# Appellants Brief — Cipriano v. City of Houma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1304%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 701 ## Text INDEX Page . OPINIONS BELOW. ...ss—istitCS JURISDICTION BT A tad a 2 STATUTES, RULES, AND REGULATIONS | oS ‘3 QUESTIONS PRESENTED .._..—s—s— as Ctié*BB STATEMENT Meret. ee Se ee 1. Effect of method of retirement of bonds. 7" 2. Discrimination. = ti ae 2 . 8. Prospective or retrospective effect of decision. ET A ea ce pote Sn - - EE ET ee eR 17 CITATIONS Constitutions - United States Constitution, Fourteenth Amendment 2 Louisiana Constitution of 1921, Art. 14, Sec. 14(m) 3,5 Statutes United States Code Title 28, | See. 1253 ee Sec. 1848(3), (4). 6 See. 2101 - arene toe" 5. ae 3, 6 Sec. 2102 | Te a ae ee. eee KMS pike de Sonik te a Xresant ii Statutes (Continued) ‘ _ Page Title 42, ' ; I a a a Louisiana Revised Statutes of 1950 Title 33, | I a gg ca, cae oeccaoecd ane epineleonan 12 eee eA a I-III 5 cosocnintornnsniete seacoast Stee 3; 4, 7, 12 See. 4252, 4253 OEP ee NOM NIT. 8 7 5 «RRR CO LN 4 Title 39, | Sec. 501-518 _..__.-_..... in I a nal Ce ccencueecuaeaeet muidaees ae | Cases Harper v. Virginia State Board of Elections, - 383 U.S. 668, 86 S. Ct. 1079 (1966). 8 Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731. | RRR preerem career at kccs pe RRO RS Ore 13 Walters v. City of St. Louis, 347 — S. 231, 74 S. Ct. | 605, 98 L. Ed. 660 (1964) 11 Pierce v. The Village Ossining, 68 Civ. 4150, United. States District Court, Southern District ‘of New York (1968) - . : 8 . Miscellaneous | United States Supreme Court Rules 36, 40, 41. hs Federal Rules of Civil Procedure, Rule 23 _. . 6 Rule 65 6 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1968 No. 705 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, m é a Appellees. On Appeal from the United States District Court for the Eastern District of Louisiana BRIEF FOR THE APPELLANT May It Please the Court: The appellant, pursuant to United States Supreme Court Rules 40 and 41, files his brief on the merits to- gether with a Single Appendix prescribed by Rule 36. ! NT RCo Oe, megane SSRN Ne oa ne emer te oe tiie ? 9 OPINIONS BELOW The District Court delivered a written opinion and dissenting opinion on July 15, 1968, and entered Judgment _ 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 the jurisdictional statement, as Appendices B and C. 2 : JURISDICTION The appeal rome Yar is frem a final decree made ana en- _ tered 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 proper- ty 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 Constitution of the United States. The application of plaintiff further sought a Judgment declaring the aforementioned provisions of the Constitu- - tion and statutes of the State of Louisiana to be void and repugnant to the same clauses of the Fourteenth Amend- ment of the Constitution of the United States and particu- larly declaring void an election held by the City of Houma, Louisiana, on October 24, 1967, pursuant to the aforemen- tioned constitutional and statutory provisions of the State of Louisiana. . . The final decree appealed from was made on July 23, 1968 and entered on July 25, 1968. Notice of appeal was 3 filed in the. United States District Court for the Eastern District of Louisiana on September 6, 1968. The Supreme Court of the United States has jurisdic- tion to review by direct appeal the Judgment complained _ of by the provisions of 28 U.S. Code, Sections 1253 and 2101 (bi. ‘ Probable jurisdiction was noted in this case on Janu- ary 27, 1969. STATUTES, RULES AND REGULATIONS INVOLVED Statutes and constitutional provisions involved 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.. 33 :4251-4262, Vol. 20A, Pages 178-186), and Part II, Chapter 4, Subtitle II, Title 39 of the Louisiana Revised Statutes. (West LSA-R.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 _ to be constitutional, with a dissent to said decision ren- dered by the panel J udge from. the Fifth Circuit Court of Appeals. ' 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- fications shall be governed by the provisions of this Sec- tion XIV pertaining to other bond elections...” - UROL TH et eter F&M 8g VERN My ED, foment IR anrmnen rh aaa IS BSI EG RE Oe = SEBS 4 Pursuant to the above constitutional provisions, La.- R.S. 33 :4251-4262 were.enacted and which, by reference, incorporated La. R.S. 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, construct- ed, or improved with the monies derived from the sale of such bonds. The principal question presented is: _Whether the above cited constitutional 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 taxpayers. ‘STATEMENT Joseph Q. Cipriano, appellant herein, is a duly regis- — tered and qualified voter in the City of Houma, Parish of Terrebonne, State of Louisiana but does not own any real property nor does he pay any municipal ad valorem taxes on any such property. On September 12, 1967 the defend- ants, the Mayor and ‘Board of: Aldermen of the City of Houma, Louisiana, adopted the resolution ordering and call- ing a special election to be held in the City of Houma, State of Louisiana pursuant to Part II, Chapter 4, Title-39, Sec- tion 508 (La. R.S. 39:508), and Sub-Part C, Part I, Chapter 10, Title 33, Section 4258 (La. R.S. 33:4258) of the Lou- ove neenemrnrrenenrwnane roma dD isiana Revised Statutes of 1950, and Article 14, - Section | 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 further pursuant to the authorities hereinabove stated. The Mayor and Board of Aldermen met on October 25, 1967 and can- vassed the returns 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 proposi- tion and 896 voters representing $1,108,268.00 i in assessed valuation voted against the proposition. . Appellant is a member of a class of 6,926 duly qualified 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 Federal 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 Louisiana law requiring that a voter be a qualified resident property taxpayer of the City of Houma. During the year 1967 the total number of residents - _ of the City of Houma was approximately 35,000. The total number of registered voters in the City of Houma on Oc- tober 24, 1967 was 11,606. The total number of property taxpaying voters on October 24, 1967 in the City of Houma was. 4,680. The total number of ‘non-property- taxpaying ceiiiiiecanda | Shetiet elt ei iadiels ain Ia en te tee PPro: OOO LER OE LITO GO NE Pew ey ee RA : registered voters on October 24, 1967 i in the dated of Houma was 6,926. Plaintiff, appellant herein, brought this action in the United States District Court of the Eastern District of Louisiana, New Orleans Division, as a class action under Rule 23 of the Federal Rules of Civil Procedure. Appellant sought a Declaratory Judgment under Title | 28, Section 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 ef- fect of requiring ownership of property and the payment of taxes thereon as a condition of voting in revenue bond elections wherein there are no tax involvements. » 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 bnforcing, administering or giving any effect to the cited provisions of the Constitution and statutes of Louisiana. The Trial Court, in a divided opinion, found for the defendants, holding that the cited constitutional and statu- - tory provisions of Louisiana were not so arbitrary or ir- rational as to be in violation of the Fourteenth Amendment of the United States Constitution. From that Trial Court decision this appeal is made. 7 ARGUMENT | ot : EFFECT OF METHOD OF RETIREMENT OF BONDS — We make special note of the fact that this is a utility revenue bond election called and held under the provisions 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 in- come and revenues derived from the operation of the util- ity, 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 por- - tion 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 proper- ty rights can in any way be adversely affected by the out- come of this election. The full faith and credit of the issuing authority can- not be affected by a default in the payment of the bonds. La. R.S. 33:4252 provides that the bonds do not constitute an indebtedness or pledge of the general credit cf the issu- ing authority. La. R.S. 33:4258 provides that the only se- curity for 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 provided is receiver- ship of the utility and payment of the bonds from the rev- enues derived from the operation of said utility. 2. , DISCRIMINATION It is plaintiff's position that the provisions of the Con- ARON TE TEI EF rom CRIES TE hata * stitution and statutes of the State of Louisiaxa requirirtg _ the ownership of property and the payment of taxes there- on as a condition of véting in a rgvenue bond election in-_ dividiously discriminate against nine and the members . of his class who together represeyt more than 59% of the* registered voters of the City of Houma. (See Stipulation - of Facts, paragraph 8. R. p. 36, ae p. 20.) - The sie wilind upon by plaintiff as controlling this instance is the case of Harper v. Virginia State Board of’ _ Elections, 383 U.S. 663, 86 S. Ct. 1079 (1966) 1 The Har- per case was concerned with the requirement of the pay- ‘ment of a poll tax as a qualification to vote. This case is concerned with the requirement of the payment of a al erty tax as a qualification to vote. — In Harper this Court ‘iiiien that a state violates _ the equal protection clause of the Fourteenth Amendment whenever it makes the affluence of the voter or the pay- - ment of any fee an electoral standard. ‘Voter qualifica- tions have no relation to wealth noz the paying or not pay- - ing this or any other tax.” * The Court further declared that “... we must remem- ber that the interest of the State wie 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 ow disfavored. ” (Underscoring ours) - 1See also Pierce v. The Village of Ossining, 68 Civ. 4150, United States District Court, Southern District of New York, No- vember 1, 1968, wherein a three-judge Federal Court declared un- constitutional a New York statute and a portion of the Village ' Charter on the grounds that they required Ras ownership as a a of voting in a local election: which was administrative in: nature ° * 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 ‘eleetion whether it bé to elect a candidate, to adopt a constitutional amendment. or to declare on a proposition. No state has the right to im- pose any qualification or standard which arbitrarily, un- fairly 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 théreon to vote in elections such as the subject election invidiously allows and _ invites the property owner to vote himself a lower ad va- lorem tax rate while imposing the.purden of the City’s op-" ; eration on his fellow citizens who are — * of less affluence. , Defendants have contended that the requirement of . property ownership and the payment of taxes thereon is a valid requirement because the purpose of such requirement | _is the valid desire to place a check upon the borrowing by governmental units similar to the check provided by debt limitation. It is obvious that even if the objective of debt limitation is desirable as a general proposition, the require- ment of property ownership 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 ofthat objective and actually induces the property owning 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 protecting his low property tax rate at the obvious ex- pense of:the non-property owning voter. Unimpeachable and _— irrefutable evidence that the above-stated result obtained in RENE TE Oe ° i ale MBA I / "66 . 10. | é this election are the several advertisements run by the City of Houma and placed of, eo these proceedings by _ plaintiff. These advertisements indicate the general tenor - of the extensive campaign conducted by the ‘City for the passage of this bond election. The most casual examination’ of the advertisements, identified as P-1 through P-8, and particularly those identified as P-1 and P-2, shows clearly that the City invited and directed the property owning tax-. payer to go out and vote in favor of the issue as a.means or method of protecting andor assuring low. property tax ~ rates and clearly emphasized the fact that no taxes could be added. The foregoing clearly illustrates the invidious discrimination against the non-property owning registered voter by the, imposition of property ownership and tax pay- -ment thereon as a qualification to vote. This discrimina- “ tion is the more reprehensible because the average voter, who.has no- opportunity to study the statutes, is not aware of the fact that the burden of municipal opérations-is-being imposed on him without his having an opportunity to speak on the question. — . The record is clear, when the testimony of petitioner - is recounted, that the City of Houma (or rather three of the five Councilmen of the City) has the power to tax all of the citizens by increasing utility rates. This, however, is Snot essential to our case. ‘The essential point is that there is discrimination amongst citizens who have an equal in- terest in the general revenues of the City and that some citizens, without reasonable or rational basis for distinc- cion, are deprived of their right to vote. There is equality of interest amongst all of the citizens of the City.of Houma . in a revenue bond election and yet there is no equality in voting rights. The degree of this diserimination is neither minute nor irrelevant. The Court, in Harper, declared . to introduce wealth or the payment of a fee as lies fi a measure of voter’s qualification is.to introduce a capri- cious or irrelevant factor. The degree of the discrimination is s irrelevant. s Underscoring ours) ae ~ Unless the ownership of property and the payment of taxes thereon be considered only with reference to the bur- den imposed by.the ha the election, it should not be - considered at all. Heré’we haye already shown that there is no possible burden, to the pro ipowning taxpayer but only thé inevitability of advantage. Under the traditional test for applying the equal pro- tection clause, a statutory classification scheme is consid- «, __ recognize or apply this test. The Trial Court did not deter-_ ered constitutional if it is based on.a real difference and if the classification is relevant to the purpose for which it is made. Walters v. City of St. Louis, 347 U.S. 231, 74 8. Ct. 505, 98 L. Ed. 660 (1954). The Trial Court failed to . mine the legislative purpose for the classification but sim- ply surmised: what might have been the legislative reasons for the distinction. No real effort was made to determine the purpose nor to find any relevancy between the purpose and the classification. ‘Itis submitted that the traditional purposes for classi- fications such as the one at issue has been that. of fiscal re- straint or check upon borrowing by governmental units. We cannot reasonably conceive of any other purpose. Yet, as we haye shown above, the statutory scheme is in no way con- ducive to the exercise of restraint, but rather induces or promotes the passage of aah issue and the incurrence of . greater debt. That the instant classification is completely arbitrary is further demonstrated by the fact that all qualified elec- tors are allowed to vote in some revenue bong elections in 4 " ae DL RNID 120 Louisiana regardless of Whether they own any property or pay any taxes thereon. Sub-Part B_- Part I, Chapter 10, Title 83 of the Louisiana Revised Statutes (La. R.S. 33 :4221-4230) allows all resident electors to vote in rev- enue bond elections where the utility property is mort- gaged and the revenues are pledged to secure the bonds. Sub-Part D - Part I, Chapter 10, Title 33 of the Louisiana Revised Statutes (La. R.S. 33:4281-4290) allows all resi- dent electors to vote in elections to authorize issuance of certificates of indebtedness secured by and repaid exclu- | sively from the revenues of the utility or the franchises: thereof. > There is no reason to deny the franchise to the non- property-owning taxpayers under Sub-Part C. The fact that the classification is not used under Sub-Parts B and D is evidence of the fact that it is unnecessary, unwar-’ ranted and totally arbitrary as used in Sub-Part C. Yet, in spite of the above referenced Sections, the Trial Court _ failed to determine the purpose of the classification chal- lenged in the instant case and made applicable i in only one of the three instances cited. ae a gs) he inceen ‘PROSPECTIVE OR RETROSPECTIVE EFFECT OF DECISION A decision by this Court declaring the unconstitu-- tionality of ‘the statutes and provisions of the Louisiana ' Constitution requiring the ownership of property and the payment of taxes thereon as a condition or qualification to ‘ vote in a revenue bond election will in no way affect the financial status of the community, the parish or the State of Louisiana. The statutes attacked herein provide for a sixty (60) day period from the promulgation of the result of any election (LSA-R.S. 33:4260) within which to contest 4 CO F 13 7 | the electior. Once this period has elapsed, no attack can be made on an election held under the provisions of said stat- utes. After the expiration of said sixty day period, rights may become vested with-regard to issuing bonds autho- rized in any such election. Here, however, the result does _- ‘not obtain. The sixty. day period is provided for the pur- pose of allowing aggrieved parties time’in which to contest _the election. Obviously, no rights could be vested in any party until the expiration of the time allowed by the statute. Therefore, no rights have become vested. with re- — to the election of October 24, 1967. ) In order to protect petitioner and other sensors of his class, it is only necessary that the Court give prospec- tive effect to any judgment rendered herein declaring said . statutes unconstitutional. The case of Linkletter v. Walker, 381 U. S..618, 85 S. Ct. 1731 (1965). is ample authority for the proposition that no retrospective effect need be given in the instant case. Although Linkletter involved criminal law, the Court clearly declared that the same - ~ rules are applicable in civil litigation. The Court stated 4 that “...no distinction was drawn between civil and eritn- inal Ualeution | is shown by the language used not only in Schooner Peggy, supra, and Chicot County, supra, but also in such cages as State v. Jones, 44 N.M. 623,.107 P. 2d 324 (1940) and James v. United States, 366 U.S. 213, 81 S. Ct. 1052, 6 L. Ed. 2d 246 (1961) . .’ (Underscoring ours) The Cae deci set forth the proposition that there is no absolute rule of retrospective action in the area of constitutional adjudication. The Court declared, ‘...we believe that the Constitution neither — prohibits nor requires retrospective effect. As Jus-. tice Cardozo said, ‘We think the Federal Constitu- tion has no voice — the subject.’ na ay Ah hag tik, Me bl, Silen Sea tol f 14 “Once the premise is’ accepted that we are - neither required to apply, nor prohibite Mm ap- plying, a decision retrospectively, Ww ust then _” weigh the merits and demerits in each case by look- ing to the prior histery of the rule in question, its purpose and effect, and whether retrospective op- _ eration will further or retard its operation. We be-. lieve that this approach is particularly correct with © reterence to the Fourth Amendment’s prohibitions | f _ The Court purther stated the rule. clearly in the fol- lowing language: ‘ . Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective « . 4 » Therefore, this Court may ides mae statutes uncon- ‘ stitutional and void the election of October 24, 1967, with- out in any way affecting any election held under those statutes where the sixty day period has previously — without any attack having been made. ‘We submit that in the instant election, shen every registered voter has an equal stake and interest in the- revenues of the City and the utility system owned and op- - erated by it, equal protection demands that every regis- _ tered voter have an equal opportunity to vote. J CONCLUSION For the foregoing reasons, it is respectfully submitted that the Judgment of the Court below should be reversed and that the provisions of the Constitution and statutes of . the State of Louisiana which require the ownership of y property and the @ayment of taxes thereon as a condition _ Of voting in revenue bond elections in Louisiana be de- clared in ae the Constitutien of the United States 15 and particularly the ns Amendment thereof and therefore null. and. void. | is further respectfully submitted that the elétticn held in Houma, Louisiana on October 24, 1967 be declared null and void. and without effect and that an injunction issue against all named. defendants, or their successors in office, enjoining the said parties.from enforcing, adminis- tering or giving. any effect to the cited provisions of the Constitution and statutes of Louisiana. Respectfully submitted, KENNETH WATKINS 415 Goode Street , - Houma, Louisiana e , Counsel for Appellant CERTIFICATE I herby certify that a copy of the foregoing: Brief for _ thé Appellant has been served on opposing counsel of rec- ord by depositing such in the United States Mail, postage pre-paid, addressed to their addresses of record. > -Houma, Louisiana, March , 1969. KENNETH WATKINS | . pas" a) . a . ° . . : os . . . ‘ . ° nd ” ‘ ‘ ’ . © o . , ‘ i o i . H : a . “ * al ' . Pa , | . z . ® . Pi . . . . ad . e« @ . . “ . . - . - . Se . a . . id , . . . . . . - . . “se * ea ee CORI ROE 9° PY AO TLE LOY MRE SILI COW. TE Pare ree ee . , . « @ » . A ’ ‘ 4 © . . . ” . 17 APPENDIX a! LOUISIANA REVISED STATUTES OF 1950 - Title 33—Municipalities and Parishes Chapter 10—Public Utilities — _ Part I—Ownership, operation and financing | _- SUB-PART B. MORTGAGE OF PROPERTY AND * PLEDGE OF REVENUES OF UTILITY -- 4221. Bond issue. Any municipal corporation, the City of New Orleans excepted, or any district created for the purpose of ‘sup- plying the prblic with a public utility may, for the purpose of construc .icg, acquiring, extending, ‘or improving any “revenue producing public utility, within or without the limits of the municipality or district, issue bonds secured exclusively; principal and interest, by mortgage on the lands, buildings, machinery, and equipment, and by pledge of the income and revenues of the, public utility. | N 4222. Resolution ordering election; notice of election. | ~ Whenever the governing authority of any municipal corporation or district desires to issue bonds to be secured as provided in R.S. 33 :4221 it shall, by resolution adopted by a vote of two-thirds of its members, order an election to be held te determine whether or not it is the sense of the qualified resident electors of the municipality, or district that the bonds be so issued and secured. The resolution shall set forth specifically the amount of bonds proposed to be issued, the number of years they shall run; the maximum rate of interest which they shall bear, the purpose for which they. are to be issued, and a‘particular description of the -property to be mortgaged and the income and revenues - which are to be pledged for the security of the bonds, and shall designate the date of the election and the polling -places. Notice of the election shall be given by publication eer Tae TO Ne ae POE a PP eee rae 18 for thirty days ina newspaper published in the municipal- ity or district; or if there be no newspaper published in the municipality or district, then in a newspaper published in the parish. Publication for four successive weeks shall be deemed sufficient if thirty days interyene between the first publication and the date of the election. If there be no newspaper published in the parish, then the notice may be given by posting for thirty days prior to the election in five public places within the municipality -or distret. The notice shall embrdce substantially all mat- ters required to be set forth in the resolution ordering the election, and shall be signed by the chief executive officer of the municipality or of the district. § 4223. Election Commissioners shall be appointed and the election shall be held and the returns thereof made to the governing au- thority calling the election and the results promulgated in so,far as practicable, in the same manner as provided by law for elections to authorize the issue of bonds secured by special taxes. , § 4224. Materials for election; form ofballot The governing authority of the municipality or of the district shall furnish the commissioners of election with a list of electors qualified to votein the municipality or district, certified by the registrar of voters of the parish, ‘-and with ballots, tally sheets, blanks for making returns, _ and all paraphernalia necessary: for properly holding the election: Ballots shall be substantially in the following form: _ “Shall the governing authority of the (City, Town, Village, ee District) of __........ be authorized to issue bonds in the sum of ____. Dollars, to-run pe years, bear- ing interest not exceeding percentum per annum, payable annually or semi-annually, for the purpose of > P ‘ > 19 iejat ones and by pledge of the income and revenue of such property or properties?” To vote in favor of the proposition, the 2 2 ie voter will make a cross mark (X) in the | ae - space under the word “Yes” and to vote YES | NO against it, the voter will make a cross mark -(X) in the space underneath the word “‘No”. _ - § 4225. Issuance of bonds; execution of mortgage and pledge; remedies in case of default - When the returns of the election have been received and canvassed by the governing authority of the munici- pality or district, and the results promulgated, if a major- ity of the qualified electors of the municipality or district, ‘who voted at the election, have voted in favor of the proposi- tion)submitted, the governing authority may issue bonds in . the amount, running for the number of years, and bearing _ interest at a rate not exceeding that submitted, for the purpose set forth in the resolution orderigg the election, and secure the same by mortgage of the property specif- ically described in the resolution ahd by pledge of the income and revenues of the property. Thereupon the governing authority may, by resolution, empower and direct the chief executive officer of the munic- ipality or district, and its clerk or secretary, to issue, exe- cute, sign, seal, negotiate, and deliver the bonds and to make and execute in the name and under the seal of the munic- ipality or district, an act of mortgage and pledge to se- cure the payment of the bonds in principal and interest, in accordance with the resolution ordering the election, and when the act of mortgage and pledge has been executed, the 4 property thus mortgaged and the income and revenues © reer ot Ree a a La a | roe a 20 therefrom thus pledged, shall remain mortgaged and pledged for the security of the bonds, in principal and in-° terest, until they have been fully paid and discharged ; or, in the alternative, the governing authority of the munic- ipality or district may deposit with the trustee, as provided in the act of mortgage, cash or United States government *ponds in a sufficient amount to fully pay the then out- standing bonds and interest thereon, and, upon such deposit being made, the trustee may cancel the mortgage. ‘In case default is made in payment of bgnds, or any of them, in whole or in part, or of any installment of interest thereon, when the same becomes due, the holder of the bonds may proceed against the governing authority of the municipality or district to enforce the pledge of income and revenues and foreclose the mortgage by seizure and - sale of the property mortgaged, as if proceéding against a private person. But, bonds issued undef the provisions of this Sub-part and the liability arising therefrom shall not be a charge upon the other income and revenues of the municipality or district issuing the bonds, and shall not | ‘be included in computing the indebtedness of the munic- ° ipality or district for the purpose of determining any consti- tutional limitation. $ 4226. Contesting election For a period of sixty days from the promulgation of the result of the election, any person in interest may con- test the legality of the election, the bond issue provided for, or the security to be giyen; after which time no one shall have any right or cause of action to contest the regularity, formality of legality of the election, bond issue, or the security given for the same, for any cause whatever; the legality shall be conclusively presumed, and no court shall have the authority to inquire into sch matters. : e 21 § 4227. Sale for less than par or iversion of proceeds prohibited Bonds issued under the provisions of this Sub-part shall be sold at an interest rate not greater than five per cent per annum. Under no conditions shall they be sold at a price less than par. The proceeds thereof shall not be used for any purpose other than that for which the bonds issued, - as set forth in the resolution anreng the election to au- thorize the issue. § 4228. Combination of two or more utilites . mo Any municipal corporation or district taking a vantage of the provisions of this Sub-part may construct, ._ acquire, extend, or improve two or more utilities (whether e ft related.or used in conjunction) and issue bonds as provided for herein secured exclusively, principal and interest, by mortgage on the lands, buildings, machinery and equip- ment and by pledge of the income revenues of the utilities. § 4229. Service charge where revenues of garbage or sewerage facilities are pledged Where the revenues pledged to the paymefit of bonds under this Sub-part are revenues of a utility comprised of sewerage facilities or garbage facilities, the governing au- thority of the municipal corporation or district may impose’ -against the owners of all real property in the municipal corporation or district a service charge for the -facilities ‘afforded by the utility, which charge shall not be a lien upon. the property. The charges to bé-made shall be in amounts which the governing body shall determine in each year and — shall be sufficient to provide for the cost of operating and maintaining the utility and to pay interest on and principal of the bonds secured by the revenues of the utility. No such charge shall be made against the owner of any property which is not benefited by the utility. A list of the names aS a aa eer ad 7 22 of all owners against whom charges are 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 such property at such time’ and in such manner in each year so as to permit the amount of the charge to be carried upon the assessment _roll of the real property in the municipal corporation or district. Each such charge shall be carried on-the roll as a special item due by the owner of the property individ- ually, and shall be identified on the roll as “Special Sewer- age Charge or Special Garbage Charge, as the case may > a Oca (inserting the name of the municipal cor- poration or district).’”” Such charges shall be paid to the official who collects the general taxes assessed against the real property located in the municipal corporation or dis- trict and shall be paid at the same_time and-in the same manner as general taxes aré paid. Where the ownership of real property changes the municipal corporation ,or district may require any subsequent owner seeking sewer- age or garbage service to apply therefor by proper ap- plication, whereupon the charges to imposed against such owner shall be assessed and collectéd in the manner hereinabove provided. The municipal corporation or district may pay the tax collecting official the same commission on the amounts collected by him as he receives for the collec- tion of ad valorem taxes, and may pay the assessing of- ficial a sum sufficient to reimburse him for the additional expense occasioned by reason of listing the charges on the assessment roll. The amounts to be so paid to the assessor and collector shall be considered one of the costs of oper- ating and maintaining the utility. § 4230. Commission of tax collector as part of mainte- nance cost ; The governing authority of any municipality or dis- 23 trict may include in the maintenance cost of any sewerage or garbage district a sum sufficient to allow to the tax collectar of the parish the same commission on the amount of the annual charges collected by him heygunder which ~ ‘the tax collector ordinarily receives under the Bxisting laws for the collection of ad valorem taxes, and a sum sufficient to reimburse to the municipality or district and to the tax assessor the extra expense to which these authorities are subjected in levying and collecting the charges, the amount of. which reimbursement in eacn case is to be fixed and determined by the sii a SUB- PART C. PLEDGE OF a ee OF UTILITY §-4251. Bond issue’ —— pm 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, obtain 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. § 4252. Requisites of Bonds Bonds issued under this Sub-part shall be authorized by resolution of the governing body and shall be payable solely from the income and revenues to be derived from the . operation of the utility. The bonds shall not constitute an Sie RT ORE Aan ee es eg . ae 24 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 dollars or a multiple thereof, shall béar interest at a coupon rate not exceeding six per cent per annum, shall mature serially or otherwise iyi 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 townaturity 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- ficient 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 shall the bonds be sold at a price of less than par or bear an interest rate of greater than six per centum per annum... ' § 4253. Pledge of revenues of utility; receivership 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- ? 25 ‘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 coupong,tkereto 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- art. 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 requirements of the resolution auth- orizing the bonds. i If more hen 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 of additional bonds in the future on a parity there- _ with pursuant to procedure gr restrictions provided in such proceedings, additional bonds may be issued in the future on a parity with such issue or series in the mariner so pro- . vided in such proceedings. (As amended Acts 1955, No. 72, '$1; Acts 1956, No. 17, § 1.) § 4254. Bonds to constitute negotiable instruments All bonds issued under the provisions of this Reliant - shall constitute negotiable instruments within the mean- ing of the negotiable instruments law. : fa, ——— . a . 26 $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 . -expenseg of operating and maintaining the utility, sums — fully sufficient to pay, the principal and interest of the bonds, and to create: such reserve for contiggencies as may be required by thé resolution. The moneys in the sinking und 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 dt cuseoees 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 i properties con- stituting the utility, | (6) the. disposition of the proceeds of any nk insur- ance, and | (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 Sub-part. “* [- 27 _§ 4256. Charges for commodities 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 fovided, the municipality shall impose and col- lect fees ‘and charges for’ the products, commodities and ——— 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-. perating 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 and 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 br 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 improving any one or ~ more of the utilities. ¢ | § 4258. Election to authorize issuance of bonds Before the resolution authorizing the issuance of bonds under this Sub-part is adopted by the’ governing 4 Sultans Patras Sore ee . 28 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 the 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 aeiged 4, Sub-title 2, Title 39.