Appellants Brief — Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.

Opinions Below

Jurisdiction

Statemént of the Case

Summary of Argument

Argument

“ Legislation Denying the Franchise to Residents

and Farmers in the Defendant District Who

Own No Land, and Apportioning the Fran-

chise Among ‘Landowners on the Basis of

_ Assessed Valuation, With One Vote for Each

$100, Denies the Equal Protection of the Laws

to Such Residents and Farmer Lessees, and to

Conelusi

Appendix A. Bulletin No. 155, Department of

- Water Resources, State of California, “General

Comparison of California Water District Acts” pp.

-. 103-105..( 1965) : App. p. |

ii. |

‘ABLE OF AUTHORITIES CITED

- Pas

Associated ‘ Inc. v. Toltec Watershed

sagen Ie “see Wy. “...., 490 P.2d 1069

QADIE) ccerecornccccscrecscncecccnnsensscrseerensncseseesrensnaee 22, 23

Avery v. Midland County, 390 U.S. 474 (1968)

Ned 8, 22, 25

Burtey v. Embarcadero Municipal Improvement Dis-

trict, 5 Cal. 3d 671, 97 Cal. 203, 488 P.2d 395

* (1971) PON 25

Cipriano v. City of Houma, 395 U.S. 701 (1969)

5, 18, 22, 24

Girth v. Thompson, (1970) 11 Cal. App. 3d 325,

‘89 Cal. Rptr. 823 ... ; Mp

Glenn-Colusa District v. Ohrt, 31. Cal

App. 2d 619, 88 P.2d-763 (1939) .......-..-.-..-.--- 10

Gordon v. Lance, 403)U.S. 1 (1971) nnvssoesseseeees 6, 19

Gray v. Sanders, 372 U.S. 368 (1963) -....: 17

Hadley v. Junior College District, 379 U.S. 50

(1970) coutube 18, 24

Harper v. Virginia State Board of Elections, 383

. US. 663 (1966) . 5, 6,.17,:22, 24

Kramer v.. Union Free School District, ae US. 621

(1969), onstee dy 18, 22, 24

Mound City Land & Stock Co. v. sa, 170 Mo.

240, 70 S.W. 721 (1902) wine :'23

People ex rel. .Van Lobén Sels v. Reclamation Dis-

trict No. 551, 117 Cal. 114, 48 Pac. 1016

(1897) 23, 24

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ..

5, 18, 22, 24

Reynolds v. Sims, 377 U.S. 533 (1964) cco: 17, 25

iii,

ae ae : | Page

vy. Palo Verde Irrigation District, 1 Cal.

_ App. 3d 831, 82 Cal. Rptr. 61 (1969) ........ 24, 25

_ Stewart v. Parish School Board, 310 F. Supp. 1172

, (BD. La.) aff'd, 400 U.S. 884 (1970) ........19, 21

State ex rel. Harris v. Hanson, 80 Neb. 724, rare

N.W. 294, 80 Neb. 738, 117 N.W. 412 (1908) ..

v. Board of Directors, 247 Cal. App. te

& (1967) 25

Statutes

California Water Code, Sec. 100 ...cc.eccccccecccssssue 10

California Water Code, Sec. 102) ccc 10

California Water Code, Sec. 104 oo... cece. 10

California Water Code, Sec. 1050 .o------ccccceeeccccsss 10

California Water Code, Sec. 20527 9

California Water Code, Sec. 39060 8

California Water Code, Sec. 41000 ....2, 3, 4, 5, 9, 26

California Water Code, Sec. 41001 ....2, 3, 4, 5,9, 26

California Water Code, Sec. 41300 ,

California Water Code, Sec. 415500 ......csc.....c0...0 9

California Water Code, Sec. 43001 11

California Water Code, Sec. 43025ff .................... 11

California Water Code, Sec. 43026 ................:--+- 11

California Water Code, Sec, 43026ff ....--..cc.ccc-.. 11

California Water Code, Sec. 43158 ........cceccoecoese. 10

California Water Code, Sec, 43507 .....--cecceececccsee. 11

California Water Code, Sec. 43508 .0......-.-cccccs-s-. 10

California Water Code, Sec. 435300 ............000.... 10

‘ California Water Code, Sec. 43533 20.0...

iv.

ve ' Page

California Water Code, Sec. 43555 ... 11

California Water Code, See. 4550ff se Al

California Government Code, BS BERS. eeecnpee 11

Elections Code, Sec. 20 i

Elections Code, Sec. 21 9

Public Law 875 ... a

United States Code, Title, 28, Sec. 1253 ............- 2

United States Code, Title 28, Sec. 2101(b) ........ 2

United States Code, Title 28, Sec. 2281 .............. 1

United States Code Annotated, Title 42, Sec. 1855ee

: . 11

United States Constitution, Art. XIV, Sec. 3 .......... 10

Texts

Department of Water Resources, State of California,

Bulletin No. 155 11

The Republic (Bakewell Ed.), p. 323 -.-.coo..-.-coc00- 26

Sees

af

Saprem Court of the United States:

October Term, 1972 |

No, 71-1456

SALYER LAND ComPaNy, a California corporation,

C. EVERETTE SALYER; FRED SALYER; LAWRENCE

ELLISON; and HAROLD SHAWL,

Appellants,

vs. .

TULARE LAKE BaSIN WATER STORAGE DisTRICT, a

public district,

‘ Appellee.

» On Appeal from the United States District Court for

the Eastern District of California.

BRIEF FOR THE APPELLANTS.

Opinions Below.

The opinion of the United States District Court for

the Eastern District of California has not been reported.

Copies of the memorandum and order convening a

three-judge court, of the memorandum and order of

that court, and of the concurring and dissenting opinion

of Circuit Judge Browning are printed in the Appendix.

Jurisdiction.

This suit was brought under 28 U.$.C. §2281, to

restrain the enforcement, operation and execution of a

—2—

State statute as unconstitutional. The judgment of the

United States, District Court (three judges) was ren-

dered February 17, 1972, and entered March 10, 1972.

Notice of appeal was filed-in-that court on March 14,

1972. The jurisdictional statement was filed May 8,

1972, and probable jurisdiction was noted June 26,

1972. The jurisdiction of the Supreme Court of the

United States to review this decision by direct appeal

is conferred by Title 28, U.S. Code, §§1253 and

2101(b).. |

Statutes Involved.

Sections 41000 and 41001 of the California Water

Storage District Law (Water Code, §§41000 and

41001) are as follows:

“841000. Qualification. Only the holders of

title to land are entitled to vote at a general elec-

tion.

“841001. Vote in precinct; number of votes.

Each voter may vote in each precinct in which

any of the land owned by him is situated and

may cast one vote for each one hundred dollars

($100), or fraction thereof, worth of land, ex-

clusive of improvements, minerals, and mineral

rights therein, in the precinct.”

Does a statute which restricts the franchise in a water

storage district to landowners, and grants cach of them

one vote for each $100 of assessed valuation, deny

farmers and residents not owning land, and all land-

owners smaller than the largest, the equal —

of the. laws?

ae Wom

‘Statement of the Case.

“Plaintitts C. Everette and Fred Salyer are two of

the eleven directors of defendant Tulare Lake Basin

Water Storage District, which comprehends 193,000

acrés in Kings and Tulare Counties, California. Plain-

tiff Salyer Land Company is a large owner and lessee

of land in that district. Plaintiff Harold Shawl is a

small landowner, and plaintiff Lawrence Ellison is a

resident of the district who owns no land. All joined

in an action filed in the United States District Court

for the Eastern District of California on May 5, 1970,

challenging the constitutionality of §§41000 and 41001

of the California Water Code, which limit the franchise

in water storage districts to landowners, and weight the

ballot by granting one vote for each one hundred dol-

lars of assessed valuation. The complaint also alleged

that the district was malapportioned.

On November 13, 1970 United States District Judge

Crocker filed a memorandum and order stating that

the complaint “presents a substantial constitutional

question as to whether the sections of the California

Water Code are in conflict with the United States Con-

stitution”, and convening a three-judge court. That

court, which was composed of Circuit Judge Browning

and District Judges Crocker and Schnacke, received

the case on an agreed statement of facts, and rendered

its decision February 17, 1972. The majority, com

site 208 iiighe “Citcllicne Ghat Wanton "ted: Water

Code sections 41000 and 41001 constitutional, sustain-

ing both the exclusion of non-landowners from the

franchise and the weighting of that franchise according

to assessed valuation. Circuit Judge Browning con-

curred in so much of the opinion as excluded non-

In “landowner” districts such as the one at bar all

landowners are permitted to vote, whether or not they

are residents, but farmers who lease rather than own

land are denied the franchise. Their interest in the dis-

trict’s ‘operations is patent, and Circuit Judge Browning

dissented from the majority below on the issue of farmer

lessee exclusion: _

“This group’s interest in the district's projects

. to increase the water available for farming and to

oP its distribution is indistinguishable from

the interest of the owners. They are also equally

interested in ‘the cost of the district’s projects, for

'-. this’ expense will be passed on to them by express

. agreement or in the form of increased rentals. See,

e.g Phoenix-v, Kolodziejski, supra, 399.U.S. 204,

: ee ee a

Bt. sa a e decisions regarding the

ic it program is not, ad-

__ # "Residents of the District otherwise qualified to vote

ought mot to be excluded simply because they do not

own:land. The primary concern of this district is with

acquiring water in time of shortage and repelling it in

time of flood. These concerns are of such general and

public importance that the resident citizen ought not

to: be: excluded, .The plaintiff Lawrence Ellison is a

non-landowner resident who is not permitted to vote

in district elections. The record makes it clear that he

is interested in water matters, as is any mature citizen

who lives in the area; his situation is not distinguishable

from that of the non-landowning bachelor who could

not Vote in the Union Free School District, the franchise

being there limited to landowners and parents of school

children. Kramer was interested in education; the plain-

tiff Lawrence Ellison is interested in water. This Court

struck down the exclusion of the interested bachelor,

although landless and childless. Kramer v. Union Free

School District, 395 U.S. 621 (1969). Exclusion of

plaintiff Lawrence Ellison, although landless, denies him

the equal protection of the laws. Cipriano v. City of

Houma, 395 U.S. 701 (1969); Phoenix v. Kolodziejski,

399 U.S. 204 (1970). ;

The parceling of the franchise according to assessed

valuation has delivered thé affairs of ‘the defendant dis-

trict into the hands of the largest landowner, The J. G.

Boswell Company, which has resulted in a system

whereby there has been no general election since 1947.

Under §§41000 and 41001 of the California Water

Code, The J. G. Boswell Company has 37,825 votes

in the defendant District; the franchise is openly and

candidly based on wealth. The scheme by which the

District is governed cannot withstand even momentary

analysis. As this Court stated in Harper v. Virginia

}

—_—§—

State Board ‘of: Elections, 383° US. 663 (1966), “A

state violates the: Equal: Protection Clause of the Four-

the -voter \ . an electoral: standard”. See the state-

ment in Gordon v. Lance; 403 U.S..1°(1971)::

“While Cipriano ‘involved a denial of the vote.

~ a -percentagé teduction of an individual’s voting

power in proportion to the amount of property he

owned wowld be similarly defective. See Stewart

v. Parish School Board, 310 F. Supp. 1172 (E.D.

La.) aff'd, 400 US. 884 (1970).”

Circuit Judge Browning dissented from the majority

below on the issue of weighted voting:

“There is nothing in the record to support the

assumption that a small landowner is less likely

than a large one to possess the information and

_ understanding of water development problems that

is requisite to intelligent and responsible voting on

the affairs of a water storage district, Cf. Harper

v. Virginia.Board of Elections, 383 U.S. 663, 668

(1966). And. the landowner’s interest in finding

and implementing solutions to those problems is

no less acute because his operation is small. Effi-

_cient production from his smaller acreage may be

of greater economic consequence to him; and the

lesser absolute share of the cost of district projects

he may be required to bear may impose a greater

» phalanges

aces

Wile: | ARGUMENT.

on ssgrlgne 10-bit eroded cng

and Apportioning the Franchise Among Landowners

on the Basis of Assessed Valuation, With One Vote for

Each $100, Denies the Equal Protection of the Laws

to Such Residents and Farmer Lessees, and to All Land-

rs Smaller Than the Largest.

and a number of the Western states have

landowner districts for the production and conserva-

tion of water. The notion of landowner participation

in the franchise, whether or not they be resident, is

genuine enough. The interest of a nonresident land-

owner is real, and there would appear to be no con-

stitutional barrier to allowing such nonresident to vote.

In fact there are some landowner districts that have no

residents; exclusion of all nonresidents would mean

that there could be no electorate. The quarrel of these

‘appellants is not with the system whereby nonresident

landowners have the franchise; it is the weighting of

that vote by assessed valuation, and the exclusion of

nonlandowner residents and farmer lessees.

The vote in the court below was two to one on the

issue of participation of nonresident farmer lessees,

although the majority did not discuss the issue. On

the issue of nonlandowning residents, the court below

was unanimous in its decision against these appellants.

It is respectfully submitted that the court below was

wrong. It is a heavy thing to say that a citizen of the

United States may not vote in a public election held

in the community in which he lives. The subject matter

of the election ultimately is water; in California the

only element more closely allied to the citizen’s welfare

‘would be the air itself.

|

|

inl

The suggestion that without such exclusion the state

might. not.-be able to create water storage districts is

not impressive. Irrigation.districts are common in Cali-

fornia and in those districts only residents may vote.

Some irrigation: districts have more residents than the

defendant * District; some have less. This District has

received hundreds of thousands of dollars in federal

funds, All citizens have a joint and common interest

in those funds, and a joint and common interest in

seeing that they. are wisely spent. All citizens have a

- mae

: ha 5 Lot Bk

potagt difference is in government. In irrigation

stric _ Fegistered._ voters have the franchise.’ In

water storage districts none may vote but landowners'

ir yote is weighted; there is one vote for each

one hundréd dollars of assessed valulation. The result

is’ that almost all the seventy seven residents of the

district are disenfranchised. Farmers leasing but not

owing land, although vitally interested in and affected

by ‘the district’s operation, have no voice in its govern-

ance.” The ‘hierarchy of votes among landowners runs

from:ofe- vote each for certain very small landowners to

37,825 votes for the J. G. Boswell Company. As of the

date: of filing this litigation six of the eleven directors

of the district were Boswell employees or stockholders.

Elections. have little point in such a system, and al-

though California law provides for general elections in

water, storage districts every other year,’ this district

had had none since 1947."

© 8Calif. Water Code §20527; Elections Code §§20, 21.

"Calif. Water Code $41000.

- §Calif. Water Code 841001.

‘Calif. Water Code, §41300.

“MR. ROBINSON: Well, I have no concern

election.

(This footnote is continued on next page)

aiiiellbenc:

Under California law: a unit such as Tulare: Lake

Basin’ Water Storage District is exclusively govern-

mental.* Upon formation’ of.a water storage district all

water rights of the state within the district are given,

‘set apart and: dedicated: to» it.’ Water is the life blood

of California; the special importance of water is recog-

nized both by its constitution” and statutes.”

Apart ‘from its control of California’s most vital

natural resource, Tulare Lake Basin Water Storage Dis-

trict acts in @ governmental capacity. It had a budget

of $481,000 in 1970 and $405,000 in 1971. It owns

_ Calif. Water Code, $8100, 102, 10

‘ -12Answer of defendant, page 8.

fees —ll—

mental: immunities and to the exceptions therefrom

_ imposing liability.“ It may issue general obligation

bonds.secured by assessments levied on the lands in

the district."* The district may provide tolls and charges

for the use of water, irrigation, and power,’” and it

ren ten

‘Pulare Lake Basin Water Storage District submitted

ies Gelb: the ‘Aitterint-Gonerel-of Calidcicnia. that

itis’ a political subdivision of the state as part of

‘an application for federal monies, pursuant to the Fed-

‘eral Disaster Act, Public Law 875, and received $234,-

‘512.24 from the federal government pursuant to that

‘application. The federal legislation authorizing this ex-

penditure limited the grants to “any project of a State,

county, municipal or other local governinent agency

for flood control, navigation, irrigation, reclamation,

public power, sewage treatment, gg on near g hapa

tershed development, or airport construction. .

~ Calif. Government Code, $811.2.

~~ -MCalif. Water Code §$4550 ff.

“Calif. Water Code $§43006 ff., Calif. Water Code §843025¢.

Gali. Water Code 3507, hyd Sh 43555, PP jen 43026.

An official. summary powers water storage

districts, taken from Bulletin No. 155, Department of Water Re-

es, State of California, Gesell Comparioon of

—12—

per cent’of the Jand in the district. The remaining fif-

teen ‘per cent is: farmed by' smaller farmers; if the lat-

terbe lessees they are accorded no voice whatever in

the functions of ‘the district. The amici curiae” and

the defendant have been at some pains to justify this

situation. Counsel. for California Central Valleys Flood

Control Association claimed below that this problem

. oof. <dis- easily. remedied within the existing pro-

x ste en el te moh

sil Bais

» surances as they request as to how the landowner

> will act in reference to his control over District

> activities...

“. «If the lessee's bargaining position is strong

enough, he can perhaps by contract acquire a proxy

_ fo cast his landowner’s ballots. If his bargaining

_. position is not that strong, he will have to make

the best deal he can... .”™

was unimpressed with this reasoning.

“Defendant suggests that the lessees might ob-

tain a provision in the lease for a proxy from the

lessor as allowed by §41002. If a statute otherwise

infringes upon the Equal Protection Clause, the

infringement of constitutional rights is not amelio-

rated by a possibility that relief might be obtained

through private contracts.”

“Contrary to the majority's view, however, this

is not true of the exclusion of those who lease

lands in the district for farming. This group's in-

terest in the district's projects to increase the wa-

ter available for farming and to improve its dis-

tribution is indistinguishable from the interest of

the owners. They are also equally interested in

the cost of the district’s projects, for this expense

“Brief in the trial court of Irrigation Districts Association of

California, page 20. . :

“Defendant's Reply Brief in the trial court, pages 9, 10.

-~-14--

will be passed on to them by express agreement or

in the form of increased rentals. See, e.g., Phoenix

v, Kolodziejski, supra, 399 U.S. 204, 210-11, And

obviously the state’s interest in intelligent and

‘responsible decisions regarding ‘the district's water

‘Management. program is not advanced by excluding

those who actually farm the land.”

The Court below was unanimous in permitting the

exclusion of plaintiff Lawrence Ellison from the ballot,

despite the fact that Ellison is 62, has been in the area

for forty years, has held responsible positions with

several of the larger agricultural operators in the dis-

trict, is interested in water matters, is.a registered voter

and a resident of the district, and would like to vote.

It is said that he does not have a sufficient interest.

It is difficult to agree. He lost his job with The J. G.

Boswell Company because of layoffs occasioned by the

1969 flood. The record in this case demonstrates that

the flooded area was increased over three feet in depth

by the reception of 300,000 acre feet of flood water

from the Kern River. This would have been reduced

to approximately 100,000 acre feet had Buena Vista

Lake been used for flood storage.” In past years the

flood waters of the Kern River have filled Buena Vista

Lake in Kern County before going on to Tulare Lake.”

1969 is the first year in recorded history in which this

was not the case. The record made in the trial court

shows that the non-Boswell directors of the defendant

district sought to have it take action to ensure that

eee Naren tee coon ne tows wanetl OF the Kern

ight week thadeste this to the couit telow, and the fact

chemin ns epg

relative positions of Buena Vista Lake

asd “Tulecs’ Lake sin the record as Exhibit 4, and has been

¥

ad

eagegengeaysiegiggfafnaee iy iRw

ATA eT

Hs] Fie ee in [lit

gl la eal

BGA a: Fates

eghgePehe nti aaa? ca He 2

uhilticredae Elbe

; 2 ein AHI H ATE fia aul all

erect: 13 baEse si: ias\RR

esa ies:

not vitally interested in and affected by ‘that decision,

with great respect, simply was not there.

“Bven more ‘indefensible than the exclusion of resi-

dents frotn the franchise, however, is the weighting of

the ballot by assessed valuation. The result isto give

several of the smaller landowners one vote each. Thom-

as J. Amos has one ‘vote, as do Ada Hornbeak and

Rose Catanz’ Plaintiff Harold Shawl shares 23 votes

with his partner, springing from the ownership ‘of 65

acres. But The J. G. Boswell Company is entitled to

vote 37,825 times. Judge Browning dissented from the

majority on the issue of the weighted franchise:

“Defendant has identified no compelling state

interest in weighted voting in water storage dis-

trict elections.

2 * & *®

“Neither can it be said that the state’s interest

in intelligent and responsible elections is served

by weighted voting. There is nothing in the record

to support the assumption that a small landowner

- is less likely than a large one to possess the in-

formation and understanding of water development

problems that is requisite to intelligent and respon-

sible voting on the affairs of a water storage dis-

trict. Cf. Harper v. Virginia Board of Elections,

383 U.S. 663, 668 (1966). And the landowner’s

to him; and the lesser absolute share. of the cost

of district projects he may be required to bear

may impose a greater burden. As Judge Wisdom

said in a related context, ‘In terms of voting re-

ae

- sponsibility, there is no necessary correlation be-

~ tween the amount of an assessment and the de-

gree of interest a taxpayer may have in a pat-

ticular bond issue. A ten thousand dollar house

to one person may mean more to that person than

a hundred thousand dollar house to another.’

Stewart vy. Parish School Board of Parish of St.

Charles, 310 F. Supp. 1172, 1179 (E.D. La.

1970), affd 400 U.S. 884 1970). See also Bur-

rey v. Embarcadero Municipal Improvement Dis-

trict, § Cal. 3d 671 (1971).”

- It is submitted that Judge Browning’s view is sustained

by the decisions. of this Court. In Gray v. Sanders,”

this Court asked, “How . . . can one person be given

twice or ten times the voting power of another person

.. .?™ In Gray the Court went on to speak of “equality

among those that meet the basic qualifications”. In

Reynolds v. Sims," this Court thought it “incon-

ceivable” that a state law could permit the votes of

some citizens to be “multiplied by two, five or 10... .””

In Harper v. Virginia State Board of Elections” this

Court held that “a State violates the. Equal Protection

Clause of the Fourteenth Amendment whenever it makes

the affluence of the voter . . . an electoral standard.

Voter qualifications have no relation to wealth... .”**

In Harper this Court went on to say that “Wealth,

like race, creed, or color, is not germane to one’s

29372 U.S. 368 (1963).

re US. at 379.

US. at 380.

31377 U.S. 533 (1964).

82377 USS. at 562.

32383 U.S. 663 (1966).

4383 U.S. at 666.

—{3—

ability ‘to’ participate intelligently in-the electoral proc-

in certain, school districts to. those who owned or

leased real estate, or who were the parents of school

children. In. Cipriano v. City of Houma” and Phoenix

v,,-Kolodziejski,” this. Court struck down statutes of

Louisiana and. Arizona limiting the franchise im revenue

and general obligation.bond elections; respectively, to

property owners.” In Hadley v.-Junior. College District,"

"42397 US. 50'(1970).

2397 US: at 58; 59.

eosin

“In Gordon v. Lance,“ Mr. Chief Justice Burger stated

as follows:

+ © “While Cipriano involved a denial of the vote,

a percentage reduction of an individual's voting

“. power in proportion to the amount of property he

. » Owned would be similarly defective. See Stewart

-» y, Parish School Board, 310 F. Supp. 1172 (E.D.

La.) aff'd, 400 U.S. 884 (1970).”*

Stewart, the case cited by the Chief Justice, was a

three-judge court decision involving constitutionality of

a Louisiana statute limiting the franchise to property

owners, and providing also for weighted voting. The

decision was affirmed by the Supreme Court,“ and

that affirmance has precedential value. Let us examine

what was affirmed in Stewart: |

“By gearing the weight of each elector’s vote to

the amount of his assessed property the laws de-

base the vote of small landowners. We hold there-

fore that the exclusion of all non-property tax-

payers and the dilution of the small property

holder’s vote violate the Equal Protection Clause

of the Fourteenth Amendment.”

s**t

“Kramer and Cipriano, with the aid of Reyn-

olds v. Sims, Avery and Harper, teach that laws

restricting the right to vote—we say, in any elec-

tion—do not carry the usual presumption of con-

_ stitutionality.”*"

x * *

4403 US. 1 (1971).

44403 US. at 4.

45400 U.S. 884 (1970).

4°310 F.Supp. at 1173.

47310 F.Supp. at 1176.

eaergis

—20—

“A>significant ‘result’‘of ‘this reading of Kramer

is that “property: qualifications simpliciter may: no

the quality of the schools the young attend and

cases did the Supreme Court recognize a constitu-

jonal difference between a general election and a

proved by a majority Of the taxpayers voting rep

#310 F.Supp. at 1177.

#310 F.Supp. at 1179.

pat SE

«nf. “In terms of voting responsibly, there is no nec-

-. essary correlation between the amount of an as-

~. “gessment and the.degree of interest a taxpayer may

“- fave in a particular bond issue. A ten thousand

..\ dollar house to one person may mean more to

‘9\ dhiat person: than & hundred thousand dollar house

- ©? tovanother,

a “The actual effect off@bring assessments to the

‘vote is simply to dilute the participation of small

' Jandowners and to exaggerate the participation of

large landowners in violation of the one man,

one vote canon.”

s * * ‘

“There are two constitutional issues in this case:

first, the restriction of the franchise to property

taxpayers; second, the requirement that the major-

ity of the voters represent a “majority of the as-

sessed property’. Since the Court agrees with the

plaintiffs on the first issue, it might be said that

it is unnecessary to reach the second issue. But the

two limitations have been inseparable since 1898.

Moreover, weighting the vote in favor of the large

property owner points up the unsoundness of limit-

ing the vote to property taxpayers.”

*x* * *

. “At this point in history, this is an intolerable

discrimination.”™

It is not possible to ‘teconcile the reasoning and result

in Stewart with the reasoning and result of the court

below in the case at bar.

81/bid.

_ 3310 F.Supp. at 1180.

881bid.

—22—

in considerable confusion. This situation is pointed up

by decisions. in September’ and November from the

Supreme ‘Courts of: California::and: Wyoming. In Bur-

rey v. Embarcadero'Municipal Improvement District,“

the California "Supreme Court» gave short shrift to a

statute limiting the franchise to landowners.and giving

each landowner:“one vote for each one dollar ($1) in

assessed , valuation of, Jand owned: by him. . ” The

Court said that “the equality principle . .» is applicable

when the weighted vote is based on property value

ae a ne and “ex-

teneeanaey

+4 a conedaddion, ee wieald:tny- difficult ty: enagine

‘a more radical variation in, voting strength than

‘by land -value has. continued to. guarantee that

_ ..@orporation well-over a majority of the votes. In-

- stead. of ‘one person, one. vote’ we have here a

_. ease of ‘one corporation, 285,689 votes.’ "*’

‘The California Supreme Court in Burrey relied heavi-

ly on this Court's decisions in Avery, Hadley, Reynolds,

Phoenix, Harper, Kramer, and Cipriano. But two

‘months ‘later the Supreme Court of Wyoming, de-

crying “a tendency for judges and courts ‘to overreact

to. decisions of the United States Supreme Court”, held

in Associated Enterprises, Inc. v. Toltec Watershed Im-

Cal.

&

671, 97 Cal.Rptr. 203, 488 P.2d 395 (1971).

2 8

at

| the

pir eh led situation of the J. G. Boswell

—23—

provement. District that a Wyoming statute limiting

_ the» franchise to landowners with provision for a

weighting factor for acreage; was not invalid. The

Court quoted with approval from a 1902 Missouri

case:

“The fact that each owner is entitled to one

vote for every acre of land owned by him creates

no more infirmity in the law than the right of

each stockholder of any corporation to cast as

~ many votes as he owns shares of stock renders

such laws invalid. In both instances the majority

in interest, instead of the majority in number,

controls; and who shall say such laws are not

just?””

The Wyoming Court also relied on a 1908 decision

from Nebraska, State ex rel. Harris v. Hanson.”

The essence of the Harris decision is as follows:

. [I]t cannot be said that the formation of

the district was illegal because electors of the dis-

trict owning no real estate were barred from par-

ticipating therein, or because each property owner

was given a vote for each acre or lot of land he

owned.”

The interesting thing is that the Nebraska court relied

on the old California case of People ex rel. Van Loben

endainne Le 490 P.2d 1069 (1971). Toltec was ap-

pealed to this Court, as No. 71-1069. Probable jurisdiction was

noted June 12, 1972.

"Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 70

S.W. 721 (1902).

490 P.2d at 1072.

80 Neb. 724, 115 N.W. 294, 80 Neb. 738, 117 N.W. 412

(1908).

#115 N.W. at 298.

—24—

Sels -v:: Reclamation District No; 551,°: a decision of

dubious :value:in-the state of its origin: The California

Supreme. Court:in Burrey refers to it as one of: “a se

ries of old: Californiacases” and says; “We need not

comment upon the continuing validity of these cases;

they do ‘mot: govern here”. It is not possible to recon-

cile the reasoning and result;in Toltec with the reason

ing and result in Burrey;-just as it is not possible to

reconcile:the: reasoning and result in the case at bar

with: Burrey, Stewart, or thisCourt’s decisions in Har-

per,\Hadley, Kramer, Cipriano, and Phoenix.

a » isi usr ese art a eet nee rabene-anmcl 3... S3.U2n 5

jate appellate courts in. California have

with. the problem. In Schindler v. Palo

District* the statute concerned lim-

“to landowners, and gave them “one

$100’ of ‘assessed Value of his property

sued to establish ‘the principle

of Appeal forthe Fourth Appellate District held that

‘ithe “Voting Rights Cases ‘apply to an‘ irrigation dis-

trict.“ But: it/nevertheless: ‘sustained’ weighted voting

L.---

NIT Cal. 914,48 Pac. 1016. onsidee

Rien ere

~ gecording to the assessed value of landownership.” It

4s not likely that Schindler would have been sustained

om appeal. No hearing was sought in the California

- Supreme Court; that Court in the course of the opinion

in Burrey spoke of Schindler with some asperity.™

ant has argued it is not a unit of government to which

the standards of the voting rights cases apply. The

posture of that issue in the Supreme Court is now of

mately the same number of dollars. But the necessary

'~ predicate of the decision on apportionment is that Tulare

"Lake Basin Water Storage District is sufficiently a gov-

_ ermmental body to require such judicial intervention,

Reynolds v. Simms,®* Avery v. Midland County,” and

Re the defendant district has not appealed that portion

v.

377 US. 533 (1964).

- 7390 US. 474 (1968).

» —26—

$§41000 and 41001 of the Water Code. It results that

ee ee ee

ater Storage District is sufficiently a govern-

eb to. justify the. district: court’s intervention,

is now the law of the case, there having been no appeal.

Conclusion.

Tulare Lake Basin Water Storage District is an abber-

ration, a relic in the twentieth century. Plato described

oligarchy as “government resting on a valuation of prop-

erty’;” and §41001 of the California Water Code is

nothing less than a legislative mandate for oligarchy.

The residents of Tulare Lake Basin Water Storage

District. should be admitted to the franchise, whether

or not they own land, Farmers leasing land in that dis-

trict should be permitted to vote in its elections. The

landowners in that district should have an equal fran-

chise. It is respectfully submitted that these appellants,

plaintiffs below, are entitled to a decree that §§41000

and 41001 of the California Water Code are constitu-

tionally infirm.

Dated this 9th day of August, 1972.

C. Ray RoBINsOoN,

THOMAS KEISTER GREER,

~ Counsel for Appellants.

The Republic (Bakewell Ed., p. 323).

APPENDIX A.

a “Bulletin No. 155, Department of Water Resources,

State of California, “General Comparison of California

Water District Acts” pp. 103-105 (1965):

“WATER STORAGE DISTRICTS

, 1 Citation

Water Code, Div. 14 comprising

Secs. 39000-48401 (derived from

1921:914:1727, D. A. 9126). “Cali-

fornia Water Storage District Law”.

Storage and distribution of water;

drainage and reclamation in connec-

tion therewith; generation and dis-

tribution of power incidental thereto

(Secs. 42200, 43000, 43025); such

uses are a public use (Sec. 39061).

Lands already irrigated or susceptible

of irrigation from a common source

and by same system; need not be con-

tiguous (Secs. 39400-39402).

May include land in other agencies

including other water storage districts

having different plans, purposes, and

objects (Sec. 39401).

Majority of holders of title or evi-—

dence of title representing majority

in value of lands, or 500 holders of

10% in value (Sec. 39400); cost

bond required (Sec. 39428).

Department of Water Resources (Sec.

39430).

Petition to, and investigation, hearing

and order by Dept. of Water Re-

sources, election (majority vote)

(Secs. 39400-40103).

ae oe a

%

as

1 _yote for eackt $100, or fraction, as-

_ ested. value of Iand exclusive of im-

arty ra rent

allowed (Secs.

eb Onder ttoving tengo ptt

13 State and.

48258); Presiornay eit and ex-

clusion records: Secretary of State

(Secs, 40104, 40659, 48300).

Not. applicable—assessments not on

_ad valorem basis.

5, 7, 9, or 11 Directors, depending on

number. of divisions (Secs. 39777,

AA ites bidsenrs ic pecinots of

district; private property devoted to

use.of other districts, cities, or coun-

ties may not be taken (Sec. 43530):

may not condemn in another county

without approval of board of super-

visors of affected county (Sec.

435325).

May cooperate and contract with the

State and the U.S. under any laws of

- the State or the Fed. reclamation laws

(Secs. 44000-44105); may enter into

any \ agreement appertaining to or

‘beneficial to dist. project’ (Sec.

43151).

16 Revenues

—3—

See “Assessments”.

General obligation, by majority of

votes cast by assessed voters (Secs.

45100, 45270, 45400); but see Secs.

42330, 41000 re vote required on

adoption of projects and at general

elections. General obligation bonds

without election upon % vote of dis-

trict board and approved by the de-

partment or (after July 1, 1965) the

Calif. Dists. Sec. Com., if project or

contract approved at election and as-

sessments outstanding (Sec. 45102).

Unpaid warrants draw interest (Sec.

44626). May issue interest-bearing

warrants payable at a future time, the

total amount payable in any year not

to exceed % of 1% of assessed valua-

tion of land unless approved by the

department or (after July 1, 1965)

the Calif. Dists. Sec. Commission.

and may not extend over 5 years un-

less approved by majority vote at an

election (Secs. 44900-44911); may

issue direct assessment warrants by

% vote of board and approval of the

department or (after July 1, 1965)

the Calif. Dist. Sec. Com. to finance

project or contract approved at an

election (Secs. 45900, 46381).

Tolls and charges for use of water.

irrigation, and other services (Secs

43006, 43007, 47180); power rev-

enues (Secs. 43025, 43026, 47700.

47701); sales of surplus property,

water and power (Secs. 43507,

43533, 43555, 43001, 43026); leases

(Sec. 43506).

17. Assess-

18 Tax. of

Dist. Prop.

19 Districts _

Sec. Com.

somalia

Assessments for organization and

other preliminary. expenses. .cqually —

upon.each acre-up to $2; addition?

assessments up to $2.50

cy ee anne projects (Secs. 46000

. 46009); forall; other purposes, as-

\ sessments of lands according to bene-

fits; may. be payable in installment:

(Sécs. 46150-47701, 44030-44032);

_ interim project assessments on each

»_gere, up to $2 per acre (Secs. 46375-

Dist. works, including _ reservoirs,

dams, fights of way, canals, power

plants, ‘transmission lines, etc., not

taxable for state, county or city pur-

poses (Sec. 43508).

Financial supervision and bond cer-

tification approval under Dists. Sec.

Com. Law is requested (Secs. 44911.

45100, 45101 (operative until July

1, 1965), 45701; Water Code, Sec.

. 20003); after July 1, 1965, bonds

may be issued unless certified (Sec.

45100); keep records (Sec. 43159).

After July 1, 1965 follow-

ing duties now ¢ by the Dept.

of Water Resources: Supervise levy

of assessments (Secs. 46000-46381).

see that assessments are levied (Sec.

40382), appoint assessment com.

missioners (Secs: 42355, 46150,

46355, 47551) and issue warrants

for their compensation (Secs. 44600,

_ 46154), sppoint tax adjustment

hn

thorization and construction of works

(Secs: 42200-42752, 44005, 46150),

approve purchases in excess of $500,-

000 (Sec. 43503), examine progress

reports and financial statements and

make recommendations thereon (Sec.

44430), examine district affairs and

make reports (Sec. 44431), prescribe

form of district reports and accounts

(Sec. 44432), approve issuance of

district warrants payable at future

times (Sec. 44904), approve issuance

of bonds without an election (Sec.

45102), approve direct assessment

warrants (Sec. 45900), approve -pre-

liminary assessments in excess of 50¢

(Sec. 46008), approve interim proj-

ect assessments (Sec. 46377).

Receive petitions for formation, in-

vestigate, hold elections and super-

vise organization of new districts

* (Secs. 39400-40103); give informa-

tion and make preliminary investiga-

tions (Secs, 39081-39082); keep rec-

_ ords (Sec. 43159); execute warrants

(Secs. 39663, 44600); investigate

under Dists. Sec. Com. Law (see

“Districts Sec. Com.”); fill board

vacancies (Sec. 40500); appoint di-

rectors where election not required

(Sec. 41307). Until July 1, 1965,

redivide districts (Sec. 41152); su-

pervise exclusions (Secs. 48000-

48087) and inclusions (Secs. 48200-

48260); see also “Districts Sec.

Com.” After July 1, 1965, upon re-

22 Dissolu-

‘Inclusion (adjacent lands, irrigable

‘from dist. works, if for best interest

or district): by petition, hearing, or-

der of the board, ‘and election if suf.

ficient protests made (Secs. 48200-

48260); Jand may be subject to prior

“assesaments (Sec. 47550).

Exclusion (lands not benefited or if

for best interests of district): by peti-

tion, hearing, and order of the board

(Secs. 48000-48087). Consolidation

provided (Sec.'48350).

Same as for irrigation districts (Sec.

48400); also dissolved by failure to

file report on plans within 10 years

(Dept. of ‘Water Resources or, after

July 1, 1965, the Calif. Dists. Sec.

“Com. may exténd time 15 years) or

by abandonment of plans or failure of

voters to approve plans (Secs. 42280,

42360, “aes

9.”