Amicus Curiae Brief — City of Phoenix v. Kolodziejski

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SUPREME COURT, U. S. - Foch

: FEB g 1970 -

No. 1066 | .

- STeiTiee eee toe ea

In the

Soupeeme Court of the United States

Ocroser TERM, 1

CITY OF PHOENIX, ARIZONA, and MILTON H. GRA-

‘HAM, FRANK G. BENITES, CHARLES CASE, JOHN

7 LONG, MILTON SANDERS, MRS. DOROTHY

THIELKAS, DR. MORRISON F. WARREN, Members

_ of and constituting the a siesta of the City, of Phoenix,

Arizona, —

Appellants, ~

| vs.

EMILY KOLODZIEJSKI,

| eats Appellee.

‘On Appeal From The United States District Court

For The District Of Arizona

BRIEF FOR SALT LAKE CITY, UTAH,

AS AMICUS CURIAE

Jack L. Creiiin

City & County Building

Salt Lake City, Utah. 84111

City Attorney ;

Pamur H. Horm

CHapMan AND CUTLER

111 West Monroe Street

Chicago, Illinois 60603

Attorneys for Amicus Curiae

The Scheffer Press, Inc—ANdover 3-6850

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INDEX

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Beret OE Aimee CII wscscessinessnsstcnsereenesnteictenicipenness 1

III: sicciccinsLsovisetenssnisbanineianibinnsidiesspibinnidbagieanaitaneatapaaiatbatiot 5

SNS GE TIE, creniiiissecicicscanicneinnsstiinitonniniisichinnens 5

Se csinailnnicishoeesnnaidbiasintaaioaaiahdieainnsitagias chilptianensbacentenibiptatginhsonen 6

SII, cissscicetechtbdiccesscicinisedeeicsiaiscibininanninnactinicidiaingaaniaibianbaiieeie 23

METI ciceccsiseisonsaiyianevitnisecesiiapecniaieivinnsntenhaniotebsanilasiiiaatadigiuttahias la

of Rae RMIDR AD. OS RRL Sens UNARMED Ee Hk 15a

TABLE OF Cones

| Andvions Vv. Parish School Board of East Baton

_ * Rouge, 227 So.2d 370 (Louisiana 1969)... 12

Cipriano v. City of Houma, 395 U. S. 701, 89 s. Ct.

1897, 28 L.B.2d G47 2....cccctccsrecsescseeee igieenhienibinhiesesemand 3, 6, 16

Kramer v. Union Free School District, 395 U.S. 621,

89 S.Ct. 1886, 23 L.Ed2d i ee a NIE NOONE 3,6 ©

Fjeldsted v. Ogden City, 28 P. od 144 (Utah 1933) .. 7

Muench v. Paine, Idaho Supreme Court No. 10552,

J anuary Te iisicinnsscssatenseictensstecnceihbleliigaanninitibonnnieiieiaianeis 20

Reynolds v.. Sims, 377 U. s. 533, 12 L.Ed.2d 506, 84:

5 IRIE: SURE MITE * ioicsneseceitdhpancussainaeiianiasighaanennniepionaimpeiens 11.

Thompson‘v. Centerville, 417 P.2d 670 (Utah 1966) ..:. -7

age

PAGE

TaBLE oF STATUTES |

Utah Constitution:

tN Tr PIII. T nisccns sannssanonsnchsinnaibicinevdiabsannnieeuiannes 6

WAWCRORO: TEV, COOMRIOT B vcecsevsnssnssscnsescsercnsinecesess 3, 6, 7, 10

Utah Code Annotated 1953, as amended:

Utah Municipal Bond Act, Section 11-14-1, et ‘

OI anesrnecsenssosressensesinnnsonnesedomnascsnnoncncannsssncsabeceacanecanssbeenes 7

Section 11-14-2 A SERIE RU AERC ee ile Wesedeveey 10

PE II caatcesslpiccrinntiiemnnnnssiantinsiernvinninitainb ig

Section 11-14.12 cccccccccccscssssnsssesesen ER sound 2, 22

ONO BANGED a sscscteenesnenivnnsnnaansntipensnneinvesncnncanctonits 13

Basis ceccnstcsasnsetsierieciceens SESS PINOT 14,15

I inca castistencatnnmrastasicniiiag 14,15

Senate Bill No. 3, 1970, ‘Regilar Session Utah

fo III nati sctasachaddlsdabenedciniscinieiiiteuielsesiailbnannsbadaie 10

Ordinance No. 8—1959, ‘Salt Lake City, Utah,

— PI Big, BPI cntsnsenicesceresninaciinnisaoninin 17

| In THe }

SUPREME COURT OF THE UNITED STATES

' Octoser TERM, 1969

No. 1066

CITY OF PHOENIX, ARIZONA, and MILTON H. GRA-

HAM, FRANK: G. BENITES, CHARLES CASE, JOHN

J. LONG, MILTON SANDERS, MRS:. DOROTHY

THIELKAS, DR. MORRISON F. WARREN, Members

of and constituting the City Council of the City of Phoenix,

Arizona, .

. Appellants, .

vs.

EMILY KOLODZIEJSKI, ae

ue Appellee.

. On Appeal From The United States District Court

| For The District Of Arizona

BRIEF FOR SALT LAKE CITY, UTAH,

AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

‘May Ir Piease Tue Court: | :

This brief is filed on behalf of Salt Lake City, a political

subdivision of the State of Utah, and is sponsored by-

the City Attorney of said city, the authorized law officer

thereof under Rule 42(4) of the Rules of the Supreme

Court of the United States. The nature of the city’s inter-

2-5 a

est is that Salt Lake City faces a great need for the

issuance of bonds for the; purpose of extending and im-

proving the municipal airport facilities of the city. The

Civil Aeronautics Board has given the necessaryéhpprovals

which will permit additional air carriers to utilize the

Salt ‘Lake City airport and to provide additional service

to persons seeking to use air transportation to and from’

the city. In order to provide adequate facilitiés for such

additional air service, improvements and extensions are

required to be made to the existing airport. The Federal

Aviation Administration has made $1,000,000 in grant

_ funds available to the city. for related airport projects.

In tthe agreement under which the grant funds wére

-obtained ‘the city committed itself to begin construction

by June 30, 1970 and to complete construction of certain

facilities by July 9, 1971, and hers by 1972. Because

of delays in the bonding program for the airport, the

eity may not have -sufficient funds available to complete

construction in accordance with the agreement with the

Federal Aviation Administration. This failure would put

in jeopardy any additional grant funds that might be.

forthcoming and. might result in a demand on the city

for repayment of funds already expended on projects,

because the conditigns of the agreement were not subse-

. quently ‘met by the airport. |

Throughout the early part of 1969 representatives of

the city and representatives of the air carriers serving .

Salt Lake City negotiated agreements -and leases of air-

port facilities setting charges for the use of the facilities

by the airlines. Underlying the negotiations and the agree-

ments? reached between the airlines and the city was the< .

fact that the city would call an election for the purpose~ |

of submitting to the qualified taxpaying voters of the

city the question of issuing $25,000,000 General Obligation

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' Airport Bonds of the city for the purpose of defraying

the cost of improving and extending the municipal air- .

port of said city by adding to and remodeling the existing

_ airline terminal building and facilities, constructing addi-

tional auxiliary buildings and facilities to be. used in

connection with the operation and maintenance of the —

airport, impfoving and rehabilitating airport runways,

making site relocation of airport utility facilities. made

necessary: by reason of such improvements and exten-

sions, together with the acquisition of all land necessary

therefor, and the acquisition of all appurtenant facilities —

necessary or convenient in connection with such improve-

ments and extensions, all for the use of the.traveling ©

public and others using the- municipal airport facilities.

‘ : The Board of Commissioners of Salt Lake City, in

accordance with the program agreed to with the airlines,

had scheduled an airport bond .election to be held during:

the month of August, 1969, but such schedule was aban- -

doned and the bond election indefinitely postponed when

the implications of Kramer v. Union Free School District,

395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and

Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897,

23 L.Ed.2d 647°(1969),*decided by this court on June

16, 1969, became apparent as to general obligation bonds.

Section 3 of Article XIV of the Constitution of the

‘ State ‘bf Utah requires bond elections, of the type con-

templated by Salt Lake City, to be submitted to a-vote

of such qualified~electors as shall: have paid a property —

tax therein in the year preceding the election. Inasmuch .

as Section 3 of Article XIV of the Utah Constitution has

been interpreted by the Utah Supreme Court to require

_@ taxpayer election on the issuance of sonie types of

revenue Konds, which election qualification as to revenue

“4

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bonds was held to be in violation of the Equal Protection

Clause of the Fourteenth Amendment to the Constitution

of the United States in the Cipriano case, the legal

authority of the city to call and hold a bond election

for airport purposes as originally scheduled was im-

mediately placed in jeopardy. Further, because of the

widespread publicity given to questions arising as a result

of the Cipriano case concerning the constitutionality of

the provisions of Utah law providing for the holding of

elections on the issuance of bonds, none of which pro-

visions distinguish between requirements for elections on

general obligation honds and on revenue bonds, no market

_ exists for the sale of the bonds of the city until such ques-

tions have been resolved. One paramount constitutional

question remains after the decisions in the Kramer and

Cipriano ‘cases: Do state constitutional limitations on the

right to vote at “general obligation” bond elections also:

constitute the denial of equal protection of law to non-

taxpayers who are nevertheless qualified electors, in viola-

tion of the Fourteenth Amendment to the Constitution

of the United States? .

Salt Lake City “faces the exact ie raised by the

City of Phoenix in the Jurisdictidnal Statement filed in

this appéal, in that no way exists under which a bond

election free from doubt under either the: requirements

of the United States or Utah Constitutions may now Eau

condueted by Salt Lake City. :

Salt Lake City is further interested in this appeal in

that it ha nding millions of dollars of general

obligation bonds voted at elections where only taxpaying

voters participated. In order that the credit . standing

of Salt Lake City and of all other issuers of, such mu-

nicipal bonds may be protected, the city urges that any

decision on the merits in this case which results in voiding

the general»obligation bond propositions voted on by the ,

‘City of Phoenix be made prospective and specifically

not apply to outstanding bonds in.the hands of the ye '

chasers thereof.

_ STATEMENT

_ Salt Lake City, Utah, as amicus curiae, adopts the

statement of the case appearing in the Jurisdictional

Statement of the Ofty of Phoenix, Arizona, the Appellant.

SUMMARY’ OF ARGUMENT

The continuing necessity for Salt. Lake City, and all

, other municipal corporations and political subdivisions _

authorized under state law to issue general obligation

bonds, to complete bonding programs and to sell their

bonds free from constitutional doubt as to their validity,

provides a compelling reason why -this court should. note

probable jurisdiction in this cause and’ order arguments

to be heard at the earliest opportunity. This is especially .

so because of the conflicting decisions rendered by various .

state and federal courts on the application of the Cipriano

- case in the few short months since that. case was decided.

The diversity of results reached in the reported decisions ~

%o date has contributed greatly to the paralysis of the

‘municipal bong market in Utah and in all other, similarly

situated states, \Amicus curiae does not urge that on

the merits the dourt decide one way or another, but

does wish to, discuss in this brief the application of the

pending case and of the opinions of this court in the

Kramer and Cipriano cases to Utah law and to the finan-

cial and funding efisis with which Salt Lake City and

numerous other municipal corporations and political sub-

divisions in Utah and in‘other states are now faced.

“«

—

Plans of the Board of Commissioners of Salt Lake

City, Utah, to call a bond election to be held in the city

during the month of August 1969: have been indefinitely

‘postponed until the resolution @f the question presented

in this case: Did the holdings of this court in Kramer

v. Union Free School District, 395 U: S. 621, 89 S.Ct. 1886,

23 L.Ed.2d 583 (1969) and Cipriand Vv. City of Houma, 395

US. 701, 89 S.Ct. 1897, 23 L.Ed.2d' 647: (1969) mean that

a’ state may not limit the right to vote at an election

upon the issuance of general obligation bonds to those

qualified electors who have paid a property tax in the

political subdivision calling the election?

The airport: expansion program of the city’ on which

_ depend additional air carrier service for the city and

the faith of the city in performing and completing prior:

commitments with the Federal Aviation Administration, has

been completely halted as a result of the Cipriano decision. -

The problem realistically. cannot be resolved solely by

action in the state courts, or by the state legislatures,

although as will be demonstrated efforts along those

_lines have been and are being made in Utah, but in the

last analysis the problem must be initially resolved by

this court in its determining the application of Cipriano

to general obligation bonds.

Section 3,rof Article XIV of the Utah Constitution

requires that before debt. may be incurred .an election

‘must be held at which only qualified taxpaying electors

may vote.’ While this requirement has obvious applica-

* Two sections of the Utah Constitution deal with prop-

erty tax qualifications at elections. The two sections are

Section,7 of Article. IV and Section 3 of or XIV f

which read as follows: ,

‘tion to general obligation bonds issued i by 1 a political sub-

division, the Utah Supreme Court in Fjeldsted v. Ogden —

City, 28 P.2d 144 (Utah 1933), held that where bonds

_ normally considered to be “revenue” bonds, and hence

_ free. from constitutional debt limitations, are never-

. theless payable from the revenues of existing facilities -

in addition to’ the ‘revenues arising from the facilities

to be constructed with /the bond proceeds, a debt with-

‘ in the meaning of Section 3 of Article XIV of the

Utah Constitution is contracted and-a taxpayer election

‘is required in order to authorize the issuance of the

revenue’ bonds. The doctrine -so adopted by the ‘Utah

Supreme Court is usually referred to as the “restrictive

. special fund doctrine.” In Thompson v.. City of Centerville,

417 P.2d 670 (Utah 1966), the Utah Supreme Court held -

that contract purchasers of real property and spouses

of taxpayers which spouses did not own property on: the .

tax rolls, could not be permittéd to vote at a bond election.

“The Utah Municipal Bond Act, Section 11-14:1 et seq.

_of the Utah Code Annotated 1953, as amended, constitutes

ffl.

' (Continued)

Sec. 7 [Property fate rar when forbidden.]

Except in elections levying a special tax or creating

indebtedness, no property qualification shal be re-

quired for any person to vote or hold office.

See. ‘3. [Debts of counties, cities, towns, ahd school

districts not to exceed revenue—Exception. ]

No debt in excess of the taxes for the current year

shall be created by any county or subdivision thereof,

or by any school district therein, or by any city, town

or village, or any subdivision thereof in this. State ;

unless the proposition to create such debt, shall have -

been submittéd to a vote of such qualified electors as. .

shall have paid a property tax therein, in the year pre-.

ceding such election, and a majority of those voting --

thereon shall have voted in favor of incurring such

debt.

Pad

- ,

. ane

the legislative authority under which most Utah general

obligation and: reventie bonds are voted and issued. The

Utah Municipal Bond Act, in Sections 11-14-2 and 11-14-5

‘limits the right to’ vote at bond elections to qualified

taxpaying electors of the issuing political subdivision.’ ©

In view of the problems concerning municipal bond elec-

tions arising from the Cipriano decision and the litigation

Sections 11-142 and’ 11-14-5, Utah Code Annotated

1953, as amended, both part of the Utah Municipal Bond

Act,

"read as follows:

11-14-2. Election o bond issues required—Con-

tents of resolution and, election notice.—The govern-

ing body of any municipality desiring to issue bonds

pursuant to the authority granted in section 11-14-1

-shall by resolution provide for. the holding of. an

election therein on the question of the issuance of

such bonds, and such bonds may be issued only if at

such election the issuance thereof shall have been

approved by a majority of ‘such qualified electors of |

the municipality as shall have paid a property tax

therein in the year preceding such election, who vote

on the proposition. This section does not require an

election for the issuance of refunding bonds or other

bonds not required by the Constitution to be voted

at an election. The resolution calling the election and

the election notice shall state the purpose for which

the bonds are to be issued, the maximum amount of

_bonds to be issued, the maximum number of years

from their respective dates for which such bonds

may run, and the maximum rate of interest which

they may bear. The purpose may be stated in general

terms and need not specify the particular projects

for which the bonds are to be issued or the specific

- amount of bond proceeds to be expended for each

. such project. In addition, if the municipality is an

improvement district and if the bonds are to be pay-.

able in part from tax proceeds and in part from the

operating revenues of the district or from any com-

bination thereof, the resolution and notice shall so

indicate, but need not specify how the bonds are to

be divided as to source of payment. ;

a lw

presently pending in Utah® and elsewhere on the subject,

? (Continued) ,

* 11-14-5. Qualified electors at bond elections—De-

termining voters’ qualifications—The words “quali-

fied electors of the municipality as shall have paid

a property tax therein in the year preceding such

election” as used herein shall have the same meaning

as do the same words appearing in section 3 of

Article XIV. of the Utah Constitution. Election offi-

cials conducting bond elections and county officials

whose duty it may be to supply records to such elec-

tion officials for use in determining voters’ qualifica-

‘tions shall interpret the aforesaid words in the light

of the following instructions:

(a) <A qualified elector’ shall. be deemed to have

paid the required property tax in the municipality

or other entity so proposing to issue the bonds if

he owns any property therein, title to which is held

in his name, and he has paid any property tax there-

on during the twelve months preceding the election.

(b) The spouse of any ‘person mentioned in sub-

paragraph (a) shall not be deemed to have paid a >

- property tax unless such spouse can qualify indepen-

dently under the terms of subparagraph (a)..

A person whose name appears on the official as-

. sessment and tax rolls of the county or counties in

which the municipality or entity is located as having’

’ paid a tax on property in the municipality or entity _-

during the twelve-month period immediately preced-

ing the bond election shall prima facie be considered

. Ao have paid the property tax required to qualify him |

“ to vote in the election.

*In Cypert v. Washington County School District, Civil

No. 4146, Fifth Judicial District in and for Washington

County Utah, plaintiff seeks to enjoin the sale of certain

' general obligation school bonds voted at an election held

on May 27, 1969,; where the contest period provided for

by Utah. law had not expired on June 16, 1969.- The

Cypert case has been tried and submitted to the trial _

judge but no decision has as yet been rendered. In Ander- |

son v. Ogden City, Civil No. 50717, District Court of «

ig ine

the Utah Senate on January 97, 1970, and the Utah House

of Representatives on Jantary 29, 1970, adopted Senate

Bill No. 3° of thie 1970 Regular Session of the. Utah Legis-

lature, amending Section 11-14-2,- Utah Code Annotated,

~ 1953, as amended, to provide that if the taxpaying elector

requirement of .Section 3, Article XIV, of the Utah Con-’

. stitution shall ever be removed by vote of the people or

declared to be in violation of. the requirements of the Con-

stitution of the United States that all qualified electors may

henceforth vote ‘at all bond elections.* It is obvious that

* (Continued ) 0%

rae County, Utah, Ogden City has adopted proceed-_

* ings calling a revenue bond election.to be held on Febru-

ory y il, 1970, limiting the right to vote to taxpayers. The

plaintiff i in the Anderson case seeks to enjoin the calling

and holding of fhe election. The Anderson case has not’

been heard by the trial court.

‘ The text of Section 1 of Senate Bill No. 3, 1970 Regular

Session Utah Legislature, as passed by the Utah Senate

and. the Utah House of Representatives, but as yet not

signed by Governor Rampton is as follows:

Section 1. Section 11-14-2, Utah. Code Annotated

_ 1953, as enacted by Chapter 4, Laws of Ua 1965,

is ‘amended to read:

11-14-2. ‘The governing body of any ‘ieindhehiality

desiring to issue bonds pursuant to the authority

granted in section 11-14-1 shall by resolution provide |

for the holding of an election therein on the question

of: the issuance of such bonds, and such bonds may

be issued only. if at such election the issuance thereof

shall have been approved by a majority of such.

qualified electors of the municipality as shall have

paid a. property tax therein in the year preceding |

such election, who vote on the proposition; provided,

however, if the provisions of the Utah Constitution

' which limit the right to vote at-such an election to

such qualified electors of | the municipality as shall

have paid a property tax therein in the year preceding

‘such election are removed by constitutional amend-'—

—11—

implementation of Senate Bill No. 3 awaits the decision -

of this court in this cause. Efforts to solve the problems

raised by the Cipriano case by holding two elections, oné

at which only taxpayers vote and one at which all qualified

electors “vote, are beset by concern that no authority

exists under state constitutions for a legislature to au-

thorize’ non-taxpayers to vote at a bond election, and

secondly, whether because the taxpayers retain a veto

over the issuance of the bonds even though a majority

of the qualified electors voted in favor of the issuance

of the bonds, the requirements of this court in “one-man,

one-vote” cases such as Reynolds v. Sims, 377 U.S. 533,

12 L.Ed.2d 506,84 S.Ct. 1362 (1964), will be violated.

* (Continued)

ment or are held to be in violation of the Constitution

of the United States by the Supreme Court of this

state or of the Supreme Court of the United States

-and hence inapplicable. to such election or if the

municipality is not a county, school district, city or

town which is subject to the provisions of Article

XIV, Section 3, Utah Constitution and hence the .

limitations of such section are inapplicable to a bond —

election held by such a municipality, then it is the

express intention of the legislature that ag ewer eer

for the issuance of bonds under the Utah Municipal

Bond Act shall be submitted at an election at which

-all qualified electors of the municipality may vote, |

and such bonds may be issued if the proposition is

approved by a majority: of those voting on the propo-

sition who are entitled to vote at such election as

provided in this section. .A bond election at which —

. all qualified electors shall be permitted to vote as ©

provided above shall be called, held and conducted

as otherwise provided in the Utah Municipal Bond °

Act except that the provisions and requirements of.

sections 11-14-5, 11-14-6 and 11-14-11 limiting the right

to vote to. the qualified electors of ‘the municipality .

as shall have paid a property tax therein in the year

While used in some areas, because of the constitutional

problems mentioned above, this approach has generally |

been considered to be, at most, a temporary and cumber-

some solution. - 3

Section 11-14-12, Utah Code Annotated, 1953, as

- amended, contains a bond election contest provision

‘similar to that discussed, and relied upon in the Cipriano

opinion, and as applied by the Louisiana’ Supreme Court

in Andrieux v. East Baton Rouge Parish School. Board,

227 So.2d 370 (Louisiana 1969).5—

*f Continued) —

preceding the-election or requiring proof of, payment

of such property tax or referring to a vote of prop-

erty taxpayers ‘shall not apply..This section does

not require an election for the issuance of refunding

bonds or other bonds not required by the Constitution

to be :-voted at an election. The resolution calling |

the election and the election notice shall state the —

purpose for which the bonds are to be issued, the

maximum amount of bonds to be issued, the maximum

number of* years from their respective dates for

which such bonds may run, and the maximum rate

of interest which they may bear. The purpose may

be stated in general terms and need not specify the

particular projects for which the bonds are to be

issued or the specific amount of bond proceeds to be

» -expended for each such project. In addition, if the

municipality is*an improvement district and if the

bonds are to be payable in part from tax proceeds

and in part from the operating revenues of the

district or from any combination thereof, the resoln-

‘tion and notice shall so indicate, but need not specify

‘how -the bonds are: to be divided as to source of

payment.

‘The bond election contest provisions, set forth in the

Utah Municipal Bond Act, Section 11-14-12, Utah Code

Annotated 1953, as amended, read. as follows:

11-14-12. Contest of election and legality of bonds

—Procedure.—The general election laws with respect

| a

Section 11-14-19 of the Utah Code Annotated 1953, as

amended, provides that all bonds not paid solely from

revenues constitute full general obligations to which the

full faith and credit of the municipal corporation is

‘ pledged®. Such bonds: enjoy an obligation on the part of

* (Continued)

to the contest of elections. shall be applicable to bond .

elections. Any such contest shall be regarded as one

contesting the outcome of the vote‘on the proposition,

rather than election to office, the municipality or other

entity. calling the election rather than a person de-

clared to have been elected to office, shall bé regarded

‘as the defendant, and one of the grounds of contest

may be the lack of the required qualifications of

voters in sufficient numbers to change the. result of

the bond election.

When the validity of any bond election is ‘contested, . _&§

the plaintiff -or plaintiffs must, within. forty days

‘after the returns of the election are canvassed and

the results thereof declared, file with the clerk of the: -&§

district court of the county in which any part of the

municipality or entity conducting the bond election

or some part thereof is located, a verified written .

complaint setting forth spécifically : x

(1) The name of the party contesting , the bond

election, and that he is an elector of the municipality

or entity conducting the bond election.

(2) The proposition or. propositions voted on at

the bond election which are contested. _

“(3) The particular grounds of such contest. No

such ‘contest shall be maintained and no bond election

shall be set aside or held invalid unless such a com-

plaint is filed within the period prescribed in this

section.

-® Section 11-14-19, Utah Code Annotated 1953, as

amended, reads as follows:

11-14-19. General obligation hnte~ tales and col-

lection of taxes.—Any bonds issued hereunder in such

manner that they are not payable solely from revenues .

other than those derived from ad valorem. taxes

oe, ae

the issuing entity to leyy and collect annually ad valorem ~—

taxes without limitation as to rate or amount fully suffi- .

cient: for the purpose. Under the provisions’ of Sections

‘59-10-38 and 59-10-42 Utah Code Annotated 1953, as |

* (Continued) “> oar"

shall constitute full general obligations of the mu-

nicipality, for the prompt -and punctual payment of.

‘principal of and interest on which the full faith and ©

_eredit of the municipality are pledged, and the mu-

nicipality is hereby expressly required, regardless

of any limitations which may otherwise exist on.the

amount of taxes which the municipality may levy, .

to provide for the- levy. and collection annually of

-ad valorem taxes without limitation as to rate or

amount on all taxable property in the municipality

- fully sufficient for such purpose. If by Jaw ad valorem

taxes for the municipality are levied by a board

other than its governing body, the taxes for which

provision is herein made shall be levied by such

other board and the munivipality shall be under the

‘duty in due season in each year to provide such other

board with all: information necessary to the levy

of taxes in the required amount. Such taxes shall

be levied and collected by the same officers, at the

same: time and in the same manner as are other

taxes levied for the municipality. ~~ ,

If any municipality shall neglect or fail for any —.

reason to levy or collect or cause: to be levied. or

collected sufficient ‘taxes for the prompt and punctual -

‘payment of such principal and interest, any -person

in interest may enforce levy and collection thereof

in any court having jurisdiction of the subject matter, .

and any suit, action or proceeding brought by such

.person in interest shall be a preferred. cause. and

shall be heard and disposed of without delay. All

- provisions of the Constitution and laws relating to

the collection of county and municipal.taxes and tax

sales shall also apply to and regulate the collection

of the taxes levied pursuant to this section, through

the officer whose duty it is to collect the taxes and

_ Money due the municipality.

ie:

amended, taxes are: made a lien on the property of a tax-

payer, which lien may be sehr se upon for ener

. taxes.’

This eourt ’ in the Cipriano case stated that deans:

nation in voting Yftalifications at revenue bond elections

based upon the taxpaying status of the voter violates |

the Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of: the United States. Un-

_ fortunately, it is the same constitutional provision under

Utah law which requires a -taxpayer election for general

7 Sections 59-10-3 and. 59- 10-42, Utah Code Annotated

1953, as amended, read as follows:

59-10-3. Nature and extent of lien .—Every tax

upon real property is-.a lien agains the property

assessed; and évery tax due upon impr ements upon

real estate assessed to others than the owtier of the

real estate is a lien upon the land and improvements ;

which several liens attach as of the Ist day in January

. of each year.

59-10-42. Time—Venue—Parties—Pleading.—In all

cases where any county claims a lien on real estate

for delinquent general taxes which have not been

paid for a period of four years, such county may

foreclose such lien by an action in the district court

. of the county in which the real’ estate is located. In

any such action all persons .owning or having or

claming an interest in<or lien upon the real estate -

- or any part thereof may be joined as defendants,

and the complaint shall contain a description of the.

land, together with the amount claimed to be due

thereon, including interest, penalties and costs, and if

the name of the owner of any such real estate cannot

be ascertained from the records of the county, then

the complaint shall state that the owner is unknown

to the plaintiff. It-shall be sufficient to allege in such

complaint that a general tax has been duly levied

upon the real estate described therein, without stating

_ any of the gio cdl or steps leading up to the

‘levy of such tax.

—~ 16

obligation bonds as requires a taxpayer election for

revenue bonds and hence, to the extent that it applies.

to revenue bonds, the taxpaying restriction of Section

3 of Article XIV of the Utah Constitution is clearly void

under the Cipriano decision. However, Salt Lake City

wishes to vote and sell general obligation bonds -for

airport expansion purposes, but is prevented from doing

so for the reason that neither the Utah Supreme Court,

nor this court, has passed on the questions of (1) whether

Cipriano applies to general obligation bonds, and (2)

' whether there is authority for Salt Lake City to call an

election for the issuance of general obligation bonds if

the Constitution of Utah is only in part unconstitutional.

Thus, Salt Lake City has no way it can hold a bond

election which will not be: subject to constitutional attack,

under either the federal or state constitution, depending

on whether or not non-téxpayers were permitted to vote

‘at the election. This is the exact problem facing the City

of Phoenix and arises from the | same constitutional ques- |

tions presented i in this appeal.

In the Ohotians opinion, attention was - iealled to the

circumstances under which arguendo “a State might, in

e cireumstances, constitutionally limit the franchise

‘to qualified voters who are also ‘specially interested’ in

the election. . .” 395 U.S. at 704. In this appeal, the ae

tion is posed as to the quantum of “interest” of the tax-.

payers and non-taxpayers in the context of. a general

obligation bond issue when, under the state law, the full

faith and credit of a municipal corporation is pledged

to the repayment of the bonds, together with the obliga- ~

tion imposed by law to levy and collect sufficient ad

valorem taxes, which taxes constitute a forecloseable

lien on the property of the taxpayer. This is unlike a

revenue bond payable solely from revenues as considered

a ath

in the Cipriano case, even though under Utah law no

difference is recognized for purposes of the state ‘con-

- stitutional requirement of’ ‘an election on the incurring

of “debt”. The characterization of the differenees between

“general obligation” “revenue” bonds is deceptively

_ easy, but an analysis-in terms of actual municipal finance

practices becomes extremely difficult.. The proposed gen-

eral obligation airport bond election of Salt Lake City _

provides a good example of thiseomplexity in terms

of the constitutional questions now before the court in

this appeal.

The city is now, and a | in the future, Saki: airport

facilities to the ‘air. carriers serving the city at rentals

which will be sufficient to pay the cost of operating ‘the -

airport facilities so leased and used by the carriers in

providing air service to the city, and the payment of debt

service on the general obligation bonds of the city issued

for airport purposes. It has been the practice of the city

that debt service on the outstanding general obligation —

airport bonds of -the city i is, infact, paid for from airport

. Trevenues, although the outstdnding bonds were voted and

issued as general obligation bonds and the city is obli-

gated under the terms of the authorizing ordinance: to

* levy and collect the necessary taxes if the revenues are

ever insufficient for the purpose.* The airport — which

* Section 11 of Ordinance No. 8-1959 of the City of . |

Salt Lake City, Utah, as adopted on February 11, 1959,

reads as follows:

S 11. That from and after the delivery of:

any of the bonds authorized to be delivered under

this ordinance and so long as any of said bonds are

outstanding or unpaid either as to principal or inter-

est, the entire gross: income and revenues of Admin-.

istration ee No. 2 shall be used (1) for the ;

; | ee

the city now hopes to bé able to issue will also he denom- :

inated as general obligation bonds but it is. the intention of

the city in fdct to pay such bonds from airport revenues to

. the extent revenues are available. The pts gl the taxes

will be abated in each year in which such taxes need not be ~

collected because of the availability of airport reyenues to.

pay debt service. It is apparent why municipalities seek’ to

issue bonds in such manner. Bonds payable solely from

_revenues must be sold at-higher interest rates because of the

greater risk to the investor, therefore general obligation

boritis carrying a full faith and credit tax pledge are sold

at an interest rate which is lower than revenue bonds would -

bear. This gives the investor greater protection, but as

, , the bonds are retired from revenues, from the use of the,

facility, the tapayers are relieved: in most years of the

obligation tos:pay taxes. “This practice is quite common

throughout the country in ‘many general obligation bond —

issues for various facilities which generate revenues,

such as airports.

What, then; are the relative “interests” .which must be

_ constitutionally protected in a voting rights case con-

cerning a bond election? Is the possible contingent liability

ilies

: (Continued)

maintenance and operation of ‘the building, (2) for.

the payment of the principal of and interest on the

bonds issued pursuant to}this ordinance, and (3) in

such other lawful manner as may be determined by

the Board of Commissioners; provided, however, that

nothing herein- contained shall be. construed as con-

ferring contractual riglits on the bondholders. insofar

_ as the application of such revenues is concerned,-and .

provided, further, that the income and revenues de-

-. rived from the operation of Administratjon Building

No. 2 sliall be collected, held and disbursed“in ac-

cordarice. with procedures established by law govern-

ing public funds.

; . ; 4 ; .

; re - 2 |

=» 1 ; ch

s* &

_of the taxpayer to the collection of the tax or the fore-

closure upon his property for. failure to pay, the tax

levied to retire a bgnd issué, such an interest as requires

‘that constitutionally the state may provide that only he

and not the non-taxpayer eléctor may vote on the issuance.

_ of the bonds and hence on the question of whether or

not the municipality shall acquire the project involved?

Does the “interest” spoken of ,at great lengths in the

| Kramer and Cipriano opinions relate to the burdens

imposed by the results of a bond -election,.4.e., the levy

and collection of the taxes, or does it relate to the interest .

of the voters generally in the community in the desifa-. ..

bility or necessity for the acquisition of. the facilities

of the bonding program being voted upon 4t the election?

Who is the most “interested” in the proposed Salt Lake

City airport expansion? It can be suggested that most .

directly interested are the airline companies, non-resident |

travelers, resident corporations whose business will benefit

_from expansion of the airport, but none of whom may

vote at the bond election nor whose interests would’

-be protected by a decision of this court holding tH@t all

qualified electors,miay vote. Can and should the lffe as

to the validity of election qualifications at bond elections

be drawn solely on the supposed degree of “interest” .

of those included or excluded as a result of a taxpayer

- qualification, or does the logical extension of the Kramer

and Cipriano cases mear that under no circumstances

may a taxpayer qualification be constitutionally imposed.

‘at an election, whether held for revenue bonds, general

obligation bonds, or even for s 1 millage purposes.

Many who are interestedin the y Rees of a bond elec-

tion in, only a subjective way cannot vote ‘under Utah

law, and? many who are interested oly in a slight degree

are permitted to vote, while many would be, permitted

— 20 — cane

to vote who have only slight interest if the. decision of

this court would mean that all quglified electors may vote.

In addi#ion, persons not now interested either in use of

-the airport or in the levy of taxes, may in the future

becéme taxpayers and be subject to the levy of taxes

to retire the bonds or may become users of. the facilities.

Are such persons who will subsequently become interested

‘in the project, df be subject to the. levy. of taxes, to be

disenfranchised, or in the last analysis must all qualified

‘electors be permitted to vote at such a bond election?

All such questtons are presented te-the court in thig

“appeal, and apply not only to the City of Phoenix, but

to all municipal corporations in aN states whose laws

provide taxpaying qualifications at general obligation bond

and other special purpose elections. It is imperative, \,

therefore, ‘that this court accept jurisdiction of this case }

and set the cause down for as a argument.

‘In the few short months since June 16, 1969, many

“lawsuits ‘have been started all over the country testing

i the application of the Cipriano case. to various situations.

‘As-pointed out, swpfa, two of such cases are now pendiig -

in the. Utah courts. In recent weeks several of these _

cases have been decided, demonstrating further the con-

fusion resulting from the hiatus surrounding the lack of”

knowledge on the part of municipal corporations and the

purchasers of municipal bonds of whether the Cipriano

decision eliminates a general obli- |

. gation bond elections: For example, the decision of the

trial court in this case is in_direct conflict with the holding

of ‘the Supreme Couft of the State of Idaho rendered

on January 16, 1970, in Muench v. Paine, No. 10552, the -

text of which opinion is set forth in full as anYappendix.’ /

Yt to this brief. It is submitted that the conflict sid the —

}

See

courts of both nan federal and state judigiary is in itself |

a compelling argument for a prompt heaFiligrngd de decision

in this case.’

In the Cipriano opinion this court recognized the neceés-

_ sity of not giving its decision as to revenue bonds full

_Yetroactive effect. Such necessity afyplies equally as well

to ‘general obligation bonds as involved in this appeal.

The credit of all political subdivisions would suffer if

general obligation bonds previously voted under then

» thought to be valid state laws and sold to the investi ing

te .

public, prior to- the Cipriano case could now be attacked

on the grounds, of the invalidity of the election under

the requirements of the -Federal Constitution. Inasmuch

as few if any bonds have been voted and fewer bonds

_ issued in states having taxpayer qualifications as to gen-

eral obligation bonds since the Cipriano decision, unless.

the court feels the necessity of uniform application ~of

the’ prospective nature of its ia ss revenue

d general obligation bonds, it would seem to be

esirable for any decision in this casé as. to general

- obligation bonds to be prospective from the date of the

2?On January 23, 1970 a.three-judge. eases in the United

States District Court for the Western District of Louisi-

ana, Shreveport Division handed down a decision jn

Hobbs v. Police Jury of;Morehouse Parish, Civil Action

No. 14836, holding that under the prescriptive language

appearing .in the Cipriano .case, the passage bf the state

peremptive period after June 16, 1969, without challenge

by a non-taxpayer who is an otherwise ualified elector,

bars the institution of suit attacking. the “validity of a

. general obligation hond election wherein is alleged, the

unconstitutiondlity of the Louisiana Constitution / and

Stafutes insofar as they require a voter at an eléction

on thé issuance of = obligation bonds to be a tax-

payer... }

s 7 itt

ew opi ion. The main reason for this is that many

oe e = on

general obligation bond issues which were voted ‘before

June 16, 1969, where either the state contest period, such

as that provided in Section 11-14-12, Utah Code Annotated,

1953, .as_ amended, had’ not: ‘expired on June 16, 1969, .

‘or ‘state law.did not provide 2 contest period such as the

court .referred ‘to.in the Cipriano opinion, have simply

‘ - not been marketable because of: the éonstitutional ques-

' tions raised in the Cipriano case as discussed inthis

brief. It.has been thought ‘that only if the state contest

‘period had expired on June 16, 1969, would general —

obligation: bonds beNree from doubt under the ruling

in the Cipriano case. Thus the decision of this court, °

’ making ‘its opinion as to general obligation ‘bonds apply

only from the date of that new opinion, would then permit

"» the successful sale of many previously voted..duthoriza-

4. tions now delayed and would permit the sale of such

Constitution, : . +& :

‘bonds without the additional expense of holding new

. elections and without incurring delays pending the time

needed for state bond election laws to be brought into

conformance -with the requirements of the United States

ae:

ine CONCLUSION

> | lal ° A

i : . ~ . ‘ Ge

- Salt Lake City, here amicus curiae, citing the post-

ponement of the bonding program for its urgently needed

airport expansion, the effect of such postponement on its

“commitments to~ the Federal . Aviation Administration

to complete the airport construction, the conflicts~now

-existing in the reported decisions of state and federal

‘courts. as to the. application of the Cipriano deaision to

. general obligation bond issues,, requests that this court

note probable jurisdiction in this appeal, set the cause

. for early argument: and rend¢r a decision as soon anneal |

after as possible. ee prea AY

Poi a | .

Respectfully submitted,

‘Jack L. CRELLIN

‘City & County Building

Salt Lake City, Utah 841i

City Attornéy. - :

Panur H. Horm

- CHapMaN AND CUTLER

111 West. Monroe Street

Chicago, Illinois 60603

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IN THE SUPREME COURT OF THE STATE

, aie OF IDAHO"

Ernst G. Muench and: ae

-Lloyd Taylor,

3 — Plaintiffs,

v. .

Marlin Pain, Archie Yamamoto,

James Nafsinger, Brice Bartlett, | - No. 10552

Leonard D. Wagers, Trustees of > January 16, 1970

School District No. 139, Canyon =k *

County, Idaho; and Wilma Law,

Clerk of the Board of Trustees of |. -

School District No. 139,. Canyon

* =County, Idaho,

———-. > ———

McFappen, C.J.

Both Ernst. G. Muench init Lloyd Taylor, the plaintiffs

in this original proceeding, are residentg of School Dis-

- trict No. 139 in Canyon County, Idaho. ‘Plaintiff Taylor .

has children attending school in this distrist, and plaintiff

Muench is a real property taxpayer in the district. . They

instituted this action seeking a writ of prohibition to

prohibit and restrain the defendant trusteés ‘of School

District No. 139 of Canyon County from selling general

- Defendants: — ——

obligation school bonds in the amount of $805,000, after

_ issuance of such bonds was approved in a school bond

election held on May 27, 1969. An alternative writ of

prohibition was issued by this. court and, hearipg was had

by this court followirig the filing of the defendants’ return

to the plaintiffs’ petition, ce

mf The facts before this court are cae eed In April

1969 the defendants as the Board of Trustees of School

District No. aad pan a resolution calling for a bond

— ‘es

election at which the voters would decide whether ‘general.

obligation bonds in the amount of $805,000 should be’

- issued for the purpose of acquiring school sites and im-

proving school facilities by building, furnishing and equip-

ping two elementary school ome in the district.-

Pursuant to~L.C. § 33-404? the-frfnchise in this election

‘was limited to qualified electors of the State and residents -

_ of the district who are taxpayers (or the spouse of a

taxpayer) on real property located in the district. The

* LC. § 33-404. “Qualifications of school electors Any -

person voting, or offering to vote, in any school election :

must be, at the time of the election:

1. An elector within the meaning of article 6, section

2 of the Constitution of the State of Idaho: .

2. A resident of, the district and, in the case of election

‘of trustees, a resident of the same trustee zone as

the candidate or candidates for school district trus-

. tees for whom he dffers to vote; -

In addition to the foregoing qualifications, a school :

elector must be: ~

a. A parent or guardian of any child or children under

the age of twenty-one (21) years,)when such child

or children. reside in the district; -or

b. A taxpayer. on real or personal property situate in.

the district, or spouse.of such.taxpayer; .

and shall. have executed, in writing and immediately be-

fore voting, a form of elector’s oath attesting that he or

\she possesses the qualifications of a school ‘elector pre-:

scribed bythis section. The forms of electors’ oaths

shall be included in the records and returns of the board

_ of election,

In any school election held on a Salalh to incur, in-

erease or assume any indebtedness, or to approve a levy

for any school plant facilities resérve fund, any person

: —woting” or offering to vote in such election shall have and

possess the qualifications set forth in (1) and (2), above,

_ and in addition thereto be a taxpayer on real property

situate in the district, or the spouse of such, taxpayer.

_ For the purpose of this section, a taxpayer on real

property shall be one who pays.taxes, or who is obligated

as owner or contract purchaser bes pay _— on Teal

property. tee

— 3a—.

j = ,

plaintiffs maintain that a writ of prohibition should issue:

to prohibit the sale of these bonds, which were approved

at the election by a vote of 723 to 297, on the ground

that the election was invalid in that I.C. § 33-404 in limit-

ing the franchise to voters in the district who were real

property taxpayers is unconstitutional as a_ violation of

the equal protection clause of the Fourteenth Amendment

of the United States Constitution and, in violation -of

Sections 2,. 3 and 20 of Article 1 of the Constitution of | J

this state. . In support of their position, plaintiffs cite ,

Kramer v. ‘Union Free School Dist., ........ REI sees , 23

. L.Ed.2d 583, 89 S..Ct. 1886 (1969) and Cipriano v. City

* gf Houma, .....:.. U8: i.) 23 reachane 647, 89 8. Ct. ..,

1897 (1969). 7

At the outset a question is presented whether a peti-

tion for a writ of prohibition is the proper procedure

for bringing this case before the court. I.C..§ 7-401, pro-

vides that a writ of prohibition can issue only to arrest

“the proceedings of any tribunal, corporation, ghoard or

person, when such proceedings are without orf in excess ~

of the jurisdiction. of such tribunal, corporation, board I.

? Art. 1 § 2. “Politicak power inherent in the people.—«

All political power is. inherent in the people. Govern-

4 ment is instituted for their equal protection benefit,

es “and they have the right to alter, reform or abplish the

Same whenever they may deem it necessary; and no spe- N

cial privileges or immunities shall ever be granted that /

rd not be altered, — or repealed by the -legis- .

ature.

Art. 1, $ 3. “State i inse arable part of Union.—The state

_and the Constitution of the United States is the supreme

law of the land.”

Art.. 1, § 20. “No property qualification. required ‘of

electors—Exceptions. —No property qualifications. shall.

ever be required for any person to vote or hold office .

except in school elections, or elections creating indebted- —

ness, or in irrigation district elections as to which last-

- named elections the legislature may ‘restrict the ‘voters to

land owners.” ms

* ieee en 4a—

or person.” Moneorly, such wyit*is not available asia

there is no ,plain, ‘speedy and! adequate remedy jin the

ordinary course of law. Clearwater Timber ‘Protective-

Ass'n v. District Court, 84 Idaho 129, 369 P.2d 571-(1962).

In a proper case this court. has the authority to issue a

writ of prohibition. Art. 5, § 9, Idaho Const.; LC. §

1-203. |

In Baker v. “Goods ing Rennes, 25 Idaho 506, 138 7

342 (1914), this court held that a‘writ of prohibition

- would lie to restrain county commissioners: from selling

bonds when it appeared that the resolution. for submitting

the bond issue to the ‘electorate had not been properly

, passed. ‘Under such circumstances, this court held, the

_ commissioners were acting in excess of their jurisdiction.

‘The issue before the court is of such great public interest

. affecting. the validity of existing bond. issues.and the .

rights of the several schodl districts of this state (as well

as other taxing apthorities of this state) that a decision

on the issues is déemed essential inthe intetests of the ~

welfare of this state. See Rich v. Williams, 81 Idaho 311,

341 P.2d 432 (1959); White v. Young, 88 88 Idaho 188, 397 ‘

P.2d 756 (1964). It is the conclusion of. the court that

. the petition for a writ of prohibition is the proper pro-

cedure for challenging the validity of the particular bond

election in question.

The defendants, -by their return to ‘the petition, allege

that the election involved in this action was héld May 27,

1969 and that the trustees of ‘the district canvassed the

_ results of the election the same day: They further allege.

that the petition herein was filed on September 14, 1969,

and then contend that by reason of the provisions ‘of

S.L. 1969, Ch. 208, now LC. § 34-2001A, that the instant

action was not timtely brought. Some donbt is entertained

by the.court as to the applicability of. that act to the

instant case. In particular there is a question as to

whether this original proceeding challenging the consti-

§ 34-2001 A. See Kramer v. Union Free School - Dist.,

VSO ELSES OE REGEN AB IRIEL EM 0 TPO iy Mtn AE AID ORE AL A A PORTED Bh em faye runt View WHE ee

on PE ree renee La

_—

supra, and Cipriano v. City of Houma, supra. However,

the defendants expressed -to the court .in argument that -

they waive this forty day time limitation as a defense to

this action. ee ES) 6 SAME

This court is ‘aware of the crises facing, so-many of i

the school districts in this state a¥ expressed by counsel”

and by the amicus ‘curiae in their ‘respective briefs. The

school distriets are under-constant pressure for additional’

facilities by way of new building, new classrooms and the

necessary equipment for such new construction, the need .

‘for which is created by the continual increase in the num-

ber of children reaching school age. The school districts

in the state can meet the demands for such new construc-

tion only by raising the funds from the sale of bonds

which have been authorized at an election following regu-

lar proceedings to present the issue. We also recognize

the fact that at present the bond issues of this state that

have been approved. are, not saleable in fhe open market.

Because of these urgent problems facing the school dis-

tricts of the stategand because of the great public, inter-

est in the result of this litigation® it is the conclusion of

this court that the waiver by the defendants of the de-.

fense alleged in their answer that the cause is barred

the time provisions of LC. § 34-2001A, will be accepted

and redetermination of such issues reserved for a future

case. Branson v. Firemen’s Retirement Fund, 79 Idaho |

167, 312 P.2d 1037 (1957); Rwera v. Johnston, 71 Idaho —

70, 225 P.2d 858 (1951).;.Frisbie v. Sunshine Mining Co.,

93 Idaho ........ , 457 P.2d 408 (1969). |

We come then to the céntral issue of whether the

statutes of this state, and in particular-LC. $¢$3-404

(supra, note 1), restricting.the franchise in school bond

elections to real property taxpayers and their spouses is

unconstitutional. The plaintiffs do not challenge that

’See Rich v. Williams, 81. Idaho 311, 341 P.2d 432

(1959); White v. Young, 88 Idaho 138, 397 P.2d°756

(1964). | 2 tse

5 7 .

Ds 4

‘portion of LC. § 33-404 which requires that a voter be —

3 pe -

—6a—

an elector under the provisions’ of Idaho Const. Art 6,

§ 2 and a resident of 4 school district. They do, however, |

challenge that portion of the statute requiring that a

voter in a “school election” be the parent or guardian of

a child under twenty-one years of age or a taxpayer on

portion which requires a voter in a “school election\held

on,@ proposal to incur, *.* * any indebtedness” to a

taxpayer, or spouse of a taxpayer, on real property.

real or personal property located in®the disttict fon el

LC. § 33-404 sets put qualifications for voting in two

distinct types of elections: ie. “school elections” and

“school elections held on @ proposal ‘to incur indebted-

ness.” The parental and-real or personal property tax-

payer qualifications are. applicable only to the former

and are not involved here. -However, in view of Kramer

v. Union Free School Dist.; supra, such, qualifications are

unconstitutional when applied to school elections. We are

concerned solely with the validity of the real property ~

taxpayer requirement in a “school election held on a

proposal to incur * * * any indebtedness.”

“It long been settled that the United States Consti-

tation vés establishment of voter qualifications to the

individual states. United States Constitution, Art. 1,

§ 2; Lassiter . Northampton founiy, Election Board, 360

U.S. 45, 79 S.Ct. 985, 3 L.Ed-3d 107351959). Only when

these {qualifications result in an invidious discrimination

are théy in violation of the equal protection clause of the

United States Constitution. See Harper v. Virginia State

Board of Elections, 383 U.S; 663, 86 S.Ct. 1079, 16 L.Ed2d

169 (1966). me:

The discrimination between‘ property oners"end non-

property owners in ‘élections té}create indebtedness was

_- authorized in Idaho ‘since adoption of its constitution in | .

1890, Idaho Const, Art. 1, § 20; Wiggin v. City of Lewis-

ton, 8 Idaho 527, 69 Pac. 286 (1902) ; Hartman v. Meier,

39 Idaho 261,227 Pac. 25 (1924). See also Bissett v.

’ Pioneer Irrigation Dist., 21 Idaho 98, 120 Pac. 461, (1912) ;.

= Carville « v. McBride, 202° Pac. 802 (Nev.. 1922). ‘The

”

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ar acl SANT Neth * ado

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: — Ta

plaintiffs, however, siaitais that the’ existing Idaho Con-

. gtitutional provision, statutory law, and decisiows of this —

court have been rendered unconstitutional by the United

States Supreme Court in Kramer v. Union Free School

Dist., ...... U.S. ....., 23 L.Ed.2d 583, 89-S.Ct. t 1088 (1969) ;

and Cipriano v. City of Houma, scotes NO EBs: ss 4 23 L.Ed.2d

647, 89 S. Ct. 1897 (1969). ni

The defendants contend ‘that ‘Kramer v. Union Pree

School Dist., supra, and Cipriano vy. City of Howma, :

supra, are inapplicable to the present case. They seek to

distingish these cases on the gtound that the former

involved a “political”. election in that an election of

representatives on the school board was involved and .

that the latter involved revenue bonds rather than general ~

obligation bonds as in the present case. It is our opinion,

however, that the rationalé developed in Kramer v. Union

Free School. Dist.,; supra; for determining whether a vot- .

ing statute violate the Equal Protection Clause is not

_» restrictéd: to “political” elections, byt rather is Applicable

to all types of elections. The court in that ei stated _

that

™*Our exacting pastataatioit is necessitated aot by the.

subject of.the election;. rather, it is required. because

some resident citizens are |permitted to oe

and some are not.” at 89 S.Ct. 1891.

e so, the fact that the Kramer rationale was dsienian in

‘the Cipriano deéision indicates that it is not. restricted ’

to strictly “political” ,elections. ae

Neither Kramer v, Union Free School Dist., supra, nor

. Cipriano v, City of Houma, supra,. controls ‘the present

ease however. Neither case holds that discrimination

_ between property owners and non-property owners in a

_vgting statute is per se a violation of: the Equal Protec-

tion Clause. On the contrary, the court’ in each case

; assumed that in certain elections the franchise might be

briny Par a particular group or class of citizens. In.

Kramér v. Union Free School Dist.,. supra, the-: ‘court

stated that -

a ae

“We need. express no opinion as to whether the State

in some circumstances) might limit the exercise of the

franchise to those ‘primarily interested’ or ‘primarily

: we therefore do not reach the

issue of whether these particular elections are of the

type in which the franchise may be ‘so limitéd.” 89

S.Ct. at 1892. ar

Similarly the court stated in — v. City od He ouma,

supra.

eye coy nae ee a ‘State ‘might, in some

circumstances, constitutionally limit the franchise. to

qualified voters who are also ‘specially interested’ in

the election, whether the statute allegedly so limiting

the franchise denies equal protection of the laws to

those otherwise qualified: voters* who are excluded

depends on [quoting from Kramer v., Union Free

School Dist.) ‘whether all those excluded are in fact

substantially less interested or affected than those

the statute includes.’” 89 S.Ct. at 1899-1900.

The court noted, however, that. for a limitation in the wh

franchise to be constitutionally approved, it must be™

“necessary to achieve a compelling. state interest and that

the statute must be so tailored so that all of those ex-

cluded are substantially less interested or affected than

all of those included. The distinction’ between Kramer v.

Union. Free School: Dist., supra, and the present case lies

in the fact that in Kramer the election was, at, least in

part, for the purpose of selecting représentatives to serve

on the school board. The court reasoned in that case that

' issues of general school policy were ‘involved, issues in

which* every resident of thé district, parent and’ non-

parent, property owner and non-property owner: alike, had

a common interest. The court thus concluded that. Kramer

was not substantially less interested in or affected by

the election than other persons allowed to vote and that

the statute therefore invidiously discriminated against |

him in violation of the Equal Protection Clause:

6 4 a a

Pe itso nctacunt snd Min Naie sk tobe Pow tie 2

- manced by property tax reven

: ‘—9a— |

ae v. City of Houma, supra, is also distinguish-

able from the present case in that Cipriano involved the. -

sale of. revenue bonds rather than general obftgation

bonds. Revenue .bonds differ from general obligation

bonds in thatthe former are paid out of revenue ve

ated by the. utility which they, finance; they are not fi-

i In holding the statute —

restricting the franchise to seal property taxpayers un-

‘constitutional in Cipriano v. City of Houma, scan the a

court was careful to note that ‘

“Of course; the’ operation . of the utility systems—

gas, water, and electrie—affects virtually every resi-

dent of the city, nonproperty owners as well as .

property owners. All users pay utility bills, and the

rates may be .affected substantially by the amount

of revenue bonds outstanding. Certainly property .

utility service or high rates, or in Spepng the bene-

fits of good service and low rates.

“The revenue bonds arg to be paid only from the

operations of the utilities; they are not financed in

any way by property tax revenue. Property owners,

like nonproperty owners, use the utilities and pay -

the rates; however, the impact of the revenue bond

issue on them i is unconnected to their status as prop-

- erty taxpayers. Indeed, the benefits and burdens of | -

the bond issue fall indiscriminately on property .

owner and nonproperty owner alike. ” 89 S.Ct. at 1900.

The key distinction between Kramer v. Union Free School -

Dist., supra, and Cipriano: v. City of Houma, supra, and °

the present ease, then, is that in Kramer and Cipriano

- the court was unable to say that the excluded class. of

voters was substantially less interested in or affected by

the election than was the included class. .The United

_ States Supreme Court did not hold in either Kramer v.

-" Union Free School Dist., supra, or Cipriano v. City of

Houma, supra, that ‘there was not a compelling state

interest in. limiting the franchise in special elections to

those. persons more interested in and more substantially

affécted by the outcome of the election than the excluded

- class of voters, but, at most only held that in those cases

the .excluded class was as substantially affected by the

* election,as the included class.

This court in Hartman v. Meier, 39 Idaho 261, 227 Pac.

25 (1924), quoted with approval from the memorandum

‘Opini6n of the trial court in that case as follows:

“What, then, is the purpose of the legislature in

requiring ‘that electors at bond glections must possess »

. the added qualifications of being ‘taxpayers of the

municipality’? The mere ownership of: property has

long since ceased to be considered as a proper element

in determining the general right of suffrage; a prop-

erty owner is no more competent to judge of the

suitability of a candidate for office or the advisability

- of a public. improvement than any other person.

Obviously the purpose of this act was to restrict the

issuance of bonds to such issues as should be con-

sented to. by at least two-thirds of those who were

to be primarily affected by the burden thereby im-

posed. Any other purpose would be unreasonable

_and absurd. Unless the ownership of property be

considered only with reference to’ the burden imposed -

_by the result of the election, it should not be’ con-

sidered at all. The legislature in adding this qualifi-

cation must have intended to require the submission

of the question to those who would be peculiarly .—

-affected by the result of the election. An automobile

owner who pays his registration fee is not so affected;

the issuance of the bonds neither increases nor dimin-

ishes the ‘amount of his license fee, and his automo- .

bile is not otherwise taxed. Nor is his privilege fee

_ within the’ commonly accepted meaning of the word

‘tax,’ nor is he a taxpayer in the commonly accepted

meaning, as held in the decisions above mentioned.”

Under the statutes of Idaho pertaining to school bonds,

in Chapter 11, Title 33, Idaho Code, bonds are to be

—ia—

_. issued upon an amortization plan (LC. ¢ 33-1107) “and

'. the various. annual maturities of any issue of bonds shall

as nearly as practicable be in such principal amounts as

will, together with accruing interest on all outstanding

bonds of such issue, be met and paid by an equal « aa

all be

tax levy during the term for which such bonds sh

issued.” LC. 4 33-801 ‘requires. the tax levies be set by

the school trustees, and I.C. 4 33-802 provides. that any

tax levied for school purposes shall be a lien on the

property against which the tax is ‘levied, including the.

levies required to satisfy all maturing bonds, and *bond

interest. In the event of a failure of the trustees to

certify such levy to the board of county commissioners, .

the board of county cgmmissioners is required to set a

levy sufficient to meet,all accruing bond and bond interest

charges for the year. LC. § 33-1115 provides “The: faith

of each district is solemnly pledged for the payment of

interest and redemption of principal on all bonds lawfully

Under I.C. § 63-101, “All property within the jurisdic-

tion of this state, not expressly exempted, is subject to

assessment and taxation.” After J anuary 1, 1970, all

_- taxes levied upon both personal property and real estate

are.a lien upon such real estate, (I.C. § 63-102—104).

_ When a bond issue which is payable from the taxes levied

on the property of the district is yp ay ‘by a school |

- district, it may be for a term of as matiysas twenty years

(I.C. § 33-1107). The total amount of bonds that may be

of thé assessed valuation.

issued by the school district is limited by a percentage |

It is apparent that the real property taxpayers have

an interest in the outcome of school district bond elec-

tions substantially greater. than other electors who are

not also taxpayers on real property. The owners of the

real property in the district are faced with the additional

tax burden for the number of years authorized by the

bond issue; they are subject to having a lien placed on

their real property which continues year by year for the

—12a—

life‘of the bend issue. Electors, who neither own nor pay

_ taxes on real property do not have this real and substan-

tial interest. It is recognized that both non-real property

taxpayers and pie Bavingaeys taxpayers may have a vital

interest in the ou e of any bond election within the

ool district by reason of the improvements that pas-

* page of such election would allow, but the improvements

within thé school district: that are to be made also carry

the responsibility for the payment ily improve;

ments, which responsibility under the law falls primarily |

on the real property taxpayer of the district:

In the present case it is our opinion that nonproperty

owners as a class are substantially less affected by the

outcome of a general obligation bond election than are

property. owners. Although nonproperty owners might

_ feel the financial impact of a bond issue indirectly through .

increased rentals and prices in the economy and might

-. have children attending the public schools, the effect of a

bond issue upon the real property owner is to impose a

lien upon his property for payment of the bonds. LC. §

33-802. The court in Cipriano v. City of Howma, supra,

explicitly recognized the greater interest which this lien

givés to the real property owner when it noted that the

bonds there were not to be paid from revenue derived :

from real property taxation.

Since -it is our opinion that neither Ki ramer .v. Umon

Free School-Dist., supra, nor Cipriano v. City of Houma,

supra, prohibits discrimination. between nonproperty

owners and property owners in a general obligation bond

election, we are reluctant to depart from the well. settled

Idaho law which has always upheld this distinction. See

Wiggin v. City of Lewiston, 8 Idaho 527, 69 Pac: 286

(1902); Hartman v. Meier, '39 Idaho 261, 227 ‘Pac. 25 —

(1924). Accordingly the alternative writ is quashed, writ

of prohibition is denied and petition dismissed.

Costs to defendants. |

DowaLpson, SHEPARD and Srzar, JJ., concur. —

—;

iene J., dinsonting.

proved March 21, 1969) reads in pertinent part as fol-

lows:

“B. When the validity of any bond election is con-

tested upon any of the grounds enumerated in section

. 84-2001 or-upon any dther grounds whatsoever the

' plaintiff or plaintiffs must, within forty (40) days

deglared, file in’ the’ proper court a verified written

complaint setting forth, in addition to the other re- _ -

quirements of this chapter, the following:

(1) The name of the party contesting the aed

election, and that he is an elector of the public —

entity. conducting the bond election. —

_{2)}--The proposition or propositions voted on at .

the election which are contested.

(3) The ‘particular grounds of such contest.

“C, No such election contest shall be maintained

and no bond election shall be set aside or held invalid

unless a complaint is filed as* permitted hereunder

within the period prescribed in this section. As to

bond elections which have been held prior to the

effective date [March 21, 1969]. of this act, no such

contest shall be maintained wherein it is alleged that

the bond election should be set aside or held on any

gtound enumerated in section 34-2001 or on any other

ground, unless such bond election contest be filed as .

herein provided within forty (40) days from and

- after the effective date of this act.” °

This statute is clear and without exception. There is

nothing in the section which even suggests that it does”

not now apply. Because the plaintiffs’ petition was not.

filed within forty days after the election was held, the

votes “canvassed, and the results thereof declared,” we

should dismiss-. this action. It was not tumely brought

2 se it was barred by LC: § 34-2001A.

The majority, understandably anxious to reach the

important constitutional issue raised in this case, has

held that the defendants “waived” I.C. § 34-2001A. Such

waiver is not lawful. The defendants can not waive the

bar of LC.~§ 34-2001A. As was said by the Supreme

Court of Arizona in the case of. City of Glendale v.

Coquat, 52 P.2d 1178, 1180 (1935), ; :

“Tt is apparently universally held that where a right

has been given to an individual’ not alone for his

‘private benefit byt, as a matter of public policy, in

the interest of the state, it may. not be waived by

any one. Day v. McAllister, 15 Gray (Mass.) 433;

Clark v. Spencer, 14 Kan. 398, 19 AniRep. 96; State

' vy. Carman, 63 Iowa 130, N.W. 691, 50 Am Rep.

741; Recht v. Kelly, 82 IM. 147, 25 Am.Rep. 301;

*-Bosler v. Rheem, 72 Pa. 54; Branch v. Tomlinson, 77

N.C.. 388; Clark v. State, 142 N.Y. 101, 36 N.E. 817;

Larsen: v. Rice, .100 Wash. 642, 171 P. 1037; Cata v:

* Grendel Cotton Mills, 132 S.C. 454, 129 S. E. 203, 41

' AJL.R. 439. ‘As was said by the New York Court of

. Appeals, in Wright v. State, 223 N.Y. 44, 119 N.E.

83, 85, ‘Such conclusion would permit an officer of

the state to defeat the beneficent purpose of the

statute and violate its provisions.’” |

Buyers of Idaho bonds forty days after an election

‘must be secure in the knowledge that their investment

will not be jeopardized by a legal action contesting that

eléction. By allowing these defendants to waive LC. Q¢

-2001A, this Court has thrown open\ to challenge every

bond election in the past or in the future of this state.

A valid “waiver” necessarily involves a choice to give

‘up a right personal to-the party doing the waiving. In

order for a “waiver” to be permissible in this case a

representative of the purchasers of the bonds, issued as.

a result of the election which is challenged i in this action,

would have to be.a party.- There is no such. representative

before us. The record eas: no indication that the

om oe

defendants have been authorized to make a waiver under

* LC. § 34-2001A for those bondholders. The defendants’

: attempt to waive the provisions of the statute should be

given no effect..This action was not timely brought.

I respeetfully ‘dissent from the opinion of the majority.

ye. _ CERTIFICATE

I, the cubevsinnel counsel ‘for Amicus Curiae, Salt

Lake City, Utah, do hereby certify that a copy of the

foregoing brief. has ‘been served on all counsel in this |

matter by depositing a copy thereof in the United States ;

Mail, postage prepaid, addressed to each of. aaa at his

‘respective address of record. ' ‘

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.