# Appendix — Elmore v. North Beckley Public Service District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1815%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 424 U.S. 913 ## Text la IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA CHARLESTON STATE OF WEST VIRGINIA ex rel TAXPAYERS PROTECTIVE ASSOCIATION OF RALEIGH COUNTY, BOX 236, SPRAGUE, WEST VIRGINIA and ALL OTHERS SIMILARLY SITUATED, C.M. ELMORE, President, Petitioner VS. IN MANDAMUS THE NORTH BECKLEY PUBLIC SERVICE DISTRICT, Respondent THE APPLICATION OF THE RELATOR FOR A WRIT OF MANDAMUS The Petitioner, Taxpayers Protective Association of Raleigh County, respectfully represents to the Court that: I. The Taxpayers Protective Association of Raleigh County, Box 236, Sprague, West Virginia, is a legally created association chartered on August 24, 1966, and recorded in the County Clerk’s Office of Raleigh County, in Book No. 452, at page 299, C.M. Elmore, President. Il. In regard to the North Beckley Public Service District. 2a Resolution authorizing the issuance of $930,000, Sewer Revenue Bonds, Series 1964, of North Beckley Public Service District, Raleigh County, West Virginia, to finance part of the costs of construction and acquisition of a complete sewer system for the district. We, the Taxpayer’s Protective Association of Raleigh County, pray that the Supreme Court of Appeals of West Virginia, will rule on the constitutionality of the case laws pertaining to the constitutionality of the bond indebtedness. The West Virginia Constitution singles out no “discreet and insular minority” for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers or highways. Ill. Article 13A, Section 3, Chapter 134 of the West Virginia Code reads as follows: “From and after the date of the adoption of the order creating any such public service district, it shall thereafter be a public corporation and political subdivision of the State with power of a perpetual succession, but without any power to buy or collect ad valorem taxes. Each such district shall have power to acquire, own and hold property, both real and personal, in its corporate name and shal! have power to sue, may be sued, may adopt an official seal. A. F. Gordon, etal ) On Writ of Certiorari Petitioners ) to the Supreme Court Vv ) of Appeal of West Virginia Granville H. Lance, et al ) Mr. Chief Justice Burger delivered the opinion of the Court: 3a We granted certiorari to review a challenge to a 60% vote requirement to incur public debt as violative of the Fourteenth Amendment. The Constitution of West Virginia and certain West Virginia statutes provide that political subdivision of the State may not incur bonded indebtedness or increase tax rates beyond those established by the Constitution without approval of 60% of the voters in a referendum election. On April 29, 1968, the Board of Education of Roane County, West Virginia, submitted to the voters of Roane County a proposal calling for the issuance cf general obligation bonds in the amount of $1,830,000 for the purpose of constructing new school buildings and improving existing educational facilities. At the same election, by separate ballot, the voters asked to authorize the Board of Education to levy additional taxes to support current expenditures and capital improvements. Of the total votes cast, 51.55% favored the bond issues and 51.51% favored the tax levy. Having failed to obtain the requisite 60% affirmative vote, the proposals were declared defeated. Following the election, respondents appeared before the Board of Education on behalf of themselves and other persons who had voted in favor of the proposals and demanded that the Board authorize the bonds and the additional taxes. The Board refused. Respondents then brought this action, seeking a declaratory judgment that the 60% requirements were unconstitutional as violative of the Fourteenth Amendment. In their complaint they allegded that the Roane County Schools had been basically unimproved since 1946 and fell far below the State average, both in classroom size and facilities. They further alleged that six similar proposals had been previoulsy defeated, although each had received majorities of affirmative votes ranging SUDO RINE ME te ie PE DURE ORIEN OTRAS GR Sete PEND IORS IA ALTE II LEC VEGI A NRT T OI 4a from 51.51% to 55.84%. The West Virginia trial court dismissed the complaint. On appeal, the West Virginia Supreme Court of Appeals reversed, holding that the state constitutional and statutory 60% requirement violated the Equal Protection Clause of the Fourteenth Amendment. 170 S.E. 2nd 783 (W. Va. 1969). We granted certiorari. 397 U.S. 1020 (1970) and for the reasons set forth below we reverse. The court below relied heavily on two of our holdings dealing with limitations on the right to vote and dilution of voting power. The first was Gray v. Sanders, 372 U.S. 368 (1963), which held that Georgia’s county-unit system violated the Equal Protection Clause, because the votes of primary electors in one county were accorded less weight than the votes of electors in other counties. The second was Cipriano v. Houma, 395 U.S. 701 (1969), in which we held impermissible the limitation to ‘‘property taxpayers’’ of the right to vote in a revenue bond referendum. From these cases the state court concluded that West Virginia’s requirement was constitutionally defective, because the votes of those who favored the issuance of the bonds had a proportionately smaller impact on the outcome of the election than the votes of those who opposed issuance of the bonds. We conclude that the West Virginia court reliance on the Gray and Cipriano cases were misplaced. The defect this court found in those cases lay in the denial or dilution of voting power because of group characteristics - geographic location and property ownership - that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted. Thus in Gray, supra, at 381 n. 12, we held that the county- PRELIM Ra Na eR Ne MO LM IN TN BAY LINN aI RL TEER MS ES VPA) NRE ff 5a unit system would have been defective even if unit votes were allocated strictly in proportion to population. We noted that if a candidate received 60% of the votes cast in a particular county he would receive that county’s entire unit 40% cast for the other candidates being discarded. The defect, however, continued to be geographic discrimination. Votes for the losing candidates were discarded solely because of the county where the votes were cast. Indeed, votes for the winning candidate in a county were likewise devalued, because all marginal votes for him would be discarded and would have no impact on the state- wide total. Cipriano was no more than a reassertion of the principle, consistently recognized, than an individual may not be denied access to the ballot because of some extraneous condition such as race, e.g., Gomillion vy. Lightfoot, 364 U.S. 339 (1960); wealth, e.g., Harper vy. Virginia Board of Elections, 383 U.S. 663 (1966); tax status, e.g., Kramer v. Union Free School Dist., 395 U.S. 621 (1969): or military status, e.g., Carrington v. Rash, 380 U.S. 89(1965). Unlike the restrictions in our previous cases, the West Virginia Constitution singles out no “discrete and insular minority’’ for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter vy. Erickson, 393 U.S. 385 (1969); in which fair housing legislation alone was subject to an automatic referendum requirement. The class singled out in Hunter was clear - ‘‘those who would benefit from laws barring racial, religious, or ancestral discriminations”, supra, at 391. In contrast we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of oe | ED EPR ENE ON i IGE LIE AD SNA Ry OA Lap PEN ALE GANG AP AE 28 SO APRA APRA, Gott 6a financing. Consequently no sector of the population may be said to be “fenced out” from the franchise because of the way they will vote Cf. Carrington v. Rash, supra, at 94. Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a governor by a state legislature, after no candidate received a majority of the popular vote. Fortson v. Morris, 385 U.S. 231 (1966). The Federal Constitution itself provides that a simple majority vote is insufficient on some issues; the provisions on impeachment and ratification of treaties are but two examples. Moreover, the Bill of Rights removes entire areas of legislation from the concept of majoritarian supremacy. The constitution of many States prohibit or severely limit the power of the legislature to levy new taxes or to create or increase bonded indebtedness, thereby insulating entire areas from majority control. Whether these matters of finance and taxation are to be considered as _ less, “important”, than matters of treaties, foreign policy or impeachment of public offices is more properly left to the determination by the States and the people than to the courts operating under the board mandate of the Fourteenth Amendment. It must be remembered that in voting to issue bonds voters are committing in part the credit of infants and of generations yet unborn, and some restriction on such commitment is not an unreasonable demand. That the bond issue may have the desirable PEI ICBO LL TOLD CELIO OLED LE CPP LDL LEAL EE Sg PEDAIG. £P™! STIG ELTON BOB ant GAGE HL F Ja objective of providing better education for future generations goes to the wisdom of an _ indebtedness limitation; it does not alter the basic fact that the balancing of interests is one for the State to resolve. Wisely or not, the people of the State of West Virginia have long since resolved to remove from a simple majority vote the choice on certain decisions as to what indebtedness may be incurred and what taxes their children will bear. We conclude that so long as such provisions do not discriminate against or authorize discrimination against any indentifiable class they do not violate the Equal Protection Clause. We see no meaningful distinction between such absolute provisions on debt, changeable only by constitutional amendment, and provisions that legislative decisions on the same issues require more than a majority vote in the legislature. On the contrary, these latter provisions may, in practice, be less burdensome than the amendment process. Moreover, the same considerations apply when the ultimate power, rather than being delegated to the legislature, remains with the people, by way of a referendum. Indeed, we see no constitutional distinction between the 60% requirement in the present case and a state requirement that a given issue be approved by a majority of all registered voters. Cf. Clay V. Thornton, 253 S.C. 209, 169, S.E 2nd 617 (1969), appeal dismissed, 397 U. S. 39 (1970). That West Virginia has adopted a rule of decision, applicable to all bond referenda, by which the strong consensus of three-fifths is required before indebtedness is authorized, does not violate the Equal Protection Clause or any other provision of the Constitution. IV. At this very court in case no. 12995 filed December 15, i » , SE A oa I pp PLIERS" FEES SEY W BI Sere “sto neces —_——— " ne en —_— 42a LIENS C 16-13A-10 Lien not a deprivation of property without due process. The provision that delinquent fixed rates and charges for services rendered by a public service district shall be a lien on the premises served of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes, does not deprive the owners of their property without due process of law. State ex rel. McMillion v. Stahl, 141 W. Va. 233, 89 S.E. 2nd 693 (1955S). It may not deprive the owner of the use of his property. But even if he is not hooked on the sewer and not using it and goes to borrow money from a bank or saving and loan company. They try to blackmail him and make him pay back sewer bills (which he has not used the sewer) before he can borrow any money. We would like a answer on this question? CONSTITUTIONALITY 1. That the provisions of the statute granting a tax exemption to the property income and bonds of the Board is in violation of Section 1, Article 10 of the Constitution of West Virginia. 2. That the statute improperly delegates legislative powers to administrative body; in violation of the Constitution of West Virginia. 3. That the statute providing for liens to enforce the payment of fees, rates and charges violates the Fourteenth Amendment to the Constitution of the United States, etc; 4. That the grant of eminent domain violates the Constitution of this State of West Virginia. 5. That the statute creating a mortgage lien on the property and authorizing foreclosure creates a debt of DP RE ERE etpeTy Con 43a public service districts without a vote of the people in violation of the Constitution of this State of West Virginia. 6. That by creating public service districts as public service corporations for special purposes, violates the constitution of this State of West Virginia. Respectively Submitted by Taxpayers Protective Association of Raleigh County, West Virginia (President) C.M. Elmore General Delivery Cranberry, West Virginia 25828 STATE OF WEST VIRGINIA At a Regular Term of the Supreme Court of Appeals continued and held at Charleston, Kanawha County, on the 6th day of October, 1975 the following order was made and entered, to-wit: State of West Virginia ex rel. Taxpayers Protective Association of Raleigh County etc., et al. vs. Mandamus The North Beckley Public Service District On a former day, to-wit, September 22, 1975, came the petitioner, Taxpayers Protective Association of Raleigh County, by C. M. Elmore, President, pro se, and presented to the Court their petition and exhibits, and note of argument in support thereof, praying for a peremptory writ of mandamus to be directed against The North Beckley Public Service District, as therein set forth. And came also File, Payne, Scherer & Brown and W. H. File, Jr., council LS TE LETT OMT TE 44a for the North Beckley Public Service District, in opposition to granting the writ of mandamus. Upon consideration the Court is of opinion that a rule should not be awarded and the prayer of the petition is therefore denied. A True Copy Attest: George W. Singleton IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA Charleston State of West Virginia ex rel Taxpayers Protective Association of Raleigh County, Box 236, Sprague, West Virginia and All others Similary Situated, C.M. Elmore, President Petitioner No. Section 3 Article 13A Code of West Virginia The North Beckley Public Service District of Raleigh County, is from and after this date of the adoption of the order creating any such public service district it shall thereafter be a public corporation and _ political subdivision of the State of West Virginia. Appeal NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES Notice is hereby given that the Taxpayers Protective PI OR Ee, OF eee ee TE IOS LEIS OME MES POLE REID J EOI DEB LY Tan RN PIES NPSL ED RE MO ELINA SRL OLE. PORES, Bt BON PELL AEA Pa BISCO. Pond Pitta aL ot 7 see 4 DAS NE ita 45a Association of Raleigh County, Box 236, Sprague West Virginia and all Others Similarly Situated, C.M. Elmore, President, the Petitioner In Mandamus in the above- captioned proceeding hereby appeals to the Supreme Court of the United States from the final order of the Supreme Court of Appeals of the State of West Virginia entered in this action on September 19, 1975. C. M. Elmore President Taxpayers Protective Association of Raleigh County Box 236, Sprague, West Virginia and all others Similarly Situated AFFIDAVIT OF SERVICE OF NOTICE OF APPEAL State of West Virginia County of Raleigh, To-Wit: The Taxpayers Protective Association of Raleigh County, Box 236, Sprague, West Virginia and all Others Similarly Situated C.M. Elmore, President, the Petitioner In Mandamus herein, despose and say that on the 3ist day of October 1975, I served a copy of the foregoing Notice of Appeal to the Supreme Court of the United States upon the North Beckley Public Service District, 106 McCreery St. (Raleigh County) Beckley, West Virginia petitioner In Mandamus, by delivering the same to Robert R. Thompson, Jr. (Office) Chairman of the North Beckley Public Service var | REE ricco remmep cen ODPL ILLICIT ELL LE IOS OLLIE OTE OGY VDL IES WL LMG A ACRE TON ll 46a District, 106 McCreery St. (Raleigh County) Beckley, West Virginia Subscribed and sworn to before me Raleigh County at Beckley, West Virginia, this 22 day of October, 1975 Sandra Jean Via Notary Public and for Raleigh County, West Virginia My Commission Expires September 29, 1979 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1815%3A2. Public record. Not legal advice.