Appendix — Beauchamp v. City of Oklahoma

Supreme Court brief1970

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Text

-. + CONSTITUTIONAL PROVISION

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APPENDIXA

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10. Oklahoma fan Sec. 27. %

6 Sa a € 2

Midge Dtedtos~fur purchase, -CONSTFUCHION Or repair of .

public wulitic y. -

$- ees

“Any incorporated. city or town in this State may, ‘by

amuaority of the qualified property tix paying voters

of such city or town, voling at an election to be held

for that purpose, be ullowed to become indebted in a

larger-- umount’ than + that specified. in . section

twenty-six, for” the purpose ‘of-. purhiusing or

constructing public utilities, or dor repiiring the same,

to be owned exclusively by such city: Prov ided, that

any: such’ city. or town incurr Ting any” such

indebtedness requiring the assent of the voteré as

. afores: id. shall’ have the power to. provide for. .and

‘before Or at the time og incurring such indebtedness. :

shall provide for the collection of an annual tax 4n-~

fa)

addition*to the other taxes ‘provided for by this

Constitution, sufficient to -pay the interest on such

indebtedness as it falls due, and also to constitute a-

sinking: fund for the,payment of the principal thereof

withive Twenty, -five years from the time Qf contracting

the sume.

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= — OKLAHOMA.STATUTES :

+ 0.8 Seu 2 | .

if ere Pizintiff 10 be real party itiinteres:: ) Midas

ae: . Rom s Ms : a ee pa

“Every, aetlon pmust be pr kei «32 th ame’

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“Teal. pattv if intere |

: Tess @iiicle Dut: this, cacti cha ae

. 20049 75. - Bor ey Pee 7h > - - <a) »

-4 AUTNOTIZe tiie Assign Pu TLS m t ie ates

our“ol contract.” ~ aos

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bn. ec. 298.) - s “

* ( > ee . . ie ; : : . Woes

a. ~ One or ie bets ces Of deteddeeg for benefit of alk:

: dope ; : : ; € » ae

~ “When the question is one ‘ NT Done eTes!

of ‘Many persons. or when t We" Parts ate we ReTOUS

and it} may be impracticable t. ring the neTore the

court, ON€_OF-More tay Sie OF detaad For The henct

Fm rcgh all ©: :

t. ds L286) Bee 322s

4. Pleas in, abatement; Rasing of defase i MOE or

~ . answer, - a anies Pee Mae Vs :

ses oie : Pe es ~~

“Where a defens@ in abat ymedt does -- an yn 1

\ "face of the:petition. it mav be ruse gether Sa emotion bd

_ pe “

ie “in the answer. When ‘the dG fense iS 5

. . . ? ; ae .

oe “< AMfotion shall’ state the relewant factl. ing eshali- he

¢ ; ; j \ ee + ; io } + oa Pe —— > ; ‘

\* joined with. the UCieMudant s pects Joifscts venich «

‘ ¢ : 7 Pee 4 eS ee a one — a. = dl

“appear on the face. ot ine pet “argie he TNs

motion or demurrer. Whe L Tie Geos ob tuscd 4 . the

‘answer, ‘the, court may trv tke sscg ement Drier

1Q the: trial on the merits. When 2 2fosEy )

4 p i A : pas .

ste Ys AE

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Jane @.

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? Po a - Ny

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“1s : ‘ iS riigse 1 chy motion 41/ aT a — hae Ve }

. th See eS 4IOTIC ti. ie” 1» eee SN a he GS CNng

. be °

: os) lO ratSCitvin: the seqwer cee @io Preserve ifs right 1

er Se have the ruling ‘revi€Wed on inte.) 7 2. *>

ae Pita Me tae ced Me eae here ‘ tes ates

xy ‘ or ote .

F te ay ) oA . ” ; 7 s” %s et Ate

a \ 2 7 fe 7 y ee e as A ; i “we : PR

beh re ts Duties ot Bond Com nassioner = Certificate Bond ineon-

“ . ? ‘ i ° °

: _ testable after 30 dav. - ee rs . -

% P ee . ei ' e > = i ; os

‘ “ x TE - 7 a — ° = ; ; Toa .

: It- shagl . “be (Me. duty } <2 HONG Commisston tO

‘ \ prepare ? umiform forms und pres: Nhe a methd#® ot

* procedure under thé laws Phe Mater sll cases where»

i ois-desired to issue puhi ©. Souathes er bonds in any

- 2 i -. Ege, : eee

sy yg county, township, municipngin ‘a Ppoutical wr other:

7. ,™% sub-divisions ‘thereof o: BS Mate oT Okehdma: and \ .

| . Shall be the further?dyzxt of sos R- na Cemmiussioner to

. : ae . pots .

/eXamMise NtoO’ and ess UP MT an we “MTN SO Ussued.. and

Sh me yi RYT o> oe See es PRR ee a} eS ee

= such security, Wile eee SD UR. ertilicate of said

ss . Bond Comniissioner. to be assis in gecordance With the

ae ats ~. forms: of procedure ‘so drovig a & he inSontest:

: ~ ay. court in the State of Quis Sma unless suit thereen

‘ 1j j % Tk a ng td . - ’ ¥ tg 7

ee shall be brought ih 2 court SE umsdiction of the |

vs . : : a) A sj

ae. eet , = freer a 5h et ee . - ral? <a . }

sume within thirty. diss from: % Sale otythe approval

: aioe PO) Eee BP g Bey eae - ON

ther€dt by the ‘Bond ¢ ORNUNIWones : , ;

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IN THE DISTRICT COURT OF OKLAHOM., COUNTY.

_ STATE ie OKLAHOMA

MAX TROUB.

GEORGANN MARTIN.

Ptaintiff,

Intervenor,

> vs

HE CITY OF OKL AHOMA CLFY.

\ Municipal Corporation,

Ne te ndant.

; best Paget f

: . APPENDIX € cae

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NO. CD-70-696

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JOURNAL ENTRY SUSFAINING

Ree MOTION IN ABATEMENT

On this ESL ia of September, 1970, came an tor hearmg \

“the Motion in Abatement

of the

Defendant, The City oF.

Oklahonya City, fhe p: irties being phesent by “theit attorneys.”

=Intervenor, ‘and Rey. HH.

‘* Williani H. Brogden. for’ plaintift

_Semtner:

David Me Harbour, for

Municipal. Counselor and

* Walter M. ‘Powell, Assistant @hunicipal Counselor, attorneys tor

defendant: and the Court having. heard arguinents Of counsel.

and being fully advised. entered judgment in aecordance with

‘terms of .the | sig minute:

- &

“Ent. pees on lor heuring on motion in. abatement,

Motion susti uined and ¢ cuse dismissed:

notice of Intention to uppeal in open court. Defenitant

gave oral notice ‘ot Antent.

P.M. today. Parr” >

Plaintitts give oral:

to file motion to advanee

uppeal in Supreme C ourt ane “Present same: there at 3:00.

Il iS -THERERF ORE ORDE RE p):? ADJUDGED AND DIL-

of RE LD. thi ye tudgment

“aforesaid Minute.

entered

im accordance witli the .

(s) Jack R. Parr

Judge of the District Court

2 ag peerrr

as eee Bees | eee Bs

+ y IN THE SUPREME COURT OF

- THE STATE OF OKLAHOMA

eee f es : me i :

* Barbara i, Be, hichtmp CO Bane 2 J ; &)

ies , Platntitt Sc. _\

ee: aes as : k ‘NO. 44475 _

3 . , ws .. at? ) |

City’ of Oklahoma City, a Municipal ) .

NEporation: Jafhes HE “Notick, “Mayor of )

sere City of Oklahoma City: Patience ALat- & ‘

ling. Jonm M.- Smith. George N. Sturm, ? ei

Nelson bf. Keller. Bill HL. Bisliop. Ben )

Franklin, “A. L. Dowell and Rowe Cook, 2

ee of the City Council |

* )

: : . z ‘es a

aa F . ~ Defendants r

: ; . e wee « ry ‘

| of ~ SYLLABUS

: . eae "ity

fs nae Oklahoma does not have a well-defined period for

A es bringing challenges to general obligation bond elections

within the meaning of City of Phoenix‘ y Kolodziejski,

Ur Se _.. 90S: Ct. 1990, 96 Le Fd. 2d 523.

eT general obligatio® bond election held by the City

zi of Oklahoma City, Oklahoma, on June 9, 1970: having not. .

been challenged Prior to the date éf the decision inCitveof s+

Phocnix vy. Kolodzicjski — 2 Ua Si ccenienctincmnens el S, Ct

1990. 26 Li Ad. 2d'523. is not open to challenge on the --

basis of the ruling in such decision. Ae

wu’

ORIGINAL ACTION FOR WRIT OF INJUNCTION,

; WRIT DENIED

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AA fe eRe AT, ey

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James E. Work *

Oklahoma City? Oklahoma, \” i os Por Plaintitt,

‘ : . 0

P ° ~

Roy H. Semtner “> oe) og

Municipal Counselor’

James G. Hamill oth

Assistaitt Municipal Colnselor’ en: ,

Walter MJ Powell a or

Assistant Municipal Counselor | ‘

Roland Pague ME oe: , ?

Assistant Municipal Counselor +. .

Oklyhoma City-Oklahoma, _- , For Defendants.

no. “Bs - eee ée Mi . :

ARWIN, €, 15) 0 2) Soa ea

(This it an original action filed ia this Court on September _

17, 1970. in whick’ the plaintiff contends that the portion of

Art: J0.-§27. of the Oklahoma Constitution, requiring persons

voting atthe election therein. fprovided, to . be “quatitied |

. property! tax paying voters." violates the equal protection clause

in the Fourteenth Amendment to the United States Constitu-

tion, ¢ AS oi, ok a . ean,

9 We accept original jurisdiction of the action because vf the

“public importance ,of the -matter and the need for gin early

determination of the involved qttestion. ©

There appears to be no dispute us to the facts. On June 9,

1970, the ‘City, pursuant to-Art. 10, $27, of the Oklahoma .

constitution, held: a special Clection in/which eleven proposi-

tions were submitted to the registgred qualified -tax paying

voters of the City as to whether the City) should) incur

‘indebtidness_ by ‘issuing its general obligation bonds intmounts

_ totaling more than $69,000,000.00. to provide finds for the

several purposes of purchasing and/or constructing public

Improverrents consisting of sanitary sewers, storm sewers. Water

Works systems. solid-wiste disposal system, municipal mainten-.

ance and service facility, fire stations and equipment, trattic:

control, airports, park and recreational

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facilities, municipal

—

libraries “and petblic transportation system. Included in the

lection was the further matter of levying and collecting an

annual tax upon all taxable property in the City to pay the.

“interest and principal of the bonds us they became serially’ due,

The propositions received ‘the required majority vote

fuvor thereet, Plaintiff Was not allowed to vote in this Bectiot

‘because sie was not a property taxpayer,

The City then commenced proceedings to sell 1 more than

$19,000,000.00 of said’ bonds. The Attorney General of

Oklahoma, as. ex- -offitio, Bond ‘Commissioner of the State “a

Ok|: thom, approved the bonds on August 1.8. 1970. Tithe 62

S. 1901, S$ 13, provides that bonds of a municipatity shall 2

incontestable Unless suit Js brought pence within thirty days

from the date of sueh approval,

Plaintiff then filed this action against the City and the

members. of the City Council on September 17, 1970, -for

herself and all-others in her class. She alleges the facts abdve

narrated. The parties stipulate that plaintiff is not a real or

~ personal property taxpayer but i& an otherwise qualified and

registered voter in the City of Oklahoma City. Plaintiff alleges”

that only qualified property tax. paying Voters Were permitted

to vote at the election, and: thereby. stie w: rs excluded from

voting. She prays that the defend Wits be nar wie from issuing -

athe bonds, on the grodnd that Art. 10. 7. violates the Equal

Protection Clause of the Fourteenth re a

Our Constitution, Art. 10, $26. provides that no eity shall

become indebted in’an amount exceeding, in one year. the

IMmcome and: reversre provided. lor such year, without the

consent of ‘three-Hilthis of the voters thereof and even then the.

indebtedness could not exceed, including existing indebtedness,

ot the valuatfon of the taxable property therein. 2 .

‘Art. 10. $27: of the Constitution allows a city. by a

, Majority of the "qualified property tax paying voters’ t

become indebted "in a larger amount than that specified in

section twenty-six" for the purpose of purchasing or construdt-

“ing publié Utilities.-or-for repairing the same. and provides at

the city shill collect an annual tax sufficient to pay fhe

‘indebtedness. Our construction of Art.. 1O. $272 supra.’ was

x ;

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Wagaat

recently re- ‘considered tin Settle vy. City of Muskogee, OAL. 462

P.2d 642, promuigated in ike 1909. In Settle. we also

discussed) our undertinding of the principles announced it

Kramer v. Union Free School, 395 US. 621, 89S. Ct. 1886, 23

L, Pd. 24-583 (1909), and Cipriano y. Gityv.of Houma, 395-U.S,

701. 89 S. Ct. 1897, 23 L.kd. 2d 647 (]969). We held. for the

‘reasans stated in the Settle case. that $27 of Art. 10. did not

conflict: with these principles and that $27 didnot wolate the

Equal Protection-Clause of the Fourteenth Amendment. This

Court “HER for many wears been committed: to the rule in the

‘Settle cause that only taXpayers: oyning real or personal

property, us provided in ‘Art. 16,327, may -Vvote for incurring

i naineesiaete for public improvements enumerated therein.

Henry» Oklahoma City. 188 Ok. 308. 108 P. 2d 148.

mn Alter our decision in the Settle case. supra, and subsequent

to, the election in the instant case June 9, 1970), the United

States Supreme Court (June 23, 1970) decided City of Phoenix

Kolodzicjski, ~ = | i 90 S. Ct. 1990, -26.L.

Ed. .2d $33: In Phoenix.the Supreme Court of the United States

held’ that the Arizona Cénsitution and statutes, as spelicd lo”

exclude nonproperty, owners “from voting in. elections to

approve Issuance oT general obligation bonds, Perey the equal

protection clause of the U.S. Constitution. However. the

Supreme Court recognizey that it) would be unjustifiably

disruptive to‘give its decision full retroactive effect and placed a.

limitation thereon. The language limiting the tetroactive vlteet

of the decision is set forth ip a dismembered form = for

clarificatron: f i

“We therefore adopt a rule similar to that

. employed. with respect to the applicability. of the

Cipriano decision: Our decision in this case will apply

only to authorizations for general obligation bonds

Which are not final as of June 23, 1970..the diite of

this @eeision. - . 3

“4

(a) “In the case of Stat& authorizing chil

lenge to bond elections within: a detinite’

period. all elections held prior lo the date of

\-S |

~this decision” will not be diffected by this

decision unless: a challenge gn the grounds”

sustained. by this decision has been or is

brought within the period “specified by stute

law: : Ee oo —_

(b) . “bus the case ‘of States. including ‘uwppar-

ently \Arizona,-that do not havea well-defined

period for bringing challenges to bond: clee-,

tions, all elections. held’ prior to the date of

_ this decision that have not yet been challeng-

ed on the grounds sustained ‘in. this decision

will’ not be open to chailerige on the basis of

‘our ruling in this cage:* nad Ah ae."

*, ie

s ‘

The parties have submitted this. cuse to ous Court for

determination of a single issue and that ist Does Oklahoma have

a well-defined period for bringing challenges to general bond

elections within the incaning of City of Phoenix?

Plaintiff? contends: that Oklahoma has a definite period for

challenging general bond elections: «that paragraph (a) is.

appheable; and that this Court shoald enjoin the issuapee of the

bonds. ign MT : .

Defendants contend that Okluhoma does not have’:

Well-defined period lor bringing challenges: to general bond .

“elections: that Paragraph (b) is applicable: and that this Court

should not.enjoin the issuance of the bonds.

The ekection’on the bonds under consideration was held. on

June®, 1970, and the decision in Phoenix was rendered on June

23. 1970. The. bonds in question were approved by the Bond

Commissioner of Oklahoma on August LS, 1970, and thereafter

and within the time allowed by 62.0. S. 1961, $13.4 challenge

lo the approval of the bonds Was brought on the grounds”,

sustained in-Phoenix.

The only statutory chactinent that is pertinent.to the Issue

Involved-is 62.O. S.-1961. S13, which provides:

"Tt shall be the duty of the Bond Commissioner

{0 ‘prepare uniform forms and ‘preseribe a method of

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ON “

‘procedgre under. the laws of the Stat@ in all cases

whore Jit is desired to issue public securities or bonds,

in any county, township, nuinicipi lity or politie: ihor

_ other sub-divisions thereof of the State of Oklahoma:

- and it shall be the fiirther duty ol” said Bond

fCopmissioner to examine ‘into ‘and pass uperr any

security as issued, and such seetrity, when deelared

by the certificate-of Said Bond Conmnissioner to be

issued dy accordance with the forms of procedure so

provided shall be incontestable in any court in the, #

State of Oklahoma .unless suit) th&con shall be

brought in a court’ having jurisdiction of the sanie

. within thirty days from the date of the ‘approval

thereot by the Bond Commissioner.’

YAsoa practical niatter the Bend Cominissioner does not.

perform his duties under the aboye enactment until a general

bond election has been held and the proceedings leading to the, .

sale of the bonds. have been completed. In many instances, the

Bond Commissionger-is requested to consider the legality of only

a part or a series of the bonds that have been approved at a

bond election. Thereafteft, he may be requested to, consider

another part or another series of the bonds that’a municipality

desires to sell that had beea approved at the previous election.

As an example: General obligation bonds are approved" at an

election held in February, 1969, On June 1, 1969, the Bond

Commissioner approves the issuancesof a certain-series of the

bends approved at the February 1969; election. Thirty days

after the Bond (Commissioner has acted, his determination is no

_ longer open to challenge. Thereafter, the Bond Commissio1 er

approves another series.of bonds which were voted upon «hd

approved at the February, 1969, bond éleetion: Thirty, ditys

after the Bond Commissioner has acted, his determination is no

longer open to challenge. am .

The Bond Commissioner:is not required to perform his

duties or act under $13, supra, within a specified time, but

thirty days after he has acted his determination is no longer

open to challenge. It is to be noted that the above enactment is

directed to the Bond Commissioner's determination as to the

legality of the bonds to be issued, but. is silent concerning a

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: mag ’ J!

challenge to a general bond election or the pefiod of time

within which a challenge to, the election may be brought. This

Court has recognized that: arreactioi “may be brought to:

~ challenge the validity, of a’ bond electibn prior to the Bond

Commissioner's official. actions pursuant to §13. supra, not-

withstanding the. fact there is no specific statutory authority

authorizing such action. . >

In Munger vy. Tawn Of Watonga,106 Okl. 76,-233 P. 24 l.

an action was filed to enjoin the issuance and selling of certain

municipal bonds. At issue was the conduct of the election. The

trial: court sustained a demurrer: to Plaintiff's petition and on

appeal this. Court reversed with directions to ‘vacate the

judgment and overrule: the dumurrer to the petition. Although’

$13, supra, Was not discussed, Munger is. authority. for

challenging the conduct of an Clection prior to the action by the

Bond Commissioner. "os

IrGilliland City of Clinton, 131 Okl. 186, 268 P. 254, an

action was filed ir the trial court to enjoin the sale of bonds on

the grounds of illegal voting. A tempa@rary injunction was issued

and a motion to dissolve the temporary injunction was filed. On

hearing, the motion, the temporary injunction was dissolved and

an appeal was perfected. Weaaffirmed the judgment of the trial’

court on. the ground that we did not think, under the record.

that the election was void. Although §13, supra, was not

discussed, this case*is authority for challenging the conduct of

an election. prior to the action by the Bond Commi§sioner,

. In Whiter, Pottawatomie County, 199 OK. 103/184 P. 2d.

440 (1947), an action was filed against the Board of County

CommissiOners, the County Treasurer and the Attorney Genera!

to enjoin the issuance of bonds prior to the time the Attorney

General, acting as the Bond Commissioner had performed his

~ duties pursuant to $13, supra. In that case we‘held:

"The question whether the election at) which

bonds were voted is legal or illegal is a matter

properly to be considered by the Coinmissioner in-the

performance of his duty:

a oe

"Subsequent to. the holding of «an election at

. A-11 ;

Pens ael.

Winch bonds are voted and ‘previous to the per-

formince by the Bond Commisstoner of tha duties

prescribed by law with reference thereto the citizen

taxpayer is without capacity or authority to sue in.

; = 1% the courts to have such bongs declared illegal because

of the illegality of such election." |

“Although the Pottawatomie County case’ and $13, supra,

Were not considered or discussed in Tettleton V. eity, of Duncan,

200 OKI. 631, 198 P: 2d. 740 (1948), the decision in Tettleton,

modified by. imphcation, our holding -in ‘the Pottawatomie

County case that) laxpayer was’ without authority to sue

previous to the performance of the Bond Commissioner. In

Tettleton, an action was brought ‘to restrain. the issuairce:and

Sale of certain bonds prior to the certification of the Bond -

Commissioner. The election was challenged on the grounds that

the call and the ballots were insufficient to advise the voters of

the question presented and that a sufficient number of illegal

voters were Spermitted to’ vote to change ‘the result of the -

,»lection, The trial court sustained a demurrer to plaintiff's ™

+: evidence. and we “affirmed on appeal. Tettleton clearly estab-

-lishes that an action may be maintained to challenge the legality

of a bond election prior to the performance of, thes Bond

Commissioner. Bai tiie ere

The Pottawutomie County case was cited with approval in_

Rieck v. Town of Longdule, Okl., 389 P. 2d 482 (1964 ). In

-Rieck, the Bond Commissioner was not joined “as a party

- defendant and this Court wg aS ' }

"Stibsequent to the holdimdor an election at

* which bonds are voted and previous to the per-

formance by’ the Bond Commissioner of the duties™

— $ preseribed by law with reference thereto, titegitizen

taxpayers’ suit ine the courts: to ‘have such bonds

declired illegal because of the illegality: of- such ©

election may be abated. upon préper motion.”

-Although Rieck cited with approval the Pottawatomic

County Case, it did not hold that a taxpayer was without

. A-13

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—_

capacity or autherity to sue to: have bonds declared illegal

because of the illegality of the election, prior to the action by

the Bond Commissioner, us held in the Pottawatomie County

caset but held that a taxpdyer's suit in the courts to have bonds

declared illegal because of the illegality of the election may be

abated upon proper motion, where the suit is filed previous to

the action of the Bond Commissioner, vA

Our Court.has never Had the occasion to consider a case

Wherein an actign was pending in a trial court at the tinie the

Bond Commissioner performed his duties under $13, and one

- reason for this is: When a municipality submits a request to the

Bond Commissioner to determine the legality of a general bond

issue, the munieipality, through its .proper officials.” certifies

that no litigation is pending questioning or affecting the legality .

of the bond issue. i ie Nay as

- The only issue \presented in this original action is whether

Oklahoma has a well-defined period for bringing challenges to

general bond elections within the meaning of City of Phoenix,

supra. | :

Since out decisional .law recognizes that an action may be

‘Maintained prior to the time the Bond Commissioner performs

his duties under $13. supra; and there is‘no statute prescribing

the time in which ‘the Bond Commissioner is\required ‘tox:

perform ‘his duties. tinder $13. supra: we can only conclude and

hold that Oklahoma does not have a well-defined period for

bringing challenges to general obligation bond elections within

the meaning\of City of Phoenix, supra.

» we further hold that.the general obligation bond. election

held by the City of Oklahoma *City,°Oklahoma, on June 9,

1970, haying not been challenged prior to the date of the

decision in City of Phoenix, supra, is not opch to challenge on

the basis of the ruling in City of Phoenix, supra... | a

Plaintiff's prayer for an injunction is denied:

CONCUR: BERRY; V.C.J., and BLACKBIRD. JACKSON

“and LAVENDER, JJ. CONCUR SPECIALLY: DAVISON

and WILLIAMS, JJ. DISSENT: HODGES and McINER-

NEY. JJ. a eee : _

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I-

OAla., 462 P. 2d G42. 646 (1969 Ne

1940, at = hate r Cognex

-IN TH

StL PREME

OURT <

THES

BEAUCH

TATE OF OAL AHO

AIP

*BARBARAL.

‘herein’ this day promulgated’ ot effler 7

~ special geetion herein invoh

VS: % ; be

[Hb. COTY ‘OF

ORL \H iM. CLT

Munreipal ‘

Corporation; JAMES

NORICK. Miayor ‘or the gi O%

T agree with: the \

Views. ~e

opinion of the Supreme Court of the Ls

the basis of that opinion. Moreover 3s

Rurther views us Hereinafter uppeansc +7

A state may esta iblish other guybr¢

oma - Gity:’ PATIENCE [LATFING

FOUN MOSMITHOGE ORCEY Et ree

. NELSON E. KELLER. BILL H SaSiS

SOP. “BEN FRANKLIA, A: L. DOWE i.

and ROWE & OOK. Menib ers of & “. = uy

Council. ; .*

Detene

WILLIAMS. : oe CONCL RRING ; SPEC ALY

have a well-defined period for.bricer Shi

-Obhgation* bond’ electigns as seeestes teu

for the exercise of the elevtive francis. (a9

380-U. S. 89, 85 S.Ct. 775. 13-L- Ee >

protection of the law doe CS ROU POGUE AR

does: require that classificati nL De Dat

“ holly arbitrary. Walrers i. City OXSe

S.0Ct. 505. 98 L, Ed. 66

Since

1 terpretation us rendering - ineltgi

tronded debts ‘by municipalities, thox

not pay taxes on

| ‘

2 re

DINO .

LOS i

fonera

eee X Ase k

» ‘ are é

i )

i}. etc )

“2

x ;

§TONS la \

aN TMOL

fy iN?

= }.

— 2 are!

; w.

MW i

‘

. ~et

- “a =

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rere a3

Ma]

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e @¢

’

INTIS

’

led

supplied) on ry -Oklal

2d 148.152. (P9404.

In my opinion. the first

majority of the Court-in th.

(1970)... distinguishes that va

cause. There, the question ..

Constitution -permift 2 Star

Tanpay ers the Vote in electra:

general obligation bonds? ar

From the facts sta ited gn

thereto ue second LOMPe Hit \

ara.“ & —— ae ‘ .

wh ee Seem LEK 5 A’eds Val iN j

ond *

. 5 ‘ ‘

4 188 O81. 3508. 108 P.:

s '

™~

EES % 1 pu On of Ane

wale < Aix MG SlcASshl

= em rt -a 5

=». « oO ] bd. eM ad aes

Som the tyets from_aur present

S SERENE Io al ‘Does the Y ederal

¢ Te = >

OMS to approve the issuance ‘of

sel q orth.

There,at is stated. that propery TENSS METS To” he levied to

service the Involved i indebted:

-authorized to allogate ott her re

in ye on gy general obligato

‘ S04. : 7.00 tor fiscal yCaF LO

of i made in recent i eur.

obligation service requiremen

sources paid $3,244,778 00 ¢

of current earnings aus dist

M. Alsip rv. Citi “of Chandki

However. this was net yarmis

Wherein are cited other caries

J And. while it may si

SIN OF eight: cities dnd tows

eentury or so ehave there be

“other than’ ad valorem xf

“amount of: the eXpPensyes of

calegories: of expenditures

allocable. Viz.. the cities of Suliw

.An-each Qt tose instanees 1 darexuy: thes acre Paid with fumds

produced ‘trom waterw orks

tunable back fo the ow ners at

rye

CLILuk

. “ as . _& ae eal = <.

sce Se eeedtion, Me Cath waa

enUssS LOT The same purpose and,

i . ¢ ~ gh ae

> ? > 7 *, 3 Ty SIRO

TARR NOUS KS Teg aren ent Ql 0 A

. ~~ - = 3 eines * ‘ ° Y

ares - , ste «. mame n . i\ Pleal

“Mer than d> ofsuch general

-‘- ¥ =

s ‘ - - ABs .

i r

. . -

Here. the applicable Start Cousti ctional provision requires

annual tan levies on. Personal _ yi real prope TIy in the-city:

suffigient to meer all interes

course, a CITY. may pay for permarfert copia] impn wWelMents eul

. e ‘“

nd pemcipal maturites.. Ot

LIST

r Os] 30s Pg 312 (J 9Q5)

Sosa bn * 3 Me Ba? 1a)%

RSENS LT ‘OD 1N Alsip.

Sse F -Sdausd Y al - .

> ae eee «4

A. 2k YW WOlUW ADOWN that OTN, in

S in ONlaRomiu in ahe’ past’ halt

‘ 7 3 irs i gal

. Sac =e us irom SOUTCA's

ebenies fo: may an considerable

SVP Pes yp esas — ALN, “"5, ere *

See 6 eee a se iad 114 HOOVE those

: ; ?

° oy ae oe ee -: Anat a

fO WR CPN Were PTAA

ere WW 7 . aa

nt et ‘ CMO) aye re | Pe \ a

. ..

appended’

Irom such other:

d irom ad alice levies. J..

. ;

sae by revenues IronyAhe involved utility. ar

~As t& the tact of the Plesent case, every body knows

, OMahoma City has issued millions of dollars in’ revenue bonds

ein ivable.trom sewer danese water rents and what npt to build -

capital improvements hot obtain: able trom. tax: revenues within

the cohstitutronal debt limits, and Ahad to enact t sales tax: to

make salary” adjustments for its employees. This is not a

“condemnation of Oklahoma City. To the-cvontrary, it demon-

strates that Oklahoma City and its. ciliZzeris and officials must

use all lawful und constitutional sources. of revenue available to

provide-the varied services required ot so k irge a modern, 0h 8h

polit: tn, growing city and Yet maintain itst cash position it

black". . a.

In copy ol the published election proclamation: attached to

petition filed in the trial court in the case from which the

uppeal, sister to this case. urose. pursuant to authority Vested in

OMahoma City by Article X. Sect! fone 27, Oklahoma € ‘onstitus °

ti i. the City specified in. the several involved propositions

ving Voted upon that in addition to, that is. on top of allojher

taxes of all sorts the personal and real property ad Valorem

taxpayers Were already paving: that those such taxpayers who

voted Were voting ‘tax liens - tor different. -additional taxes » “

eguinst their such respective properties.

_-* In the election with which we are hefe concerned. it is ny

delet that the election-authorities have not arbitrarily discrimi-

! UgsiNSst any bne for the tollowiig re-emphasized: reasons,

I. In est. Mrs. Kolodz; sishi Was a - quali-

fied. voter eXcept that she owned no taxabl® real

estate. As-ansowner of taxable personalty, In Okla- 2 *

homa City at the involved election she would hey

been welcomed ut the polls, bois :

’

- 2.) Oklahomii City must and petorce will pay

for the improvements: obtained with the proceeds of

this bond issue from revenues received only from ad

valorem ti iXes on real iind Genome. property.

Y respectfully « concur ‘specially. :

A-160-. ie

IN THE SUPREME. COURT OF

THE = OF OKLAHOMA

Barbara J. Beauchamp, “\

re Hanae sans “eid

No. 44.475:

’

WS. re aru, F

)

‘ eis" )

City of Oklahoma City, a Municipal) o

the City’-of Oklahoma City: Patience.)

Lattymg, John M. Smith. George -N. )

Sturm, Nelson E. Kelleg, Bill, H2 Bishop.)

Cook. Members of ile City Council, )

ae ot Defendants. )

ad i . e oe

DAVISON. J., CONCURRING SPECIALLY,

, . i ° ‘ .

In concurring specially | desire to express my views for

denying plainty{t's prayer for the-injunction.

In Cite of Phoenix vy. Kolodziejski,_ U.S. :

90S. Ct. 1990. 26 L. Ed' 2d 523. the question presented was:

Does the Federal Constitution permit a State {oO restrict to real

property taxpayers the vote in elections to approve. the issuance

Of general obligation bonds? The court, with- three Justices

dissenting and ote Justice abstaining. extended the principles in.

the Kramer. and Cipriano cases and held that the Arizona

Constitution and statutes. as upplied to exclude non-owners of

real property trom voting in elections to approve issuance of

general obligation bonds, violated the Federal Constitution. In

making the determination, the majority of. the court concluded

that .""The differences between -the interests of real property.

- @avners and the interests of NON property Owners “are not -

sufficiently substantial to justify excluding the latter from the .-

franchise." *

.| believe and) conclude. that there “are ‘ significant and --

controlling tacts that distinguish the situation in the instant Case

cfrom that in’ the Phoenix .case. Inv the present- case + the

A-l 7 R

constitutional provision (Art. 10. $27) permits “personal.

_ property taxpayers'and real property taxpayers to vote. A tax is

required. to be levied upon their personal and real property to

“pay the bohds.In Arizona Voting Was restricted fo real property

tuxpayers. In the present) case $27 permits the property

tux paying voters: to incur indebtedness -and encumber. their

property: without limit. In Phoenix thé ‘question us to Whether

"or not a state eould constitutionally conter upon, all of its

electors exclusive and absolute power ‘to incur general bonded

indebtedness without limit at the expense of personal and real

Property owners was -not presented or considered. The imypor-

tanee and significance of this distinguishing feature of our

Constitution was-fully prese nted and discussed in settle 1 Cee

? .

"of Muskogee, 462 P. 2d 642,

. It is My. opinion that ‘the Phoenix decision is not

controlling in the present situation.

[am shes to state that. Mr. Justice Williams concurs

in the above Views: oe es a ff

‘the City of Oklahoma City: Patience

an :

* . ai te , ; : ’ _

IN THE SUPREME-COURT OF

\ THE STATE OF OKLAHOMA.

Barbara J. Beauchamp, y :

Vs. No. 44.475

City of Okkithomg City, # Municipal

Corporation; James H. Norick. Mayor of .

Latting, John: M.° Smith. George N.

Sturm, Nelson E. Keller, Bill H: Bishop,

Ben Franklin, A. L.*Dowell and Rowe

Cook Members of the City Council.

)

je Defendants.

McINERNEY, J. (DISSENTING)

I dissent: fron the” decision of the majority to accept

jurisdiction in’ this original ‘proceeding. | Would deny .the

application. to accept jurisdiction and leave Plaintiff to her

reinedy in the District Court, ’ , wr ty!

A delay. in: the early determination of the question of

public importance would not Necessarily. result. Our decision in

Supreme Court case No. 44.478. Martin et al’ vy. City of

Oklahoma City, decided this date. is an appeal from the District

Court) by two protestants to’ the identical bond election.

challenged in this original proceeding. The absence of a record

In a true adversary proceeding: coupled) with the stipulation

herein precludes inquiry into Whether the status of Barbara /L

Beauchamp as an unqualified voter in general Obligation bond

elections is self-imposed, 68 O. S- Supp. 1965; § §, 2431.

24201. or legally imposed, Art. 10. $27. Oklahoma Constitu-

tion hf the former, Plaintiff's Standing to institute this action is.

questionable. 3

There iire onlytwo reasons Why the Us S. Supreme Court -

A-19_ Sed

oar

haseheld exclusion of non-property: taxpayers unconstitutional.

“One is that it discriminates against the impoverished. See

Harper v. Virginia State Board of Elections, 383 U. $. 663. 16

L. Ed 2d 169, 86 S. Ct. 10791966). The other is thatsuch an

exclusion is irgitional as applied to persons who indirectly pay

“such taxes through the form of higher rents to their Jandlords,

and such. Cit of Phoenix y. Kolodziejski, ——_U..

S. 90 S.Ct. 1990, 26 L. Ed 2d $23 (1970),

- Although the Plaintiff externally: appears. to come within

the results of the foregoing’ cases, she fails to allege or prove

that she comes-within the reasons therefor, First. Plaintiff

makes no plea of personal poverty. Harper, supra. Second, while

~ Plaintiff correctly states that the U. S. Supreme Court has «

sustained) the indirect) payment ‘of property daxes theory,

Phoenix, supra, she totally ignores the fact that payment of

persona taxes would by itself have been sufficient to entitle her

to vote at the challenged election: and by the very nature of the

personal tax there can be no "vicarious" or "indirect" payment

of the tax {im the sense of property taxes paid by landlords «

being passed on their tenants if the form of increased rents. and

the tike). >. | ate

It would appear, therefore, that Plaintiff has not based her

failure to pay a personal tax (and hence her exclusion from the

challenged election) upon the circumstance of grounds con-

-demned by the U. S. Supreme Court as impermissibly dis-

‘iminatory Or irrational, ie.. poverty. or Vicdrious actial-

pw ment.

In the absence of any factual showing-or adversary record,

of the Plaintiff's standing, | am-of. the opinion that no adequate

actual "case or controversy" has been properly demonstrated

sulficent to. invoke and sustain this Court's jurisdiction; and |

“would, therefore, deny the application to assume jurisdiction.

& ee

IN THE SUPREME COURT OF

THE STATE OF OKLAHOMA -

Georgann Martin

Max Troub

)

pater )

Plaintiffs in’ Error =) aes,

vs ee ) NO, 44478

)

The City of Oklahoma City |

Defendant in Error

"SYLLABUS. soo WA

os The Legislature may nuke registration a prerequisite

to the right. to vote: in order, to a, fraud and B®

protect the purity of the ballot. Art. § 6, Oklahoma

Constitution, - .

2. .? One -who attempts to sue in behalf Of members of a

class must be a member of the class he purports to

represent. - ' ‘

KEKEKK ~ @

APPEAL F ROM THE DISTRICT COURT OF

OKLAHOMA COUNTY. OKLAHOMA

Hon. Jack R. Parr, Judge

ok ok of ok ok

Georgann Martin and Max Troub sought to enjoin issuance

f bonds voted pursuant to Art.. 10. $27, Oklahoma: Con-

Nees District Court sustained City's motion in abatement

because Martin and Troub were not Tegistered Voters as required »

by 11 O.S. 1961, $65.

2K OK ok ok ok e

A-2 l

<=,

~they were residents of. the City: that they were not Aba:

AFFIRMED

4 oe age ots fy of

Bonham, Brogden gnd Clitton °

Oklahoma City, Okluhoms ) — For Plaintiff ip Error

° ' Max W6tehe~ sane

David M. Harbour

Oklahoma City, Oklahoma — For Plaintiffin Erro

Georgann Martin

Roy Hl. Semtner Sen

Municipal Counselor

Walter M. Powell

Assistant Municipal Counselor

Roland Tague gy eS

Assistant Municipal Counselor. For*Defendants in Error

DAVISON, J.

This is an appeal by ey Trowb (plaintiff below) und

Georgann Martin (intevenor below) from an: order of the

District Court of Oklahoma County sustaining the motion in *

dismissing plaintiff's action, We will refer to the parties by their

drial court designation or by name.

Plaintiff's petition, in which intervenor joined, sites that

taxpayers: that the-action was brought in their behalf. and 1

behalf of all persons resident: within the City: and sought >

enjoin the issuance and delivery of certain general obligation,

bonds approved. at an election held within the City on June 9.

1970, pursuant to Art. 10, $27, of the Oklahoma Constitution.

‘The election, and bonds, ae the alleged grounds for their

invalidity. and the relict sought, are the same as those described

and ° set forth in the original action in this court. numbered

44476, styled Beauchamp r. City of Oklahoma City, et al, this

YP i, as

. ws: \ é

er : : -

day decided and appearing ind P. 2d In the

Beauchamp case we upheld the validity of the election and

bonds wind refused to ‘issue an injunction. Therefore, if this

court were’ to determine that the trial court erred: in sustaining .

the motion in abatement and dismissing the cause of action, and

Plaintiffs in error did have standing to prosecute the suit, then

the alleged grounds for the alleged invalidity of the ggneral

bond election and the relief sought by plaintiffs in-error, being

the same as thosé set forth in the Beauchamp case, supra, are-

considered and disposed of in the Beauchamp case, supra.

_In the present case the plaintiff and intervenor did ot

allege, and in, fact admit, that the$ are not registered voters in

the City. The trial court sustained defendant's motion in

abatement on the ground that plaintiff and intervenor were not

real parties in interest and were not qualified to represent the

class of registered voters. "eae Wm,

Art. 10, §27, Oklahoma Constitution, restricted Voting in

the election to qualified property tax paying Voters in the City:

the Legislature may by law: provide for the registration of °°

electors in any city, and when it is so provided, no ‘person shall

vote at any election unless he shall have registered,

Title 11 O.°S. 1961, 865, provides that a "qualified -

taxpaying svoter" of any city as used in $27 of Apt. 10, is

detined to be a qualified elector under the Constitution and

laws of Oklahoma, os

In Love v. State Election Board, 197 Okl. 157. 170 P. 2d

193, 197, we held. that under Art. 3, §6, the Legislature may

make registration a premequisite to the right to. vote in order to’

prevent fraud and to protect the purity of the ballot. '

‘And fh. Loftis r. ‘School Dist. No, 52. Of Beckham County,

144 OKI. 281, 296 P. 1101, wersaid that the matter of requiring

registration to vote was left to the discretion of the Legislature,

Which discretion would not be. disturbed unless its acts w ere so

arbitrary and capricious ‘as to offend some provision of the

Constitutions of Oklahoma or of the United States.

It is otir conclusion that the Legislature legally and validly

required registration as’ a prerequisite to voting in the bond

a A-23 ,

election.

Under these circumstances we must conclude that plaintiff

and intervenor were primarily not qualified to vote and

consequently were not real parties in interest, They were not

members: of the class of registered voters and could not

maintain a class action in bea gh

us voters but Sage fied because they were not property tax

Payers.

In Hobbs y. Polley Jury of ma Rouse Parish, 49 Federal —

Rules Decisions 176 (W.D. La. 1970), the situation was like that

in the present: case. A party, who was not a registered voter.

brought a would-be’ class action to enjoin issuance of bonds

approved at an election in which only ' ‘Property taxpayers" had

the right -to vote. The court said that it was axiomatic that one

who attempts to sue in behalf of members of a class.must be a

member of the class he’ purpofts to represent, and that the °

plaintitf, being neither a registered voter nor a property owner,

Was not a real party in interést and had-no standing to prosecute

the suit.

The. trial court did not err. in sustaining the motion in

abatement and dismissing the action. _

ALL JUSTIC ES CONCUR.

A-24

Persons who. were registered |

aes lO,

Pad

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.