# Opposition Brief — Beauchamp v. City of Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0281%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 917 ## Text LIBRARY : SUPREME courr, vu. a ; = oa “ 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 . : r> . e . ‘ . > . : t Ps 2 . Me ‘ . bissig? ; . ; - z - a ta . . - . nis . . - ‘ . ° nd ’ “ ° a J : . + “5 > 's , i . = . . o> . ‘ . . i ey —e ° - : * * ° . y 7 : oe . “ . i . . ’ . 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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 4 l p s 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 s ~ 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? oe | 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 4 ‘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 a) N > . © Supreme C. ourt v us clegaly CYTeet in its decisions. ¢ f ; 1) that one who is NOt a Tegistered votes Bus ns ™ 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 b 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 4 posture of those having standing to bring en action at law. to ores contesttn election: FEMOnEES isseTtzon that it would have 7 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 4 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 ~ 4 ‘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 ¥ se a 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 * en ’, *, a - , | | P . ‘A PPENDEX A _ CONSTITUT ION, AL PROVISION — Art. 40. Oklahoma onstitution, See. ZA: . - é A rt : - ~ «Tide btedne SS for “purchase: CONSHUCLION OF repair of public Utilities. 4 "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." : : : 2 > 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, Fd 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 e ~ 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. ee 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 | ge — 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 a e Pd ane . é: ; ae = > Ds . . a” os . i s + eee i 7 / . : - 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 fe ff >) sf ; | -WRITDENIED 4) 205 oe @& . : , A% ? ois ; ‘ osm *- 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: 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. “ ‘ 2 "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 ™ 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. ~~ | \- 4 ae ; 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 a — 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 © od Hon. Jack R. . Past, Judge ~ ile oe 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- © abatement of the C ity, of Oklahoma City., (defendant below) and ( 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, 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 © ie 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. ” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0281%3A3. Public record. Not legal advice.