana Revised Statutes of 1950." (As

amended Acts 1964, No. 399, § 2.) (R.S. 18:231 et seq.)

§ 513. Opening and closing polls

The polls shaH open on the day appointed, at seven

o’clock a. m., and remain open until and not later than six

o’clock p. m. No election shall be vitiated by a failure to

open the polls at the time prescribed, or by closing before

the time prescribed, unless on a contest, it be established

that voters were thereby deprived of votes sufficient in

“number and amount to have changed the result of the

~ election.

§ 514. Counting ballots; precinct registers \

A. Immediately after the closing of the polls, \the

~ commissioners shall, in the presence of the bystanders, open

the ballot boxes; count the ballots found there; check the’

same with, the list of voters; “proceed to count the votes in

number and amount; keep tally sheets in duplicate show-

ing the votes in favor of and against the proposition or

propositions submitted, and showing the valuation of prop-

erty in favor of and against same; and make compiled

statements in duplicate of the vote in number and amount,

both in favor of and against each proposition or proposi-

tions. °

- a re eS

-

81

B. After swearing to the correctness of the numbered

list of voters, the duplicate tally sheets and duplicate com-

piled statements, the commissioner shall deposit the ballots,

the registrar’s list of voters, the numbered list of taxpayers

voting, one duplicate tally sheet, and one duplicate com-

piled statement, in the ballot box, immediately seal the

ballot box and, within forty-eight hours after the closing

of the polls, deliver the sealed ballot box with its contents

to the authorities ordering the election. Within the same

period they shall deliver the duplicate tally sheet and the ~

duplicate compiled statement to the clerk of the district

court of the parish in which the election was held, who

’ shall file them in his office. If the election is being held in —

a parish where the permanent registration laws are in

farce, the procedure in connection with the precinct reg-

isters shall be the same as that provided for in Part X of

Chapter 1 of Title 18 of the Louisiana meres Statutes

‘of 1950."

Cc. If the election commissioners on counting the bal-,

lots find that they do not correspond with the list of voters,

they shall, before examining and counting the ballots, ex-

amine them for the purpose of finding the discrepancy and.

if it should be found that any ballots have been duplicated

they shall be destroyed or, if it be found that the name of

a voter has been omitted. from the list of persons voting, it

shall be added to the list. (As amended Acts 1964, No. 399,

— -§ 2.) CRS. 18:281 et seq:)

§ 515. Canvass of returns

On the day and at the hour and place named in the

notice of election, the authoritiesordering the election shall

in public session open the ballot boxes, examine and count

the ballots in number and amount, examine and canvass

the returns, and declare the result of the election. The re-

sult shall be promulgated by publication in one issue of a.

OP AL POD IEL LOR IGE IAIN DS LOE ON GeO sO OH

>

Pm reat

ee ee ee

. 82

‘newspaper published in the subdivision, or if there is none,

in a newspaper published in the parish, or if there is none

published in the parish, in the newspaper published in an

adjoining parish. :

§ 516. Process verbal

The authority ordering the elections shall keep a

proces verbal of the canvass and shall forward a copy to

the Secretary of State, who shall record it; another copy

to the clerk of the district court, who shall record it in the

' ° mortgage records; and the remaining copy shall be re-

tained in the archives of the office of the authority order-

ing the election.

§ 517. Preservation of ballots

The custodian’ of the archives or records of the au-

thority ordering the election shall preserve for a‘ term of

three months from the date of the promulgation of the

election, the ballots and other returns.

§ 518. Contests

For a period of sixty days from. the date of promulga-

- tion of the result of any election held under the provisions

of this Part, any person in interest may contest the legality

of the bond issue provided for, the tax authorized or the

assumption of debt provided for any cause, after which

time, no one may contest the legality, formality or regu-

larity of the election or debt assumption for any cause

whatsoever. If the -validity of any election is not raised

© within the sixty days herein prescribed, the authority to

‘ issue the bonds, and to levy the tax, or assume the debt and

the regularity thereof, shall be conclusively presumed, and

4 no court shall have authority to inquire into such matters. °

With reference to Part III (A)? of this Chapter, if any

resolution adopted or proceeding had more than thirty days — _

33

after the promulgation of the result of the election, no con-

test, action or proceeding to question the validity or legal-

ity of the resolution or proceeding so adopted shall be be- ©

gun in any court by any person for any cause whatsoever,

after the expiration of thirty days from the date when the

resolution was adoptéd or proceeding had. (*R.S. 39:551-

39 :578:)

®.

.

.

”

.

-

-

“

.

4

.

-

35

APPENDIX B

OPINION AND JUDGMENT BELOW

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

CIVIL ACTION

NO. 67-1853

SECTION “C”

JOSEPH Q. CIPRIANO,

. Plaintiff,

Versus ;

CITY OF HOUMA, G. LESLIE BROUSSARD, Mayor, |

CHRISTIAN L. OLIVIER, CHARLES DAVIDSON,

PETER BOURGEOIS, J R., SAMUEL LUSCO and

WILBERT P. BONVILLIAN,

Defendants:

Before JOHN MINOR WISDOM, Circuit Judge, and

ane - RUBIN and JAMES A. COMISKEY, District

a

ALVIN B. RUBIN, District Judge:

A resident of the City of Houma, Louisiana, - has

brought a class action seeking an injunction to prevent the

City from issuing utility revenue bonds approved by a vote

of the property taxpayers at a special election. In addi-

tion, he seeks a judgment declaring that the provisions of

Louisiana law under which the election was held violate

the federal constitution. The plaintiff is a qualified voter,

but not a property owner. He contends that he and the

. other members of the class of resident voters who do not

“y

on Oe TOU ReneS

36

own property in Houma have a proprietary interest in the

municipal utility properties and that, since the Louisiana

constitution and statutes permit only qualified resident

voters who are property owners to participate in the elec-

tion, they have been denied due process and equal protec-

tion of the laws in violation of the Fourteenth Amendment

to the Constitution of the United States.

The Louisiana constitution imposes limitations on the

amount of debt a municipality may incur.’ But in Louisi-

ana, as in other states, these limitations apply only to debt

that constitutes a general obligation of the municipality; _

debt that is a charge only on a special fund is not subject

to the limitation.’ Article XIV, Section M, of the Louisiana

Constitution is typical of the provisions relative to such

special funds: it provides that the legislature may authorize.

municipal corporations to issue bonds for the purpose of

constructing, acquiring, extending; or improving any rev-

enue producing public utility if the bonds are secured ex-

clusively by a mortgage on the assets of the utility system

and a pledge of its revenues, but that these bonds may not

be a charge on the other public income and revenues of the ;

municipality.’ : . ie

- Acting under this authority, the Louisiana legislature

empowered municipal corporations to issue public utility

revenue bonds for the purposes permitted by the constitu-

1 LSA-Const. Art. 14, § 14(f). .

_ 2The provisions limiting municipal indebtedness had their origin ‘in

the latter half of the 19th Century. Seeking to attract railroads, tom-

munities issyed bonds and bought railroad: stock with the proceeds. The

depression of the 1870’s rendered most of the stock worthless. Corrupt

municipal administration also resulted in indiscriminate issuance of

bonds to cover the cost of projects of questionable value. See generally

-in this regard, De Torres, Financing Local Government 26-27 (1967).

See also Fowler, Revenue Bonds 46 (1938); Lutz, Public Finance 594

(1924); McDonald, American City Government and Administration,

406 et seq. (1955). '

3 Article XIV, Section 14(m) provides expressly that bonds of this

nature “shall not be included in computing the indebtedness of the mu-

nicipality for the purpose of any limitation herein.”

° 37

: tional provision. The bonds must be authorized by a reso-

lution of the municipal governing body. As the Louisiana

constitution requires, they must be payable solely from the

revenues of operating the utility system, and they may not

constitute an indebtedness or pledge of the general credit

of the municipality.° Before the resolution authorizing the

issuance of bonds may be adopted by the governing body,

the question whether the bonds should be issued must be

submitted to and approved by the votes of a majority in

number and amount of the property taxpayers.’

The procedure contemplated ‘by the Louisiana statutes

_ was followed by the City of Houma. The Mayor and Board

of Aldermen, the duly elected municipal governing body,

adopted a resolution calling a special election. The election

was heid, and the bond issue was approved. The City ap-

plied to the State Bond and Tax Board for consent and

authority to issue and sell the bonds.* Before Ahey can be

sold, it will be necessary for the municipal governing body

to adopt a resolution for the issuance and sale of the bonds.°

While the plaintiff conterffs he was denied due process

of law, he does not seriously press the elaim. His real com-

plaint.is denial of equal protection of the laws, aid he re-

lies entirely upon Harper v. Virginia State Board of Elec-

tions, 1966, 383 U.S. 663. In Harper the United States Su-

preme Court held that the Equal Protection Clause of the

Fourteenth Amendment prevents a state from exacting a

‘poll tax as a condition of the right to vote in state elections.

4LSA-R.S: 33:4251.

5 LSA-R.S. 33:4252.

6 bid.

7 LSA-R.S. 33:4258. The election is also contemplated by the Lou-

isiana constitution, Art. XIV, § 14(m), which provides, “The Legislature

may, in its discretion, require an election by the tax-paying voters of

the subdivision or district as a condition precedent to the issuance of

such bonds... .” . r

8 LSA-R.S. 39:871; 47-1803-1804.

® LSA-R.S. 33:4252; see LSA-R.S: 33:4258.

38

Mr. Justice Douglas reasoned that, ““bO]nce the franchise

is granted to the electorate, lines may not be drawn which

are inconsistent with the Equal Protection Clause of the

Fourteenth Amendment.” Id. at 665. A state “violates the

Equal Protection Clause of the Fourteenth Amendment

whenever it makes the affluence of the voter or payment of

any fee an electoral standard.” Id. at 666.

But this sweeping proposition is not decisive here.

The Equal Protection Clause does hot command state legis-

latures to make their laws conform to hydraulic principles .

by seeking the common—and lowest—level. “Equal pro-

tection does not require identity of, treatment. It only re-

quires that classification rest on real and not feigned dif-

ferences, that the distinction have some relevance to the

purpose for which the classification is made, and that the

different treatments be not so disparate, relative to the

difference in classification, as to be wholly arbitrary.”

Walters v. City of St. Louis, 1954, 347 U.S. 231, 237. In -

considering whether a classification rests on a real dif-

ference, we must take into account the nature and the rela-

tive importance of the subject with respect to which equal-

_ ity is asserted. “Undoubiedly, the right of suffrage is a

fundamental matter in a free and democratic society. Es-

pecially since the right to exercise the franchise in a free

and unimpaired manner is preservative of other basic

civil and political rights, any alleged infringement of the

right of citizens to vote must be carefully and meticulously

scrutinized.” Reynolds v. Sims, 1964, 377 U.S. 538, 561-

562. -

But “the Equal Protection Clause is not shackled to

the political theory of a particular era,”*® not even the one »

in vogue at present. It does not forbid the states to fix

10 Harper v. Virginia State Board of Elections, 1966, 383 U.S. 663,

669. ;

i

39

voter qualifications; it only, as Harper puts it, prevents

them “from fixing voter qualifications which inviduously

discriminate.”' For “[t]here can be no doubt either of the

historic function of the States to establish, on a nondis-

criminatory basis, and in accordance with the Constitu-

tion, other qualifications [than residence] for the exercise

of the franchise.”** Harper holds merely that equal protec-

tion is denied when a state levies a poll tax. It does not

‘declare that the Fourteenth Amendment abrogates the

power of the states to classify voters.

Mere classification does not of itself deprive a group

of equal protection.** Older decisions taught us that legis-

lation that differentiates between two classes is unconsti-

tutional only if the discrimination is irrational, arbitrary

or capricious."* Only a few weeks ago, the Supreme Court .

-indicated that these principles-are still vital. In holding

that the one man, one vote principal of Reynolds v. Sims

was applicable to the selection of Texas County Commis-_ .

sioners it said, “The Equal Protection Clause does. not, of

course, require, that the State never distinguish between

citizens, but only that the distinctions that are made not

be arbitrary or inviduous.” Avery v. Midland County

Texas, 36 U.S.L.W. 4257 (U.S. April 1, 1968), US.

Unlike the poll tax rejected in Harper, the Louisiana

statute attacked here does not limit suffrage in an election

held to vote for political representatives or general govern-

mental purposes. It deals solely with a vote on the issuance

11 Jd. at 666.

12 Carrington v. Rash, 1965, 380 U.S. 89, 91.

13 Williamson v. Lee Optical of Oklahoma, 1955, 348 U. S. 483; Car-

rington v. Rash, 1965, 380 U.S. 89.

14 Bayside Fish Flour Co. v. Gentry, 1936, 297 U.S. 422, 429;

Arkansas Natural Gas Co. v. Arkansas R.R. Comm., 1923, 261 U.S. 379,

384; Cox, Constitutional Adjudication and the Promotion: of Human

Rights, 80 Harv. L. Rev. 91, 94-95 (1966).

15 ‘See also Dusch v. Davis, 1967, 387 U.S. 112.

40 | .

of municipal revenue bonds. The test to be applied is.

whether the distinction drawn between resident voters who

_ are property owners and resident voters who do not own

property is so arbitrary or invidious as to deny equal pro-

tection of the laws to the resident who.does not own.

property. This can not be settled ‘by resort to generaliza-

tions that would apply the same criteria to every ballot on

every subject just because it is a ballot. Whether the dis-

tinction is invidious depends on the exact factual situation

presented.’

Before a utility revenue bond can be issued under the

Louisiana constitutional and statutory plan, the property

owners election must be authorized by an elected govern-

mental body. The plaintiff has full suffrage in the election

of this municipal governing body, as well as in the election

of the Louisiana legislature. The property owners election

called by the municipal governing body can. only approve or

disapprove the issuance of bonds. If it disapproves, its

veto is decisive. But even if it approves, the municipal gov-

erning body has the final decision | on whether the bonds

should be issued.*®

The election to approve the issuance of the bonds is

not an election for general governmental purposes. It con-

cerns the administrative functions of the municipality.

This type of distinction has been considered important in

determining what is required:to afford equal protection to

voters. See Sailors v. Board of Education of County of .

Kent, 1967, 387 U.S. 105. ,

The question here is not whether all voters resident in

a municipality are equally qualified to vote on the issuance

of utility bonds, nor whether they are all equally concerned —

with municipal utility services, nor whether they pay util- .

_ ity bills just like property owners, nor whether the people

16 See, e.g., The Wall Street Journal, vol. XLI, no. 101 (Wednesday,

May 22, 1968), p. 21, cols. 1 & 2. ,

41

of Louisiana in adopting their Constitution, or the Legisla-

ture of Louisiana in enacting its statutes have acted wisely

in determining that only property owners can veto the issu-

ance of revenue bonds. It is whether Louisiana’s plan of

governmental action is arbitrary or invidious with respect

. to the resident voter"who owns no property. In deciding

how they would authorize revenue bonds to be issued, Lou-

isianians might have supposed, perhaps erroneously but _

without being irrational, that property owners by and

large have a greater and more permanent economic stake

in the community than non-property owners; that the

values of property might be more directly affected by the

quality and cost of utility service ; that the success of a.

municipal utility system might yield funds for general

municipal operation, relieving property owners of some of

' the burden otherwise borne by ad valorem taxes, while the

failure of such a system might impair the credit of the

municipality even though the” bondholders have-no-elaim

to its funds. They might have recalled that in many cases

the cost of installing utility services have been directly

borne by subdividers of property.’ They might have

thought that property owners could better take into ac-

count such questions involved in utility. operation as valu-

ation of property, acquisition of rights of way, and dura-

bility of construction. In all of these matters, their conclu-

sion might be different from the onés we ourselves would

reach, and the conclusion might be oné that cannot be scien-

_tifically established or proved by a preponderance of the

evidence. But the question is not- whether they are right,

but merely whether they are so wrong as to be irrational.

As Sailors recognized, “Viable local governments may

need many innovations, numerous combinations of old and

new devices, great flexibility in municipal arrangements to

meet. changing urban conditions. .We see nothing in the

17 E.g., Code of Ordinances, Jefferson Parish, Louisiana, § 18-11.

a

SS ee

42

Constitution to prevent experimentation.” .387 US. at 110-

SF

There is no one light to kindle in state’ and municipal:

fiscal matters. Indeed, beset as state.and local governments

are by financial-problems,’* it may be that the gloom is

impenetrable. But the legislatures of some states think that

giving property owners the right to veto the issuance of —

revenue bonds serves as a wise fiscal restraint.’ We can-

not say that this conclusion is based on a: distinction be-

tween those who own property and those who do not that

is irrational, arbitrary or invidious. Those who, like the

plaintiff, consider the Louisiana legislative provisions un-

wise have their genéral franchise unimpaired; they may

_ seek to elect representatives who will vote for what they

consider a better method of authorizing the issuance of

‘revenue bonds. ‘* .

In Kramer v. Union Free School District No. 15, 2

Cir., 1967, 379 F. 2d 491; Judges Kaufman and Hays held

that a three-judge court should be convened to hear a case

in which a bachelor who was not a property owner con-

tended that he was deprived of equal protection by a New »

York statute that permitted only property owners, parents

of students or persons who stood in: loco parentis to stu-

dents to vote in school board elections. Judge Lumbard con-

- sidered the claim “so patently without any merit” that he

dissented. In doing so he observed: )

“... [T]he franchise in local elections concerning,

for example, water supply, sanitation removal, fire

protection, and the operation of parks and schoolg

is very commonly limited to those who use and/or

pay for the services. And such limitations have a

readily apparent and rational basis, the greater con-

-18 See, e.g., The State of the States: Troubled, Newsweek (January

31, 1966), pp. 19-20. ‘ .

19 See, e.g., Texas Const., Art. VI, § 3a; City of Richmond v. Allred,

Tex., 1934, 71 S.W. 2d 233; Utah Const., Art. XIV, § 3. ;

43,

cern and awareness of those who use and pay for :

such services, for which there is no analogue when

voting in a statewide legislative election. is condi-

tioned upon payment of a poll tax.” 379 F. 2d at 497

(footnote omitted).

. And he commented further,

“(Phe salient vice of a restriction upon voting in

Statewide elections is that it tends to perpetuate it-

self by denying those it disadvantages any oppor-

tunity to remove it through democratic processes.

See The Supreme Court, 1965 Term, 80 Harv. L.

Rev. 91, 180 n. 23 (1966). By contrast, plaintiff

can seek to have his ex¢clusion from the school dis-

trict franchise repealed by the New York: legis-

lature, for which his vote is unimpaired.” bid.

Even when considering whether a state statute pro-

hibiting the sale of obscene publications to juveniles im-

pairs the right to free speech, the test of validity is not

whether judges agree with state legislatures or whether

the legislative findings express “an accepted scientific

fact.” For “‘[t]o sustain state power to exclude material

_ defined as obscenity .. . requires only that we be able to

say that it was not irrational for the legislature to find

that exposure to material condemned by the statute is

harmful to minors.” Ginsberg v. New York, 36 U.S.L.W.

4295 (U.S. April 22, 1968), _.- U.S. __. “We-do not de-

mand of legislatures a ‘scientifically certain criteria of -

legislation.’ ” Ibid.

If the federal system is to: continue, the states must

be free, within the limits of rationality, to adopt their own’.

solutions to their own problems, to experiment even if their

experiments sometimes fail. The courts are not a collective

omniscent father who always knows best. The Constitution

ordains a rule of reason, not a strait jacket of egalitar-

ianism. It must allow that latitude that is essential to the

experimentation, development and change needed by a na-

UO Rae TI me,

— —

¥

4

44

tion composed of fifty different states and thousands of

stated-created political subdivisions. The measures adopted

-by Louisiana to meet its own notions of how its people

‘should determine the desirability of issuing public utility

revenue bonds are neither so arbitrary or irrational as to

bringfdown the stricture of the Feartkenth Amendment.

Judgment will therefore be entered for the defendant. ~

UNITED STATES CIRCUIT

JUDGE

/s/ ALVIN B. RUBIN

_. UNITED STATES DISTRICT

eee) a

/s/ JAMES A. COMISKEY

UNITED STATES DISTRICT

. .. JUDGE ..

New Orleans, Louisiana.

_ July 15th, 1968. 8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

; “ NEW ORLEANS DIVISION”

SECTION “C” -

~ NO. 67-1853

CIVIL ACTION

JOSEPH Q. CIPRIANO —

Versus

CITY OF ‘HOUMA, G. LESLIE BROUSSARD, Rewer,

CHRISTIAN L. OLIVIER, CHARLES DAVIDSON,

PETER BOURGEOIS, JR., SAMUEL LUSCO and

WILBERT P._BONVILLIAN

\

45.

_ JUDGMENT |

Considering the written opinion of the.Court on file»

herein, the dissenting opinion of Judge Wisdom, and con- .

sidering the direction ot the Court as to entry of judg-

ment ; '

IT IS ORDERED, ADJUDGED AND DECREED

that there be jadement in favor of.defendants, City of..

Houma, G. Leslie Broussard, Mayor, Christian L. Olivier,

~ Charles Davidson, Peter Bourgeois, Jr., Samuel Lusco and

Wilbert P. Bony#lian, and against plaintiff, Joseph Q.

Cipriano, dismissing said plaintiff’s suit vo aan

‘New Orleans,,. Louisiane, this 23 day of July,. 1968.

/3/ JOHN MINOR WISDOM

UNITED STATES CIRCUIT

. JUDGE :

/s/ ALVIN B. RUBIN .

UNITED STATES DISTRICT

JUDGE

-/s/ JAMES A. COMISKEY

UNITED SFATES DISTRICT

.JUDGE . .

LTE SN FO me ome

eT Te ee

Pe ao a ee Coe ee ne oe cor ee

. * -

xan

\

APPENDIX C

DISSENTING OPINION

CIVIL ACTION fags

Go

NO. 67-1858 2”

a SRChON <<

. yosEPH Q. CIPRIANO, .

‘versus

CITY OF HOUMA, G: LESLIE BROUSSARD, Mayor,

CHRISTIAN ‘L. OLIVIER, CHARLES DAVIDSON,

PETER BOURGEOIS, J R., ‘SAMUEL LUSCO and

. a P. BONVILLIAN,

Defendants.

¢

WISDOM , dissenting

I seeped 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 quali-

fications have no relation to wealth nor to paying or not

paying this [poll tax] or any other tax”. 383 U.S. 666. It

is true that the tax itself was attacked in Harper and that

rf) | a poll tax is a qualification limiting suffrage in an elec-

tion to vote for political representatives. Here the qualifi-

cation. limiting voting to resident: property taxpayers ap-

plies 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

= |

‘Plaintiff, |

Ore

sf

45 Loo Te Seis FET,

48 arta

vote rests or payment of a tax. But all citizens have a stake

in government—federal, state, or local government—re-

_gardless 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 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 666.

‘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 distinctio 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, eveh without asking the advice of any.

of its electors, ‘but if a city should in advance of issuance

of revenue bonds ask for the appfoval of its citizens the

equal protection clause prohibits the city’s arbitrarily ex-

cluding 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

, 7 \

———-

- representing an assessed valuation of $1,108,268 voted

against the bond issue. |

As citizens of Houma, non-propérty residents have the

same proprietary interest in municipal’ properties’ as resi--

. dent taxpayers, They have the same interest in the admin-

istration 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 elee- . -

tors, they have a greater. aggregate of interests than the

property owners have in municipally owned utilities.

In the case before us; the discrimination against citi-

zens 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; théy 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 bé.un-

profitable, 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 de- .

crease 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 ques-

tion—whether he is a landlord or tenant. The tenant should

be able to protect that interest by a declaration in thé form

of a ‘vote—if the proposition is put to his landlord. In one

way or another, the tenant pays. the bill.

— —e

.

. part of the American system of

vote of the- property-owners coufd be looked to as a re-

50

8

.

There may have been a time when ownership of prop- |

erty as a voter’s an stem of ee been defended as

straint on governmental operations financed by taxes. Thé

- framers of the 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 i in a class with veto power over govern-

mental revenue bond issues, as if other classes of citizens

pay no taxes to their city or state and have no legitimate

. interest in governmental ee.

The defendant’s ornament that property owners have

a special interest is enough in itself to destroy the ration-

ality of the classification in a revenue bond election. In

such an election, the vote is limited to persons whose prop-

erty 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 gnalysis, the re-

quirement of property ownership invites the property own-

ers, 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-

ks. and balances: ‘The

51

property owning residents of Houma. Accordingly, I would

. grant the injunction and the requested declaratory judg-

ment. 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 de- >.

- cision—as I see it—prospectively only. he) |