# Amicus Curiae Brief — City of Phoenix v. Kolodziejski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0207%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 399 U.S. 204 ## Text 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 ° . . ai. . ® 2 . . * ‘ ry > . F . . . . . . . u - - ~ ° . . J . . " *. - $ ° « . ° e o - * i > . s - . ™ \ -* “y ‘ - . . > - + . 7 ° : > » e . ° . - bd . ° e ° . / *. ° ” . : s . ° “4 ag * t . ™%, *~ . ;. a . X. ‘ . . ™! . . : ~~ . . ~ ‘ “ ™, me, . wm . . : . . . . Tre, ‘ . . “~ “we, 7h bd ne : 8 . . : ™~ : . o> . . ° . e J . . . ‘ ‘ ‘. . . . J . a ——- . . - e . - - * . tei i . “Qe. . 4 INDEX ao. | eer PAGE 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 i 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 - 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 x ee 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 | 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 " X. a 7 . e . . ss . « > sd ‘ . ‘ P > . Se 2 ‘. . , . é « . e a) a4 e ® . . - e c : ve 6 . . ee e ? ’ ‘ & r *. . . ‘ . . . . . . ° Go . ’ . rs . . * s “ : Re . e s ‘ - ‘ . . ¢ e . s . ¢ . > - ‘ . ‘ * * ‘ ° _ . : - . ‘ * ® ) ° ‘ ‘ i ? , , : @ oy . » . ‘ 7 © . . . x . = : a , ” . . _— ° * t . . e « = ‘ . . ‘. . .] e : ’ ‘ ’ : —a- ° . ° - . ——-—— ——_- --+_--— . : . \ . ° é . . ° - . ee . oo » . - . e cd ‘ . : - 2 : . r o ( ~ e . Aros “ > : ; ‘ P . e . ” . os > . > aa oat 0 . . . . . e o. Pato . - , e 2s ° : . : @ ° . - . 3 . . . ° 6 . . s . ° . ° A . . ie 4 . . - o . a ° ‘ ‘ e ? " : e 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 y 2 — ‘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 of Idaho is an inseparable part of/the American Union, © _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- © tutionality of I.C. § 34-404 is‘ within the scope of I.C. § 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 a i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0207%3A09. Public record. Not legal advice.