# Jurisdictional Statement — Cipriano v. City of Houma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1304%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1969 - **Citation:** 395 U.S. 701 ## Text : -~ja¢.\ , er . " SUPREME, COURT. in ee aa ~ NO® 1. 1968 IN THE | sup EME COURT OF THE UNITED STATES ; | OCTOBER TERM, 1968 m 705 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 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 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 o 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 - 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 . - cision—as I see it—prospectively only. he) | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1304%3A02. Public record. Not legal advice.