Opposition Brief — Beauchamp v. City of Oklahoma

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SUPREME courr, vu. a ; = oa “<

‘INTHE . oer 21 197

SUPREME count OF THE ve

wi.

. OCTOBER TERM, 1970

Ae 9 4 ee

ee BARBARA J. BEAUCHAMP, SEORGANN MARTIN 7

i AND MAX TROUB, 4 ? =a

- Petitioners sehtarioe

: VS. -

THE CITY OF eae CITY, A MUNICIPAL CORPORATION;

JAMES H.' NORICK, MAYOR-OF THE CITY OF OKLAHOMA CITY;

' PATIENCE LATTING, JOHN M. SMITH; GEORGE N. STURM, |

NELSON E. KELLER, BILL H.. BISHOP, BEN F RANKLIN, » oe

_A..L. DOWELL AND ROWE COOK, ~ — : :

_ MEMBERS OF THE CITY COUNCIL, ae

| _ Respondents. Soto eee aa

PETITION F OR A WRIT OF CERTIORARI TO THE

” SUPREME. COURT OF THE STA’ STATE OF OKLAHOMA

__ BRIEF FOR RESPONDENT IN OPPOSITION

ROY H. SEMTNER. Svcs eer CHARLES S. RHYNE | ;

~’ Municipal Counselor . ‘Special Counsel =

; Pe a ‘839 - 17th Street wo

"JAMES R. FUSON ee tes Washington, D.

: Assistant Municipal Counselor

309 Municipal Building Dae, | “eney,

»~. , OKlahoma City, , Oklahoma Counsel for. Respondents

October; 1970 © © tee VAR .

- 0 a a n> dae le a> sn em iin le de> et as es ca ee nin a

EXECUTIVE TYPE; INC., 117 First National, Oklahoma City, Phone 236-5601

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INDEX

Opinion below .......2..... ieee siNerias Were l

‘Jurisdiction 5 EN einer ee eo May ae an eee Pe 2

Questions Presented Panta eat aan oh mi ne 2

amenees MNES a ke ee 3

Statement . MES ee See ey re Peta renee S 3

| Arguments 2.2.2.2... ytd hae eee a Parke a 5

tp ~—* The Issues Involved Herein Do Not Warrant

he Review by This Court on Certiorari. vealee e owes. ue

-l. The Beciions Below Are Clearly Correct . 5

Bot es I. ‘There is No Conflict of Decisions ......” 6

Ill.- There Is No important Question of Federal

: RM Fe tee eed ak oe 7

RMON ots uke rr oy ye ah Pe eae tr 8

eee © . aa

Sor eeeeaas: , Mate, @ onstitution, State of Oklahoma ©... A-le

sr us BRE RA ae eT Ap ae ee A-3 °

oe Opinions and judgment below ...... A-5

CITATIONS

ar tvof Phoe nix v, Kolodziejski, U.S,

OS. Ct. 1990, ao L.Ed. We Pas cs Co ew

heen vy, St. ipa Francisco e Co,, 122

ROH SOs SOW WOE Gi els teats eo he

. _ Bristow Battery Co y. Payne. 123 OKI: 13

eee OW OOD Oe re eu ee rae ia

Camp v. Board of Public Lisleus tion, 268 ULS

278, $2.8. Ct: 275, 7-4-Fd 2d 285. ..... 8

l p

Hagon John v. Lewis Paullin, 231 U.S. 583,34

S. Ct. 178, 58 L. Ed. 277

"Greenough v. Tax’A ssessors, 331.U.S. 486, 67 S.

Ct. 1400. 91 L. Ed. 1621

Constitutional Provisions

Oklahoma State Constitution, Art. X,

OEE ce ee

Statutes Foy

62 O.S., Section 13

~ SUPREME COURT OF THE UNITED STATES

t s

BARBARA J.. BEAUCHAMP, MAX TROUB AND

; GEORGANN MARTIN.

“ Pefitioners ° i

VS.

THE CITY OF OKLAHOMA CITY. A MUNICIPAL CORPORATION: ©

JAMES H. NORICK, MAYOR OF THE CITY OF OKLAHOMA CITY:

~ PATIENCE 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.

. Respondents, -

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

BRIEF FOR RESPONDENT IN OPPOSITION

~ Respondents pray denial of a Writ of Certiorari to review

the judgments of the Supreme Court of the State of Oklahoma.

entered in the above entitled case on October lo, 1 970.

~ OPINION BELOW

The. Opinion of ‘the “Supreme Court. of the State -of

Oklahoma is unreported’ and is printed in Apperdix C hereto.

- Intra, p..A-4). cea

——

JURISDICTION * | ;

The judgments of the Supreme Court of the State. of

OMalioma were entered on October 16, 1970. Appendix C. P

A-5, intsa. And while Petitioners seck to invoke the jurisdiction

of this Court under 28 U.S.C. . Section 1257 (2),(3) and Rule’

19 of the Supreme Court of the United States, it is respectfully

submitted that the ground for such jurisdiction does not exist in

the instant -case ‘because the court below did not decide a

federal question. then

Respondents do not deny that Petitioners raised several

federal questions involving various Provisions ol the United

Stites Constitution’ in both -the trial court and the Supreme

Court below, such questions, however, were decided by neither |

court. Instead. the decisions below are based solely upon a

determination of matters of state law. |

QUESTIONS PRESENTED .

|. Is the provision ‘for challenging Bond Elections: in

Oklahoma a well defined period” within the mMedning oF Cii

of Phoenix v. Emily Kolodziciski. ee | 5 ee ee: |

Ed. 2d 523,90 8: Ct. 19902 )

2. Cane an individual who was neither a registered voter

nor anon-property taxpayer institute and prosecute a suit éon-*

testing.the constitutionality of a law which gives only property

tuxpayers the right to vete in elections to approve issuance of

municipal bonds to be. secured solely by property taxes?

3.0 ds it atdenial of equal protection to deprive. these resi-

dent Petitioners or any other resident of the entity holding: ; ‘al

~ Bond EF lection the right to challenge the validity of such a Bond

lection, whether they be registered voters or non-registered

voters, Property taxpayers or hon- property taxpayers, or any

| . .

combination thereof, and when to register to vote in the subje ct

election would have been a vain and fatile gesture under an

Oklahoma Constitutional provisions that limits the electorate to

property taxpayers only?

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED

The statutes involved are Title. 62. Oklahoma Statutes

Section. 13, 12 O..S. 221 and 12 0. S. 223 and 12 O. S. (1961)

322. Appendix B. P. A-3, infra. The Constitutional’ provisions

involved are Article X, Sections 27 and 26 of the. Constitution

of the State of Oklahoma. Appendix A. p A- 1, infra; and the U,

S. Constitutional provisions of due process and equal protec-

tion, Sth and 14th Amendments,

STATEMENT

On June 9, 1970, the qualified property tax paying voters

I Oklahoma City, Oklahoma, did, pursuant to provisions of

ps Xx. Section 27 of.the Oklahoma State Constitution, P A-1:

infra, at. a special election authorize the issuance of General

Obligations Bonds in the principal atyount of $19, 189.800. 00.

On August 18, 1970, the Attorney General of the State ot

Oklahoma, as ex officio Bond Commissioner did, pursuant to

provisions to Title 62, Oklahoma: Statues. Section 13. P A-4,

infra; examine and approve the issuance of said Bonds. |

On September 16, 1970, Petitioner. Max Troub. a non-pro-

-perty taxpayer and a non-registered voter, filed. an ‘action

against the Respondent. The City of Oklahoma City. Oklahoma,

seeking to. restrain and enjoin said Respondent: from issuing,

selling or delivering the aforesttid General Obligation Bonds. for

the reason that said election limited, pursuant to Article X,

Section 27 of the Oklahoma State Constitution: the electorate

; . a

}

to only those voters: who were property taxpayers, thereby

denying Troub and all others similarly situated equal protection

. guaranteed by the Coastitution of the United States. ;

On September 17, 1970, the Petitioner, Georgann Martin,

a non-property tuxpayer and a non-registered voter, was granted

Jeave by the trial court to interveng in the above mentioned case

and to adopt the petition filed bite as her own, seeking in

subst: ance the same relief as Max Troub.

Thereafter, on September 17, 1970, the last day before the

_ bonds would become incontestable, the Petitioner, Barbara J.

Beauchamp. filed her Petition(R p 90)for an injunction in the.

Oklahoma Supreme Court, seeking to’ enjoin and restrain

Respondents from issuing the bonds purportedly authorized by

the election of June 9, 1970.

On September 18, 1970, the Respondent, The City of

Oklahoma City filed” its Motion in. Abatement and Demutrer to °

the Petition and the Petition in Intervention filed by Petitioners

Martin and Troub. On September 18, 4970, the trial court,

having read the briefs submitted and hearing oral ‘arguments |

trom all parties, sustained the Respondent's. The City ‘ot

Oklahoma City. Motion in Abatement, Appendix C here, intra,

P. A-5. and entered judgment in favor of. said: Respondent

dismissing the suit on grounds that Petitioners Trowb and

Martin were not registered voters on the date of said election

and therefore not real’ parties ‘in interest, to all of which

‘Petitioners excepted and gave oral notice of intention to appeal

to the Supreme Court. of the State of Oklahoma. On that same

day the Petitioner, Georgann Martin, filed her appeal in the

Supreme Court of the State of Oklahoma... - i ome

On September 18, 1970, the Oklahoma Supreme Court,

after hearing oral arguments of the parties, took under

advisement the Question of whether or hot to accept original

jurisdiction of Petitioner Beauchamp’ s suit «and whether or-not

‘to consolidate the same with the appeal suit of Petitioner

Martin. All briefs in support of contentions were filed by

September 24, 1970. On September 23, 1970, Petitioner Troub—

filed his appeal in the Supreme Court of the State of Oklahoma.

ARGUMENT.

The Issues Invloved Herein .

Do Not Warrant Review By

This Court- ‘on Certiorari

‘ *.

The decision below that the Petitioners Martin anu Troub,

not being registeréd voters. had no standing to maintain an-

action challenging the instant bond election clearly does not

Warrant review by this court in view of the. additiorral

determination of the curt below that such. election was not

subject to challenge in anvaction properly brought by Petitioner

Beauchamp. Consequ:*‘ly, the only substantial question pre-

sented in the instant ¢ is whether Oklahoma does er does not

have w well- defined p ood ini which to protest bond elections.

The effect of a ‘decision of this latter question by the Court °

would be limited to the determination of the v validity’ or

invalidity of ad relatively small number of unsold issues of

general obligation. bonds authorized at elections held in Okla- _

homa prior to. this Court's decision in City of Phoenix V,

Kolodzicjski, supra. Manifestly, such an issue is too Narrow to

warrant review by this court on certiorari.

” »

a %

‘- . ~

- The Dictalons Below Are

a Correct

“As shown dy the analyses. and authorities set forth in the

Opinions below, Appendix C. p A-4, infra. the Oklahoma

Supreme C. ourt v us clegaly CYTeet in its decisions.

¢ f ;

1) that one who is NOt a Tegistered votes Bus ns <

to bring an action oe a bormd. lect

meonsequently, cannot maintain ‘suck o> ™ F

— sen tative of fegistered Voters. who JWere taxpas OTS. &

‘2.¥ that OklaNoma.has ‘no w elldefined pettod fo:

cHallenges to bond elections. é

In reaching its” determination. that, OWAooy

Well-defined. period tor bringing chal lomges to bom’ ol

the cou tt below Sxamined i its prior kos SOS wer

challen Ages Had been allowed. pnor to th ¢ comn ROOM,

thirty. (30) day period specified in p2 QO. S.‘T86t_ Sos

This determination i is equally supported by prior Rete fe

OMahoma. Supreme Court that they expiration wt uth

APecified, in Section’ 13. supta. will not bar. t#e ots x

bond issue on constitutional erpunds. Furs + Ss: |

; . ~~ A ; x 2 a

Francisco Rv. Go., 122 ORL 143, 281 Pa. W232. eng Bx

Meets Co v, Pdvne, 123 OK. 137, 282 Pac 223-0 |

é et : eee

There Is No Conflict of

a: Decisions. _ c

eee - % a 2 ; se

The dfcisions below are not in co: with thx

decision injCity Of Phoenix v. Kolodzivish: supra. but

contrary afe entirely consistent with the Principles ax

therein, eRe

( ee

» In ifs decision in City of Phoenix. s Pra. this Cou

hold. 2s suggested by Petitioners, that ‘the [2th Ae dim

the United Stutes Constitution icc MOTE CWC

Which onh -° ‘rope TIN soon cae Were pefmittad to wots

-shbiect. to challenge. On thee METAR . in thet porte

Abt ects y :

bond election at issue Were

Opinion limiting the retroactive effect of its d comsion. this Court

unnoune ed that in cases Of states having neo well-defined period |

for. bringing © such’ chationges. all persons. whos her registered

VOuers or not. would he’ precluded from protestine con-

: ms t & : =

Stitutionally detective elections. the reason for sach toreclosure

of-challenges being the policy determination hat #Bwould be

unjustifiabl disrupeive to give Our Coomon tall retroactive

effect.” Thus. no alleged Cor stitutiogal mehts of Petitioners’

= ~

had declined: to rule-on the validity of OSishoma City's bond

election for the reasgn that Ow! ahomu has no well-defined

Period for the bringing of ‘challengy Ss to bond e] oonons. :

* — The rights. if-ani. of Martin ang Traub to challenge the

TOFeCIOSANT Py the sour below: .

tailure to Tegister tO vole so as to. Mace themselves ii “the

posture of those having standing to bring en action at law. to

ores

contesttn election: FEMOnEES isseTtzon that it would have

been a- tutile aet tor them to have regsterad 16 OTe Ti the bond

election ai issue since, us non- tanpayor. Hhiey eksabl not have =

oes en * permitted to Vote iS an eNeMSsS m and sophistn

especially an View of the’ fact thet Propositor No.’ ] subrfitte

at the June 9. 1970. Oklah oma City. bond elecnor was ‘a

‘question or which, under’ Section Ze. Amst X. Oklahoma

Constitution. “all Pegiste red aes ners thas: who pay no

Martin and Troub would have been MOLI i The court below

Chuo Memselves. in ‘their ;

Property tates, Were per Wit to vote tR p90. ang Append, .

Aup ll, intra. eee : ¥

a ne eee Pat ee aka

nes — ieee 48 Ngan Questivis « of Federal Law.

The decisions below. do Boe tum or the court 's‘interpreta- \

tion of any provision of the United States ConStitation. but

Rlswd

» Tather are based exclusively upon that court's ink pretation and

. » > 2

‘construction of statutes of tlre state OL which. the court below is

the highest court. : 3 ‘yy .

The ‘interpretation*which the court below gives to 62 O. S.

L961, “Section -13, is that this statute provides for no well-’

. defined” period for. bringing challenges to bond elections in -

Oklahoma. In accofdance With this Court's prior deeigions, that

interpretation will be- accepted as conclusive in the instant

action. In Camp vy. Board of Public Instruc tion, 268 U. S..278,

82'S. Gt. 278.7 L. Ed. 2d, 285, this Court hele:

"In the present case the Florida court ‘ sdliercd to

this construction of the statute, charatterizing what,

had been said in Diez as a ruling that 'the ele ee

scienter Was implicit in each-‘of the: TequirementsOr

the statute.’ 125 So 2d. at 557. We siccept without

question this View) of the statute's meaning, as of.

course We must. This authoritative’ interpretation by

the Florida Supreme Court. ‘puts these words in the

Statute us definitely as if it had been so amended by

. the legislature.’ Winters. Vew™ork, 333 U.S. 507.

514. 92 L Fd 840, 849, 68 ‘S. Ct. 665. See Kingsley

lite rnaticgal Pictures Corp, v. Regents, 360 U.S. 684.

at -O88.°3) L.Ed. 2 1512, 1516, 79 S.°Ct. 1362

Albertson.v, Millard,"346 U.S. 242, 97 L Ed 980, 73 |

S.Ct, 600: United States r- Burnison, 339 U.S. 87,93

L kd 675. 70S. Ct. 503: Aero Mayflower Transit Co.

. Railroad Comrs, 332 U S. 495.92 L Ed 99, ‘O8 S.

Ct. 167." (368 U.S. at | 285). ‘

Likewise. this € ourt will deem. itselt to be precluded trom

reviewing decisions of aptate's highest court on matters of state

procedure. //dgon Jalij ; F tows Paulin, 231 U.S. 583. 34S. Ct.

"$78. 58 L. bad] - 381. In this connection this Q@ourt, in. Greenough

r Tax Assessors, 331 US. 486. 67S. Ct. 1400.91 L. Ed. 1621

determined. ae a

_ All questions of State procedure and of the

S _ o ¥

iia

ae 5 as

applicability of the state statute to the resident

trustees in the circumstances or this case were

foreclosed by the rulings of the Supreme Court ot

Rhode Island."' (331 U:S. at 488).

CONCLUSION

_ For the foregoing reasons, it is respectfully submitted that

’ the Petition for Writ.of Certiorari nome be denied.

> een submitted,

ROY H. SEMTNER

erage , _ Municipal Counselor

- JAMES R. FUSON

Assistant Municipal Counselor .

309 Municipal Building

Oklahoma City, aan

- CHARLES S. RHYNE

Special Counsel

; _ 839-- 17th Street NW.

he Pi ‘Washihgton. D.C. 7 *

Counsel for Respondents

October, +970 *

’, *, a - , | | P

. ‘A PPENDEX A

_ CONSTITUT ION, AL PROVISION —

Art. 40. Oklahoma onstitution, See. ZA:

A rt :

«Tide btedne SS for “purchase: CONSHUCLION OF repair of

public Utilities.

"Any incorporated city or town in this State mi ly. by

a majority ot the qualified property tax pay irtg Voters

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

‘for that, purpose, be allowed to ‘become indebted ina

larger amodnt than’ fhat specified in-section twenty-

six, for the purpose of, purchasing or: constructing

publi¢ ufilities, or for repairing the:same. to be owned »

exclusively by such city: Provided, that any such city

‘or town incurring any such indebtedness requiring the

* assent of the voters as aforesaid, shall have the power

to provide tor, and before or at the time of incufring

.such indebtedness, shall provide for the collection of

an annual tax ‘in addition to thr-other taxes provided

por by this Constitution. sufficient to- pay the interest

on “such indebtedness as it) falls due, -and atso. to

constitute +f ‘sinking fund tor. the. payment of the

principal thereof within twenty- five years Trom the

. me of contracting the same." : : :

10, Oklahonfa Constitution, Sec. 26. _

~-~

Indebtedness” of politiéil’ subdivision ~. Assent of

voters -Limiftation of amount — Annual tax -

CExcept as’ herein otherwise * provided, no. county,

_ city, town, township, school district, or other politi-,

al cayporation, or subd iSion of-the State, a be

allowed to begome indebted, in any manner: or for

any purpose, to an amount, exceeding, in a, year,

thewncome and revenue provided, for such yveus. with

‘the assent Gf three- Hithy ofthe voters thereaf, voting

atean election, t® be He ‘ld for that purpose, nog in

cuses requiring such assent, shall any indebtedness be

allowed to be incurred to an amount. including ,

ys sting indebtedness. in the aggregate excetding five

ca dey — A-1?

e . ’ y ‘

- .

“&,

daw. ot

_ per ecntum (51; ) ot the valuation of the taxable

hy the fast*

assessment for State and cotinty purposes previous to’

the incurring of such indebtedness: Provided, that if a

property therein. to he ascertained — fre

school district ‘has. an absolute need therefor. such

‘district. may. with the ass¢nt of three-fifths Of the

voters thereof voting at an election to be held for that

purpose, incur indebtediress:to an amount, including

existing indebtedness, in the aggregate exceeding five

-per centum (S' ©) but not exceeding ten per centum

(10%) of the valuation of the taxabte _property ,

therein, to be usce rtained front the | hast assessment ay

* State and’ county purposes previoug to ‘8 incurring

of suchiindebtedness. Lor the purpose of Xequiring or

improving — school, _ sites, constructing, ; repairing.

temodeling ¢ or equipping buildings, or acquiring

school furnitire: fixtures o juipment; and such

assent to such indebtedness a be deemed to be a

Sufficient. _showing “of sudh Absolute need. unless

otherwise provided by law. Prothled. further, that

uny county.” city, town, school district, or other |

* political corporation, or subdivision of the State.

incurring any indebtedness requiring the assenteef the

voters as aforesaid. shall? before or at the time\of

doing so, provige for the collectiof of an. annual t

sufficient to boa interest on such indebtedness us

it falls due Jus also to constitute a sinking fund for

‘tthe payment of the principal thereof within twenty-

five (25) years from the time of contracting the same.

and provided further that nothing i in this Séction shall

‘prevent any. school district. from tontractingAvith

certificated personnel for periods extending one ¢1)

year beyond the cerrent fiscal vear. under such’

conditions and limitations as shall be prescribed by

tt a

2 Be . f x : ; $ ‘ ; : \ ‘a Re

5 APPENDIX ‘B

OKLAHOMA STATUTES:

12 O. 8*Sec. 721.

- Plaintiff to be real party in interest. ’s,

a 6

“Every actionmust be prosecuted in. the name of the

‘real party in interest, exc8pt as otherwise provided in’

*. this article but this section. shall ngt be deemed to

authorize the assignment ef a thing in action, not arising

out of Contract.” cn | 4,

12 O18," Sec. 235. on ee ar ye

~ One or more parties, sting or defending fot benefit of all.

-“When' the question is one of common or_general interest

' “of many persons, or when the parties are very numerous,

and. it may be impracticable to bring yhem all’ before the.

court, one or more may sye or defend for. the benéfit of

an: 2 : i

1 mec c “ , = ‘ . a , ‘

1?- 0-8-0961) Sec. 397° —- : —

: , 7 Z 4

Pleas in abatement ~ Raising, of defense by motion or

answer, ° ;

‘Ct

“Where.a defense in abatement does not appeat on the

face of the petition, it may be raised either by metion or

in- the answer. Whey nic defense is raised by motion, the

- motion shall state the relevant facts, and it shall be

joined with the defendant's objections’ to defects ewhich

appear On the face of the Actition, whether. raised by

motion or demurrer. When the defense js raised in’ the ,

answer, the court may try the issue in abatement prior

to the trial’on the’ merits. When a defense in abatement

; Se fe Aes ° ibe

62 O. S$. See. 13

/ . e

is raised: by motion, it is unnecessary for the defendant

to raise it in the’ answer in order’ lo pre serve his right.to

_ have the ruling reviewed on appeal.

Wuties of Bond Commissioner- ‘Certificate- Bond i incon-

testable after 30 days.

“it shall’ be’ the duty of the" Bond Commissioner to

prepare uniform forms and prescribe a method of

procedure under the laws of tlie State in all cases Where

it is desired to issue public securities or bonds, in any

~ county, . township, municipality or political or other

sub-divisions thereof of the State of Oklahorna; and it

shall be the further duty” of said Bond Commissioner to

examine into and’ Pass, upon any security so issued, and

such security, when declared by the Certificate of said

Bond Commissioner to be issued in accordance with the

_ferms of procedure SO provided shall be ineontestable in |

— 3 Parr ~

any court in the State of Oklahoma unless suit. thereon °

shall be brought in court having jurisdiction of the

sume within thirty days from the date. of the approval

thereof by the Bond d Commissioner” ve sade dace ceeeceds

Pd ane

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. :

A-4

2 ™ s . e

Ks it ‘

i PEN DEX! C.

IN JHE DISTRI¢ T COU Rt OF OKLAHOM. \ ( ‘OUNTY.

STATE OF OKLAHOMA |

MAX TROUB, ae oot os

rane Plainiitt, ys

GLORGANN MARTINS 2 7) re

sed intervenor,” «5° :

“92 Ng. CD-70-66 -

eae ) .

oer

THE CITY OF OKL? SOMA CUEY, ee

A Municip: al Corporation,

z )

. ies Defendant, , ) :

' : MOTION IN.ABATEMENT

‘On this* 18th Asay of Septeinber, 1970. caine on ter hearing .

the Motion in, Abatement of ihe De rendant. Phe City ‘of |

Oklahoma City, the parties being\ prese nt by their attorneys,

William —H. Brosden, for plaintith\ David AL Harbour, for

"© intervenor, gud Roy - Semtuer, Vi ini¢ipal Counseler and

| Walter M. Powell, Assistant Municipal Counselors dttorneys for

. . = ‘ } .

defendant: ad the Court having hedrd arguments of counsel,

‘ahd: being fully advised, entered judgment in) accordance with’

terms of the following) minute: :

“ : ¢ ; )

“Ent. Comes On, for: heating on motion in abatement.

Motion sustained and case dismissed; Plaintiffs give oral

- notice of intention to appeal in‘ open court. Defendant

gave. Oral notice -of interit’ to file motion to advance

appeal in Supreme C ourt and spapces sume there at 3:00

> M. today. Parr”

IT IS THEREFORE ORDE RE D. ADIUDGED | AND DE-

~CREED that® Judgment be .entered in accordance wii. the

pat . ‘ +e .

“aforesaid Minute. e :

*(s) Jack Re Parr

Jitdge of the District 5 geke

° a A-5 | -* ae

‘ 4 | | . :

_ +

ei gta da IN. THE SUPREME COURT OF © :

Pe: STATE, OF OKLAHOMA

. a . ) . ;

* Barbara-J. Beauchamp )

fg ae Plaintiff

ne ; NO. 44475

_ City of Oklahoma City,, a Municipal ?

Corporation: James H. Norick; Mayor ‘of ?

the City of Oklahoma, City.: Patience Lat- ) fe:

ting, John M. Smith, George N. Sturm, ?

Nelson E. Keller, Bill HL Bishop. > Ben’ ?

Franklin, A. L. Dowell and Rowe Cook, ? |

* Members of the Citv Council Se, a ee

ee ee ae

— Defendants |

ix musty i

SYLLABUS &

“Oklahoma- pe fot. have a well-defined period for

bringing challenges to general obligation bond elections

» within the meaning ’of City of Phive BIN Y, Kolodziejski,

PR e al ; Sh AR ARE, S- Ct. 19902°26 L. Ed; 2d 533.

Thé general obtigatios bond election held hy the ry

r-ORlahoma C ity. OMahoma, on Jane.9, 1978/ having not ,

heen challenged priaé to the date of the decigion in City of’

Phoenix: Kolodzieiski ealeningiacial} « thcaadeheeeansiny S. Ct.

1990. 26 L. Fd. 2d 523, is not open to challenge’on the

b; usis of the robes’ in such decision, at /

Y die

5 : ‘ o . . a . Fa ;

: aay 7.8% * ae ( si

, ie

ORIGIN. AL AC TION FOR W yRIT OF INJUNCTION

ff >)

sf ;

| -WRITDENIED 4) 205 oe

@& . : , A%

? ois ; ‘ osm *- <8

- James G. Hamill. Gis:

Assistant aad Counselor a te i

, . E ; ‘ 3 - : : ts

Janies E. Work 5 3 aoe

Oklahomn City,Oklahoma, 9," * bor Plaintiff,

Roy H. Semtner |. as

M unicipal Counselor

erence. a :

Assistant Municipal Counselor

Roland Tague ~ | a

Assistant Municipal Counselor =», ~ a ;

Oklahoma City, Oklahoma, +. For Defendants.”

IRWIN. C.J |

This is an original action filed: in this Court on September

17,.1970, in which the plaintiff contends that the portion of

Art. 10, $27, of the Oklahoma Constitution, requiring persons

voting at the election therein provided, to be "qualified |

property tax paying voters," violates the equalyprotection Clause.

~ in.the Fourteentiy Amendment to the United: States Constitu-

tion. Ss ? ;

We accept original jurisdiction of the action because of the

public importance of the matter and” the need | for an carly

determination of the involved questfon.

There appears to be no dispute as to tite Tacts: “On June 9,

1970, the City, pursuant ‘to Art, 10-"§ $27, of the: Oklahoma

constitution, sheld a special election in which eleven proposi-

tions were submitted to. the registered qualified tax paying

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

indebtedness by issuing its general Obligation bonds in amounts

totaling more than $69 ,000,000.00: to provide funds for the

‘several purposes of purchasing and/or constructing: public -

improvements consisting of sanitary-sewers, Storm sewers, water

works systems, solid-waste disposal system, municipal mainten-

ance and ‘service. facility, fire stationssand equipment, traffic

control, - airports,. park ‘and recreatighal facilities, municipal

mabe A-7

: : a

. . «igi

. :

- “ a P 2 i;

. . . -

- . e “

x: — libraries and public transportation system. Included ‘ji the

election 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 as ‘they became serially due.

The? propositions received the: required majority vote in—

favor thereof. Plaintiff was not allowed to vote in this election”

because she was not a property taxpayer. Kiet

The City then commenced proceedings, to’sell more then

$19,000,000.00 of said bonds. .The Attorney: General ‘af

Oklahoma, as ex-officio Bond. Commissioner of the State of

Oklahoma, ipproyed the bonds on August 18; 19.70. Title.62 O.

S. 1961, $13, provides that bonds -of a- municipality Shall: be

incontestable unless suit is brought. thereon — eid days

from the date of such approval. ‘

Plaintiff then filed this action aeainial ‘the: City and the

members of*the City Council. on Septembed 17, 1970, for

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

narrated. The parties stipulate that plaintiff is not: areal or

personal | property. taxpayer but is.an etherwise 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. she was excluded from

*voting. She prays that the defedants be enjoined from issuing

the bonds, on the ground.that Art. 10, §27, violates the Equal

- Protection Clause-of the Fourteenth Amendment. :

Our Constitutidn, ‘Art. 10, §26, provides that no city shall

become indebted in an amount exceeding, . sin one year, ‘the

income and revenue provided for such ¢ year, without the

consent of three-fifths of the voters thereof and even then the

_indebfedness could not exceed, including existing indebtedness,

i of the valuation of the taxable property therein.

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

majority of the | “qualified property * tax paying voters", to

become indebted "in a larger: amount than that specified in

* section twenty-six" for the purpose of purchasing or construct-

ing public utilities, or for re Pairing the same, and provides that

the ¢ity -shall collect an annual tax sufficient. to pay the

indebtedness. Our construction ‘of Art. 10, §27.:supra. was

reee pithy. re-c Se, idered in Settle + ‘City of Siackai ucg, OAL, 462

P; 2g 047, promulgated in December, 1969. (1 Settle. we also

discussed “our under Standing ‘of the principles gaeronoger

* Kramer. v. Union. Pree Si hool, 395 US.021, 89S. ¢ . 1886. 23

L. Ed. 2d 583 (1969), and: Lpridne V. City of a 395 U.S.

‘701.89 S. Ct. 1897.23 L.Bd. 2d 647 (1969), We Held. for the

feusons Stated in the Settle case, that $77°of Art. lO cdid* not

conflici with these pri ‘neiples and that’ $27 did not violate the -

Equal Protection Clause - of the Fourteenth Amen tment) Thuis

Court has for many. years deen ‘committed to the rule in the

_ Settle case that only taxpayers owning.- real Or px ‘rsouial.,

+ property, as provided in Art. 10, $27, may vete for incurring

indebtedness for public improvements enumerated therein.

Henry v2 Oklahoma City, 188 ORL. 308, 408 P. 2d 248... +

» the cieetion in the instant case (tune 9. 1970).dhe. United

tates Supreme Court (June 23, 1970) degii led City af Phoenix

Kolodziejski,: adeinal).. S.—_—.——_—. 9p S. Ct. 1990.26 L.

hekl that the Arizoify Consitution and sthtutes, as applied to

exclude - honproperty owners -from > voting | in clections’+to

approve issuance of general obligation bonds, violated the equal;

protection cliuse of the, U.S. Constitution. However. the

Supreme, Court, recognized that it would be _unjustifiably

distr uptive to give its decision full retroactive effect and placed a_

‘limitation thereon. The language limiting’ the. retroactive effect

-of the decision is set forth in a dismembered: form for

clarification: — ee Fy oa ks Ye oe

tts

* * *We _ therefore adopt ‘ Tule similar to that

employed with respect ‘to the applicability of the

a ipriano decision: Our detvision in this case ‘will apply

only -to authorizations for general obligation bonds

which: are not final as of June 23, 1970, the date of **

this decision.

: . .

‘ .

(a) In the case of States authorizing chal-

* * Tenge to bond elections within a, definite

period, all elections held: prior to the aki ite of

.. AD

After our decision in the Settle casé. supra; and subseqdent a2

2d $23. In Phoenix the Supreme € re of the United States \ |

€

this* decision on not -be affected by this

' *) . decision unless:a challenge on’ the grounds

— * sustained -by this decision - has- been .or is

a Og Lae brought within the ssuptal specified by state

; 7. mw. “Wi. * hati

m3 _ An es ~* i

: a: (b) "In- the case of: States, including appar- “1

-. 2 | ently Arizona; that do not have a well-defined

period for bringing ‘challenges to bond cleo: <

- tions, all elections held prior to the date of Saas

this decision that have ‘not yet been challeng,

- ed on the grounds sustained in this decision”

‘will not be open to challenge on the basis of .’

our ruling i in this case.* * se :

The muathes’ have submitted this -case tO: our Te urt for

3 determination ofa single i issue and tha'Lis: Does Oklahonia have

i ‘well-détined period for bringing challenges to general bond-

pr tasraien within the meaning of City, of Phoenix? ™N,

Plaintiff contends that Oklahoma has a definite period for va

challenging general bond elections: that: ‘paragraph (a);

applicable; and that this Court should enjoin the issuance of the

bonds. | tsa

Defe ‘ndants idetead that, Oklahoma docs. not have .:

well-defined period. for bringing challenges. to general be

‘elections: that paragraph ¢b). is applicable: ahd that this Court

. should not enjoin the issuance of the bonds.

The election on the bonds under consideration’ was held on

June 9, 1970, and the decision in Phoe nix was rendered 6n June

1970. ‘Fhe bonds in question were approved by the Bond

Commissioner of Oklahoma on August*18, 1970, and thereafter

* and within the time allowed by 62 0. S. 1961;.8 13.4 challenge

to the approval of the bonds was brought on the grounds

sustained in Phoenix., ° , :

‘ The only statutory enactment: that is periistent, tQ ike issue .

involved is 62 O. S. JT, $13. which provides:

"It shall be the pe of the Bond C ommissioner’

® prepare uniform forms: and prescribe a method of

approves another series of bonds which were voted upon and

’

*procedtic Onder the liws o athe: State hi alt “Cases

Nees it is desire d to insde pre lic Secuiities oF bonds; +

"in pny Gout). township. buniiei ality or paliticalor

‘é the r sub- ft visions theycor of fi State oi Ohjuhoma:

aids at shail ‘be-: ie Metter culty Of said- Bond

Comins sioner, lo eXscnime iil -sand puss. upon any

yy as issued. and suciy security, when declaped a

by ‘thee rilicate of Satd Bond Commissioner ‘to be.

issued iy accordanee with the fofms of procedure so +

provided shail be incont&stable in. any court in the *.

State of Ghishoma waless sun “fhergor, shall be. |

brought iit a <ourt hoving jurisdict: fot the same

witht: thirts days * from she date ol the approval

thereot by the Boud Comuinissioner. :

As a practicab matter. the Borid Commissioner does not

perform: his duties under the wbove.enactm ent ‘until A general

bond election has beentheld and-the proceedings. leading 40 the

sale of the bonds have’been completed. In ma ny instances, the

Bond Commissioner is requested to consider the legality of only

a part Or a series of the bonds that have been approved dla <-

‘bond election. TRereafters he’ may. be requested to’ consider

‘another part or another series of th ~ bonds that ab municipality

desires ro sell that had. been approved at the previous election.

As an-exumple: General obligation bonds are approved at an

election held \n February, 1969. On June 1, 1909, the Bond

‘Commissioner upproves the issuance of-a certain serics : of the.

bonds approved at the February 1969, election. Thirty diiys

difter. thy Bond Commissioner has acted, his determination is no

longer open to challenge. ‘Thereafter,* ‘the Bond Commissigner

approved, at the February, 1969, bond etection, Thirty day

after the Bond: Comniissioner “has cted, ls

longer open to ee

The Bond Comihissioner, is not required to perform his,

“

duties or act ‘urfder. § $13, supra, within aspecilicd ‘time, but

thirty days after he ie acted his determination. is dio longer.

Open to’ challenge. It is to be noted that the above enactment ts

“directed: to the Bond Commissioner's determination as to the

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

A-IT.

stermination isne

Chaliensc to a genetal bond election or ‘the period of time’

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

“Court has recognized ae an-action “may be brought to

nl the v validity of a bond election prior to the Bond

Commissioner's official ae pursuant to $13, ‘supra, not-

withstanding: the "tact there is no- specific rere authovity

authorizing such actian. ,

In Munger v. Town of Watonga,. 106 Ok. crs 2338 P. 311.

® 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

A the condect: of fimglestion = to the action i the

Bond Commissioner. é

> InGilliland y. City of Clinton, +31 Okt. 186, 268 P. 154, aun -

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

the grounds of iliegal voting. A temporary 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, We affirmed 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 ciaiengine the conduct. of

an election prior tofthe action by the Bond Commissioner. .

In Whitey. PA@tiwatomie County, 199 Okl. 103, 184 P. 2d

446. (1947), an action was filed against the Board of County

Commissioners, the C ounty Treasurer and the Attorney General

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

General, acting as the Bond Commissioner had performed his

duties pursugnt to §13. supra. In that case we held:

"The question whether the election at which

‘bolds were voted is legal or itlegal iS a matter

” properly to be considered by the Commissioner in the

‘performance of his duty. “ ‘

"Subsequent to the holding of an election’ ait

ec 12

e, : y

Which “bonds are voted and previous to the per- +

formance by the Bond CommisstOoner of the duties

presermbed by law with reference thereto, the citizen

tuxpayer is without capacity or authority to sue in. ,

‘ the courts to have-sugh bonds deck tred illegal because «

; of the illegality of such election.” ne

oh Although ‘the ae ees, ease and $13.-supra.

were not considered or discussed in Tettleton'y. city of Duncan,

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

modified by imptication, our holding «i ‘he Poth witomic

County case that a tixpayer was =o authority to sue

preyious to: the performance of the Bond Commissioner. In

Tettleton, an action was brought to restrain the issuance and

sale of certain bonds prior to the certification of the Bond

* Commissioner. The election was challenged on the grotinds that

the call and the ballots were‘insutficient to advisesthe voters of

the question presented and that a sufficient number of illegal

Voters. were permitted to vote to change the result of the

‘election. The ‘trial court sustained’ a demurrer to plaintitt's

Pevidence and we aflirmed on appeal. Tetthgton clearly estab-

lishes. that am action’ may be maintained to-challenge the legality

of a bond election prior to the performance of the Bond

Cc ominissione r e >

The Pottawatomie County case was cited with approval in :

Rieck y. town of Longdale; Okl.. 389 P. 2d 482 (1964). In.

Rieck, the’ Bond Commissioner was not joined as a. party

defendant and this Cadrt held:

@ is * 2 e -

"Subsequent to the holding of gn election at

which bonds are voted and previous to the per-

formance By. the Bond Commissioner of the duties —

- prescribed bY Jaw with reference thereto, the citizen”

guspayers suit in the courts to have such’ bonds

dettrred illegal: because of the. illegality of suclr

election may be abated “on proper motion.”

Although Rieck cited with acest the Pottawatomie

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

A-13

capacity or authority tor sue to hi ive bonds declafed illegal

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

the Bond: Commissioner, as: held in the Pottuwatomie County

ease: bui held that a tarp iyer's suit w the courts tq have bonds

dechired illegal because of the legality of the glection may oe:

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

the,action of the Bond ¢ ‘onmnissiotier. :

Our Court has Hever had the: occasiof to consider a case

Wherein. qm aetion was pending i in a trial court at the time the

Bond Commissioner, performed -his duties under $13. and one

reason tor this is: When a murticipility submits-a request. to the

Bond Conmnissioner to détermine the legality of a general bond

Issues ‘the municipality: through its proper officials. certifies

that no litigation is pending. questioning or affecting the jeg rality

of the band issue. ° i

9 Thy only issue presented. in- this woe action. is whether

Oklahoma has a well-defined: period for bringing challeng res 10,

general bond elections within the meaning of City of Phoenix,

supra. ; ae sal

Since Our decisional raw: recognizes that.an action may be

maintained prior to the time the Bond enor a performs

his duige S under § .13. suprafand there iseno statut prescribing

the time in ee the oe Commissioner is required’ to |

ee his duties. under $13, supra: we.can only conclude and

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

aoe ch: iHenges to general Qbligation bond elections win

the racaning of City of Phoenix, supra. ‘2

We further hold that the general obligation bai election

held by the City of Oklahoma City. OMlahoma. on June 9,

1970. Raving not been/challenged prior to: the date of the

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

the basis of the ruling: in City of Phoenix. supra. * 5%

Pl#futift's prayer tor an injunction is denjed.

“=CONCUR. BERRY. V.CT. and BLACKBIRD, JACKSON

and LAVENDER, JJ. CONCUR SPEC IALLY: DAVISON

“and WILLIAMS, JJ. DISSENT: HODGES and McINER-

NEY, JJ.

rest story, eel

ae IN THE SUPREME COURT OF

/.. + THE STATE OF OKLAHOMA

BARBARA J. BEAUCHAMP, Ss : 7 hake

‘ Plaintity ) Pees

vs\. \\:. * ) No. 44475-

— )

THE CIPY OF OKLAHOMA CITY, a): ther

Municipal. Corporation; JAMES H. ) : a

NORICK. Mayor of the City of ao |

JOWN M. SMITH, GEORGE N. STURM,

NEFSON E. KELLER: BILL H. BISH-

OP, BEN FRANKLIN, A. L. DOWELL’)

and ROWE COOK, Members of the City )

Council, F ae

Defendants. ~), a ed

WILLIAMS, oe CONCUR RING SPECIALLY:

homa City: RATIENCE LATTING!; @° \

J agree with the'views expressed in ‘thie mi ajority opinion

hereifi this day promulgated of effect that Oklahoma does not.

have a well-defined period _ for_bfing- challengesto “general

obligation-bond’ elections as “contemplated in the ‘referenced

opirtion of the Supreme Court of the United States and that the

special election herein involwed is not Borge to challenge on

the basis of that opinion. Mor gver, I deSire to express my”

further views as hereinafter His to . e

A state may establish other qualifications’ than residence

for the exercise of the elective franchise, Carrington v Rash,

380 U.S. 89, 85-S, Ct. 775, 13 L. Ed. 2d 675 (1965). Equal

protection of the. law does not’ require identity of tréatme nt. It

does require that classification be basedYon real differences, not

Wholly ‘arbitrary. Walters v. City of St. Louis,.347 U.S. 231, 74 |

S. Ct. 505, 98 L. Ed. 660 (1.954). Settle v. City of Muskogee, -

Okla., 462 P.-2d 642, 646 (1969).

i 4

Since 1940, at the latest, our Constitution has been ‘of

. . . tt. . . . “e

bonded debts by municipalities those qualified voters who do

not pay taxes on real or personal property." (Emphasis

4s ee ar Ee yee

a /

supplied) AMenny: Oklahoma City, etal. shout. 308. 108 P.

2d 148, 152. (1940). :

In my opinion, tlie, rst paragraph of the opinion of the

Majority of the Court in‘the case of Phoenix v. Kolodziejski,

U. S. ; 90 S..Ct. 1990, 26 L.-Ed., 2d 323

(1970): distinguishes that cause on the facts icons our present

case. There, the question was stated to’ be: Does the F ‘ederal

Constitution permit a State to restrict oe is property

taxpayers, the ,vote ‘in electiorts ’ to plipprove he issuance of

" general obligation bonds? (Emphasis supplied). .

From the facts stated in Phoenix ai@ the notes appended’

thereto a second compelling variance from our facts is set forth.

There it is stated that property taxes were to be levied to}

“service the involved indebtedness but in addition, the ¢ City Was

‘authorized to allocate other revenues for the same purpose and,

‘iv cact, on a general obligation debt service requirement of $5,

594, 937.00 for fiscal year 1969-1970, made a payment, ty pical ;

of those made in recent years, of niere than 55‘ of such general

obligation service requirements or to be exact from such other

—setirces paid $3,244, 773.00 therof,

Here, the applicable State C onstitutional provision requires .

annual tax levies on personal and real property in the city.

sifficient to" méet all interest and principal maturities. Of

course, a city may pay lor permanent capital improvements out

ee current earnings as diStinguished from ad valorem levies. J.

- Alsip ry. City of Chandler, Okl:; 408 P.2d 512 (1965).°

Res this was not firmly established until L96S in Alsip.

wherein are cited ather earlier cases of that effect.

And, while it niay-be done, it is well known that only in

six or eight cities and towns in Oklahoma. in the. past half

century OL, SO havesghere been sufficient funds from sources’

other thy ad valorem tax revenues: to pay any considerable -

umount/of- the. expenses Of municipal government above those

‘categories of expenditures to which they were primarily

allocable. viz., the cities of Stillwater. Wynnewood, et al. And,

each of those instances | daresay they” Were paid with ‘funds

produced from waterworks originally built from. bond money

taxable bi Ick to: the oWners of real and personal property. if not

ie, : : A-16 a ar a

—t

~~" 7 Es. 7 .

paid by re venues (rom-the involve d utility.

As to. the facts of tha present case. everybody knows

; Oklahoma City has issued miflions of dollars in revenue bonds”

repayable front sewer taxes, Water rents and what not to build -

aapital uaprdvements, not “obtainable from tax revenues willyin,

the constitutional debt limits, and had to en: ict a sales a:

mike salary adjustments for its: employees. This -is' not a

condenmation of Oklahoma. Citw To the contrary, it demon-

strates that Oklahoma City and. its-citizens ‘and officials must

use all lawful oe of reventic available te

. provide the-varie d services require ol so large. a mide ra, metro- ;

—e*

“politan, growing _ and yet Maintain its cash positign | ‘in the

otDiack"'.

In copy of the published election proclamation attached-to

petiten filed in the trial Court in the case from which the

- tion

appeal, sister to this case, arose, pursuant to authagity vested in )

Sap “pe by Article X, Section 27, Oklahoma Constitu-

City specified in the several involved propositions

being voted upon that in addition to, that is, on top of all other:

taxes of all sorts the personal and real property ad valorem

taxpayersWwere «already paying, that those such taxpayers ‘who

Voted were voting tax - liens for different, additional taxes

against their such respective properties. ! |

In the election with which we are here concerned. it is ny

belig! that. the election authorities have riot arbitrarily discrimi-

nated against any One for the following re-emphasized reasons,

to-wit:- . i 6 .

1. . In Phoenix, ‘Mrs. Kolod7ziejski was-a quali-

fied vpter except that she owned no taxable re

estate. As ah owner of taxdble personalty, in'-Ok ee

homa City at the involved election she would hake a

been welcomed at the polls.

a Okl: thoma C ity. must and perforge will pay

for the improvements obtained with, the proceeds of

this bond issue from tevenues received only from ad

valorem taxes on real and personal property.

@ .

I respeetiully coneur specially.

A-\7

; Sarbats 4. Beauchamp.

* INTHE SUPREME ‘COURT OF | :

. - THE STATE OF OKLANQMA RRP ee

)

: Plaintiff — )-

, el

~~ ‘No. “44.475

City of Pe nee a Municipal a ?

Corporation; James H. Norick, Mayor of .

the .City of Oklahoma City: ,Patientce, )

Latting, John M: Smith, George N.. )

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

Ben Franklin, A.L. Dowell and Rowe) | '

)

/ » -

‘

Cc vok, Members of the City Council,

” Re Defendaiits

ss DAVISON.J., CONCURRING iva /

e *

In concurring specially: I desire to express my views for.

deny! ing plaintiff's prayer for the: injunction.

‘In: City of Phoenix v. Kolodz iejski,____-_U. s: :

a, eS i 1990, 20.L. Ed 2d 558. the question presented was:

Does the Federa? Constitution permit a State to nec to real

property taxpayers the vote in elections to approve.the issuance

of ¢ general obligation bonds?* The court, with three Justices

dissenting and ‘one Justice abstaining, extended the principles i in

-the Kramer™ind. Cipriano cases and held: that the ‘Arizona

Constitution ‘and statutes: as ‘applied to exclude non-owners of

teal property from 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 intérests of real property

owners- and the interests of .non property owners are not

| sufficiently substantial to justify excluding the latter from the

franchise." - - ae

| believe~ and. comelude that there ure significant and

" controlling facts that distinguish the situation in the instant case

‘from that in the, Phoenix case. In the. prese nt ‘case. the’

‘A-18 *

”

constitutional provision (Att. 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 bonds. In-Arizona voting was restricted tg real property

taxpayers. In the preseni. case §7 permits . the property

taxpaying voters. to--incur indebtedness and encumber. their

“property without limit. In Phoenix the question us to vosose

or net uw state could constitutionally conter ae all of

Alectors exclusive and absolute power to incur general are

indebtedness withopt limit at the expense of persQnaland real

property owfiers es fe not presented or considgred. THE impor-

tance «and. sit Duiticance of this distinguishing feature of our

Constitution was fully presented and discussed in Settle v —

of Muskogee, 462 P. 2d 642. 1 -

It’ is.my opinion that the Phoenix decision is not.

controlling in the pres situation. ; ,

a es yee to state that Mr. Justice Williams Jneurs ;

qn the above Views. ;

Bee .

A-19 | Se a oa

x . © we

_IN THE SUPREME COURT OF °

THE.STATE OF OKLAHOMA | \ ,

: ee 4 an

‘Barbara J. Beaychamp, as owt =)

Plaintit 5 OL a

: =

vs. No. 44,475

a. ).

. City of, Oklahoma City, a Municipal ) waar

. Corporation: James-H. Norick, Mayor of 2»

the City: of Oklahoma City; Patience 2. °

dautting, John. M. Smith, George N: ae

Keller,’ Bill H. Bishop, ) ‘

Sturm Nelson E

Ben Frdnklin,, 3 Dowell and Rowe

Cook Me mibers of City Council,

ape

‘ .

[oi aare "°° Defendants.

- PY > ™ 5 . . ; | a an . x die * -

McINERNEY, J: (DISSENTING) "f

| ee from-. ahs dexiien of the majority to accept

"jurisdiction in. this ‘original proceeding. 1 would deny the

application to accept jurisdiction and leave Plaintiff to her.

remedy inthe District Court..

A’ delay ‘in the early ievenelantics of tic “question of

publie importance would not mecessarily rest. Our decision iy

Supreme Court case No. 44 478, Martin’ et al. vi City of

Oklahoma City, decided this. date, isan appeal from the District ~~ .

» Court by two ‘protest ints to ¢he identical bond election —

“chi alfnged in this original proeeeding. The absence of a recard

in’ a true adversary proceeding’ coupled with the stipulation

herein precludes inquiry into: whether the status of Barbara J.

Beauchamp: as an unqualified: voter in general obligation bond

élections is’ self- ‘imposed, 68 O.. S. Supp. 1965, § § 2431.

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

tion. If the former. Plaintiff's standing to ingitute this action is

question: ible;

There are Only two reasons Why the U.S. Safiamecout

| A-20 ~

hi is hele excluyion of non- property taxpayers uncoristitutional: ie

“One is) that -it discriminates against’ the impoverished.” Sée

Harper v. Virginia State Board of Elections, 383- U.S. 663, hos |

L. Ed 2d 169, SO S. Ct. 1079 (1966). The other-is that such 4n

exclusion@is irrational as applied to persons. who indirectly pay -

such taxes through the form of bigher rents to’ their Rndlords,

and: ‘such. City of Phioenix_ y. Kolodzigjshi, U.

S.____. 90'§. Ct. 19902. 2 Ed 2d 523 21970). -

Although, the Plaintiff! Gxternally appears to’come within

the results of the foregoing cases,.she jfails to allege or prove

that she comes. within: the reasons therefor. First, Plaintift |

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

PMintit! correctly states that,the U.S, Supreine | Court has

susytined the indirect payment of property taxes theory,

Pian. supras She totally ignores the fact that payment vot

personal taxes would by itself have been sufficient to entitly her

to. vote at the.challenged elpctioe: and by the very nature of the

personal tan there can be no" Vicarious or “indirect” payment

of the tax (ins the sense of _Property taxés paid by landlords

being passed on ‘their tenants in the foym of increased rents, arid

the like). os, ; :

. . °

“It would appear, ectie: thi Platntiff has not bi ded her”

fuilure to pay a a om 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-

sccriminatory ar irmitronal, iec.. poverty, or vicarious actudl”

payment. ees ;

In the absenceof any factual showing or adversary record

ot the Plaintill’s standing, | am of the opinion that no adequate

actual | Neiegt beapeio pi ‘has been properly demonstrated.

‘sulficent’to invoke and sustain this Court's jurisdiction: and |

would, therefore, deay the application to assume jurisdiction.

; 7

‘ 1 |

oi ae ee |

t |

es AS eae

x hones a IN tHE SUPREME COURT OF

ye THE ST ATE OF OKLAHOM. A.

Georgann Martin oh ey ee e.

Max Ir@ub Ee

| Plaintiffs in Efror =} Vane

ae vs ’ oa On / é : - i | a ; é NO. nine 18 > : \

-f ee eae )

Phe City.of Oklahoma City. ./ ) A

: = Defendant in p Exrot in ’

’ Ss Y L LA B U S” :

I. Te Legislature may make registration ‘a prerequisite

‘te the right to vote in order to arate fraud wed to’

ae the purity of the ballot. Art. 3. $ 6, Oklahoma

— Tor lituition, Airc o, ‘ :

, 3 "ith ts

> :

—* , One who, aitempts to sue jn behalf of Intembers Of a-

icldss must be a member: ot the class“ he burports to.

represent, aA ; Pig

- : - : e :

i a - ;

e ; Sig . oh ok ok ok “ : e

P . ~ ° J

P| ee. A : :

; ~

| APPEAL ROM HIE-DISTRICT COURT OF ,

a OKLAHOMA COUNTY, ORLAHOMS. 3

Va i . ok ok ok ok =

. A

Georgann MI win and Max Troub sought to enjoin issuance

of bonds’ voted pursuant to Art. IQ, $27, Oklahoma Con-

stitution. District Court sustaéined Citt S motion in dbatement

because Martin and frorbswere not registered Volters-as Fequired

by IT QO, S. 1961, S65, .*- * iochale o ye

, AFFIRMED ~

Bonham, Brogden and C lifton

Ok: thoma City, Oklahoma *- For Plaintiff in Error « ee

Max Troub

David M. Harbour ie | an a dees

Oklahoma City, Okiime ~ For Plaintiff in Error ° ae

sad - Georgann Martin aa ae A

Roy H. Semtnger A , ‘

Municipal Counselor

Walfer M: Powell :

Asgstant Municipak-Counselor:

; Roland cae ; “ te oe

Assistant Municipal Cc ounselor For Defendants in Error

rae ; of te te ee a hae

DAVISON. J Pa amtirare |

This. is an appeal by Max Troub (plaintiff! below) and

Georgann’ Mirtin (intevenor below) from an, order -of the

District Court of Oklahoma County. sustainiitg the motion in-

( disnijssing plaintiff’saction. We will reer to the parties by their

trial court. designation or by name,

» -Plaintiff's. petition, in which jntervet joined, alleged that

they. were residents of: the City; that they were not property .

taxpayers; that” the action was -broug t.in their, behalf and in

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

enjoin the issuance and: delivery of certain general obligation

bonds approved at an election held within the ¢ City qi June 9,

1970, pursuant to Art. 10.°§ 27, of the Oklahoma Constitution.-

The election and bonds, and -the alleged’ grounds for their

invelidity. and the relief sought. are the same as those described

-and set forth in the original action in this court, numbered

4447 6, styled Beauchamp vy. City of Oklahoma City, < this

ge. ies :

“ | é ; A : ; . :

| Ao f e

| A ;

day® decided and appearing in______P. 2d

bonds and relied 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 general

bond electi6n and the relief sought by plaintiffs in error, being

the same us those 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 not

allege, and in fact admit, that they are not registered voters in

the City. ‘The trial. court. sustainéd defendant's motion ‘in

-aubatement on the ground that plaintiff and intervenor-were not

real parties in interest and were not qualified, to represent the

class of registered voters.

Art. 10, G27, ‘Oklahoma Constitution, restricted voting in

the clection to qualified property tax, paying voters in the City.

Art. 3, §6 of the Oklahoma Constitution, provides that

the Legislature. mayXby 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 Rave’ registered.

Tithe I] O. S. 1961, $65, buna tHat a "qualified

taxpaying voter" of any city as used im $27 of Art. 10,

atined to be a qualified elector under ore Constitution 2

‘laws of Oklalioma.

An Lovey, State Election heads 197 Okl 157, 170 P. 2d

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

make registration a prerequisite to the right to. Vote inorder to

prevent fraud an! to protect the purity of the ballot.

‘ And in Loftis. vr. School Dist. No, 52: >of Beckham County,

144 OKI. 281, 290 P. 1101, we said that the mi itter of requiring:

registration to- vote was deft to the discretion of the Legisk: iture.

, Which discretion would not be disturbed unless its acts Were-so

; ” arbitrary and capricious as to offend some provision of the

Constitutions’ of Oktuhom: rorot the United States.

It is 6ur conclusion that the Legislature legally and valtdly

required registration as a prerequisite to voting in the bond

OS ae

os °

In the

“Beauchamp case ave upheld the validity of the election gnd

election. as y

Under es « circumstances we must conclude th: it plaintitt

und intervenor were primarily not qualified to: vote and

consequently were not real parties in intGrest. They were not *

members of the class of registered voters, and could’ not

mdintain a class action in behalf of persans who were registered

as voters but disqualified because they were not —— tax

pay crs.

In Hobbs’ x. i slicy Jury of Morehouse Parish, 49 Federal

Rules Decisions 170 (W.D. La. 1%), the situation was like that

‘in the pitGent case. A party, who Wus not a registered voter,

brought a would-be class wubtion to enjoin issuance of bonds

. approved aftan electivn in warich only ' Property taxpayers” had

~ the right to vote.’ The court said that it was axiomatic that one _

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

member of the ‘class he purports to represent, and that the

plaintiff, being ‘neither a registered voter-nor a pfoperty pwner,

Was not a real p: irty in interest‘and had no standing to prosecute

the suit. | ; ;

- The ‘trial court did not err in —— the motion. in

abatement and dismissing the action. \

ALL JUSTICES CONCUR.

”

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.