Jurisdictional Statement — Hill v. Stone

Supreme Court brief1975

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PRS Ey RS SITET TE Re ETE NS ARN

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IN THE T micuaee RODAK, ir ae

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

73-1723

No.

John L. Hill, Attorney General of Texas,

Appellant,

Vv.

Michael L. Stone, et al.,

Appellees

On appeal from the United States District

Court for the Northern Distirect of Texas

Jurisdictional Statement

JouN L. Hitt

Attorney General of Texas

Larry F. York

First Assistant Attorney General

Counsel of Record :

Mike WILLaTr

Assistant Attorney General

G. Cuar.es Kopspisu )

Assistant Attorney General _

May, 1974

; INDEX

Page

The Opinions Below...................ccccccccccesecnenessssssssesseeeeecceeseees 2

Statement of the Grounds on Which the Jurisdiction

OR Chis COmrt- 18 DVO ROG cs csicnseeacssctendosens scare crenvanenei Z

Question Presented by the Appeal ................0::ceeceeeeeeeees 3

Statement of the Facts of the Case ss deignethuugaacsencadenanseo unas 4

The Question Presented is Substantial ................0..0....::0e 8

OTIC TSIM, esc vsssscsececaecensicegcancsite Feinectssoacescossnssceusienias oes 29

Appendix A-Judgment and Memorandum Opinion of

BT oo nal Os |g Sen ee eee emer ae ee imran la

Appendix B - Notice of Appeal ...................cecceeeeeeeeeeeeeeeeee 1b

Appendix C - Full Text of:

Tex. Const. Art. VI, Section 3 (1955) «0... lc

Tex. Const. Art. VI, Section 3a (1955) «0.0.0.0... lc

Tex. Election Code Ann. Art. 5.03 (Supp. 1973) ...... 2c

Tex. Election Code Ann. Art. 5.04(a) (Supp. 1973) ..3c

Tex. Election Code Ann. Art. 5.07 (1967)... 3c

Charter of the City of Fort Worth,

Ch. 25, Section 19 oo... scsssecnenneeneereeeeeeees 4c

Appendix D - Factural Stipulations Taken From the .

PPG +4 FIRE COPE E pcs chicssvicos scternisies carsnarey a avasene nee: ld

PROS AS ROR |

TABLE OF AUTHORITIES

CASES: Page

Associated Enterprises, Inc. v. Toltec Watershed

Improvement District,410 U.S. 743 (1973)... 22, 23, 24,

25, 26, 27

Avery v. Midland County, 390 U.S. 474 (1968) ......... 22, 23

Baker v. Carr, 369 U.S. 186 (1962) 000000. eee 10

Campbell v. Wright, 95 S.W. 2d 149 (Tex. Civ.

PDD: L950, NO WUE ro ehccenssseectercr tert eerie 15

Carrington v. Rash, 380 U.S. 89 (1965) ooo 9

Cipriano v. City of Houma, 395 U.S. 701 (1969).... 3, 4, 10,

11, 12, 14, 16, 21

City of Phoenix v. Kolodziejski, 399 U.S. 204

GL of] 1) eee 3, 10, 11, 12, 14, 21

DuBose v. Ainsworth, 139 S.W. 2d 307 (Tex. Civ.

App. 1940, writ dis.) 0.0... ccccccccssssseccceeceessssseeneeeeees 13

Dunn v. Blumstein, 405 U.S. 330 8b) Preece «fa 40

Franklin v. Krause, 32 N.Y. 2d 234, 298 N.E. 2d

GN ascetics rpece cee sraseons sasteneancauntbiaiseiag aeeeaes 25

Gray v. Sanders, 372 U.S. 368 (1963).........cccccceseeeeeeeeeeeees 10

Hadlev v. Junior College District, 397 U.S. 50 (1970)... 22

Handy v. Holman, 281 8.W. 2d 356 (Tex. Civ. App.

DD TRO WN aca excsecsgegsgrcencntcenste tteeotenqugeneocanee 14, 15

Harper v. Virginia Board of Electors, 383 US

GS 11 9OG Diss scrasexesstunsacesorexseuvocenceaseveraedpasenseatvors 9, 17, 24

TABLE OF AUTHORITIES

CASES: . Page

Kramer v. Union Free School District No. 15,

19, 20, 21, 27

Lassiter v. Northampton Election Bache, 360 U.S.

45 (1959)... ccc ceceseereessesseneeeenneeeeersbesseseetenseseeneeseenees 9,18

Lucchese v. Mauermann, 195 S.W. 2a 422 (Tex. Civ.

App. 1946, writ ref. n.r.e.) cert. denied, 329

U.S. 812 (1947) oo... cece ceccecssceecescccecceccsenecscesseeseeeeceseoes 15

Markowsky v. Newman, 134 Tex. 440, 136 S.W. 2d 808

CL GADD secccesccvcsyoocencessavenavncestvncesscovesssasnaatansoekasscnsuesetttnees 15

McDonald v. Board of Election Commissioners of

Chicago, 394 U.S. 802 (1969) ........:.: eee 16, 20, 27

McGowan v. Maryland, 366 US. 420 (1961) ....... 19, 21, 29

Minor v. Happersett, 88 U.S. (21 Wall) 162 (1875) ......... 24

Montgomery Independent School District v. Martin,

464 S.W. 2d 638 (Tex. 1971) .......ccceeeeeeeeeeeeeeees 14, 27

Oregon v. Mitchell, 400 U.S. 112 (1970)... eects 19

Police Jury of Vermillion Parish v. Hebert, 404 a S.

BOT (V9 TY eeccaceseocesncasarcn en cesenioseker enna toate 21

Pope v. Williams, 193 U.S. 621 (1904) oo. ce eet 19

Reynolds v. Sims, 377 U.S. 533 (1964) oo... eee 10, 18, 23

Richter v. Martin, 342 S.W. 2d 342 (Tex. Civ. App.

1961. NO WIE) cccesresnssserseccersvesosensasverderesnnnceneeonnasenseneses 15

Rosario v. Rockefeller, 410 U.S. 752 (1973)... 16, 17, 24, 25

—ili—

aA RAE NRE NY MRROONR NIE BIEN

ERAN eg AAI

PPE Re MEL

Bese EAH LOL Ay AMEE ALINE ARSE ot

_TABLE OF AUTHORITIES

CASES: : Page

Royalty v. Nicholson, 411 S.W. 2d 565 (Tex.

Civ. App. 1967, writ ref. n.r.@.) i ceeecceeeeeeeeeeeeees 15

Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973) ....... 3, 20, 22, 23

24, 25, 26, 27

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) wu. eeceeccce ee eeees 23, 24

Stewart v. Parish School Board of Parish of

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

1970), affd mem., 400 U.S. 884... 13, 14, 21

Texas Public Utilities Corporation v. Holland,

123 S.W. 2d 1028 (Tex. Civ. App. 1939,

8 a) 80 | oe ee ee eee 14, 15

STATUTES:

Texas Revised Civil Statutes Ann.

PEE FO OO SU 1 O78) scarenesstenerseenepan atin treet encutwees 6

ys Sm a a 0,8 ea 13

Texas Election Code Annotated

PRPAICIS- 9.09 (SND 19 8) epcavceseecssgra seca retsnaert ease onesie 3

Article 5.04(a) (Supp. 1973) ............ccsesccsssssoesssressseees 3

PUCCIO OOF CI 9G 8) vccsassccsacessgucei.tensadttstesassd eactsiaeeanseeece 3

Charter of the City of Fort Worth, Ch. 25, Section 19 ..... 3

United States Code:

Title 28 U.S.C. Section 1253 oo... ceeeeeeececseeeeeeeeees 3

Title 28 U.S.C. Section 2101 (b) ooo. ceececceeeeeeeeees 3

Title 28 U.S.C. Section 2281 oo... ccccecceeeeecceeeesneeee 2,6

Title 28 U.S.C. Section 2284 ooo ecceccceceeeeeeeeeeees 2,6

Fed. Rules Civ. Proc. Rule 23, 28 U.S.C.A..........8. 2,6

aye

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS:

Constitution of the United States

Fourteenth Amendment .............:::::eeeeeeees 2 3,6, 1,10,

12, 18

Constitution of Texas

Tex. Const. Art. VI, Section 3 (1955)........ eee 3

Tex. Const. Art. VI, Section 3a (1955) «0.0... 3,4

OTHER AUTHORITIES:

Lee, Mr. Herbert Spencer and the Bachelor Stockbroker:

Kramer v. Union Free School District No. 15,

15 Ariz. L. Rev. 457-477 (1973) .......e.ceesseeeeeeeeeteeterees 25

-The Supreme Court, 1972 Term, 87 Harv. L. Rev.

Q4-105 (1973) ....cccccvccccccscccscseeccssccsssccssssescocscossssssnerseess 25

—_v— 7

ba pigs

IN THE

SUPREME COURT OF THE UNITED STATES

STATES

No. —

John L. Hill, Attorney General of Texas

eR ak

Appellant,

Vv.

Michael L. Stone, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF TEXAS

ARES PEAR GY es PTT PORE NER Re ER

syINS

Jurisdictional Statement

Pes. th

Appellant appeals from the judgment of the United

States District Court for the Northern District of Texas,

Fort Worth Division, entered on March 25, 1974, grant-

ing a permanent injunction against appellant, and

submits this Statement to show that the Supreme Court

of the United States has jurisdiction of the appeal and

that a substantial question is presented.

ng yD TPA TE IR

‘

Bees. PRHes

THE OPIN IONS BELOW

The opinion of the three-judge federal court sitting as

the District Court for the Northern District of Texas,

Fort Worth Division, is unreported as of this date.

Copies of the judgment and the memorandum opinion

are attached hereto as Appendix A.

STATEMENT OF THE GROUNDS ON WHICH

THE

JURISDICTION OF THIS COURT IS INVOKED

(1) This suit was brought before a three-judge federal

court under 28 U.S.C. §§ 2281 and 2284, as a class

action pursuant to F.R. Civ. P. 23. By this suit, appel-

lees sought to enjoin appellant from applying certain

Texas constitutional and statutory election laws, as

well as certain provisions of the Charter of the City of

Fort Worth, Texas, which qualify the right to vote in

general obligation tax bond elections upon the render-

ing of real, personal, or mixed property for taxation, as

being in violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitu-

tion.

(11) The judgment sought to be reviewed is the ruling

_of the District Court granting a permanent injunction

against appellant. That judgment was entered on

March 25, 1974. The Notice of Appeal was filed in the

District Court for the Northern District of Texas, Fort

Worth Division, on April 18, 1974 and is attached

hereto as Appendix B.

(iii) The jurisdiction of the Supreme Court to review

this decision by direct appeal is conferred by Title 28,

United States Code, Sections 1253 and 2101 (b).

(iv) The following decisions sustain the jurisdiction of

the Supreme Court to review the judgment on direct

appeal in this case:

Salyer Land Co. v. Tulare Lake Basin Water Stor-

age Disirict, 410 U.S. 719 (1973);

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

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

(v) The validity of Tex. Const. Art. VI, Sections 3 and

3a, Tex. Election Code Ann. Art. 5.03 (Supp. 1973), Tex.

Election:Code Ann. Art. 5.04(a) (Supp. 1973), Tex. Elec-

tion Code Ann. Art. 5.07 (1967), and the Charter of the

City of Fort Worth, Ch. 25, Section 19, are here in-

volved. The full text of these laws are set forth in Ap-

pendix C hereto.

QUESTION PRESENTED BY THE APPEAL

The following question is presented by this appeal:

Are Texas election laws limiting the franchise in

~general obligation tax bond elections to persons

who own taxable property which has been rendered

for taxation consistent with the Equal Protection

Clause of the Fourteenth Amendment to the Un-

ited States Constitution?

ae:

Pitbtsttasntascxncs. wrivsRabese

STATEMENT OF THE FACTS OF THE CASE

Article VI, Section 3a, of the Texas Constitution pro-

vides that voters voting on bond issues which will be

paid in whole or in part from tax revenues must be “only

qualified electors who own taxable property in the...

political subdivision . .. where such election is held, and

who have duly rendered the same for taxation,...” In

1969, when it first became apparent from the decisions

of this Court in Cipriano v, Houma, 395 U.S. 701, 89 S.

Ct. 1897, 23 L. Ed. 2d 647 (1969), and Kramer v. Union

Free School District No. 15, 395 U.S. 621, 89 5. Ct. 1886,

23 L.Ed. 2d 583 (1969), that the above and related

provisions of the Texas Constitution and Statutes

might be incompatible with the United States Con-

stitution, the Texas Attorney General’s Office, and the

bond industry and ‘their attorneys, devised a dual-box

election procedure whereby at each tax bond election

two separate ballot boxes are provided. In one box only

resident qualified electors who own taxable property

and who have duly rendered the same for taxation are

allowed to vote, and in the other box, all other resident

qualified electors (who are otherwise qualified, but do

not own taxable property which has been duly rendered

for taxation) are allowed to vote. The votes cast in each

box are recorded separately, and the returns are can-

vassed in such manner as reflects separately the votes

cast by the two respective groups of electors. .

Bonds have only been approved by the Texas Attor-

ney General if a majority of the property owners who

a ae

have rendered their property approved, and if addition-

ally, a majority of all voters approved. This procedure

assured that bonds issued were compatible with both

the Texas Constitution and the United States Constitu-

tion. The dual-box election procedure was followed in

the generabobligation tax bond election made the sub-

ject of this case.

On April 11, 1972, the City of Fort Worth held a tax

bond election to seek authorization to issue bonds to

build a library system. The ordinance authorizing the

election stated that the election was to“... be held and

conducted, in effect, as two separate but simultaneous

elections, to-wit: one election at which only the resi-

dent, qualified electors who own taxable property in the

City and who have duly rendered the same for taxation

shall be entitled to vote on said propositions, and °

_ another election at which al]l other resident, qualified

electors s of the City shall be entitled to vote on said

propéitions. The votes cast at each of said separate but

simultaneous elections shall be recorded, returned, and

canvassed separately.”

The result of the election was as follows:

Owners of Property ~

Rendered for Taxation

FOR 10,849

AGAINST 12,234

consi peal

ereitew

Deeamne

Non-Renderers

FOR 3,758

AGAINST 1,132

TOTAL FOR: ‘14,607

TOTAL AGAINST: 13,366

—On April 17, 1972, the City Council appro and_

adopted the election and, thereafter, acting pursuant to

the Texas election laws, refused to sell the library

bonds. On that same day, the appellees filed a class

action pursuant to F.R. Civ. P. 23 requesting that a

three-judge district court be convened under the au-

thority of 28 U.S.C. Sections 2281 and 2284.

John L. Hill, Attorney General of Texas, was joined

as defendant because Texas law requires that said offi-

cial certify the legal validity of the proposed municipal

bond issue. Tex. Rev. Civ. Stat. Ann. Art. 709d (Supp.

1973). After the bonds have been approved by the At-

torney General, Texas statutes provide that they are

incontestable except for fraud and unconstitutionality.

Appellees requested the District Court to declare the

Texas election laws involved to be in irreconcilable

conflict with the Equal Protection Clause of the Four-

teenth Amendment to the United States Constitution.

Appellees further requested the District Court to enjoin

appellants from giving any force or effect to the Texas

election laws in controversy as they might relate to the

outcome of the bond election held on April 11, 1972, or

any other such elections thereafter held.

The case was submitted to the District Court on stipu-

lated facts as they appeared in pages 19 through 43 of

the District Court’s Pre-Trial Order entered on

November 8, 1972 and said factual stipulations are

attached hereto as Appendix Do

e See F

On March 25, 1974, the three-judge court entered a

judgment and opinion (Appendix A) declaring the ques-

tioned Texas election laws to be in violation of the

Fourteenth Amendment to the United States Constitu-

tion and enjoined appellants from giving any force or

effect to said laws. The District Court stayed its judg-

ment for ten days to enable the parties to submit an

application for stay to the Circuit Justice, the Supreme

Court, or a Justice thereof.

On the 2nd day of April 1974, appellant filed a Motion

to Modify Judgment and/or for Partial Stay in the

District Court requesting a modification of the judg-

ment to provide that the Texas dual-box election proce-

dure in bond elections be continued pending the final

outcome of this cause before the Supreme Court. The

District Court entered an order on April 9, 1974, deny-

ing the appellant’s Motion. The District Court granted

an additional five day stay of their judgment to enable

LF Mo LILLE LN ELL LS LOO TICL

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the parties to submit an application for stay to the

Circuit Justice, the Supreme Court, or a Justice thereof.

Appellant field an application for a partial stay of the

District Court’s judgment with the Circuit Justice, Mr.

Justice Powell, on April 15, 1974. The Circuit Justice

requested a reply to appellant’s application from appel-

lees. Upon receipt of the reply, the Circuit Justice

granted a partial stay of the District Court’s judgment

_by order entered on April 25,1974,

THE QUESTION PRESENTED IS

SUBSTANTIAL

The issue involved in this appeal is of great impor-

tance to the State of Texas and the political subdivi-

sions thereof, as well as more than one-fourth of all the

states which in one manner or another qualify the right

to vote in general obligation bond elections on the basis

of property ownership or taxation. The importance of

the issue is accentuated by its potential effect on the

financing which is vital to the function of the states and

their subdivisions in erecting and maintaining needed

public improvements. In making a final determination

of the issue involved in this appeal, this Court will

unquestionably and substantially affect the functions

of local government as well as the continued viability of

reasonable state voting qualifications in this area.

The. United States Supreme Court has been pre-

sented over the last decade with numerous controver-

_8—

e®?

___As-a general proposition, the states have ".,. broad ___

sies concerning the qualifications which various states

have placed upon the exercise 01 the franchise in state

and local elections. Although each of the decisions of

this Court have been concerned with the particular type

of election at hand and its circumstances, those same

decisions have been applied generally in virtually

every area of election law by this Court as well as thé

various lower courts, state and federal.

powers to determine the conditions under which the

right of suffrage may be exercised.” Lassiter v. North-

ampton Election Board, 360 U.S. 45, 50 (1959). This

Court in Lassiter determined that voter qualification

requirements may be sustained either when they pro-

mote intelligent or responsible voting (voting compe-

tence) or when they perform either of these Ace in

a decision upholding North Carolina’s litéracy re-

quirement. This Court also cited as constitutionally

permissible qualifications based on age, residence, and

previous criminal record.

In keeping with the principle of Lassiter, this Court

has condemned voter qualifications which bear no de-

monstrable relation to the promotion of intelligence

and responsibility in voting. Carrington v. Rash, 380

U.S. 89 (1965) (military personnel); and Harper v. Vir-

ginia Board of Elections, 383 U.S. 663 (1966) (poll tax).

An equally important basic premise stressed by this |

Court is that the issues in any election should be de-

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cided by a majority of the people concerned with the

outcome. Reynolds v. Sims, 377 U.S. 533 (1964); Gray v.

Sanders, 372 U.S. 368 (1963); and Baker v. Carr, 360

U.S. 186 (1962). However, “. . . once the franchise is

granted to the electorate, lines may not be drawn which

are inconsistent with the Equal Protection Clause of

the Fourteenth Amendment.” Harper, supra.

‘In 1969 and 1970, this Court rendered several deci-

sions holding invalid state laws which selectively

granted the right to vote on grounds that they denied

equal protection under the Fourteenth Amendment.

The first of these decisions was Kramer v. Union Free

School District No. 15, 395 U.S. 621 (1969). In Kramer,

this Court struck down a New York statute which

granted the right to vote in a local school board election

only to those who owned or leased taxable real property

in the district or were parents or custodians of children

enrolled in the public schools. On the same day this

Court decided Kramer, it also handed down Cipriano v.

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

decision invalidated a Louisiana statute which permit-

ted only property owners to vote on the question of

approving bonds that were to be financed exclusively

from the revenues of a municipal public utility. The

third important decision was Phoenix v. Kolodziejski.

399 U.S. 204 (1970), in which an Arizona constitutional

limitation of the franchise in general obligation bond

elections to persons who are qualified electors and also

real property taxpayers, was held to be in violation of

the Equal Protection Clause.

FP ATSC = TN A MA aaa,

The decisions of this Court in Cipriano and Kramer

were carefully reviewed by appellant, Texas Attorney

General, with respect to their application to the Texas

election laws governing general obligation tax bond

elections. No changes in Texas voter qualifications

were deemed necessary in light of those decisions be-

cause this Court's opinions were not inclusive of the’

facts or the law surrounding Texas tax bond elections.

However, in order to protect the outstanding public

securities of this State and to insure that any subse-

quently voted securities would not be subject to attack

based upon a controlling, unfavorable decision of the

Phoenix case, which was at that time pending in this

Court. it was decided that tax bond propositions should

be covered by a dual-box election.

The result of this dual-box election policy was to

require that issuers of tax bonds be required to meet all

the voter qualification tests of the Texas Constitution

and statutes, and in addition thereto, be required to

submit tax bond propositions to the balance of the

otherwise qualified electorate. Before approval would

be given in the form of the Attorney General's opinion

as to the validity of securities, any and all underlying

propositions must have been approved not only by the

owners of taxable property duly rendered, voting In a

separate box, but also by the aggregate of all electors.

This policy was viewed originally as a temporary

measure. on the assumption that the final. determina:

tion of the Phoenix case would put the question to rest,

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teases

However, that decision did not settle the issue in Texas

tax bond elections.

The precedents of Kramer, Cipriano and Phoenix

constitute the framework for the District Court’s

judgment that the Texas constitutional and statutory

qualifications for the exercise of the franchise in a gen-

eral obligation tax bond election are in violation of the

Fourteenth Amendment. The basic test announced in

those cases and ostensibly applied by the District Court

in this case requires that the Court determine whether

the voter exclusions are “. . . necessary to promote a

compelling state interest.” Kramer, at 627.

There are significant differences between the three

cases cited above-and the provisions of the Texas elec-

tion laws relevant to this case. In Cipriano, this Court

held that ownership of property, as a restriction, is

irrelevant to an election for the approval of bonds that

would be financed by revenues of a public utility,

thereby substantially and directly affecting property

owners and non-property owners alike. The present

case does not concern revenue bonds. Both Kramer and

Phoenix basically involved voting restrictions based on

real property taxation under circumstances which indi-

cated that such a classification excluded many persons

significantly affected by way of both burden and be-

nefit. Pointedly, this Court in Phoenix limited its re-

view to this question: “Does the Federal Constitution

permit a State to restrict to real property taxpayers the

ae, ee

vote in elections to approve the issuance of general

obligation bonds?” The Texas law does not restrict vot-

ing rights to owners of real property. Indeed, under Tex.

Rev. Civ. Stat. Ann. Art. 7145 (1960), “All property,

real, personal or mixed, except such as may be hereinaf-

ter expressly exempted, is subject to taxation and the

same shall be rendered and listed as herein prescribed.”

Stewart v. Parish School Board of Parish of St.

Charles, 310 F. Supp. 1172 (E.D. La. 1970), affd mem.,

400 U.S. 884, 27 L. Ed. 2d 129, 91S. Ct. 136, is another

case in the progression which needs discussion. The

United States District Court for the Eastern District of

Louisiana struck down Louisiana statutes which re-

stricted eligibility to vote in tax bond elections to prop-

erty taxpayers and also weighted each elector’s vote by

the monetary value of his assessed property. The Dis-

trict Court said that the affluence of the voter was not

such a compelling state interest as to justify the denial

of the vote to some and the dilution of the votes of the

majority. Texas has no such problem. It is immaterial to

the right to vote in a bond election whether one’s owner-

ship of property be great or small. DuBose v. Ainsworth,

139 S.W. 2d 307 (Tex. Civ. App. 1940, writ dis.). Also, in

Stewart, the District Court noted in footnote three (page

1173) that under Louisiana law the term “property

taxpayer’ equates with the term “real property tax-

payer” or “landowner”. Texas mekes no such distinc-

tion and, to the contrary, generates a substantial

amount of tax revenues from personal property as evi-

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denced in the attached Pre-Trial Order (Appendix D.

Stip. #24A).

In Montgomery Independent School District v. Mar-

tin, 464 S.W. 2d 638 (Tex. 1971), the Texas Supreme

Court faced the precise issue of this case. After consid-

eration of the Kramer, Cipriano, Phoenix and Stewart

cases, the Court determined that,

“Unlike those restrictive voting laws which have

been declared unconstitutionally narrow and li-

mited, the laws in Texas have consistently granted

the right to vote in general obligation bond elec-

tions to all who own personal property as well as to

those who own real property. Texas Public Utilities

Corporation v. Holland, 123 S.W. 2d 1028 (Tex.

Civ. App. 1939. writ dis.). In Handy v. Holman, 28%

S.W. 2d 356 (Tex. Civ. App, 1955. no writ), the right

to vote of forty resident ¢citizens was challenged

because immediately before participating in a bond

election, they had each rendered personal property

valued at $100 for the very purpose of voting in a

bond election. The court upheld their right to vote

and also said that electors should not be ‘parsed out

of their constitutional right to vote by reason of any

shortcoming in compliance with statutory re-

quirements concerning the proper and timely

rendition of personal property.

It is the contention of the Attorney General, and

we agree, that voter qualifications of ownership

under the Texas constitutional and statutory pro-

visions stated above. as interpreted by our deci-

sions, are so universal as to constitute no impedi-

ment to any elector who really desires to vote ina

bond election. A voter is qualified if he renders any

kind of property of any value, and he need not have

actually paid the tax.

The quoted provisions of the Constitution and

the Education Code requiring the property owner

tu duly render his property for taxation have been

often construed by the Texas courts in connection

with voting rights Property is ‘duly rendered’

within the meaning of the Texas Constitution if the

property is placed on the tax rolls by the tax asses-

<or instead of by the property owner. Texas Public

Utilities Cerporation v. Holland, supra, or by some

other person such as a husband, partner, agent or

co-tenant and even though the owner's name may

not appear on the tax rolls; Markowsky v. New-

man. 134 Tex. 440, 136 S.W. 2d 808 (1940); Royalty

v. Nicholson, 411 S.W. 2d 565 (Tex. Civ. App. 1967,

writ ref. n.r.e.); Lucchese v. Mauermann, 195 S.W.

2d 422 (Tex. Civ. App. 1946, writ ref. n.r.e.), cert.

denied. 329 U.S. 812, 91 L.Ed. 693, 67S. Ct. 633

(1947): Richter v. Martin, 342 S.W. 2d 342 (Tex.

Civ. App. 1961, no writ); Campbell v. Wright, 95

SW. 2d 149 (Tex. Civ. App. 1936, no writ); or when

one makes his rendition out of time and for the very

purpose of qualifying as a voter. Markowsky v.

Newman, supra; Handy v. Holman, 281 S.W. 2d

356 (Tex. Civ. App. 1955, no writ).

It thus appears that those who own anything can

vote ina bond election ifthey render their property,

and they are deemed by the decisions of Texas to

have rendered their property if they get their prop-

erty on the rolls in any manner in advance of the

election. In our opinion, the requirement that the

voter ina general] obligation bond election must get

his property on the rolls is in the interest of sound

government and affords equal treatment of all citi-

zens. One who is willing to vote for and impose a tax

on the property of another should be willing to

assume his distributive share of the burden. This

is the manner in which the Texas Constitution, as

approved by the entire citizenry of the state, pro-

vides inducement for those who wish to participate

a, | en

EAE A ESE EE PR Perey ” Sra rece F

inthe decision making process in a School District

to assume their rightful portion of the burden they

help to create.”

“To disclose one’s share of the total burden for

which he is responsible in a bond election requires

no more than the law universally expects. To allow

some property owners to vote in that kind of an

election, and at the same time to permit them to

avoid their fair share of the resulting obligation,

would confer preferential rights. This would be a

denial of equal protection to another segment of

citizens.”

This Court, in Kramer and Cipriano, left open the

question of whether a state might under some set of

circumstances qualify the franchise by limiting access

to the ballot to those “primarily interested.”

Appellant further contends that the Texas election

laws do not create a classification at all. Since Texas

law subjects all property to taxation, the only addi-

tional qualification required for eligibility to vote in a

general obligation bond election is that of rendering

property for taxation. Electors, such as appellees, who

have either ignored or who refuse to comply with their

legal duty to render their property simply disenfranch-

ise themselves. Also, as was the situation in the absen-

tee ballot case of McDonald v. Board of Election Com-

missioners of Chicago, 394 U.S. 802, 807 (1969), there is

no evidence that the applicable Texas election laws

absolutely prohibit anyone from exercising the franch-

ise. Kramer, at 627. More recently in Rosario v. Rock-

efeller, 410 U.S. 752 (1973), this Court, in reviewing

cases cited for the proposition that the New York politi-

cal party enrollment deadline disenfranchised other-

wise qualified voters unconstitutionally, stated at 36 L.

Ed. 2d 6 and 7:

“In each of those cases, the State totally denied

the electoral franchise to a particular class of resi-

dents, and there was no way in which the members

of that class could have made themselves eligible to

vote...

Hence, if their (petitioners) plight can be charac-

terized as disenfranchisement at all, it was not

caused by § 186, but by their own failure to take

timely steps to effect their enrollment.”

The District Court characterized this contention as

capable of supporting an impermissible poll tax. Harper

uv. Virginia State Board of Electors, 383 U.S. 663 (1966).

Also, the District Court concluded that Rosario was

inapplicable here because New York’s enrollment re-

quirement“... wasa reasonable state effort to preserve

the integrity of the electoral process, a goal the Court

called ‘legitimate and valid.’ The Texas rendering re-

quirement, by contrast, is primarily an attempt to aid

the states’ taxation efforts, and is not designed to pro-

tect or improve the electoral process.”

The District Court. although certainly recognizing

the tax collection aspects of the Texas rendering sys-

_17--

Sirs sin. yer TOA Gp OLA OE LOE BT AM AWE OBES 0

; |

tem, failed to recognized the valid state interest in

protecting the integrity and quality of the electoral

process through the rendering requirement. Since only

property renderers will ever be called upon to repay the

bonded indebtedness, and the definition of property in

Texas is so universal in scope, the state has au sufficient

interest in seeking to exclude those not “primarily in-

terested” in the election subject. Indeed, it is essentially

the responsibility of the state to establish reasonable“...

standards designed to promote the intelligent use of

the ballot.” Lassiter, at 51. In light of this duty, it is

entirely rational for the Texas election laws to exclude

non-renderers in tax bond elections since they have no

cognizable incentive to vo‘e either cautiously or intel-

‘ ligently. Indeed, non-renderers have no reason to vote

4 against any such tax proposal at all. Such a non-

_ renderer would stand to reap benefit without corres-

ponding burden. By excluding those otherwise qual-

d ified voters who refuse to render their own property

according to the laws of this State while attempting to

impose a tax on the property of others, the Texas elec-

tion laws create a minimal qualification requirement

which serves to protect and enhance the electoral pro-

So dR eR eR ‘ees

oe os

4 cess, whereas a poll tax is nothing more than a fee for

; the privilege of voting, having nothing to do with voter

‘qualifications.

In Reynolds v. Sims, 377 U.S. 533 (1964), this Court

summarized the historical application of the Four-

teenth Amendment stating that “. . . the concept of

equal protection has been traditionally viewed as re-

—18—.

Hale’ &

EEE AH AS BOBS LEE NE BANE NEDA A APNE

quiring the uniform treatment of persons standing in

the same relation to the governmental action ques-

tioned or challenged.” This Court has recognized that

the traditidhal application of the Equal Protection

Clause was restricted to a view of the “reasonabieness”

of the state classification made the subject of complaint.

McGowen v. Maryland, 366 U.S. 420, 426 (1961). In-

deed, it was not until Kramer that state voter qualifica-

tions came under the full impact of the strict judicial

scrutiny of the compelling-state-interest test. Dunn v.

Blumstein, 405 U.S. 330, 363 (1972) (Blackmun, J.,

concurring). |

Mr. Chief Justice Burger dissenting in Dunn

pointedly described the impracticality of the

compelling-state-interest test stating that

“The holding of the Court in Pope v. Williams,

193 U.S. 621, 24 S. Ct. 573, 48 L.Ed. 817 (1904), is

as valid today as it was at the turn of the century. It

is no more a denial of equal protection for a State to

require newcomers to be exposed to state and local

bso for a reasonable period such as one year

efore voting, than it is to require children to wait .

18 years before voting. Cf. Oregon v. Mitchell, 400

U.S. 112, 91 S.Ct. 260, 27 L. Ed. 2d 272 (1970). In

both cases some informed and responsible persons

are denied the vote, while others less informed and

less responsible are permitted to vote. Some lines

must be drawn. To challenge such lines by the

‘compelling state interest’ standard is to condemn

them all. So far as I am aware, no state law has ever

satisfied this seemingly insurmountable standard,

and I doubt one ever will, for it demands nothing

less than perfection.”

—19—

Mr. Chief Justice Burger’s dissent in Dunn

foreshadowed the rendition of four decisions by this

Court in 1973 which further illustrate the inadequacy

of the compelling-state-interest test as an equal protec-

tion standard, as well as confining it to restricted cir-

cumstances, if not actually forewarning of its eventual

demise.

In Salyer Land Co. v. Tulare Lake Basin Water Stor-

age District, 410 U.S. 719 (1973), Mr. Justice Rehnquist

expressing the view of six members of this Court held

that the provisions of the California Water Code which

permitted only landowners to vote in water storage

district general elections and by apportioning votes in

the election according to the assessed valuation of the

land to be constitutionally permissible. This Court

went to great lengths to explain that by reason of the

water storage/district’s limited purpose and its dis-

proportionate effect on landowners as a group, the

California laws did not deny equal protection by limit-

ing the franchise to district landowners} thereby deny-

ing the vote to non-landowner residents, even though

they may be farm lessees, or by weighting votes accord-

ing to the assessed valuation of the land. Although

obviously dealing with state qualifications on the

franchise which “absolutely prohibited” interested per-

sons, otherwise qualified to vote, from exercising the

franchise, Kramer, at 627; McDonald; at 807-808, this

Court in Salyer refused to apply the compelling-state-

interest test. Rather, this Court returned to the more

Spe a SA AT AL ALOT BELA CE TE ~ PRN S ENE

practical McGowan test stating that

“the question for our determination is not

whether or not we would have lumped them to-

gether had we been enacting the statute in ques-

tion, but instead whether ‘if any state of facts

reasonably may be conceived to justify’ California’s

decision to deny the franchise to lessees while

granting it to landowners. McGowan v. Maryland,

oe 420, 426, 6 L. Ed. 2d 393, 81S. Ct. 1101

(1961).

Mr. Justice Douglas, speaking for the dissent stated

that

“Provisions authorizing a selective franchise are

disfavored, because they ‘always pose the danger of

denying some citizens any effective voice in ihe

governmental affairs which substantially aftect

their lives.’ Kramer v. Union School District, 395

U.S. 621, 627, 23 L. Ed. 2d 583, 89 S. Ct. 1886. In

order to overcome this strong presumption} it had

to be shown up to now (1) that there is a compelling

state interest for the exclusion, and (2) that the

exclusions are necessary to promote the State’s ar-

ticulated goal. Phoenix v. Kolodziejski, supra; Cip-

riano v. City of Houma, 395 U.S. 701, 23 L. Ed. d

647, 89 S. Ct. 1897; Kramer v. Union School Dis-

trict, supra. See also Police Jury of Vermillion .

Parish v. Hebert, 404 U.S. 807, 30 L. Ed. 2d 39, 92

S. Ct. 52; Stewart v. Parish School Board of St.

Charles, 310 F. Supp. 1172, aff'd., 400 U.S. 884, 27

L. Ed. 2d 129, 91 5 Ct. 136.”

The dissent went on to point out that the characteri-

zation of the water storage district as a “special-purpose

unit of government assigned the performance of func-

tions affectiving definable groups of constitutents more

than other constituents,” citing Avery v. Midland

County, 390 U.S. 474, 485 (1968), was unrealistic in

view of Hadley v. Junior College District, 397 U.S. 50

(1970). This Court in Hadley applied the compelling

state interest test because the special nurpose junior

college district exercised generalized powers which“...

while not fully as broad as those of the Midland County

Commissioners, certainly show that the trustees

perform important governmental functions ...and have

sufficient inmpact throughout the district to justify the

‘conclusion that the principle which we applied in Avery

should also be applied here.” (Emphasis added by the

Court).

On the same day that Salyer was handed down, this

Court rendered a per curiam decision in Associated

Enterprises, Inc. v. Toltec Watershed Improvement Dis-

trict, 410 U.S. 743 (1973). In Associated Enterprises,

this Court determined that a Wyoming law providing

that a watershed district could be established only by

referendum in which only landowners could vote and

their votes were weighted according to acreage owned

was,constitutionally valid. Again, this Court based its

decision on the premise that the watershed district was

a special-purpose unit of government with limited pur-

poses. Quite significantly however, this Court went on

to note that no denial of equal protection was involved

because the challenged statute “. . . was enacted by a

legislature in which all of the State’s electors have the

unquestioned right to be fairly represented ... ”- and

because the popularly-elected board of supervisors of

the affected conservation district must approve the cre-

ation of a watershed district. Id. , at 744 and 745.

The popular representation of all qualified voters in

Texas at the state level, like those in Wyoming, is

unquestioned through compliance with Reynolds.

Likewise, there is no question that Appellees are ade-

quately and fairly represented by the popularly-elected

City Council of Fort Worth under the holding of Avery.

Therefore, the only distinction between the non-

landowner residents’ relationship to the elections in

Salyer and Associated Enterprises compared with the

relationship of the non-rendering appellees to the tax

bond elections is the difference between a “special-

purpose district” and a special purpose bond election.

Certainly this is a distinction without a difference.

In a third decision rendered the same day as Salyer

and Associated Enterprises, this Court determined in

San Antonio Independent School District v. Rodriquez,

411 U.S. 1,36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973) that the

Texas dual approach to public school financing was

constitutional. Mr. Justice Powell speaking for the ma-

jority upheld the Texas school financing system against

an equal protection challenge. The Texas school financ-

ing system, to a significant degree, apportioned school

district revenues on the basis of the value of taxable

property in the district. The varying wealth of each

district resulted in disproportionate school revenues

_23—

being allocated to the different districts. Although no

compelling reason for the Texas system was apparent,

the constitutionality of the system was upheld because

the majority concluded that it was rational. The

compelling-state-interest test was not applied because

the “fundamental” interest necessary to invoke strict

judicial scrutiny was found lacking.

Significantly, this Court in Rodriquez decided to re-

strain the expansion of the “fundamental” rights

analysis in equal protection cases. In the past, this

Court had extended the “fundamental” rights approach

to voter qualification cases even though such rights

were not explicitly found in the United States Constitu-

tion. Rodriguez, (Marshall, J., dissenting). Further-

more, the Constitution of the United States has never

specifically guaranteed the right to vote in state elec-

tions. Minor v. Happersett, 88 U.S. (21 Wall.) 162

(1875); Harper, 383 U.S. at 665; Rodriguez, 36 L. Ed. 2d

at 44.

This Court’s decisions in Salyer, Associated Enter-

prises, Rodriguez, and Rosario v. Rockefeller, 410 U.S.

752 (1973) have been interpreted as follows:

“In the context of voter qualifications, neither

history, reason nor the Court’s opinions in Salyer

and Associated Enteprises suggest any basis for a

distinction based upon the generality of govern-

mental services offered. Voter qualification prob-

lems do not involve the same solieesl sensitivities

as apportionment problems, and there is no history

24 —

of refusal to decide voter qualification cases on the

grounds of non-justiciability. Accordingly, a logical

inference from the limitation on the compelling

state interest test as an equal protection standard

in voter qualification cases to elections for officials

of local units of government exercising general

governmental powers is a dissatisfaction with the

basic rule being limited, and a determination, at

the very least, not to permit its further ex ansion.

The recent decision in Rosario v. Rockefeller hold-

ing the compelling interest standard inapplicable

to procedural limitations on voting qualifications

further bears this out.”

Lee, Mr. Herbert Spencer and the Bachelor Stockbroker:

Kramer v. Union Free School District No. 15, 15 Ariz. L.

Rev. 457-477 (1973). See also, The Supreme Court, 1972

Term, 87 Harv. L. Rev. 94-105 (1973).

The decisions of this Court in Salyer and Associated

Enterprises were also analyzed by the Court of Appeals

of New York in Franklin v. Krause, 32 N.Y. 2d 234, 298

N.E. 2d 68, 71 (1973). The Court there determined that

the plan of apportionment and voting for the Nassau

County board of supervisors and the system of weighted

voting involved were not in violation of the Equal Pro-

tection Clause. The Court, 298 N.E. 2d at 71, stated ina

footnote that:

‘In two very recent cases it was held that

special-purpose units of government such as water

and sewage districts could operate outside strict

one man, one vote principles because they affected

‘definable groups of constituents more than other

constituents’, and that certain groups could thus

RNR PS SMR

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have disproportionate voting power (Salyer Land

Co. v. Tulare Lake Basin Water Stor. Dist., 410

U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973);

Associated Enterprises v. Toltec Watershed Im-

provement Dist., 410 U.S. 743, 93S. Ct. 1237, 35 L.

Ed. 2d 675 (1973). These decisions do not specifi-

cally extend to units of general local government

apportionment such as we find in the instant case.

There may be, however, further indication in these

cases that the Supreme Court does not demand

strict one man, one vote principles at the local

level.”

Significantly, that Court interpreted the Salyer and

Associated Enterprises decisions as indicating this

Court’s intention to return the question of general local

government apportionment plans, from a constitu-

tional standpoint, to the “reasonableness” standard.

Judge Thornberry, in his Memorandum Opinion in

this case, argues that the interest of the State of Texas

in limiting the electorate to those who will be primarily

affected by its outcome, i.e., those upon whom the finan-

cial burden created by the bonds will fall, is insufficient

to withstand judicial scrutiny. Although Judge Thorn-

berry admits that the principal and interest on the

bonds will be paid solely from taxes on real, personal |

and mixed property rendered by the City’s taxpayers,

he concludes that the Texas laws exclude non-renderers

who arguably will contribute to the repayment of the

bonds indirectly through rents and purchased goods.

Also, Judge Thornberry argues that the present

rendering voters will not be exactly the same renderers

_26—

who will eventually repay the bonds due to “upward

mobility” of the people and other factors.

Judge Thornberry’s analysis fails to consider two im-

portant factors: first, the tax bond election will unques-

tionably have a direct and “disproportionate effect” on

renderers, Salyer, at 728; Associated Enterprises, at

744; second, the Texas general obligation tax bond elec-

tion laws do not absolutely prohibit anyone from ren-

dering any item of property, and, therefore, qualify to

vote. Montgomery Independent School District;

Kramer; and McDonald. Furthermore, all those non-

renderers who “indirectly” contribute to the payment of

property taxes as lessees or purchasers of goods are in

positions analogous to the lessees in Salyer. The Court

in Salyer noted that the lessees had interests in the

activities of the water storage district quite similar to

that of landowners. However, this Court determined

that those lessees could bargain with their lessors for

the franchise by proxy. Also, it was reasoned that“...

just as the lessee may by contract be required to reim-

burse the lessor for the district assessments so he may

by contract acquire the right to vote for district direc-

tors.” Salyer, at 733. Therefore, the lessees were not

absolutely disenfranchised nor were they denied equal

protection, although excluded from the franchise by

state law, even though their lease contracts required

the lessee to carry the proportionate share of the dis-

tricts financial burden ostensibly assessed against and

to be paid by his lessor. Obviously, non-renderers are

HERA eed acetate beng

not denied equal protection of the laws by virtue of the

Texas rendering qualification since they have either

ignored or refused to render some item of property, as

required by law, even though they may be indirectly

contributing to the payment of taxes which will be used

to retire the bond indebtedness made the subject of the

election. Judge Thornberry’s concern with the fact that

the present voting renderers will not be the same ones

who will eventually repay the bonds simply fails to

recognize the fact that the exact same voters who cast

votes in any election of any duration, will not be the

exact same people who will have to abide by that deci-

sion as time passes.

CONCLUSION

This appeal raises an issue of fundamental impor-

tance to both the public improvement financing system

and voter qualification standards of the states and their

political subdivisions. This Court has never directly

considered the facts nor the law applicable to the Texas

election laws involved in this appeal. The recent deci-

sions of this Court evidence a willingness to reconsider

and apply the “reasonableness” test of McGowan as an

equal protection standard regarding the issue of voter

qualifications at the local government level. Therefore,

it is submitted that the question presented by this ap-

peal is so substantial as to require plenary considera-

tion, with briefs on the merits and oral argument, for its

consideration.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General

MIKE WILLATT

Assistant Attorney General

G. CHARLES KOBDISH

Assistant Attorney General

Box 12548, Capitol Station

Austin, Texas 78711

—_29—

APPENDIX A

Judgment and Memorandum Opinion of District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION .

Michael L. Stone, et al., ()

Plaintiffs, Q)

()

versus () Ca-4-1975

()

The City of Fort Worth, ()

et al., ()

| ()

Defendants ()

irictiscttesicie sisi isc

JUDGMENT

This cause having come on for trial at which all par-

ties were present by counsel; and the Court having

considered the pleadings, evidence and argument of

counsel and being of the view that a decree should be

entered in accordance with the opinion of the Court,

which also constitutes the Court’s findings of fact and

conclusions of law under F.R. Civ. P. 52 (a), filed this

date, it is therefore ORDERED, ADJUDGED and DE-

CREED:

FIRST. That the individually named plaintiffs in

this action represent a class of plaintiffs composed of all

those casting ballots in favor of Proposition Two in the

election held by the City of Fort’ Worth on April 11,

1972.

Second. That Article VI, Section 3 and Section 3a of

the Texas Constitution, Articles 5.03, 5.04, and 5.07 of

the Texas Election Code, and Section 19, Chapter 25, of

the Fort Worth City Charter are hereby declared un-

constitutional insofar as they condition the right to vote

in bond elections on citizens’ rendering property for

taxation.

Third. The defendants herein, their respective ag-

ents, servants, employees and successors, are hereby

enjoined and prohibited from giving any force or effect

to the laws named in paragraph second, insofar as they

on, | eee

are now constitutionally invalid, in assessing the valid-

ity of votes cast in Fort Worth’s April 11, 1972, election

by persons who had not rendered taxable property in

such City for taxation. The defendants shall consider

Proposition Two (library bonds) to have been approved

by the voters participating in that election. This shall

not be construed as compelling the issuance of such

bonds by the City of Fort Worth.

Fourth. The defendants herein, their respective ag-

ents, servants, employees and successors, are hereby

enjoined and prohibited from giving any force or effect

to the laws named in paragraph second in any bond

election held from this date on, insofar as those laws

require citizens to render taxable property in such City

for taxation as a prerequisite to voting.

Fifth. This decree is intended in no way to render

invalid bond elections already held or bonds already

issued. |

Sixth. This judgement shall be stayed for the period of

ten days to enable the parties to submit an application

for stay to the Circuit Justice, the Supreme Court. ora

Justice thereof. 7

—3a—

Dated this 25th day of March, 1974.

a SEE RE Be OEMS Ae a

Homer Thornberry

United States Circuit Judge

Leo Brewster

United States District Judge

Glee APSR RAS REED ERE SO ————

Halbert O. Woodward

4 ; United States District Judge

pee |e

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Michael L. Stone, et al., ©

()

Plaintiffs, ()

()

versus Q) CA-4-1975

()

The City of Fort Worth, ©

et al., Q

()

Defendants °)

Before THORNBERRY, Circuit Judge, and BREWS-

TER and WOODWARD, District Judges.

—_.Ha—

MEMORANDUM OPINION

THORNBERRY, Circuit Judge:

This class action challenges the constitutionality of

state and city laws which restrict suffrage in bond elec-

tions to persons who have made available for taxation

some item of real, personal, or mixed property.’ We

believe the defendants? have failed to demonstrate that

this diminution of the electorate is necessary to prom-

ote acompelling state interest and therefore declare the

provisions attacked to be in violation of the equal pro-

tection clause of the Fourteenth Amendment.

On April 11, 1972, the city of Fort Worth, Texas, held

a bond election that submitted to the voting public two

proposed bond issues, one for transportation bonds and

one for library bonds. The voters approved the transpor-

tation bonds without incident, and the bonds have been

sold. The library bonds were not so successful.

Under the laws of Texas’ and the city charter of Fort

Worth,‘ one must have some item of property on the tax

rolls to be eligible to vote in a bond election. The prop-

erty may be of any tpe—real, personal, or mixed. It can

be of any value so long as it is not covered by an

exemption.® One’s eligibility depends upon his making

the property available for taxation (“rendering” it), not

—6a—

upon paying the tax. In theory at least, one might gain

eligibility by rendering his wrist watch, clothing, or

any common item of personal property.

The Texas Supreme Court has held that the render-

ing requirement is constitutional. Montgomery Inde-

pendent School District v. Martin, 464 S.W.2d 638 (Tex.

1971). The U.S. Supreme Court, however, has held

similar voting prerequisites unconstitutional.® To en-

sure the validity and marketability of the transporta-

tion and library bonds, should they be approved, the

City of Fort Worth held two separate but simultaneous

elections on April 11, 1972. This was done by separately

tabulating the votes of those who owned taxable prop-

erty in Fort Worth and had rendered it for taxation, and

those who had not rendered property for taxation. Both

groups, the renderers and the non-renderers, approved

the transportation bonds by a majority vote. But the

library bonds were given a mixed reception at the polls.

_A majority of the renderers rejected the proposal to

issue library bonds, but the non-renderers approved it

by a three-to-one margin. Adding together the votes of

both groups showed that a majority of all the voters

participating favored issuing the library bonds.’ The

net result was the library bonds could be sold only if

the non-renderers were constitutionally entitled to vote

despite the contrary Texas and Fort Worth laws. Con-

vinced that the Texas rendering requirement was con-

stitutionally valid, the city fathers of Fort Worth re-

fused to sell the library bonds, precipitating this law-

pats (Saree

Sar es Un ataa

SAAT ERAN SHS MERA RS TE

Pistcriseazrrces Sli e

The individual! plaintiffs in this case seek to repres-

ent a class composed of all those who voted for Proposi-

tion Two, the library bonds. Having measured these

representatives and their proposed class against the

criteria of F.R. Civ. P. 23, we believe the class and

representatives are proper. A total of 14,607 persons

voted for Proposition No. 2, making the class too

numerous for joinder of all. The class members have a

common question of law: whether the provisions in

question are consistent with the principles of equal

protection. The claims of the representatives are identi-

cal with those of the class. The plaintiffs’ excellent brief

leaves no doubt that they will fairly and adequately

protect the interests of the class. And the defendants

have refused to act on grounds generally applicable to

the class by blocking issuance of the bonds because

existing law requires approval by a majority of the

rendering property owners who cast ballots. Thus we

conclude that this is a proper class action under F.R.

Civ. P. 23 (b) (2). Having established the plaintiffs’ class

character, we turn-now to their grievance.

II.

Plaintiffs’ equal protection arguments are bottomed

upon the theory that-the state, through its rendering

requirement, has divided its otherwise eligible voters

into two classifications, one of which cannot vote in

bond elections. We think this theory is correct.

—A—

Defendants appear to argue that the state has made

no one ineligible to vote and thus has created no clas-

sifications. They say that since Texas law subjects all

property to taxation, anyone who is willing to render

his property may vote. Voters choosing not to render

their property simply disenfranchise themselves.” De-

fendants’ argument proves too much; it would also sup-

port a poll tax, a practice long since declared an imper-

missible burden on the right to vote. Harper v. Virginia

State Board of Electors, 1966, 383 U.S. 663, 86 S. Ct.

1079. The poll tax, too, was a trivial financial require-

ment that virtually everyone could meet. It is sheer

sophistry to say the classes create themgelves, or that

the voters disenfranchise themselves, when the state

requires would-be voters to meet requirements entirely

irrelevant to the needs of sound electioi: administration

or voter competence.

We might add that we suspect the Texas rendering

requirement has created a class of citizens who own too

little property to merit a vote in bond elections. The

record fails to indicate the number of people who render

for taxation personalty other than automobiles, but we

doubt that many do. Cf. Stewart v. Parish School Board,

E.D. La. 1970, 310 F. Supp. 1172, affd mem., 400 U.S.

884, 91S. Ct. 136. If, as a practical matter, non-

automobile personai!v virtually is never rendered, and

rendering an item of property is a prerequisite to vot-

ing, then Texas has disenfranchised an indeterminate

number of citizens who possess neither real estate nor

iio

car. Thus these laws on their face disenfranchise those

who own property but do not render it, and in practice

may well deny the ballot to a group of citizens whose

possessions have been adjudged too meager.

Ill.

A brief survey of the relevant case law will place

plaintiffs’ case in perspective. We start with the propos-

ition that the states have “broad powers to determine

the conditions under which the right of suffrage may be

exercised.” Lassiter v. Northampton Election Board,

1959, 360 U.S. 45, 50, 79 S. Ct. 985, 989. But “once the

franchise is granted to the electorate, lines may not be

drawn which are inconsistent with the Equal Protection

Clause of the Fourteenth Amendment.” Harper v. Vir-

ginia Board of Elections, 1966, 383 U.S. 663, 665, 86 S.

Ct. 1079. 1081. See Evans v. Cornman, 1970, 398 U.S.

419, 90S. Ct. 1752. When a state excludes citizens from

the electorate, it must justify the exclusions under the

harsh “compelling state interest” test. Kramer v. Union

Free School District, 1969, 395 U.S. 621, 89S. Ct. 1886;

Cipriano v. City of Houma, 1969, 395 U.S. 701, 89S. Ct.

1897; City of Phoenix v. Kolodziejski, 1970, 399 U.S.

204, 90 S. Ct. 1990; Dunn v. Blumstein, 1972, 405 US.

- 330, 92 S. Ct. 995. The test has two steps: (1) whether

the exclusions are necessary to promote the state’s ar-

ticulated interest and (2) whether the interest is com-

pelling. Kramer, supra. To qualify as necessary, exclu-

sions must be tailored with precision. E.qg., Dunn v.

—10a—

Blumstein, supra. And the state must pursue its com-

pelling interest in the way that burdens constitution-

ally protected activity least. Id.

IV.

Defendants advance two state interests that are

served by excluding non-renderers from bond elections.

The first interest is limiting the ballot to those who

have a financial stake in the election’s outcome. This

interest is based on notions of fairness: those whose

taxes will service the bonds should be the only ones

deciding whether the debt is worth undertaking. To

permit non-renderers a “free ride,” we are told, would

be tantamount to depriving the renderers of their prop-

erty without due process, and would at least constitute

preferential treatment.

The other (and primary) interest advanced is the

necessity of encouraging the citizens to render their

property so that the public treasury will be fortified by

an efficiently collected property tax. See Montgomery

Independent School District v. Martin, 464 S.W. 2d 638

(Tex. 1971); Markowsky v. Newman, 136 S.W. 2d 808.

(Tex. 1940). We shall subject these state interests to

close judicial scrutiny and the compelling interest test.

We examine first the state’s interest in limiting the

electorate to those who will be primarily affected by its

outcome, i.e., those who will pay the financial obliga-

—lla—

Dittetironesicc:,..: us ouphe aaa’

tion created by the bonds. Defendants’ argument is

strengthened by the fact that the City of Fort Worth

intends to issue general obligation bonds, not revenue

bonds. Revenue bonds are serviced by the income from

the enterprise they finance. General obligation bonds

are serviced by general tax revenues. In this case the

parties have stipulated that the proposed library bonds’

principal and interest will be paid from taxes on real,

personal, and mixed property rendered by the city’s

taxpayers. Thus the impact on property owners is sig-

nificantly greater than it was in similar cases decided

by the Supreme Court. For example, in City of Phoenix

v. Kolodziejski, 1970, 399 U.S. 204, 90S. Ct. 1990, more

than half of the debt service requirements were to be

satisfied from taxes paid by nonproperty owners. By

contrast, the Fort Worth library bonds will be serviced

entirely by property taxes.

Despite the proposed bonds’ direct impact on render-

ers, we are reluctant to say the state has a compelling in-

terest in confining the electorate to the current ren-

dering property owners. See Stewart v. Parish School

Board, E.D. La. 1970, 310 F. Supp. 1172, 1181. The

Supreme Court has reserved judgment on whether such

‘a goal is permissible, let alone of compelling

importance.? Kramer v. Union Free School District,

1969, 395 U.S. 621, 89 S. Ct. 1886; Cipriano v. City of

Houma, 1969, 395 U.S. 701, 89S. Ct. 1897. And the fact

that the Kramer Court put other interests in the

election’s outcome on a par with the taxpayers’ obliga-

—12a—

his Pere Bal SRM tPA it EM LO A i

MALS APE ab iO Sha Reba

tion to pay indicates that financial stake alone cannot

be considered a compelling interest. See Comment, The

Supreme Court 1968 Term, 83 Harv. L. Rev. 7, 80

(1969). Since the compelling qualities of this state in-

terest are much in doubt, we will pretermit the question

and answer the easier inquiry of whether it is necessary

to exclude non-renderers from the electorate in order to

achieve the goal of confining bond election suffrage to

those who will pay the debt created.

Close judicial scrutiny reveals that Texas’ clas-

sificatory is too imprecise to withstand an equal protec-

tion attack. It presumes that only those who render

property will pay for the bonds approved. In reality, at

least some of the renderers will pass on to non-

renderers their portion of the bonds’ cost. The property

tax paid by a business establishment, for example, is

sre to be passed on to customers in the form of higher

prices. By patronizing the business the purchaser pays

for a small part of the bonds. Yet Texas would exclude

him from the bond election. The same is true of the

non-renderer who rents an apartment or house. His

rent pays the landlord’s property taxes, which in turn

service the bonds.

Moreover, Texas assumes that because a citizen is a

non-renderer on election day he will never render prop- .

erty and thus never help pay for the bonds appreved.

Such an outlook is myopic, for bonds can represent long

term financial obligations. For example, Fort Worth’s

—13a—

RRO See Ns NRA) ky, <M RRA, tare ST

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; ; J

proposed library bonds would not be completely retired

for forty years. In a society where upward mobility is

commonplace, it is untenable to assume that because on

election day one has rendered no property, perhpas

because he owns nothing worth rendering, he will pay

no property taxes for the next forty years. Today’s ren-

ter may purchase a home tomorrow, and with the

house will come property taxes and his share of the

city’s bonded debt. By the same token it is by no means

certain that one who is a rendering property owner on

election day will maintain that status for the bonds life.

Since Texas’ classificatory scheme fails to enfranch-

ise all of those who will pay the bonds’ cost, we conclude

that the renderer/non-renderer classificatiuns are too

imprecisely drawn to further the state’s articulated in-

terest and hence cannot be termed “necessary,” Conse-

quently, even if the interest in limiting the ballot to

those who will pay for the bonds is compelling, it will

not justify the laws challenged here. We note in passing

that Texas could pursue this same interest just as easily

by broadening the tax base instead of narrowing the

franchise.

The other state interest advanced to justify disen-

franchising Texas’ non-renderers is maintaining a cre-

dible penalty that will encourage voluntary rendering,

which in turn enriches the state and city treasuries.

This argument contends that some coercive threat is

necessary to force the citizens to reveal their easily

—l4a—

concealed personalty to the tax assessor. If we do not tie

rendering to the right to vote, the citizens will hide

their personalty and property tax collection will become

a very expensive, if not impossible, proposition. od

Again we apply the compeiling state interest test,

this time asking whether the Texas disenfranchise-

ment scheme is necessary to the state’s goal of taxing

personalty and enriching the fisc. After examining the

defendants’ argument in support of the necessity for

thus limiting the franchise, we find it has several fatal

flaws. e

: Defendants’ concern with the concealability of per-

nalty assumes that a substantial amount of property

x revenue comes from personalty other than au-

tomobiles. Autos are scarcely concealable; after all,

they must be registered with the state. The record,

however, does not disclose the amount of non-

automobile persomal property tax revenue, and we

think it unlikely that the amount is great.

A second problem is that the laws appear poorly de-

signed to achieve their purpose of bringing in revenue.

One can vote without rendering all his property. In fact,

he must render only one item. Tex. Election Code Ann.

art. 5.04 (a) (Supp. 1973). See Note, 49 Texas L. Rev.

1113, 1118 (1971). And in Montgomery Independent

School District v. Martin, 464 S.W. 2d 638 (Tex. 1971)

the Texas Supreme Court emphasized that one may

—15a—

PTT FTE RR AEN ER

PALM BRE NIIP Soa RB te <rtek e eI - Oa ee ee

vote if he renders property of any value. No piece of

property is too insignificant or worthless. If disen-

franchisement can be avoided by rendering only a small

portion of one’s property, and a nearly valueless portion

at that, how does the state further its interest in pro-

tecting the fisc?’° See Turner v. Fouche, 1970, 396 U.S.

346, 90 S. Ct. 532. -

Third, we cannot believe that without the disen-

franchisement device Texas will be unable to collect

property taxes. At least thirty-six states have found

workable alternatives, for they permit all qualified vot-

ers to vote in general bond elections. City of Phoenix v.

Kolodziejski, 1970, 399 U.S. 204, 90 S. Ct. 1990;

Stewart v. Parish School Board, E.D. La. 1970, 310 F.

Supp. 1172, n. 1. The Supreme Court has said that those

thirty-six states “do not appear to have been signific-

antly less successful in protecting property values and

in soundly financing their municipal improvements.”

_. City of Phoenix v. Kolodziejski, supra at 399 U.S. 214,

PO BINS AERA the

vedesT

| ee ee anes ae

90 S. Ct. 1996. The differing practice in those states

convinces us that Texas can find an alternative tax

collection device, and that disenfranchisement is not

necessary to the furtherance of Texas’ interest in effi-

cient property taxation."

Since we have decided that the rendering require-

ment cannot be called necessary, we need not resolve

thé question whether property tax collection is a com-

pelling state interest. We simply note in passing that

—l16a—

KEY SR MOSD LOAM AROS HILL De

tax collection, while unquestionably important, proba-

bly lacks compelling importance in the context of voting

rights because it is irrelevant to the electoral process.

Certainly a state could not justify a poll tax on the

ground that the treasury was low. Cf. Harper v. Vir-

ginia State Board of Elections, 1966, 383 U.S. 663, 86S.

Ct. 1079; United States v. Texas, W.D. Texas 1966, 252

F. Supp. 234, affd mem. 384 U.S. 155, 86 S. Ct. 1383.

To summarize, today we hold that Texas and Fort

Worth unconstitutionally have impeded their citizens’

right to vote by disenfranchising those who have failed

to render property for taxation. The laws in question

violate the Constitution’s equal protection clause by

restricting the electorate when less constitutionally

burdensome avenues are available for pursuing the

state’s articulated interests. They further violate the

citizens’ right to equal protection of the laws by creating

imprecisely drawn classifications which do not achieve

the state’s desired goals. Therefore we grant the de-

claratory and injunctive relief necessary to ensure that

all the qualified voters in Texas will be able to vote in

future bond elections regardless of whether they have

rendered property for taxation. Our decree shall also

require the defendants to consider Fort Worth’s pro-

posed library bonds as approved by the voters partici-

pating in the election of April 11, 1972.

With the exception of that election, we shall order

prospective relief only. We recognize that many com-

—17a—

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munities have relied on the Texas law and have ap-

proved or disapproved bonds in elections that excluded

the votes of citizens not rendering property for taxation.

It would not be in the public interest to disrupt the

orderly processes of government by upsetting past elec-

tions.

WOODWARD, District Judge, specially concurring:

I concur with the result reached ‘in Judge

Thornberry’s Memorandum Opinion. My concurrence

is based upon the teachings of Harper v. Virginia State

Board of Elections, 383 U.S. 663 (1966). The require-

ment that a person render property for taxation is tan-

tamount to a requirement that a person own property

before he may vote in an election authorizing the is-

suance of tax bonds. The ownership of property, like

race, creed or color, has no relationship to one’s ability

to participate intelligently in the electoral processes,

and a State may only limit the eligibility requirements

of voters to those factors which would affect a citizen’s

ability to intelligently cast his vote. The defendants

here, however, have attempted to limit participation in

the election in question to those citizens who own prop-

_ erty. Further, the challenged laws place the same limi-

tations on other elections. The defendants, therefore,

have exceeded’ the powers rightfully belonging to a

state or any political subdivision thereof and it is my

opinion that the statutes and ordinances in question

- have been properly held unconstitutional.

—18a—

ii aaa

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Michael L. Stone, et al., T

vs. ) CA 4-1975

The City of Fort Worth, et al., )(

BREWSTER, District Judge, concurring in result.

I reluctantly concur only in the judgment now being

entered herein because I am unable to see a substantial

distinction between this case on the one hand and City

of Phoenix v. Kolodziejski, 399 U.S. 204, 90S. Ct. 1990,

26 L. Ed. 2d 523 (1970), on the other. My oath of office

binds me to follow the decisions of the Supreme Court of

the United States, whether I agree with them or not.

My own views regarding the constitutionality of the

restrictions on voting here involved are the same as

those expressed in the dissenting opinions in Kramer v.

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

—19a—

Oey See eT | iceaceydda

23 L. Ed. 2d 583 (1969), Dunn V. Blumstein, 405 US.

330, 92 S. Ct. 995, 31 L. Ed. 2d 995 (1972), and City of

Phoenix v. Kolodziejski, supra. As Chief Justice Burger

says in the Dunn case, 405 USS.,’at 363, 31 L. Ed. 2d, at

296, the compelling state interest test, as recently ap-

plied by the Supreme Court has created a “seemingly

insurmountable standard” which “demands nothing

less than perfection.” My feelings about the restrictions

on voting imposed by the provisions of the state con-

stitution and statutes and the city ordinance here in-

volved coincide with those of Mr. Justice Stewart in

regard to similar Arizona statutory restrictions, as ex-

pressed in the following quotation from his dissenting

opinion in City of Phoenix v., Kolodziejski, supra, 399

U.S., at 218, 26 L. Ed. 2d, at 533:

‘This is not the invidious discrimination that

the Equal Protection Clause condemns, but an en-

tirely rational public policy. . . Ay -

I do not agree with the reasoning of the Memorandum

Opinion, but will not engage in a useless, lengthy dis-

cussion of it. However, I do feel compelled to make a few

brief observations about matters in it.

There is language in the memorandum opinion which

might be construed by a person not familiar with the

record as indicating that the question before us is

whether a restriction on voting based solely on rendi-

tion of property is constitutional. The provisions of the

state constitution here involved say that the only qual-

—20a—

be A ag ERAS ONTO WS 78 WP Air AE LLP IRAN AB LUBA PTET

LAO REE ALP TALES Dh AMMA RB ne AF A EA ID 0 NO I POP ABET Ca

ified electors in bond elections are persons “who own

taxable property” in the political subdivision where

such election is held, “and who have duly rendered the

same for taxation.” The statute and the ordinance in

question are to the same effect. If only rendition of some

property, whether taxable or not, were required, my

views about the kind of judgment to be entered would be

different.

The memorandum opinion says that most au-

tomobiles and personal property are not rendered for

taxation. I regard this as totally irrelevant. If it were

pertinent, a look at the sworn statement of those who

render their property for taxation might show that a

good deal of personal property is rendered.

Finally, as I construe it, the memorandum opinion is

calculated to leave the inference that most of the people

‘who would be affected by the exclusion are those who

have personal property but do not render it for taxation

because nobody else does, and those who, though am-

bitious to make their own way, own “nothing worth

rendering” today, but, being members of “a society

where upward mobility is commonplace” will become

substantial taxpayers tomorrow. My humble feeling is

that most of these excluded will more likely be the kind

who are able to earn their way but would rather live off

other peoples’ work. It would be safe to say that the

exclusion would get everyone of the kind of people we

know, as a matter of general knowledge, are in line for

—2la—

(Se vie eR aero ae oe

CR Thee GARD Pear mere | ex whiniaciw be

a ee ee oe

‘

the food that is being handed out by Publisher Hearst as

a ransom to try to secure the release of his kidnapped

daughter, and who are griping about the quality of food

they are getting. My feeling is that those irresponsible

people should not be allowed to vote to slap a lien on the

property of someone else.

I deeply regret that I have been unable to find a

legitimate way to distinguish the cases above cited.

1 Since plaintiffs seek to enjoin the enforcement ofastate statute

on the grounds of its unconstitutionality, the jurisdiction of this

three-judge court was properly invoked pursuant to 28 U.S.C. §§

9281 and 2284. The case was tried upon stipulated facts.

2 Plaintiffs joined the state attorney general because Texas law

requires that he certify the legal validity of cities’ proposed bond

issues. Tex. Rev. Civ. Stat. Ann. art. 709d (Supp. 1973). They ask

that he be required to decide the bonds’ validity without regard to

the laws attacked here as unconstitutional.

2 § 3. Municipal elections; qualifications of voters

Sec. 3. All qualified electors of the State, as herein described,

who shall have resided for six months immediately preceding an

election, within the limits of any city or corporate town, shall have

the right to vote for Mayor and all other elective officers; butinall |

elections to determine expenditure of money or assumption of debt,

only those shall be qualified to vote who pay taxes on property in

said city or incorporated town, provided, that no poll tax for the

payment of debts thus incurred, shall be levied upon the persons

debarred from voting in relation thereto.

Tex. Const. art. VI, § 3.

§ 3a. Bond issues; loans of credit; expenditures; assumption of

debts; qualifications of voters

te -|

Sec. 3a. When an election is held by any county, or any number of

counties, or any political sub-division of a county, or any defined

district now or hereafter to be described and defined within the

State and which may or may not includé towns, villages or munici-

pal corporations, or any city, town or village, for the purpose of

issuing bonds or otherwise lending credit, or expending money or

assuming any debt, only qualified electors who own taxable prop-

erty in the State, county, political subdivision, district, city, town

or village where such election is held, and who have duly rendered

the same for taxation, shall be qualified to vote and all electors

shall vote in the election precinct of their residence.

Tex. Const. art. VI, § 3a.

Art. 5.03 Qualifications for voting for bond-issues, lending credit,

expending money, or assuming debt ts

When an election is held by any county, or any number of

counties, or any political subdivision of the state, or any political

subdivision of a county or any defined district now or hereafter to

be described and defined within the state, and which may or may

not include towns, villages, or municipal corporations, or any city,

town, or village, for the purpose of issuing bonds or otherwise

lending credit, or expending money or assuming any debt, only

qualified electors who own taxable property in the state, county,

political subdivision, district, city, town, or village where such

election is held, and who have duly rendered the same for taxation,

shall be qualified to vote and all electors shall vote in the election

precinct of their residence. Property shall be deemed to have been

duly rendered for taxation, for the purpose of determining eligibil-

ity to vote in an election as provided in this code and in Article VI,

Section 3a, of the Texas Constitution, only if the property was

rendered to the county, city, district, or other political subdivision

holding the election within the period of time fixed by law for such

rendition, or was placed on the tax rolls by the tax assessor prior to

the date on which the election was ordered, if the regular rendition

period expired before that date. :

Tex. Election Code Ann. art. 5.03 (Supp. 1973). -

Article 5.04 of the election code provides in part:

Art. 5.04 Affidavit of voter in bond election, etc.

(a) Before any person is allowed to vote in an election for the

purpose of issuing bonds or otherwise lending credit, or expending

—23a—

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money or assuming any debt, he shall sign and swear to an af-

fidavit to the effect that he owns property, giving a description of

one item, which has been duly rendered for taxation to the political

subdivision holding the election at a time and in a manner which

entitles him to vote in the election, as provided in Section 35

(Article 5.03) of this code. The voter’s registration certificate

number shall be shown on the affidavit, and it shall contain a

statement that the affiant understands that the giving of false

information in the affidavit is a felony punishable by a fine not to

exceed $5,000 or by imprisonment in the penitentiary not to exceed

five years, or by both such fine and imprisonment.

Tex. Election Code Ann. art. 5.04 (a) (Supp. 1973).

Art. 5.07 To vote in city elections

All qualified electors of this State, as described in the two preced-

ing Sections [Arts. 5.05, 5.06]who shall have resided for six (6)

months immediately preceding an election within the limits of any

city or incorporated town shall have a right to vote for mayor and

all other elective officers, but in all elections to determine the

expenditure of money or assumption of debt, or issuance of bonds,

only those shall be qualified to vote who own taxable property in

the city or town where such election is held and who have duly

rendered the same for taxation; and all electorg:shall vote in the

election precinct of their residence. :

Tex. Election Code Ann. art. 5.07 (1967).

‘The-city charter provides, in pertinent part:

Section 19. Issuance and Sale of Bonds. — The City Council shall

have authority to provide for the issuance and sale of bonds for

permanent improvements and for any other legitimate municipal

purpose as may be determined by the City Council; but no bonds

shall be issued to fund any overdraft or indebtedness incurred for

current expenses of the city government, or any subdivision

thereof. The City Council shall also have the right to fund any

maturing bonds by the issuance of new bonds in lieu thereof at the

same or a lower rate of interest. No bonds shall be issued or

refunded that bear a greater rate of interest than five per cent per

annum, and the same shall never be sold for less than par and

accrued interest, and all bonds shall express upon their face the

purpose of purposes for which they are issued.

—24a—

LNB AY bt ee a tt ct AEE IE

No bonds shall be issued unless authorized by ordinance, which

ordinance shall provide an adequate fund from the taxes for the

payment of the annual interest and sinking fund of not less than

two per cent per annum for the ultimate redemption of such bond

issue, and such ordinance shall become effective without the

necessity of publication. Provided, that no bonds shall be issued,

nor bonded debt created, unless authority therefor shall first be

submitted to the qualified voters who pay taxes on property situated

within the corporate limits of the City of Fort Worth; and, if a

majority of the votes cast at such election are in favor of the

issuance of such bonds, then such issue shall be made; but, should

the majority of the votes cast at said election be against the propos-

ition, then such bonds shall not be issued. . . . [Emphasis supplied.]

Charter of the City of Fort Worth, ch. 25, § 19.

5 In Texas, “[{aJll property, real, personal, or mixed, except such

as may be hereinafter expressly exempted, is subject to taxation, .. .

..” Tex. Rev. Civ. Stat. Ann. art. 7145 (1960). While all property is

taxable unless exempt, the exemptions are numerous. See, e.q.,

Tex. Rev. Civ. Stat. Ann. art. 7150 (1960). For the purposes of this

lawsuit the most significant exemption is in § 11 of article 7150:

“All household and kitchen furniture not exceeding at their true

and full value two hundred and fifty dollars to each family, in

which may be included one sewing machine.” Tex. Rev. Civ. Stat.

Ann. art. 7150 (11) (1960).

® City of Phoenix v. Kolodziejski, 1970, 399 U:S. 204, 90 S. Ct.

1990; Cipriano v. City of Houma, 1969, 395 U.S. 701, 89 S. Ct. 1897;

Kramer v. Union Free School District, 1969, 395 U.S. 621, 89S. Ct.

1886.

7 The election results were as follows:

Owners of Property Non

Rendered for Taxation Renderers Total

Proposition One

For 13,466 4,094 17,560

Against 9,834 850 10,684

Proposition Two

For 10,849 3,758 14,607

Against 12,234 1,132 13,366

—25a—

* Cf. Rosario v. Rockefeller, 1973, _ U.S:.___, 93 S. Ct. 1245.

Rosario contains language that some might interpret to support

the contention that non-rendering citizens are disenfranchising

themselves, with no help from the state. In Rosario the plaintiffs

i challenged a New York law requiring those who wish to vote in a

a particular party primary to enroll in that party at least 30 days

3 prior to the last general election preceding the primary. Plaintiffs

claimed that those who failed to enroll in time, and thus were

refused the right to vote in the primary, were being deprived of

their right to equal protection. The Court rejected that contention,

saying that if plaintiffs were disenfranchised, they had disen-

franchised themselves by failing to enroll.

> We believe Rosario is inapposite. New York’s enrollment re-

quirement was a reasonable state effort to preserve the integrity of

the electoral process, a goal the Court called “legitimate and

valid.” The Texas rendering requirement, by contrast, is primarily

an attempt to aid the state’s taxatiop efforts, and is not designed to

protect or improve the electoral process. Party enrollment, like

i registration, is an integral part of elections, and the state is fully

justified in setting deadlines and cutoff dates necessary to ad-

ministrate the electoral process. And an unavoidable concomitant

of registration and enrollment is voluntary action by the indi-

vidual voter. One cannot argue that voluntary submission to taxa-

tion is necessary to the administration of elections.

* But cf. Salyer Land Co. v. Tulare Lake Basin Water Storage

District, 1973, __U.S. ___, 93 S. Ct. 1224. In that case the Court

approved an election in which the right to vote for directors of a

water district was limited to landowners and apportioned accord-

ing to the extent of the voter’s holdings. The case is distinguishable

becaue the Court emphasized that a water district is a governmen-

tal unit with a special limited purpose and a limited scope of

authority. Therefore, the “one person, one vote” principle did not

apply. It is inescapable that that principle does apply to the City of

Fort Worth, a unit of local government exercising general govern-

mental power.

1° The ease with which citizens may meet Texas’ rendering re-

quirements does not buttress the defendants’ argument that plain-

tiffs have not suffered discrimination. The Supreme Court has

| Rite 4 Kon S

bittimancea away Pa ARERR SER

—26a—

. i

ee oe a ee eT ee ee ee ee ol a ee

said:

To introduce wealth or payment of a fee as a measure of a

voter's qualifications is to introduce a capricious or irrelevant

factor. The degree of the discrimination is irrelevant.

Harper v. Virginia State Board of Electors, 1966, 383 U.S. 663,668,

86 S. Ct. 1079, 1082.

''Cf. Dunn v. Blumstein, 1972, 405 U.S. 330, 92 S. Ct. 995.

Statutes affecting constitutional rights must be drawn with

“precision,” .. . and must’ be “tailored” to serve their legiti-

mate objectives: ... And if there are other, reasonable ways to

achieve those goals with a lesser burden on cuistitutionally

protected activity, a State may not choose the way of greater

interference. If it acts at all, it must choose “less drastic

means.” |

[Citations omitted. ]

405 US. at 343, 92 S. Ct. at 1003.

' The quotations are from Art. VI, Sec. 3a, of the Constitution of

Texas. ps

ee eb at

APPENDIX B ©

Notice of Appeal |

—_

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leah tate wail

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IN THE UNITED STATES DISTRICT COURT FOR

THE

NORTHERN DISTRICT OF FORT WORTH DIVI-

SION .

Michael L. Stone, et al., 1

Plaintiffs Ti

\ Civil Action

)( No. 4-1975

The City of Fort Worth, et al., )(

Defendants Ni

» NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

. Notice is hereby given that John L. Hill, Attorney

General of the State of Texas, Defendant in the above

named case, hereby appeals to the Supreme Court of the

United States from the final order granting a perma-

nent injunction entered in this action on the 25th day of

March, 1974.

A ARAN EEE

eS SUE Woe {aves

TB TR Re pia ee

ebiaietaitctiarcesicccericttn' is

This appeal is taken pursuant to 28 U.S.C. § 1253.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

MIKE WILLATT

Assistant Attorney Gencral

G. CHARLES KOBOISH

Assistant Attorney General

Box 12548, Capitol Station

Austin, Texas 78711

(Note: Filed with District Clerk on April 18, 1974.)

Pon ene TES song ee

PROOF OF SERVICE

I, Mike Willatt, an attorney in the Office of the Attor-

ney General of Texas, Appellant herein, depose and say

that on the _.._day of... ss, : 1974. | served

copies of the foregoing Notice of Appeal to the Supreme

Court of the United States on the several parties

thereto, as follows:

(1) on Michael L. Stone, et al, Plaintiffs by mailing a

copy in a duly addressed envelope with first class post-

age prepaid, addressed to Mr. Don Gladden and Mr.

Marvin Collins, counsel of record for the Plaintiffs, lo-

cated at 702 Burk Burnett Building, Fort Worth, Texas

76102.

(2) on R.M. Stovall, Mayor; S.G. Johndroe, Jr., City

Attorney; Roy A. Bateman, City Secretary; Leonard E.

Briscoe, Taylor Gandy, Jess M. Johnston, Jr., W.S.

Kemble, Jr., John O’Neill, Ted C. Peters, Pat Reece,

Mrs. Margaret Rimmer, council members; and the City

of Fort Worth, a municipal corporation, by mailing a

copy in a duly addressed envelope, with first class post-

age prepaid, addressed to Mr. S.G. Johndroe, Jr., City

Attorney, Attorney for Defendants, located at 1000

Throckmorton Street, Fort Worth, Texas 76102.

aie ian

;

{

All parties requried to be served have been served.

eae Matern

; MIKE WILLATT

4g Assistant Attorney General

Subscribed and sworn to before me, at —

this _____ day of , 1974.

5 Notary Public

i r

- = Y a

a ee oe z

APPENDIX C

Full text of: |

Tex. Const. Art. VI, Section 3 (1955)

Tex. Const. Art. VI, Section 3a ( 1955)

Tex. Election Code Ann. Art. 5.03 (Supp. 1973)

Tex. Election Code Ann. Art. 5.04 (a) (Supp. 1973)

Tex. Election Code Ann. Art. 5.07 (1967)

Charter of the City of Fort Worth, Ch. 25, § 19

Pati PER RG wR teE

Saal

(rae agar eect ee aR

2 REAR NONIL NAREAOE OOO BE ILE TEI i vl

Tex. Const. Art. VI, Section 3 (1955):

§ 3 Municipal elections; qualifications of voters

Sec. 3. All qualified electors of the State, as herein

described, who shall have resided for six months im-

mediately preceding an election, within the limits of

any city or corporate town, shall have the right to vote

for Mayor and all other elective officers; but in all elec-

tions to determine expenditure of money or assumption

of debt, only those shall be qualified to vote who pay

taxes on property in said city or incorporated town;

provided, that no poll tax for the payment of debts thus

incurred, shail be levied upon the persons debarred

from voting in relation thereto.

Tex. Const. Art. VI, Section 3a (1955):

§ 3a. Bond issues; loans of credit; expenditures; assump-

tion of debts; qualifications of voters

Sec. 3a. When an election is held by any county, or

any number of counties, or any political subdivision of a

county, or any defined district now or hereafter to be

described and defined within the State and which may

or may not include towns, villages or municipal corpo-

rations, or any city, town or village, for the purpose of

issuing bonds or otherwise lending credit, or expending

money or assuming any debt, only qualified electors

who own taxable property in the State, county, political

Eom | Toners

ed Wh Paw hi RE SEIN Se ts

subdivision, district, city, town or village where such

election is held, and who have duly rendered the same

for taxation, shall be qualified to vote andvall electors

shall vote in the election precinct of their residence.

Tex. Election Code Ann. Art. 5.03 (Supp. 1973):

Art. 5.03 Qualifications for voting for bond issues, lend-

ing credit, expending money, or assuming debt

When an election is held by any county, or any

number of counties, or any political subdivison of the

state, or any political subdivision of a county or any

defined district now or hereafter to be described and

defined within the state, and which may or may not

include towns, villages, or municipal corporations, or

any city, town, or village, for the purpose of issuing

bonds or otherwise lending credit, or expending money

or assuming any debt, only qualified electors who own

taxable property in the state, county, political subdivi-

sion, district, city, town or village where such election is

held, and who have duly rendered the same for taxa-

tion, shall be qualified to vote and all electors shall vote

in the election precinct of their residence. Property

shall be deemed to have been duly rendered for taxa-

tion, for the purpose of determining eligibility to vote in

an election as provided in this code and in Article VI,

Section 3a, of the Texas Constitution, only if the prop-

erty was rendered to the county, city, district, or other —

political subdivision holding the election within the

pera) Fae

period of time fixed by law for such rendition, or was

placed on the tax rolls by the tax assessor prior to the

date on which the election was ordered, if the regular

rendition period expired before that date. _

Tex. Election Code Ann. Art. 5.04 (a) (Supp. 1973):

Art. 5.04 Affidavit of voter in bond election, etc.

(a) Before any person is allowed to vote in an election

for the purpose of issuing bonds or otherwise lending

credit, or expending money or assuming any debt, he

shall sign and swear to an affidavit to the effect that he

owns property, giving a description of one item, which

has been duly rendered for taxation to the political

subdivision holding the election at a time and in a

manner which entitles him to vote in the election, as

provided in Section 35 (Article 5.03) of this code. The

voter’s registration certificate number shall be shown

on the affidavit, and it shall contain a statement that

the affiant understands that the giving of false infor-

mation in the affidavit is a felony punishable by a fine

not to exceed $5,000 or by imprisonment in the peniten-

tiary not to exceed five years, or by both such fine and

_ imprisonment. "

Tex. Election Code Ann. Art. 5.07 (1967):

Art. 5.07 To vote in city elections

All qualified electors of this State, as described in the

tc —3c—

PEALE S55 ENE LIS SIR II

Bers.

SEEN oe

Rn ER aR Ae LE ee ee CENTS

;

two preceding Sections [ Arts. 5.05, 5.06] who shall have

resided for six (6) months immediately preceding an

election within the limits of any city or incorporated

town shall have a right to vote for mayor and all other

elective officers, but in all elections to determine the

expenditure of money or assumption of debt, or issuance

of bonds, only those shall be qualified to vote who own

taxable property in the city or town where such election

is held and who have duly rendered the same for taxa-

tion; and all electors shall vote in the election precinct

of their residence.

Charter of the City of Fort Worth, Ch. 25, § 19:

Section 19. Issuance and Sale of Bonds

—The City Council shall have authority to provide

for the issuance and sale of bonds for permanent im-

provements and for any other legitimate municipal

purpose as may be determined by the City Council; but

no bonds shall be issued to fund any overdraft or inde-

btedness incurred for current expenses of the city gov-

ernment, or any subdivision thereof. The City Council

shall also have the right to fund any maturing bonds by

the issuance of new bonds in lieu thereof at the same

or a lower rate of interest. No bonds shall be issued or

refunded that bear a greater rate of interest than five

per cent per annum, and the same shall never be sold for

less than par and accrued interest, and all bonds shall

pemore. aa

Band ea Not HT Ne ONG: A a ORG Bata

express upon their face the purpose of purposes for

which they are issued.

No bonds shall be issued unless authorized by ordi-

nance, which ordinance shall provide an adequate

fund from the taxes for the payment of the annual

interest and sinking fund of not less than two per cent

_ per annum for the ultimate redemption of such bond

issue, and such ordinance shall become effective with-

out the necessity of publication. Provided, that no bonds

shall be issued, nor bonded debt created, unless author-

ity therefor shall first be submitted to the qualified

voters who pay taxes on property situated within the

corporate limits of the City of Fort Worth; and, if a

majority of the votes cast at such election are in favor of

the issuance of such bonds, then such issue shall be

made; but, should the majority of the votes cast at said

election be against the proposition, then such bonds

shall not be issued. The City Council shall have full

power and authority to prescribe the way and manner

_in which such election shall be held, the notice to be

given therefor, the polling places in the various parts of.

the City at which the election is to be held, prescribe the

form of ballot, and the other details of said election,

independently of the general election laws of the State

of Texas. But this requirement as to submitting the

question of the issuance of bonds to a vote of the people

before the same can be authorized shall not apply to the

refunding of bonds heretofore issued, where the same

— ,~ ae

aie 0 AAU OD PEN EAE ANGE FA

2 can be refunded at the same or a lower rate of interest, if .

5 in tHe judgment of the City Council the said bonds

; cannot be retired, either in whole or in part, at matur-

i ity. The said bonds when issued shall be submitted to

; and approved by the Attorney General of the State of

{ Texas, as required by the statutes of this State’before

| being offered for sale in the market.

i ‘a

}

POE eR a IIL

: eat

FACTS ESTABLISHED BY STIPUATION

1. That the defendant City of Fort Worth is a munici-

pal corporation located in Tarrant County, Texas, and

duly organized and existing under the Constitution and

laws of the State of Texas and by home-rule Charter

duly adopted by its electorate in December of 1924

under the provisions of Article X1, Section 5, of the

Constitution of the State of Texas.

2. That at the time of the filing of this suit, defendant

Crawford Martin was the duly elected Attorney Gen-

eral of the State of Texas.

3. That defendant S.G. Johndroe, Jr., is the duly ap-

pointed City Attorney of the City of Fort Worth.

4. That at the time of the filing of this suit and at the °

present time R.M. Stovall is the duly elected Mayor of.

the City of Fort Worth.

5. That the defendant Roy A. Bateman is the duly

appointed City Secretary-Treasurer of the City of Fort

Worth.

6. That at the time of the filing of this suit and at the

present time the defendants, Leonard E. Briscoe,

Taylor Gandy, Jess M. Johnston, Jr., W.S. Kemble, Jr..

et fe

John J. O'Neill) Ted C. Peters, Pat Reece and Mrs. *

Margret Rimmer. are the duly elected members of the

City Council of the City of Fort Worth.

7. That Plaintiffs’ Exhibit “A” is a true and correct

copy of the Charter of the City of Fort Worth, as

amended.

8. That Chapter VI of the Charter of the City of Fort

Worth provides for certain duties and responsibilities of

the defendant S.G. Johndroe, Jr., as City Attorney, and

reads as follows:

“DEPARTMENT OF LAW”

“Section 1. In addition to the departments

created and placed under the immediate control of

the City Manager, there is hereby created another

department, to be known as the Department of

Law. The Director or head of this department shall

be a competent practicing lawyer, of recognized

ability, residing in the City, whose appointment -

shall be recommended by the Manager and ap-

proved by the Council. He shall serve for a period of

two years from the date of his appointment, unless

sooner discharged by the Council, either upon its

own motion or upon the recommendation of the

Manager, on account of his services not proving

satisfactory; and of this matter the Council shall be

the sole judge, and their decision with respect

thereto shall be final.

“Section 2. The Director of the Department of

Law shall be known as the City Attorney, and shall

have power to appoint such assistants as may be

_9q—

~ deemed necessary by him, subject to the approval of

the Manager and the Council: such assistants to

serve in that capacity as long as their services are

satisfactory to the Council and the City Manager.

The City Attorney and his assistants shall receive

such compensation as may be fixed by resolution of

‘the Council.

“Section 3. Duties of the City Attorney.—He

shall be the legal adviser of and attorney and coun-

sel for the City and for all officers and departments

thereof, in all matters relating to their official

duties. He shall prosecute or defend all suits for and

on behalf of the City in all the courts, and shall

prepare all contracts, bonds and other instruments

in writing in'which the City is concerned, and shall

endorse on each his approval as to the form and

legality thereof. No such bond, contract or instru-

ment shall become effective without such en-

dorsement by the City Attorney thereon.

“Section 4. He shall attend all sessions of the

Council and make diligent investigation and re-

port to the Council, or to the City Manager, or any °

director of departments, his opinion with respect to

any legal matter submittéd to him by any of them.

He shall, either in person or by an assistant, act as

Prosecuting Attorney in the Corporation Court. He

shall prosecute all cases brought before such court

and perform the same duties, as far as they are

applicable thereto, as are required of the Prosecut-

ing Attorney of the County. He shall maintain his

office in the City Hall, in such place as may be

provided by the Council, and shall freely confer

with and advise the City Manager on all matters

that may be referred to him by the City Manager.

He shall prepare in correct legal form all ordi-

nances passed by the Council.

“Section 5. The City Attorney shail apply in the

—3d—

g EG PLLA ANE REE TNA ASI mE KCN Et yr ah VC Neh

name of the City to a court of competent jurisdic-

tion for an order of injunction to restrain any mis-

application of the funds of the City, or the abuse of

its corporate powers, or the execution or perfor-

mance of any contract made in behalf of the City in

contravention of law, or which was procured by

fraud or corruption. ;

“Section 6. When an obligatien or contract made

on behalf of the City granting a right or easement,

or creating a public duty, is being evaded or viol-

ated, the City Attorney shal likewise apply for the

forfeiture or the specific performance thereof, or for

such relief as the nature of the case may require.

“Section 7. In case any officer or commission shall

fail to perform any duty required by law, the City

Attorney shall apply to a court of-competent juris-

diction for a writ of mandamus to compel the per-

formance of such duty.

“Section 8. Taxpayers’ Suits.—In case the City

Attorney, upon written request of three taxpayers

of the City, fails to make any application provided ~

for in | (any of the preceding three sections, such

en ag deel may institute suit or proceedings for

such purpose, in their own names, on behalf of the

City; but no such suit or proceeding shall be enter-

tained by any court until such request shall have

been first made to the City Attorney, nor until the

said taxpayers shall have given security for the

costs of the proceedings.

“Section 9. The City Attorney and his assistants

shall be responsible for the proper and efficient

handling of the entire legal affairs, suits, pleas and

litigation in which the City is interested. No extra

counsel shall be employed to assist the City Attor-

ney, save and except in cases of extraordinary im-

portance and emergency, and then only on the

_4Ad—

written recommendation of the City Manager

showing the necessity and importance of employ-

ing such additional legal assistance. approved and

adopted by the Council. In such contingency, the

Council shail fix in advance, as far as practicable.

the compensation to be allowed such extra counsel]

by resolution spread upon the minutes.”

9. That. Plaintiffs’ Exhibit "B” (also identified as Ex-

hibit lin Plaintiffs’ First Amended Complaint) is a true

and correct copy of Ordinance No. 6644, which ordi-

nance was the ordinance calling the bond election held

on the 11th day of April, 1972.

10. That Section 19 of Chapter XXV of the Charter of

the City of Fort Worth reads as follows:

“Section 19. Issuance and Sale of Bonds,—The

City Council shall have < uthority to provide for the

issuance and sale of bonds for permanent improve-

ments and for any other legitimate municipal pur-

pose as may be determi y the City Council: but

no bonds shall be issue@ £0 fund any overdraft or

indebtedness incurred ‘for current expenses of the

city government, or any subdivision thereof. The

City Council shall also have the right to fund any

maturing bonds by the issuance of new bonds in

lieu thereof at the same or a lower rate of interest.

No bonds shall be issued or refunded that bear a

greater rate of interest than five per cent per

annum, and the same shall never be sold for less

than par and accrued interest, and all bonds shall

express upon their face the purpose or purposes for

which they are issued.

“No bonds shall be issued unless authorized by

ordinance, which ordinance shall provide an ade-

ae; , Se

a NE Hee Tee eee SRO aD

Broreereneemense rem rnrmmenmmemesiennnuennm names pIeene Emer EDS

quate fund from the taxés for the payment of the

annual interest and sinking fund of not less than

two per cent per annum for the ultimate redemp-

tion of such bond issue, and such ordinance shall

become effective without the necessity of publica-

tion. Provided, that no bonds shall be issued, nor ,

bondéd debt created, unless authority therefor

shall first be submitted to the qualified voters who

ay taxes on property situated within the corporate

imits of the Eity of Fort Worth; and, ifa majority of _

the votes cast at such election are in favor of the

issuance of such bonds, then such issue shall be

made; but, should the majority of the votes cast at

said election be against the proposition, then such

bonds shall not be issued. The City Council shall

have full power and authority to prescribe the way

and manner in which such election shall be held,

the notice to be given therefor, the polling places in

the various parts of the City at which the election is

to be held, prescribe the form of ballot and the other

details of said election, independently of the gen-

eral election laws of the State of Texas. But this

requirement-as to submitting the question of the

issuance of bonds to a vote of the people before the

same can be authorized shall not apply to the re-

funding of bonds heretofore issued, where the same

can be refunded at the same or a lower rate of

interest, if in the judgment of the City Council the

said bonds cannot be retired, either in whole or in

part, at maturity. The said bonds when issued shall

e submitted to and approved by the Attorney Gen-

eral of the State of Texas, as required by the sta-

tutes of this State, before being offered for sale in

the market.”

11. That section 29 of Chapter XXVIII of the Charter

of the City of Fort Worth reads in part as follows:

“Section 29. Elections — Council to Provide for

_6d—

Holding Same — Counting Returns and Declaring

Result.—The City Council shall make all nece--

sary regulations concerning elections. the manner

and method of holding same, by proper ordinance =

eracted for that purpose. Such regulations, how-

ever, shall be in keeping with the provisions of thi-

Charter and shall be in keeping and consistent

with the provisions of the State law applicable to

elections in municipalities, insofar as the same

may be practicable. ***”

That Section 30 of Chapter XXVIII of the Charter of

the City of Fort Worth reads as follows:

“Section 30. Oath of Office.—Every officer of the

City shall, before entering upon the duties of his

office, take and subscribe to an oath or affirmation.

to be filed and kept in the office cf the City Secret-

EER RARE ar RR Rt RIN Reha Ti esis ea becca cme ne van eae ea €

ary, that he will support, protect and defend the S

Constitution and laws of the United States and of |

discharge the duties of his office or position. This z

provision shall apply to the City Manager andto —~

the heads of departments.” :

12. That Article 709 of the Revised Civ:! Statutes of .

the State of Texas provides in part that

“Before any bonds shall be offered forsale.***the ——

mayor ***shall forward the bonds to the Attorney .

General, together with a certified copy of the order |

or ordinance levying the tax to pay the interestand = 7

provide a sinking fund, and a statement of the total f

bonded indebtedness of the ***city ***, including = |

the series of bonds proposed, together with the f

amount of the assessed value of the *** city for :

assessment of such *** city ***. Such *** mayor

_7d—

shall also furnish the Attorney General with any

additional information he may require.”

13. That Article 709d of the Revised Civil Statutes of

the State of Texas provides in part that

~ “When *** the bonds of any incorporated city ***

are offered for sale, the party offering, or proposin

to sell, such bonds, obligations, and pledges shall

first submit them to the Attorney General, who

shall carefully inspect and examine the same in

connection with the law under which they were

issued, and shall diligently inquire into the facts

and circumstances so far as may be necessary to

determine the validity thereof; and, upon being

satisfied that such bonds, obligations, and pledges

were issued in conformity with law, and that they

are valid and binding obligations, he shall there-

upon certify to their validity, and his certificate to

that effect, so procured by the party offering such

bonds, obligations, and pledges as the case may be,

shall be submited to the Comptroller *** with the

bonds, obligations, and pledges so offered for sale,

ai shall be carefully preserved by the Comptrol-

er. KI?

14. That the Attorney General of Texas has duties

which include the certification of the legality of pro-

ceedings underlying the issuance of any proposed

municipal bonds and the issuance of an opinion as to

such legality prior to their registration by the Com-

ptroller of Public Accounts of the State of Texas.

15. That Article 4398 of the Revised Civil Statutes of

the State of Texas provides as follows:

_8d—

“ATTORNEY GENERAL

“Art. 4398. To examine bonds

He shall carefully examine a!! county and

municipal bonds sent to him as provided by Article

709, in connection with the facts and the Constitu-

tion and laws on the subject of the execution of such

bonds, and if, as the result of such examination, he

shall find that such bonds were issued in confor-

mity with the Constitution and laws, and that they

are valid and binding obligations upon the county,

city, or town, by which they are executed, he shal]

so officially certify.”

16. That prior to the holding of the election of April

11, 1972, the defendant City Secretary of the City of

Fort Worth instructed each of the election judges for the

bond election, and that such instruction basically re-

quired the separation of the votes of persons who owned

taxable property which had been rendered for taxation

from those of other qualified electors or voters who had

not rendered property for taxation.

17. That the defendant City of Fort Worth and Roy A.

Bateman made available two separate affidavits for

voters at the polling places on April 11, 1972, one of

such affidavits being for persons owning taxable prop-

erty which had been duly rendered or assessed for taxa-

tion, and the other affidavit being for persons who did

not wish to sign an affidavit showing ownership of tax-

able property which has been duly rendered or assessed

for taxation. These affidavits are Plaintiffs’ Exhibits

—_9d—

ee ae a a

LAT MAIS, MOE" 1

TARA EN Ee

EASES ENR Pee

(-1 and C-2. and these exhibits are also identified as

Exbibit K in Plaintiffs’ First Amended Complaint.

18. That the returns of the municipal election of the

City of Fort Worth held on April 11, 1972. were canvas-

sed and approved by the City Council of said City in

regular, open, public meeting on April 17. 1972, which

canvass and approval reflect the following:

“Councilman Gandy made a motion, seconded by

Councilman Briscoe, that the tabulation of returns

of the City of Fort Worth Bond Election held April

11, 1972, as prepared from the certified returns,

submitted by the judges and clerks in each election

precinct. and presented by the City Secretary, be

found correct, and that the votes cast on Proposi-

tion No. 1, as submitted were:

Owners of Property Non

- Rendered for Taxation Renderers Total

For ?} 13,466 4,094 17,560

Against (/ 9,834 850 10,684

and that the votes cast on Proposition No. 2 were:.

For 10.849 3.758 14,607

Against 12,234 1,132 13,366

and that the tabulation of returns of said election

be in all things approved and adopted. When the

motion was put to a vote by the Mayor, it prevailed

unanimously.”

—10d—

19) That prior to issuing and selling any genera!

obligation bonds, it isa matter of necessity to publish an

‘official not ice of sale thereof; to describe and provide for

terms and specifications in the sale thereof; to make

provision for redemption, denomination. type of bid and

interest rates, and basis of award: to provide for a good

faith deposit: to provide for printing and the furnishing

of the purchaser's written opinion: to provide no-

litigation certificates; to provide for delivery: to regu-

late future sales: and to prepare and furnish an official

bid form; and that after the taking of bids thereon: it is

recessary to provide a complete transcript of the pro-

ceedings, to adopt an ordinance levying the tax to pay

the interest and provide a sinking fund. to provide a

statement of the total bonded indebtedness of the City.

including the series of bonds proposed, together with

the amount of the assessed value of the real, personal

and mixed property in the City for purposes of taxation

as shown by the last official assessment rolls, to submit

the bonds to the Attorney General of Texas for inspec-

tion and certification pursuant to Article 709d of the

Texas Revised Civil Statutes. and to furnish the Attor-

ney Generai with any additional! information that he

may require.

20. That the defendant City Attorney. S.G. Johndroe.

Jr.. has advised the City Council of the opinion deli-

vered March 10, 1971. in Montgomery Independent

School District v. Crawford Martin, Attorney General

of Texas, 464 S.W. 2d 638 (1971), wherein the-Texas

—11ld—

Bieter pest seg ete:

Supreme Court upheld the validity of Article 6, Section

3a. of the Texas Constitution when challenged on the

ground that it violated the Equal Protection Clause of

the Fourteenth Amendment to the Constitution of the

United States; and the Supreme Court of Texas also

found that such provision did not violate, but

strengthened, the Equal Protection Clause of the Four-

teenth Amendment; and that the defendant City Attor-

ney, S.G. Johndroe, Jr., as admitted in Paragraph 22 of

the Original Answer of Defendants, R.M. Stovall et al.,

further advised the City Council of the City of Fort

Worth of the procedural steps and necessary prerequis-

ites prior to the issuance and sale of general obligation

bonds as set out above in Stipulation No. 19.

21. That the defendants, City Council members of the

City of Fort Worth, when acting as a body in their

official capacity as City Council members and as the

duly authorized governing body of the City of Fort

Worth, have the “authority to provide for the issuance

and sale of bonds for permanent improvements and for

any other legitimate municipal purpose as may be de-

termined by the City Council”; and that such authority

is conferred in part upon the City Council by Chapter

XXV, Section 19, of the Charter of the City of Fort

Worth.

22. That defendant Roy A. Bateman, in his capacity

as City Secretary of the City of Fort Worth, had the

following duties with respect to the April 11, 1972, City

of Fort Worth bond election as set forth in Ordinance

Ato. 6644 of the City of Fort Worth:

“SECTION 6.

“That the official ballots to be used shall be in

compliance with the applicable provisions of Arti-

cle 6.05 of the Election Code of the State of Texas,

as amended, and shall have written or printed

thereon the following: ,

PROPOSITION NO. 1.

“Place an ‘X’ in the square beside the statement

indicating the way you wish to vote.

CFOR CAGAINST

Shall the City of Fort Worth, Texas. through its

City Council, issue its negotiable soupon bonds in

the principal sum of Three Million Dollars

($3,000,000.00) for the legitimate municipal pur-

pose of acquiring, equipping and improving the

physical equipment and personal property of the

Fort Worth Transit Company, a private corpora-

tion, and acquiring the necessary lands therefor.

said bonds being payable serially as may be deter-

mined by the City Council, so that the last matur-

ing bonds shall become payable within forty (40)

years from the date thereof. bearing interest at a

rate not to exceed the maximum prescribed by law

at the time of the issuance thereof, payable semi-

annually, and levy a sufficient tax to pay the in-

terest on said bonds and create a sinking fund

sufficient to redeem said bonds at the maturity

thereof?

PROPOSITION )

“Place an ‘X’ in the square beside the statement

—13d—

indicating the way you wish to vote.

(1 FOR CO AGAINST

Shall the City of Fort Worth, Texas, through its

City Council, issue its negotiable coupon bonds in

the principal sum of Six Million, Eight Hundred

Sixty Thousand Dollars ($6,860,000.00) for the pur-

pose of making permanent city improvements by

constructing, building, improving and equipping

buildings for the public library system and acquir-

ing the necessary lands therefor, said bonds being

payable serially as may be determined by the City

Couttgil, so that the last maturing bonds shall be-

come payable within forty (40) years from the date

thereof, bearing interest at a rate not to exceed the

maximum ‘prescribed by law at the time of the

issuance thereof, payable semi-annually, and levy

a sufficient tax to pay the interest on said bonds

and create a sinking fund sufficient to redeem said

bonds at the maturity thereof?

“SECTION 7.

“That the City Secretary is hereby ordered and

directed to prepare and issue ballots for absentee

voting and for the special election and to stamp

same ‘Official Ballot, on which ballots shall be

printed the propositions hereinabove set forth.

OK OK

“ORC LION 10;

“That the City Secretary shall furnish election

officials said ballots, together with any other

forms, blanks or instructions in accordance with the

Charter of the City of Fort Worth, Texas, and the

laws of the State of Texas insofar as same are ap-

plicable, and the provisions of this ordinance un-

—14d—

less a court of competent jurisdiction orders other-

wise.

“SECTION 11.

“That the way and manner of holding this elec-

tion, the notice to be given therefor, the polling

places, the personne! of the officers, precinct judges

and substitutes therefor who are to hold the same,

and all details connected with the holding of the

election shall be determined and arranged by the

City Council and administered under the direction

of and by the City Secretary.

2K OK OK ok OK OK

“SECTION 13.

“That the City Secretary is hereby authorized

and directed to cause notice of said election to be

given by posting a substantial copy of this election

order in each of the election precincts of said City

and also at the City Hall. That this notice of said

election shall also be published on the same day in

each of two (2) successive weeks in a newspaper of

general circulation published within said City, the

date of the first publication to be not less than

fourteen (14) days prior to the date set for said

election, and the City Secretary shall see that

proper publication is made and proper notice of this

election is given, in full conformity with the Char-

ter of the City of Fort Worth, Texas, and the applic-

able statutes of the State of Texas.”

23. That on the 13th day of March, 1972, the City

Council of the City of Fort Worth adopted Ordinance

No. 6644, which provided for the submission of two

propositions to the electorate of the City of Fort Worth,

the election to be held on April 14, 1972; and that such

—15d—

propositions are set out in Stipulation No. 22 above

(Section 6 of Ordinance No. 6644).

That Ordinance No. 6644 provided in Section 3

thereof for the holding of two separate but simultane-

ous elections, as follows:

“SECTION 3.

“That said election shall be held and conducted,

in effect, as two separate but simultaneous elec-

tions, to wit: One election at which only the resi-

dent, qualified electors who own taxable property

in the City and who have duly rendered the same

for taxation shall be entitled to vote on said propos-

itions, and another election at which all other resi-

dent, qualified electors of the City shall be entitled

to vote on said propositions. The votes cast at each

of said separate but simultaneous elections shall be

recorded, returned.and canvassed separately. It is

hereby declared that the purpose of holding the

election in such manner is to ascertain arithmeti-

cally:

(a) The aggregate votes cast at the election for

and against said propositions by resident, qualified

electors of the City; and also

(b) The aggregate votes cast at the election for

and against said propositions by resident, qualified

electors who own taxable property in the City and

who have duly rendered the same for taxation.

Each elector shall be entitled to vote once on each of

the propositions in accordance with the foregoing

provisions of this ordinance.

“That the the above and foregoing dual election

—16d—

procedure shall be followed unless a court of compe-

tent jurisdiction orders otherwise.”

24. The Attorney General's policy in the approval of

general obligation tax bonds since December 19, 1969,

has been that each proposition must be approved by the

property owning ad valorem taxpayers whose property

has been duly rendered (as required by Article 6, §§ 3

and 3 (a) of the Texas Constitution) and each proposi-

tion must also receive the approval of the aggregate

vote of property-owning ad valorem taxpayers whose

property has been duly rendered and all other qualified

electors (the test required by the Phoenix case).

This position was taken to insure that all general

obligation tax bonds voted in Texas would be in full

compliance with the Texas law and at the same time be

protected in the event the Supreme Court of the United

States sub sequently holds the Texas voter qualification

test for tax bond elections invalid. As a practical mat-

ter, until such time as the Texas law is tested in the

Federal Courts, the municipal bonds of this State and

its political subdivisions would be unmarketable with-

out this protective procedure.

The Texas Supreme Court in Montgomery Indepen-

dent School District v. Crawford Martin, Attorney Gen-

eral of Texas, 464 S.W. 2d 638 (1571), has spoken on the

question of who shall vote in general obligation tax

bond elections in Texas and it is incumbent upon the

Attorney General of Texas to insure that the directives

—17d—

SEER ARP NS A Cee aie eee ie eng

Beevers Se aa at ean Tear Te eee ae

of that Court are complied with in the approval of tax

bonds. In those instances when tax bonds are not in-

volved, the decisions of the United States Supreme

Court in Kramer v. Union Free School District, 395

U.S. 621 (1969), and Cipriano v. City of Houma, 395

U.S. 701 (1969), are followed.

24A. If Robert S..Calvert, Comptroller of Public Ac-

counts of the State of Texas, were present in court, he

_would testify under oath that the requirement of rendi-

tion of property, personal and mixed, tangible and in-

tangible, as a prerequisite to vote in a general obliga-

tion bond election is a matter of compelling necessity by

reason of the plain and simple fact that no property is

more susceptible of concealment than is personal and

mixed, tangible and intangible property.

He would further testify, if he were present in court,

that for the year 1970, the total personal property

rendered for taxation in Texas amounted to

$3,996,729,956.00 and for the year 1971 amounted to

$4,261,631,147.00, which is an increase of 6.23%. This

increase of $264,901,191.00 in personal property rendi-

tions for the year 1971 constitutes 11.59% of the over-

all increase in renditions of real, personal and inixed

property over that rendered in 1970, which produces

dollar-wise an additional $529,802.38 in tevenues to

the State. The total approximate revenues to the State

as a result of ad valorem tax on personal property in the

year 1971 amounted to approximately $8,523,262.30.

—18d—

24B. If Robert S. Calvert, Comptroller of Public Ac-

counts of the State of Texas, were present in court, he

would testify under oath that the requirement of rendi-

tion and disclosure of property for purposes of ad val-

orem taxation is of the utmost importance, that there is

a compelling necessity for an effective system of tax

assessment and collection, and that such a system is

mandatory for the orderly creation of, payment of and

discharge of tax bond obligations.

25. That the declared intent of the City Council of the

City of Fort Worth with respect to the sale and issuance

of the general obligation tax-supported bonds as de-

clared in the adoption of Ordinance No. 6644 was as

follows:

“SECTION 8.

“That in the event the tax-supported bonds are

authorized at the special election hereby ordered,

the City Council of the City of Fort Worth, Texas,

may issue for sale any part or portion of said

amounts at such time and times as in the judgment

of the City Council it determines that a lawful

interest and sinking fund may be provided for to

take care of and disthanpe any part or portion of the

bonds so issued for sale, it being the purpose of this

section to make clear that the City Council of the

City of Fort Worth, Texas, may not be required to

issue the full amount of the series of the bonds as

herein submitted but may issue for sale any portion

of the same at such time and times as itdetermines

advisable, under the authority hereby conferred

after said eléction.”

—19d—

ta da |

LERIEMN,

26. That assuming the requirements in Articles 5.03,

5.04 and 5.07 of the Texas Election Code and in Article

6, Sections 3 and 3a, of the Texas Constitution (which

statutory and constitutional provisions all defendants

have taken an oath “to support, protect and defend”) did

not exist, and assuming the policy of the Attorney Gen-

eral of Texas, as set forth in Stipulation No. 24 above,

had never been announced and declared, then the City

Council of the City of Fort Worth could exercise its

independent legislative judgment and discretion and by

ordinance would take such steps and procedures neces-

sary to prepare for the issuance and sale of the Library

Bonds submitted in Proposition No. 2 (Section 6 of

Ordinance No. 6644).

27. That assuming the requirements in artilce 5.03,

5.04 and 5.07 of the Texas Election Code and in Article

6, Sections 3 and 3a, of the Texas Constitution (which

statutory and constitutional provisions all defendants

have taken an oath to “support, protect and defend”) did

not exist, and assuming the policy of the Attorney Gen-

eral of Texas as set forth in Stipulation No. 24 above

had never been announced and declared, and assuming

that the City Council of the City of Fort Worth deter-

mined it advisable, in the exercise of its independent

legislative judgment and discretion, to take such steps

and procedure necessary to prepare for the issuance and

sale of the Library Bonds.submitted in Proposition No.

2 (Section 6 of Ordinance No. 6644), then and in such

event the defendant Mayor of the City of Fort Worth,

—20d—

acting in his official capacity, would, as soon as possible

and as soon as is consistent with orderly procedure and

due care, inasmuch as Proposition No. 2 in the April 11,

1972, bond election received a majority of votes cast by

all non-rendering and rendering voters of the City of

Fort Worth, Texas, and before any of such bonds were

offered for sale, cause to be forwarded to the Attorney

General the bonds and a transcript thereof, together

with a certified copy of the order or ordinance levying

the tax to pay the interest and provide a sinking fund ,

and the statement of the total bonded indebtedness of

the City, including the series of bonds proposed, to-

gether with the amount of the assessed value of the City

for purposes of taxation as shown by the last official

assessment of such City, and would also furnish the

Attorney General with any additional information he

might require.

28. That on April 17, 1972, the City Council of the

City of Fort Worth, Texas, while in regular session,

unanimously adopted the following motion:

“Councilman Gandy made a motion, seconded by

Councilman Briscoe, that the City Council go on

record as stating that if the legal entanglements

did not exist, the City would proceed to sell the

library bonds voted April 11, 1972, to build a new

central library, provided the other terms and con-

ditions surrounding the sale of the bonds and con-

struction bid procedures were reasonable and ac-

ceptable to the City Council, and when the motion

was put to a vote by the Mayor, it prevailed unani-

mously.”

—21d—

x 4

OSs, CORRE Pet parte ee OSPR SAR IE A HAS.

Sh are Pa

Berens

Biativicsica ae yty

29. That some time. after the bond election held on

April 11, 1972, defendant S.G. Johndroe, Jr., City At-

torney of the City of Fort Worth, Texas, advised the City

Council of said City “that the Attorney General has —

refused to certify bonds approved in identical circum-

stances, and it would be pointless to submit the Library

Bonds (that is, the bonds submitted in Proposition No.

2) to the Attorney ‘i«neral,” and he generally advised

the City Council of the City of Fort Worth that it is just

the same as if the issue had failed.

30. That assuming that the requirements in Articles

5.03, 5.04 and 5.07 of the Texas Election Code and in

Article 6, Sections 3 and 3a, of the Texas Constitution

(which statutory and constitutional provisions all de-

fendants have taken an. oath “to support, protect and

defend”) did not exist, and assuming that the policy of

the Attorney General of Texas, as set forth in Stipula-

tion No. 24 above, had never been announced and de-

clared, and further assuming that the City Council of

the City of Fort Worth had exercised its independent

legislative judgment and discretion and had the City

Attorney take such steps and procedure necessary for

him to prepare for the issuance and sale of the Library

Bonds submitted in Proposition No. 2 (Section 6 of Or-

dinance No. 6644), then and in that event the defendant

City Attorney of the City of Fort Worth would prepare

all instruments and documents necessary for the is-

suance and sale of the Library Bonds and endorse his

approval thereon.

—22d—

31. That on April 11, 1972, plaintiffs Michael L.

Stone, Dorothy I. Ellis, Pat (Mrs. George A.) Crowley,

James D. Henderson and Marjorie M. Watson were

resident, qualified electors of the City of Fort Worth,

the State of Texas, and the United States, and all of the

plaintiffs remain such resident, qualified voters to this

date.

32. That plaintiff Pat Crowley is one and the same

person as “Mrs. George A. Crowley,” who holds Tarrant

County Voter Registration Certificate No. A-137229.

33. That all of the plaintiffs voted in the City of Fort

Worth bond election held on April 11, 1972; that all of

the plaintiffs cast ballots on both of the propositions

submitted; and that all of the plaintiffs voted “for” (in

favor of) the Library Bonds, Proposition No. 2.

34. That plaintiffs Michael L. Stone, Dorothy I. Ellis

and James D. Henderson voted as qualified voters of the

City of Fort Worth and not as rendering property own-

ers, and that they voted “for” (in favor of) Proposition

No. 2. (See Affidavit, Plaintiffs Exhibit E; also iden-

tified as Exhibit C in Plaintiffs’ First AmendedCom-

plaint)

35. That plaintiffs Pat Crowley and Marjorie M. Wat-

son voted in the City of Fort Worth bond election on

April 11, 1972, as rendering property owners, and that

they voted “for” (in favor of) Proposition No. 2. (See

—23d—

i et

SS a a A

Biiittsia seats igh

Affidavit, Plaintiffs’ Exhibit F; also identified as Ex-

hibit D in Plaintiffs’ First Amended Complaint) —

36. That all of the above plaintiffs are fully competent

to testify to the matters of fact contained in Stipulations

Nos. 31 through.35, inclusive, and that each plaintiff

has personal knowledge of that portion of such facts

which pertain directly to him.

37. That if plaintiffs Michael L. Stone, Dorothy I.

Ellis, Pat Crowley, James D. Henderson and. Marjorie

M. Watson were. present in court, they would testify

under oath to the matters of fact stipulated by the

parties hereto in Stipulation Nos. 31 through 35, inclu-

sive.

That the defendants stipulate that they have no evi-

dence or testimony to present to this Court which would

in any way contradict or impeach the truth of the mat-

ters of fact stated in Stipulations Nos. a1 ae 35,

‘inclusive.

38. That all of the bonds proposed to be issued under

Proposition No. 2 (Library Bonds) would be general

obligation, tax-supported bonds.

39. That the principal of and interest on general ob-

ligation, tax-supported bonds issued and sold by the

City of Fort Worth to bona fide purchasers for value are

paid solely from the revenues from taxes levied, asses-

—24d—

sed and collected by the City of Fort Worth from persons

who own real, personal or mixed property which has

been rendered for taxation.

40. That if defendant Roy A. Bateman were present in

court, he would testify under oath that the requirement

of rendition of property, personal and mixed, tangibie

and intangible property; and that the requirement

necessity to local taxing authorities by reason of the

plain and simple fact that no property is more suscepti-

ble of concealment than is personal and mixed, tangible

and int intangible property; and that the requirement

of voluntary rendition and disclosure of such property

for purposes of ad valorem taxation is of the utmost

importance and vitally necessary for an effective sys-

-~~tem of ad valorem tax assessment and collection and is

directly and inextricably related to the creation of,

payment and discharge of tax-supported bond obliga-

tions. .

;

Chaak®. Sh cite

41. That ifdefendant Roy A. Bateman were present in

court, he would testify under oath that the ad valorem

tax is the life blood of local government financing and

that the increasing burdens of local needs and inflation

make ever increasing demands on local governments

for additional tax revenues.

42. That ifdefendant Roy A. Bateman were present in

court, he would testify under oath that the principal

and interest on general obligation, tax-supported bonds

ALES DAR iene

—25d—

issued by the City of Fort Worth are, and will be, paid

solely from the proceeds derived from taxes levied, as-

sessed and collected from persons who own real, per-

sonal or mixed property which has been duly rendered

for taxation; that the assessed valuation of real (includ-

ing improvements), personal and mixed property in the

City of Fort Worth for the fiscal year 1970-71 was

$1,370,483,290; that of such assessed valuation, real

property constituted $1,017,895,540, and personal and

mixed property amounted to $352,587,750; that the

assessed valuation of real (including improvements),

personal and mixed property in the City of Fort Worth

for the fisca: year 1971-72 was $1,444,024,440; and that

of such assessed valuation, real property constituted

$1,077,271,500 and personal and mixed property

amounted to $366,752,240.

43. That ifdefendant Roy A. Bateman were present in

court, he would testify under oath that for the year

ending September 30, 1970, the City of Fort Worth

derived $16,388,154 in taxes from real property ren-

dered and placed on the assessment rolls and

$5,676,669 from personal and mixed property rendered

and placed on the assessment rolls; that for the year

ending September 30, 1971, the City of Fort Worth

derived $18,205,947.35 in taxes from real property ren-

dered and placed on the assessment rolls and

$6,198,138.73 from personal and mixed property ren-

dered and placed on the assessment rolls; and that

more than one-fourth of the total funds derived from

af —26d—

taxation in the City of Fort Worth for the years 1970-71

was derived from the taxation of personal and mixed

property in said City.

44. That ifdefendant Roy A. Bateman were present in

court, he would testify under oath that the fiscal year

1971-72 will require that from the funds derived from

taxation, the sum of $7,364,524 must be allocated for

principal and interest payments on genef€fl obligation

tax bonds outstanding, which bonds are owned and held

by bona fide purchasers for value throughout not only

the entire United States but the world, and that the

requirement of rendition of personal and mixed prop-

erty, tangible and intangible, as a prerequisite to vote

in a general obligation bond election is a matter of

compelling necessity to the City of Fort Worth by

reason of the plain and simple fact that no property is

more susceptible of concealment than is personal and

mixed, tangible and intangible property.

That as of December 31, 1971, the outstanding un-

paid general obligation tax bond indebtedness of the

City of Fort Worth was $92,852,000.

That the City Council of the City of Fort Worth must

provide funds to meet its outstanding general obliga-

tion tax bond payments during the fiscal year 1971-72

in the amount of $7,364,524, and that in excess of

$1,840,000 of such $7,364,524 must be obtained from

taxes derived from the rendition of personal and mixed

—27d—

VALERIE I?

OE, PERE APOE re

property in the City of Fort Worth.

45. That the defendant Roy A. Bateman is fully com-

petent to testify to the above matters of fact contained

in Stipulations Nos. 40 through 44, inclusive, and as

Treasurer of the City of Fort Worth, he has personal

knowledge of such facts.

46. That plaintiffs stipulate that they have no evi-

dence or testimony to present to this Court other than

that contained in the foregoing stipulations which will

in any way contradict or impeach the truth of the mat-

ters of fact stated in Stipulations Nos. 24, 24A, 24B, 40,

41, 42, 43, 44 and 45. That plaintiffs do not, however,

stipulate that these reasons are sufficient to deny some

resident, qualified voters cf these taxing authorities the

right to have their vote fully counted in bond elections,

nor do they admit that these reasons satisfy the legal

tests of Kramer v. Union Free School District, 395 U.S.

621, 89S. Ct. 1886, 23 L. Ed. 2d 583 (1969), to the effect

that restrictions on the right of otherwise qualified

voters to vote (other than those of age, residence, etc.)

must be necessary to promote a compelling State in-

terest. 395 U.S. 621 at 627, 89 S. Ct. 1886 at 1890, 23

L.Ed.2d 583 at 589.

Furthermore, the plaintiffs object to any testimony

that there is a compelling necessity for exclusion of

non-property owners in this type of election on the

grounds that such testimony is a conclusion of law on

—28d—

the part of the witness and that such testimony invades

the province of the Court in deciding questions of law.

47. On April 11, 1972, the City of Fort Worth in fact

held a bond election submitting two propositions to the

voters: Proposition Number I provided for approval or

non-approval by the voters of bonds for a transportation

system; Proposition Number II provided for approval or

non-approval of bonds by the voters for library

facilities. On April 11, 1972, the following votes were

cast and recorded on Proposition Numbers I and II in

such Fort Worth city bond election:

Owners of Property . Non

Rendered for Taxation Rbnderers Total

Proposition I

For 13,466 4,094 17,560

Proposition II

For 10,849 3,758 14,607

Against 12,234 1,132 13,366

48. The defendant City of Fort Worth, with the ap-

propriate approval by the defendant City Council

members of the City of Fort Worth, the defendant

Mayor R.M. Stovall, and the defendant City Attorney

—29d—

Gr, 9 OPES BUS RY DO ge eS |

S.G. Johndroe, Jr., has sold the Transportation System

bonds approved by the voters of the City of Fort Worth

in Proposition Number I in the April 11, 1972 bond

election.

—30d—

Ph ai Sus rbe? yl

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.