Appellees Brief — Hill v. Stone

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1974 .

No. 73-1723

JOHN L. HILL, Attorney General of Texas,

in Appellant,

MICHAEL L. STONE, DOROTHY I. ELLIS,

JAMES D. HENDERSON, PAT CROWLEY and

MARJORIE M. WATSON;

THE CITY OF FORT WORTH, TEXAS, a Municipal

Corporation; R. M. STOVALL, its Mayor; S. G. JOHN-

DROE, JR., its City Attorney; ROY A. BATEMAN, its

City Secretary; and the MEMBERS OF ie CITY

COUNCIL thereof, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

. Brief of Appellees, the City of Fort Worth, Texas, a

municipal corporation; R. M. Stovall, its Mayor;

: S. G. Johndroe, Jr., its City Attorney; Roy A. Bate-

3 man, its City Secretary; and the Members of the City .

Council thereof

Py

S. G. JOHNDROE, JR.

Attorney for the Appellees,

THE CITY OF FORT WORTH,

TEXAS, « municipal corporation;

R. M. STOVALL, its Mayor; S. G.

JOHNDROE, JR., its City Attorney;

ROY A. BATEMAN, its Secretary;

“Fort dtoops Texas 76102

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TABLE OF CONTENTS

Page

OPINIONS BELOW 2... 2

JURISDICTION FOES SO We ae ee 2-4

QUESTION PRESENTED BY THE APPEAL............ 4-5

STATEMENT OF THE CASE..u...---o---ccccoeeccseeccoeecsee-s 5-6

STATEMENT, ARGUMENT AND AUTHORITIES...... 6-40

THE LIMITING OF A VOTING FRAN-

CHISE TO RENDERED PROPERTY

OWNERS IS NOT AN UNREASON-

ABLE, ARBITRARY OR CAPRICIOUS

CLASSIFICATION IRRECONCILABLY

IN CONFLICT WITH THE FOUR-

TEENTH AMENDMENT 0. 6-15

SINCE THE OUTSTANDING, UNPAID

GENERAL OBLIGATION TAX:BOND

INDEBTEDNESS OF THE CITY

OF FORT WORTH WAS ALREADY

$92,852,000 AS OF DECEMBER 31,

1971, AND SINCE THE RENDERING

PROPERTY OWNERS HAD A DIRECT

FINANCIAL INTEREST IN CON-

TROLLING THEIR INDEBTEDNESS

AND TAXATION, THE TEXAS STAT-

UTES AND THE CITY’S CHARTER

PROVISION WERE REASONABLE

LIMITATIONS ... ..16-40

TARR Bice iceteninnssnibinaemncspeccilllingahinskcinsiihessissigad 40-41

CERTIFICATE OF SERVICE Aiceenibsiinninati 42

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AUTHORITIES

Page

CASES:

Associated Enterprises, Inc., et al. v. Toltec

Watershed Improvement District, 410 U.S.

748, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973)... 18-19

Beller v. Kirk, 328 F.Supp. 485 (S.D.Fla.1970),

aff'd, 408 US. 926, 91 SLt. 2248. ti‘Ci‘CS as

City of Fort Worth v. Cureton,

222 S.W. 531 (Tex.1920) ta ees ok 24

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

90 S.Ct. 1990, 26 L.Ed.2d 523 (1970)... 39

Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889,

29 L.Ed.2d 273 (197 5 REN AD eR 9-12

Hanson v. Jordan, 198 S.W.2d 262 (Tex.1946) .......... 24

Kramer v. Union Free School District, 395

U.S. 621, 89 S.Ct. 1886, 23 L.Ed2d 583 (1969) ........ 37-38

Montgomery Independent School District v.

Crawford Martin, Attorney General of

Texas, 464 S.W.2d 638

CO AND te 2, 22-24, 25-29, 31, 32, 35

Salyer Land Co. v. Tulare Lake Basin

Water Storage District, 410 U.S. 719, 93

S.Ct. 1224, 35 L.Ed.2d 659 | | NS 14-15, 18, 30.

Wallegham v. Thompson, 185

gs ST 9 ) SUI ee aren Une Smee 12-13

Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5,

ye ee) ee eee ane 35

AUTHORITIES (Continued)

Page

STATUTES:

Revised Civil Statutes of Texas, Art. 7145.................. 24

Texas Election Code, Art. 5.03 3

Constitution of the State of Texas

Art. VI, § 3a a 24-25

Art. VIII, §1 24

Charter of the City of Fort Worth,

Chapt. XXV, § 19 . si 3-4, 29

United States Code

26 U.S.C. § 103, Interest on

Certain Governmental Obligations -.................... 21

31 U.S.C. § 1221 et seq.,

Federal Revenue Sharing Bill 20

31 U.S.C. § 1224, State and Local Government

Fiscal Assistance Trust Fund

ROE 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1974

No. 73-1723

JOHN L. HILL, Attorney General of Texas,

Appellant,

v.

MICHAEL L. STONE, DOROTHY I. ELLIS,

JAMES D. HENDERSON, PAT CROWLEY and

MARJORIE M. WATSON;

THE CITY OF FORT WORTH, TEXAS, a Municipal

Corporation; R. M. STOVALL, its Mayor; S. G. JOHN-

DROE, JR., its City Attorney; ROY A. BATEMAN, its

City Secretary; and the MEMBERS OF THE CITY

COUNCIL thereof, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Brief of Appellees, the City of Fort Worth, Texas, a

municipal corporation; R. M. Stovall, its Mayor;

S. G. Johndroe, Jr, its City Attorney; Roy A. Bate-

man, its City Secretary; and the Members of the City

Council thereof

To: The Honorable the Chief Justice and the

Associate Justices of the Supreme Court

of the United States:

This is an appeal from the judgment of a Three-

Judge Court for the Northern District of Texas dated

March 25, 1974, in Cause No. CA-4-1975, styled Mi-

chael L. Stone et al., Plaintiffs, v. The City of Fort

Worth et al., Defendants, 377 F.Supp. 1016.

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2

OPINIONS BELOW

The Memorandum Opinion of the Three-Judge Court

dated March 25, 1974, declared unconstitutional Ar-

ticle VI, §§ 3 and 3a, of the Texas Election Code, and

Section 19, Chapter XXV of the Fort Worth City Char-

ter. Same is printed in Appendix A of the Jurisdic-

tional Statement at pages 6a-27a. The decision of the

? Three-Judge Court is in direct conflict with the deci-

sion of the Supreme Court of Texas, rendered in 1971,

in Montgomery Independent School District v. Craw-

ford Martin, Attorney General of Texas, 464 S.W.2d

638, which decision upheld the validity of Article VI,

§ 3a, of the Texas Constitution.

Notice of appeal of these defendant-appellees was

timely filed in the United States District Court for the

Northern District of Texas, Fort Wogth Division, on

April 17, 1974. (Appendix, pp. 2-3) “7

JURISDICTION

As stated by appellant, this is a direct appeal as

authorized by 28 U.S.C. § 1253 from a judgment by

the Three-Judge Court permanently enjoining and pro-

hibiting defendant-appellees herein, “their respective

agents, servants, employees and successors,” from giv-

ing any force or effect to Article VI, §§ 3 and 3a, of

the Texas Constitution; Articles 5.03, 5.04 and 5.07 of

the Texas Election Code; and Section 19 of Chapter

XXV of the Fort Worth City Charter “insofar as they

are now constitutionally invalid, in assessing the va-

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

election by persons who had not rendered taxable prop-

3

erty in such City for taxation.” (Appendix C, Juris-

dictional Statement) These defendant-appellees were

mandatorily enjoined and required to “consider Prop-

osition Two (library bonds) to have been approved by

the voters participating in that election,” irrespective

of whether or not such voters were renderers or non-

renderers. The State statutory and constitutional pro-

_visions involved generally require that when an elec-

tion is held by any political subdivision or defined dis-

trict or municipal corporation

“« *** for the purpose of issuing bonds or other-

wise lending credit, or expending money or as-

suming any debt, only qualified electors who own

taxable property in the state, county, political sub-

division, district, city, town, or village where such

election is held, and who have duly rendered the

same for taxation shall be qualified to vote *** .”

(Article 5.03)

The provisions of the Home-Rule Charter of the City

of Fort Worth struck down by the lower court provide

as follows:

“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 munici-

pal 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 subdivi-

sion thereof. ***

“No bonds shall be issued unless authorized by

ordinance, which ordinance shall provide an ade-

quate fund from the taxes for the payment of the

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4

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 publi-

cation. Provided, that no bonds shall be issued,

nor bonded debt created, unless authority there-

for 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 prop-

osition, then such bonds shall not be issued. ***

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 mar-

ket.” (Emphasis supplied) (Avpendix D, Juris-

dictional Statement, pp. 5d-6d)

The judgment of the Three-Judge Court dated March

25, 1974, is printed in Appendix A of the Jurisdiction-

al Statement at pages la-4a.

QUESTION PRESENTED BY THE APPEAL

The following question is presented by the appeal:

Are Sections 3 and 3a of Article VI of the Tex-

as Constitution; Articles 5.03, 5.04 and 5.07 of

the Texas Election Code; and Section 19, Chapter

XXV of the Charter of the City of Fort Worth,

which limit the franchise in general obligation,

tax-supported bond elections to persons who own

real, personal or mixed property which has been

rendered for taxation, constitutionally invalid re-

strictions inconsistent’ with the Equal Protection

5

Clause of the Fourteenth Amendment to the Unit-

ed States Constitution?

STATEMENT OF THE CASE

This case arises out of a bond election held by the

City of Fort Worth on April 11, 1972,'at which two

propositions were submitted to the voters: Proposition

No. 1 provided for approval or non-approval ky whe

voters of bonds for the purchase of the equipment of

a bus transportation system; Proposition No. 2 pro-

vided for approval or non-approval by the voters of

bonds for a ‘new central library facility. (Ordinance

No. 6644, Appendix, pp. 58-61)

At that election the following votes were cast and

recorded on the Propositions: |

Owners

of Property

Rendered

Tozetied Pa ale Total

Proposition No. 1

(Transportation,

$3,000,000)

For 13,466 4,094 17,560

Against 9,834 850 10,684

Proposition No. 2

(New Central Library,

$6,860,000) )

~ For 10,849 3,758 14,607

Against 12,234 1,132 13,366

The case was submitted on “facts established by

stipulation” as set forth on pages 19 through 43, in-

RR A NEE EES ERE Oe eee peed a

REALE TANT EL ES

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6

clusive, of the Pre-Trial Order rendered and signed

November 8, 1972, which facts established by stipula-

tion are printed as Appendix D in the Jurisdictional

Statement and are set forth in the Appendix at pages

38-87. Judgment was rendered on March 25, 1974,

granting plaintiff-appellees’ every wish. This Court

noted probable jurisdiction October 15, 1974.

STATEMENT, ARGUMENT AND AUTHORITIES

THE LIMITING OF A VOTING FRANCHISE |

TO RENDERED PROPERTY OWNERS IS

NOT AN UNREASONABLE, ARBITRARY .

OR CAPRICIOUS CLASSIFICATION

IRRECONCILABLY IN CONFLICT

WITH THE FOURTEENTH

AMENDMENT.

Among the “Facts Established by Stipulation” were

the following:

“38. That all of the bonds proposed to 7 is-

sued under Proposition No. 2 (Library Bonds).

would be general obligation, tax-supported bonds.

| “39. That the principal of and interest on geh-

eral obligation, tax-supported bonds issued and

sold by the City of Fort Worth to bona fide pur-

' chasers for value are paid solely from the reve-

nues from taxes levied, assessed 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 (Treas-

urer of the City) were present in court, he would

testify under oath that the requirement of rendi-

aw

7 s

tion of property, personal and mixed, tangible

and intangible, is a matter of vital importance

and necessity to local taxing authorities by rea-

son of the plain and simple fact that no property

is more susceptible of concealment than is per-

sonal and mixed, tangible and intangible proper-

ty; and that the requirement of voluntary rendi-

tion and disclosure of such property for purposes

of ad valorem taxation is of the utmost impor-

tance 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-sup-

ported bond obligations.

“41, That if defendant 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 ad-

ditional tax revenues.

“42. That if defendant Roy A. Bateman were

present in court, he would testify under oath that

the principal and interest on general obligation,

tax-supported bonds issued by the City of Fort

Worth are, and will be, paid solely from the pro-

ceeds derived from taxes levied, assessed end col-

lected from persons who own real, personal or

mixed property which has been duly rendered

for taxation; that the assessed valuation of real

(including improvements), personal and mixed

property of 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 val-

POTOSI 4a

*

8

uation of real (including improvements), person-

al and mixed property in the City of Fort Worth

for the fiscal year 1971-72 was $1,444,024,440;

and that of such assessed valuation, real] prop-

erty constituted $1,077,271,500 and personal and

mixed property amounted to $366,752,240.

“43. That if defendant 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 rendered 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 Sep-

tember 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

rendered and placed on the assessment rolls; and

that more than one-fourth of ihe total funds de-

rived from 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 if defendant Roy A. Bateman were

“present in court, he would testify under oath that

the fiscat 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 general 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 property, tangible and intangible, as a pre-

requisite to vote in a general obligation bond elec-

tion is a matter of compelling necessity to the City

9

of Fort Worth by reason of the plain and simple

» fact that no property is more susceptible of con-

‘‘cealment than is personal and mixed, tangible and

intangible property.

“That as of December 31, 1971, the outstand- 5

jing unpaid general obligation tax bond indebted- :

ness 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 outstand-

ing general obligation tax bond payments dur-

ing 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 de-

rived from the rendition of personal and mixed

property in the City of Fort Worth.

“45. That the defendant Roy A. Bateman is

fully competent 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.”

(Emphasis and insert supplied) (Appendix D,

Jurisdictional Statement, pp. 24d-28d; Appendix,

pp. 78-84)

>.

Plaintiff-appellees’ contentions are parallel to those

asserting the invalidity of a 60% favorable vote re-

quirement as opposed to the voter requirement of a

- simple majority to create bonded debt and increase

taxes by levying a special tax to pay interest and prin-

cipal. As a matter of fact, the Texas statutory require-

ments are nowhere near as restrictive as a 60% favor-

able vote “requirement” rather than a simple majority.

In this connection, in Gordon v. Lance, 403 U.S.

1, 91 S.Ct. 1889, 1891, 29 L.Ed.2d 273 (1971), this

10

Court held:

“Cipriano was no more than a reassertion of

the principle, consistently recognized; that an in-.

dividual may not be denied access to the ballot

because of some extraneous condition, such as

race, e.g., Gomillion v. Lightfoot, 364 U.S. 339,

81 S.Ct. 125, 5 L.Ed.2d 110 (1960) ; wealth, e.¢.,

Harper v. Virginia State Board of Elections, 383

U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) :

tax status, e.g., Kramer v. Union Free School

Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d

583 (1969); or military status, e.g., Carrington

v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d

675 (1965).

“Unlike the restrictions in our previous cases,

the West Virginia Constitution singles out no

‘discrete and insular minority’ for special treat-

ment. The three-fifths requirement applies equal-

ly to all bond issues for any purpose, whether for

schools, sewers, or highways. We are not, there-

fore, presented with a case like Hunter v. Erick-

son, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616

(1969), in which fair housing legislation alone

was subject to an automatic referendum require-

ment.

“The class singled out in Hunter was clear —

‘those who would benefit from laws barring ra-

cial, religious. or ancestral discriminations,’ sz-

pra, at 391, 89 S.Ct., at 560. In contrast we can

discern no independently identifiable group or cat-

egory that favors bonded indebtedness over other

forms of financing. Consequently no sector of the

population may be said to be ‘fenced out’ from

the franchise because of the wav thev will vote.

Cf. Carrington v. Rash, supra, 380 U.S., at 94,

85 S.Ct. at 779.

* x

11

“The Federal Constitution itself provides that

a simple majority vote is insufficient on some is-

sues; the provisions on impeachment and ratifica-

tion of treaties are but two examples. Moreover,

the Bill of Rights removes entire areas of legisla-

tion from the concept of majoritarian supremacy.

The constitutions of many States prohibit or se-

verely limit the power of the legislature to levy

new taxes or to create or increase bonded in-

debtedness, thereby insulating entire areas from

majority control. Whether these matters of fi-

nance and taxation are to be considered as less

‘important’ than matters of treaties, foreign pol-

icy or impeachment of public officers is more prop-

erly left to the determination by the States and the

people than to the courts operating under the

broad mandate of the Fourteenth Amendment.

It must be remembered that in voting to issue

bonds voters are committing, in part, the credit

of infants and of generations yet unborn, and

some restrictions on such commitment is not an

unreasonable demand. That the bond issue may

have the desirable objective of providing better

education for future generations goes to the wis-

dom of an indebtedness limitation; it does not al-

ter the basic fact that the balancing of interests

is one for the State to resolve.

“Wisely or not, the people of the State of West

Virginia have long since resolved to remove from

a simple majority vote the choice on certain de-

cisions as to what indebtedness may be incurred

and what taxes their children will bear.

* *

“That West Virginia has adopted a rule of de-

cision, applicable to all bond referenda, by which

the strong concensus of three-fifths is required

.

5

12

before indebtedness is authorized, does not vio-

late the Equal Protection Clause or any other pro-

vision of the Constitution.” (Emphasis supplied)

Kven more limiting are those statutes restricting

the franchise to the owners of the lands subject to as-

‘sessment for drainage improvements. In this connec- -

tion, in Wallegham v. Thompson, 185 N.W.2d 649,

654 (N.D.1971), the court held as follows:

“cc

*** The statutory formula for voting rights in

proportion to the anticipated assessment that land

in the drainage district may be subjected to dis-

tributes voting influence fairly among the land-

owners. Those landowners who ov'n more land

will be burdened more and have more at stake.

“In State v. Gamble Skogmo, Inc., 144 N.W.2d

749, 752 (N.D.1966), in paragraph 1 of the syl-

labus, we said:

‘The Fourteenth Amendment to the United

States Constitution permits the states a wide

scope of discretion in enacting laws which af-

fect some groups of citizens differently than

they affect others. The constitutional safeguard

is offended only if the classification rests on

grounds wholly irrelevant to the achievement

of the State’s objective.’

“We cannot say that the voting formula en-

acted by the legislature is wholly irrelevant to

the achievement of the State’s objective. Indeed,

we are of the opinion that it is entirely relevant.

“In State v. Gamble Skogmo, Inc., supra, we

also said that a statutory discrimination will not

be set aside if any state of facts reasonably may

be conceived to justify it; and that only invidious

discrimination is prohibited by the Equal Protec-

13

tion Clause of the Fourteenth Amendment to the

United States Constitution.

“The statutory voting formula can be reason-

ably justified, and if it is discriminatory it is not

invidious. It stands upon reason. It is not arbi-

trary.” (Emphasis supplied)

To the same general effect was the holding in Beller

v. Kirk, 328 F.Supp. 485, 486 (S.D.Fla.1970), aff’d.,

403 U.S. 925, 91 S.Ct. 2248, wherein the court held:

“The State has the right and duty to establish

reasonable regulations for the conduct of elections

for state offices. There is no constitutional right

to have one’s name printed on the ballot. See

Fowler v. Adams, supra. Plaintiff could be elected

to office by a write-in vote without being a mem-

ber of any political party, much less a majority

party. Both Fowler v. Adams, supra, and Weth-

erington v. Adams (N.D.Fla.1970), 309 F.Supp.

318, conclusively answer plaintiff’s arguments

with respect to equal protection and any Four-

teenth Amendment due process claim based upon

an assertion that the right to run for office is a

‘property right.’ Judicial notice was taken that

the right to qualify as a write-in candidate may

be considered to be illusory in an equal protec-

tion context but that there have been successful

and near-succesful write-in candidates in general

elections in Florida within recent years. While

not having one’s name printed on the ballot may

put him to some disadvantage in relation to one

whose name does appear on the ballot, this does

not constitute invidious discrimination, nor is it

unconstitutional.

“We specifically hold that the Florida Statutes

here attacked are reasonable, and are not arbi-

trary, discriminatory or unconstitutional.”

14

Constitutional adjudication should not be based

upon the synthetically tenuous basis supporting the

Memorandum Opinion, in which two-thirds of the low-

er court did not join, but merely concurred in the judg-

ment. We must keep in mind that the entire electorate

of the State of Texas in adopting the constitutional

provisions of Article VI, §§ 3 and 3a; the Texas Leg-

islature in adopting its civil statutes, Articles 5.03, 5.04

and 5.07 of the Election Code; and the electorate of

the City of Fort Worth in adopting its Home-Rule

Charter provision, Section 19 of Chapter XXV, could

quite reasonably have concluded that no general ob-

ligation, tax-supported bonds should be issued (which

bonds create a specific, direct tax lien on each item of

property rendered and on the tax rolls) unless the

owners and renderers thereof are permitted a domi-

nant voice in the election to determine whether or not

such bonds should be issued and whether or not such

additional tax should be levied and such lien created

and fixed; and further, since as a matter of uncontro-

verted fact

“‘ *** the principal and interest on general ob-

ligation, tax-supported bonds issued by the City

of Fort Worth are, and will be, paid solely from

the proceeds derived from taxes levied, assessed

and collected from persons who own real, per-

sonal or mixed property which has been duly ren-

dered for taxation; *** .” (Emphasis supplied)

(Facts Established by Stipulation, No. 42, Juris-

dictional Statement, pp. 25d-26d; Appendix, pp.

80-82), ;

the reasoning of this Court in Salyer Land Co. v. Tu-

15

lare Lake Basin Water Storage District, 410 U.S. 719,

93 S.Ct. 1224, 1231, 35 L.Ed.2d 659 (1973), is appli-

cable to the state of facts in the case at bar:

“ ##* The California Legislature could quite

reasonably have concluded that the number of

landowners and owners of sufficient amounts of

acreage whose consent was necessary to organize

the district could not have subjected their land

to the lien of its possibly very substantial assess-

ments unless they had a dominant voice in its

control, Since the subjection of the owners’ lands

to such liens was the basis by which the district

was to obtain financing, the proposed district had

as a practical matter to attract landowner sup-

port. Nor, since assessments against landowners

were to be the sole means by which the expenses

of the district were to be paid, could it be said

to be unfair or inequitable to repose the franchise

in landowners but not residents. Landowners as

a class were to bear the entire burden of the dis-

trict’s costs, and the State could rationally con-

clude that they, to the exclusion of residents,

should be charged with responsibility for its op-

eration. We conclude, therefore, that nothing in

the Equal Protection Clause precluded California

from limiting the voting for directors of appellee

~ district by totally excluding those who merely re-

side within the district.” (Emphasis supplied)

16

SINCE THE OUTSTANDING, UNPAID GENERAL

OBLIGATION TAX BOND INDEBTEDNESS OF

THE CITY OF FORT WORTH WAS ALREADY

$92,852,000 AS OF DECEMBER 31, 1971, AND

SINCE THE RENDERING PROPERTY OWNERS

HAD A DIRECT FINANCIAL INTEREST IN

CONTROLLING THEIR INDEBTEDNESS AND

TAXATION, THE TEXAS STATUTES AND THE

CITY’S CHARTER PROVISION WERE

REASONABLE LIMITATIONS.’

Surely it cannot be considered unreasonable for the

electorate of the State of Texas and ine City of Fort

Worth and the Legislature of the State of Texas to

adopt such measures as the rendition requireme.t for

the salutary purpose of keeping indebtedness and tax-

ation within controliable limits. We must keep in mind

that the same rendering voters that turned down the

$6,860,000 additional central library bond proposition

voted by a wide margin for the issuance of $3,000,000

in general obligation, tax-supported bonds for the pur-

chase of the bus transportation system. (Facts Estab-

lished by Stipulation, No. 47, Jurisdictional State-

ment, p. 29d; Appendix, pp. 86-87) This salient fact

conclusively demonstrates that the same voters made

a political and economic choice or judgment to the ef-

fect that they were “for” levying a special new tax

and fixing a lien on their property (real, personal and

mixed) for the issuance of $3,000,000 in transnorta-

tion bonds but were “against” levying a special new

tax and fixing a lien on their property for the issuance

1Facts Fetablished bv Stinuletion, No. 44. Jurisdictional Statement, pp.

27d-28d; Appendix, pp. 83-84.

17

of $6,860,000 worth of tax-supported general obliga-

tion bonds for an additional central library.

It is understandable that-the same voters who were

“for” the transportation bonds voted “against” the ad-

ditional central library bonds since the rendering tax-

payers were already saddled with tax bond payments

(required to pay interest and princip:. on bonds out-

standing) for the fiscal year 1971-72 and annually

thereafter in the amount of $7,364,524, which amount

is almost one-third of the total of $24,404,086.08 to be

derived from ad valorem taxation for the year 1970-

71. (Facts Established by Stipulation, Nos. 43 and 44;

Appendix, pp. 82-84)

Clearly the outcome of the Fort Worth bond elec-

tion is a classic example of the rendition requirement

enhancing voter competence.

Why the Memorandum Opinion manifests such an

apparent compulsion and studied effcrt to encourage

debt and to increase taxation is almost beyond com-

prehension.

The Memorandum Opinion proclaims its own wis-

dom, virtue and morality while scoffing at thatéof the

electorate of the State of Texas, its Legislature, and

the electorate of the City of Fort Worth. For example,

the Memorandum Opinion states:

“ *** It is sheer sophistry to say the classes

create themselves, or that the voters disenfran-

chise themselves, when the state requires would-

be voters to meet requirements entirely irrele-

vant to the needs of sound election administration

or voter competence.

PES TENN

ee eee OE

18

“We might add that we suspect the Texas ren-

dering requirement has created a class of citizens |

who own too little property to merit a vote in bond

elections.”

Such approach and philosophy mirrors the fallacious

argument that ad valorem taxes should only be ren-

dered by and collected from a wealthy minority and

further is thoroughly inconsistent with the teachings

of this Court in Salyer, supra, and in Associated E'n-

terprises, Inc., et al. v. Toltec Watershed Improvement

District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675

(1973). In the latter case, this Court will recall its

holding in part as follows:

“We cannot agree with the dissent’s intimation

that the Wyoming Legislature has in any sense

abdicated to a wealthy few the ultimate authority

over land management in that state. The statute

authorizing the establishment of improvement dis-

tricts was enacted by a legislature in which all of

the State’s electors have the unquestioned right

to be fairly represented. Under the act, districts

may be formed only as subdivisions of soil and

water conservation districts. Jd., § 41-354.3. And

a precondition to their formation referendum is

a determination by a board of supervisors of the

affected conservation district, popularly elected .

by both occupiers and owners of land within the .

district, that the watershed improvement district

is both necessary.and administratively practi-

cable. Id., §§ 41-354.7, 41-354.8: Wyoming Con-

servation Districts Law, Wyo.Stat.Ann. § 11-234

et seq., § 11-243. As in Salyer, supra, we hold that

the State could rationally conciude that landown-

ers are primarily burdened and benefited by the

establishment and operation of watershed dis-

19

_tricts and that it may condition the vote accord-

ingly.”

Further, there is absolutely no factual showing in

the record of the number of people who render auto-

mobiles for taxation; yet, the Memorandum Opinion

creates its own facts by concluding, “The record fails

to indicate the number of people who render for tax-

ation personalty other than automobiles, but we doubt

that many do.” (Emphasis supplied)

The record does not show that any automobiles

were rendered, and as a matter of fact the Tax As-

sessor-Collector of the City of Fort Worth has never

enforced a policy of requiring renditions on private

automobiles in the City!

The voting qualification as to property rendition es-

tablished by the electorate of the entire State of Texas

with the adoption of Article VI, §§ 3 and 3a, is based

upon the undeniable fact that property owners are, in

the long run, the people who have to be held directly

responsible for not only the creation of, but also any

and all increases in the payment of bonded debt; and

under all concepts of Athenian democracy, they should

have the dominant interest to say whether or not such

debt is necessary or desirable.

Under Proposition No. 1 (the transportation bonds),

the rendering property owners were asked to deter-

mine whether or not an additional tax should be levied

and a lien placed upon their real, personal or mixed

property for a period of time which may exist for for-

ty years—more than half a lifetime—and by a sub-

Sats

20

stantial majority. they answered in the affirmative.

Under Proposition No. 2, the same rendering property

owners were asked to determine whether or not such

additional tax should be levied and a lien affixed “pon

.their property and, by a substantial majority, they

answered in the negative.

One of the reasons for the recent adoption cf Public

Law 92-512, the Federal Revenue Sharing Bill,’ 31

U.S.C. § 1221 et seq., was the recognition by the Fed-

eral Government of the compelling necessity of avoid.

ing increases in local ad valorem taxation and addi-

tional creation of debt at municipal levels. As this

Honorable Court well knows, the financial soundness

of our municipal governments is essential to our Fed-

eral System, and all informed sources admit to the

conclusion that municipal governments currently face

debt and taxation problems of a most severe nature.

One does not have to be prophetic to recognize the

plain and simple fact that municipal governments bear

the brunt of the most difficult of domestic problems.

The Congress recognized such fact in establishing the

“State and Local Government Fiscal Assistance Trust

Fund,” 31 U.S.C. § 1224. At the present time, all local

governments are having considerable difficulty in rais-

ing the revenue to meet current costs and to cover debt

service. Neither the State of Texas nor the City of

Fort Worth has any income tax source of revenue.

For many, many years the Federal Government, and

more particularly the Congress, has reeognized that

2For Legislative History of P.L. 92- 512, see 3 U.S .Cong.&Adm. News ‘72,

pp. 3874-3959,

21

»

the interest on the obligations of municipal corpora-

tions should be exempt from taxes imposed on gross

income. 26 U.S.C. § 103. Further, this Court well

knows that the Congress has for many years: permit-

ted the deduction frem gross income of State and local

ad valorem property taxes, thereby presumably re-

ducing the net additional burden of State and munici-

pal taxes on such Federal taxpayers. All of the tax-

payers who claim such exemption from Federal tax-

aticn are deemed to have rendered their real, personal

and mixed property for State and municipal taxes,

and obviously they have such property on the tax rolls

and have paid their property taxes or they would be

unable to claim the Federal income tax exemption.

In erroneously concluding that the requirement of

rendition or having property on the tax rolls is not of

any compelling State interest and is in violation of the

Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States, the low-

er court has, in effect, vicariously determined that the

Federal tax exemption likewise violates the Equal Pro-

tection Clause. Under the holding of the lower court,

the Congress itself may be guilty of violating the

Equal Protection Clause By indirectly aiding State and

municipal government ad valorem property taxpayers.

Further, the Memorandum Opinion has. in effect, held

that the Federal Government is likewisé in violation

of the Equal Protection Clause by exempting interest

on State and municipal bonds from the Federal in-

come tax.

Obviously, Federal income taxpayers claiming an

99

—

exemption or deduction for their interest on tax-

exempt municipal bonds and their personal, real and

mixed ad valorem property tax payments to State

and: municipal governments, such as the City of Fort

Worth, have to meet the Federal Government’s re-

quirement of*#endition in order to avail themselves

of their constitutional and statutory rights to such

exemptions and deductions.

We must keep in mind that the Federal Govern-

ment’s income tax rendition requirement is mandatory

and that failure so to render subjects the taxpayer to

criminal sanctions; whereas, the City’s requirement

of rendition or having property on the tax rolls is es-

sentially voluntary. Although the constitutional, statu--

tory and charter provisions are mandatory, there is

no criminal penalty for failure to comply. Even a cur-

sory examination of the Texas rendition requirements

reveals that the qualification as to property rendition

established by the electorate both at the State and lo-

al level does not disenfranchise anyone. There is no

requirement that any qualified elector pay the taxes;

mere ownership and rendition of real, personal or

mixed property satisfies all requirements. Whether or

_ not any individual has sufficient wealth to pay taxes

levied or to be levied is irrelevant and not determina-

tive in any way of his right to vote.

In Montgomery, supra, at page 641, the Supreme

Court of Texas held in part as follows:

“ *** This is the manner in which the Texas

Constitution, as approved by the entire citizenry

of the state, provides inducement for those who

23

wish to participate in the decision making proc-

ess in a School District to assume their rightful

portion of the burden they help to create.

“Personal property such as stocks, bonds, cash,

automobiles, and livestock furnishes a great deal

of the state’s taxable property. No class of prop-

erty is so susceptible to concealment and escape

from taxation as personal property. The govern-

ment faces unending problems in seeking to com-

ply with the Constitutional mandate that ‘Taxa-

tion shall be equal and uniform.’ Art. VIII, Sec.

1, Vernon’s Texas Const. There may be other

means to reach personal property, but experience

has shown that every means must be pressed into

service if the obligations of government are to be

spread equally. This court articulated the correla-

tion between the rights of citizenship and the ob-

ligations of citizenship in Markowsky v. Newman,

134 Tex. 440, 186 S.W.2d 808 (1940), when we

said:

‘ ... in determining the meaning, intent and

purpose of a constitutional provision the his-

tory of the times out of which it grew and to

which it may be rationally supposed to have

direct relationship, the evils intended to be rem-

edied and the pa te be accomplished, are sub-

jects df inquiry. .

* * * *

‘It might be further safely said that the good

sought to be accomplished by this amendment

was to induce owners of property to place it

upon the tax rolls and become liable for its pro

rata share of the taxes levied and assessed by

the municipality.

z * * =

‘Moreover, it would be of great benefit to the

24

taxing authorities to have such rendition of per-

sonal property, particularly where such proper-

ty cannot be easily found by the city author-

ities.’ ” (Emphasis supplied)

Plainly and simply, the five plaintiff-appellees in

the case at bar, by their disinclination and refusal to

render any species of property whatsoever to qualify

as voters in ad valorem, tax-supported bond elections,

were seeking, under the guise of an academically in-

spired civil rights crusade, to avoid the mandatory

provisions of Article VIII, § 1, of the Constitution of

the State of Texas and Article 7145 of the Revised

Civil Statutes, requiring that all property in the State

of Texas be rendered and taxed in proportion to its

value.

The challenges in the case at bar do not present a

case of first impression. In this connection, defendant-

appellees would call to the attention of the Court City

of Fort Worth v. Cureton, 222 S.W. 531 (Tex.1920),

and Hanson v. Jordan, 198 S.W.2d 262 (Tex.1946).

The Court will observe that Article VI, § 3a, does

not restrict itself to elections held by municipalities

as does § 3 of the same Article. § 3a provides in part

that when an election is held

“ *** by any county or any number of coun-

ties, or any political subdivision of the State, or

any political subdivision of a county, or any de-

fined district now or hereafter to be described

and defined within the State and which may or

may not include towns, villages or municipal cor-

porations, or any city, town or village, for the

purpose of issuing bonds or otherwise lending its

‘

25

credit, or spending 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 taxa-

tion, shall be qualified to vote *** .” ;

The obvious reason for the all-inclusive nature of such

constitutional provision is that the topegraphy of the

State of Texas differs markedly from city to city, from

county to county, from district to district, and from

region to region. There are literally thousands of cities,

towns and villages, water control and improvement

districts, nayigation districts, hospital districts, junior

college districts and other special areas'in which those

who have rendered their real, personal or mixed prop-

erty for taxation are frequently called upon to deter-

mine through the democratic election process whether

or not they can afford to create long term debt and in-

crease their taxation to pay for the construction of

special public improvements, and to what extent such

public improvements are.a matter of public necessity.

These are the areas and “defined districts” referred to

in Article VI, § 3a, of the Texas Constitution. The

only meihod by means of which these taxpayers can

voice their approval or disapproval and protect them- |

selves is in the election booth.

In addition to their interpretation in Gordon v.

Lance, supra, the principal authorities cited in sup-

port of the lower court’s decision were thoroughly dis-

tinguished and disposed of by the Texas Supreme

Court in Montgomery, supra. There the court said:

“Several recent decisions of the United States

eres PPB Ihe ELE OGD ‘ See wei

26

Supreme Court have invalidated state laws which

selectively grant the right to vote and have held

those laws violative of the equal protection clause

of the Fourteenth Amendment. The court struck

down a New York statute which granted the right

to vote in a school district 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. Kramer v. Union

Free School District No. 15, 395 U.S. 621, 23 L.

Ed.2d 583, 89°S.Ct. 1886 (1969). The same day

the court decided Kramer, it also handed down

Cipriano v. City of Houma, 395 U.S. 701, 23 L.

Ed.2d 647, 89 S.Ct. 1897 (1969). The court held

a Louisiana statute unconstitutional because it

permitted only property owners to vote on the

question of approving bonds that were to be fi-

nanced exclusively from the revenues of a munici-

pal public utility. In Phoenix v. Kolodziejski, 399

U.S. 204, 26 L.Ed 2d 523, 90 S.Ct. 1990 (1970),

an Arizona constitutional limitation of the fran-

chise in bond authorization elections to persons

who are qualified electors and also real property

taxpayers was held to be a violation of the equal

protection clause. _

“These precedents constitute the framework for

the School District’s contention that the Texas»

constitutional and statutory limitations upon vot-

ing rights in a school bond election are also vio-

lative of the Fourteenth Amendment. There are

significant differences between the three cases

cited above and this case. In Cipriano, the court

held that ownership of property was a restriction

which was irrelevant to an election for the ap-

proval of bonds that would be financed by reve-

nues of a public utility and not by taxation of

property. The case before us does not concern

27

revenue bonds. In Kramer and Kclodziejski, only

persons who were real property owners were per-

mitted to vote. The Texas law does not restrict

voting rights to owners of real property.

“One other case needs discussion. The United

States District Court for the Eastern District of

Louisiana struck down Louisiana statutes which

restricted eligibility to vote in bond elections to

property taxpayers and also weighed each elec-

tor’s vote by the monetary value of his assessed

property. Stewart v. Parish School Bd. of Parish

of St. Charles, 310 F.Supp. 1172 (E.D.La.1970),

aff'd mem.........ULS. ......... , 27 L.Ed.2d 129, 91 S.Ct.

136. The court said that the affluence of the voter

was not such a compelling state interest as to jus-

tify the denjal of the vote to some and the dilu-

tion of the votes of the majority. We do not have

that problem in this case. The weight and force

of the vote of the Texas elector who owns a bi-

cycle is no different from that of the elector who

owns a herd of cattle. It is immaterial to the right

to vote in.a bond election whether one’s ownership

of property is great or small. DuBose v. Ains-

worth, 139 S.W.2d 307 (Tex.Civ.App. 1940, writ

dis. ).

“The provisions of the Texas Constitution and

the Education Code, quoted above, show that the

citizens of the Montgomery Independent School

District had the right to vote if they owned any

kind of property. Article 7145, Vernon’s Tex.Civ.

Stat. provides: ‘All property, real, personal or

mixed except such as may be hereinafter express-

ly exempted, is subject to taxation, and the same

shall be rendered and listed as herein prescribed.’

Unlike these restrictive voting laws which have

been declared unconstitutionally narrow and lim-

Beer Sone RAID

28

ited, 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 Pub-

lic Utilities Corporation v. Holland, 123 S.W.2d

1028 (Tex.Civ.App. 1939, writ dis.). In Handy v.

Holman, 281 S.W.2d 356 (Tex.Civ.App. 1955, no

writ), the right to vote of forty resident citizens

was challenged because immediately before par-

ticipating in a bond election, they had each ren-

dered 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 consti-

tutional right to vote by reason of any shortcom-

ing in compliance with statutory requirements

concerning the proper and timely rendition of

personal property.

“Tt is the contention of the Attorney General,

and we agree, that voter qualifications of owner-

ship under the Texas constitutional and statutory

provisions stated above, as interpreted by our de-

cisions, are so universal as to constitute no im-.

pediment to any elector who really desires to vote

in a bond election. A voter is qualified if he ren-

ders 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

to 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

assessor instead of by the property owner, Texas

Public Utilities Corporation v. Holland, supra,

29

or by some other person such as a husband, part-

ner, agent, or co-tenant and even though the own-

er’s name may not appear on the tax rolls; Mar-

kowsky v. Newman, 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.); Luc-

chese 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.2d 693, 67 S.Ct. 633 (1947) ; Richter

v. Martin, 342 S.W.2d 342 (Tex.Civ.App. 1961,

no writ); Campbeil v. Wright, 95 S.W.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).” (Emphasis supplied)

The tax lien which is levied and placed on the prop-

erty of renderers when a bond proposition passes and

bonds are issued is a brand new special tax for a spe-

cially created district each time such an election is

he'd. Such a special election is not related to an exer-

cise of the general powers of government. The pro-

ceeds from the sale of the bonds can only be used for

the specific special facility purpose authorized by the

electorate,’ and the special tax must be levied until

such time as all of the special facility bonds aie paid

off. If the judgment of the Three-Judge Court is al-

lowed to stand, property-rendering voters will have

electoral voices so weakened and diluted by allowing

unconcerned non-renderers to vote and to place a lien

’Sec. 19 of Chapter XXV of the Charter of the City of Fort Worth,

which was stricken down by Justice Thornberry, provides in part that

“no bonds shall be issued to fund any overdraft or indebtedness in-

curred for current expenses of the city government, or any subdivision

thereof.” (Appendix, pp. 45-46)

é

LUE

Berson rants

30

f

on the property of the renderers that the latter will

be taxed without any direct representation of their in-

terests. Non-renderers do not have a direct tax and

lien imposed on their unrendered property.

In the April 11, 1972, bond election, voters consid-

ered, in effect, the creation of two special purpose

districts, each of which, if created, would impose a

separate, new tax on the property renderers of Fort

Worth. In Salyer, supra, this Court carefully enun-

ciated that by reason of the water storagé district’s

limited purpose and its disproportionate effect on land-

owners as a group, the California laws did not deny

equal protection by limting the franchise to district

landowners, thereby denying the vote to non-landown-

ing residents. The facts in the case at bar are consis-

tent with those in Salyer—the disproportionate effect

that the creation of a special transportation or library

district would have on property renderers individually

and as a group offsets the non-renderers’ wholly sub-

jective complaint that they are being denied equal pro-

tection.

In the bond election of April 11, 1972, the voters of

Fort Worth were asked to consider propositions au-

thorizing the creation of two special purpose districts,

a special public transportation bus system and a spe-

cial public library district, the library district being

for the sole purpose of constructing a new central li-

brary in addition to the present seven branch libraries

and the existing central downtown library. Both the

renderers and non-renderers apparently decided that

a viable bus transportation system was of sufficient

31

necessity to require approval of the bonds to finance

it. However, when the same voters were asked to cre-

ate additional debt and raise taxes for the issuance of

_ bonds to finance another central downtown library,

those same voters who would be directly’ responsible

for financing the bonds apparently concluded that the

existing central downtown library was sufficient to

meet the needs of the public and that the cost of an-

other central downtown library would be an extrava-

gance far exceeding the benefits such library would

provide. Our totally altruistic non-renderers, on the

other hand, had no apparent concern as to whether or

not they could afford an extra new library, especially

since they would not have to share directly in its costs.

If the votes of these non-renderers must be counted

and the extraibrary constructed, as urged by plain-

tiff-appellees, the renderers of the City of Fort Worth

will, in effect, be disenfranchised and required to make

a donation for another central library. -

The challenged laws of the State of Texas and the

charter provisions of the City of Fort Worth require

the rendition of not only real property, but also per-

sonal and mixed property.‘ The ad valorem property

tax in question, if authorized, is levied on each piece

of rendered property until the bonds are paid off. The

election laws of the State of Texas require the rendi- .

tion of only one (1) piece of property, real, personal

or mixed, to qualify one to vote in a general obligation,

tax-supported bond election. No amount of property

is too small to render for taxation and thereby qualify

“The Texas law does not restrict voting rights to owners of real prop-

erty.” Montgomery, supra, at p. 640.

ne PONG

le

Brertsee ees area egeescrie ee: a aT

Rs

32

as a voter. There is no showing in the record that each

. of plaintiff-appellees herein does not own some piece

of property (real, personal or mixed) which under the

tax laws of Texas should be placed on the tax rolls and

subjected to the property tax. The Court should keep

in mind that anyone otherwise qualified who fulfills

his or her legal obligation to the State automatically

becomes an eligible voter in an ad valorem tax-sup-

ported bond election.

Although the tax revenue from each piece of ren-

dered property may seem insignificant to the lower

court, collectively this revenue is the basic fotm of tax

support for Texas municipalities. As the Texas Su-

preme Court said in Montgomery, supra, it is impera-

tive that every means of collecting be pressed into

service for the collection of property taxes to insure

_that the tax burden is evenly shared by all citizens.

Requiring rendition of property to qualify in a tax-

supported bond election is one means of getting prop-

erty on the tax rolls, especially personalty, which is

easily concealed.

In summarily holding that the requirements of the

State are “entirely irrelevant to the needs of sound

election administration or voter competence,” the low-

er court has opened a veritable Pandora’s box of at-

tacks on other limitations of the franchise which also

might be characterized as being “irrelevant.” In all

elections there will be some citizens who are too young

to vote or Who cannot meet the residency requirements

to vote, yet who may be more interested and informed

as voters than many of those actually qualified. How-

33

ever, age limitations and residency requirements of

the franchise are recognized as necessary for “sound

election administration,” although we accept the fact

that such limitations may, in some instances, be irrel-

evant to “voter competence.” There is no showing in

the record ‘that any of the plaintiff-appellees have

more than a casual interest in the passage of the li-

brary bonds; however, the financial interest of the

renderers as a group is so overriding and their compe-

tence as voters as a group so far surpasses that of non-

renderers that failure to limit the vote to rendering

property owners would completely ignore the necessity

for “sound election administration” as well as “voter

competence.” ) |

When the lower court opines that the Texas render-

ing requirement could create a class of citizens who

own too little property to merit a vote in bond elec-

tions, it either exhibits a basic misunderstanding of

the requirement or is legislating. There is no minimum

rendering requirement, for rendering a kitchen clock

would qualify a voter as fully as rendering a herd of

cattle. The only amount of property which is “too

little” to merit a vote is no property, and it is difficult —

to conjure up a citizen or a class of citizens who in-

dividually or collectively owns nothing. The challenged

provisions disenfranchise no citizen nor class of citi-

zens by requiring that at least a single piece of prop-

erty, real, personal or mixed, must be rendered to

qualify as a voter in general obligation, tax-supported

bond elections; rather, by personal inaction each of the

complaining citizens has disenfranchised himself by

refusing to comply with the statutory provisions.

34

The lower court bases part,of the Memorandum

Opinion on the “upward mobility” of our society,

which, one-can only suppose, refers to the hypothesis

that our standard of living may be improving, and,

as a consequence, greater number's of people may be-

come property owners in the future. We assume that

this supposition is employed to point out that those

citizens who are not now property renderers may be-

come so at some future date a#d are unconstitution-

ally denied the franchise by the challenged Texas elec-

tion laws. Whether or not it is true that our society

demonstrates “upward mobility,” the argument is fun-

damentally perishable. First, children merely one day

under eighteen years of age are in the same position

as the current non-renderers who may be planning to

render property some sunny day. During the forty-

year limiting period that the bonds may be in effect,°

the property tax rolls will undergo many changes, and

many people who were not eligible to vote for a vari-

ety of reasons, such as age and residence requirements,

will become liable for the bonds. Furthermore, the re-

sults of any election could never be completely repre-

sentative of the voters in a district during the entire

twenty-five or forty year life of such bonds. To compile

eligible voter lists, accurately projected into the fu-

ture, would require nothing less than prophetic ken.

In a general obligation, tax-supported bond election,

it is the part of reason and practicality that the voters

currently eligible decide the special issues in question.

As a maiter of historic fact, the City of Fort Worth has never issued

any ad valorem tax-supported bonds with a maturity in excess of twenty-

five years.

4

35

- We must assume that such rendering property owners

_ will competently express the desires, of renderers and

’ that their decisions will not be completely at odds with

future generations of property renderers. Further,

any person who becomes a renderer after a general

obligation, tax-supported bend election so becomes a

renderer with full knowledge of the lien which has

been or-will be placed on his or her property and is not,

therefore, undertaking any financial responsibility for

which he or she does not choose to become liable.

“In determining whether the constitutional provi-

sions in question are violative of the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution, it is enlightening to reflect upon

this Court’s finding in Williams v. Rhodes, 393 U.S.

23, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968):

“*** this court has firmly established the prin-

ciple that the Equal Protection Clause does not

make every minor difference in the application of

laws to different groups a violation of our Con-

stitution.”

The State aim and compelling necessity of using

every available means to enable it to enforce the law

requiring voluntary rendition is validated in Mont-

gomery, supra, at page 641:

‘““*** There may be other means to reach person-

al property, but experience has shown that every

means must be pressed into service if the obliga-

ticns of government are to be spread equally.”

Despite the fact that some non-renderers within the

community may have property taxes passed on to them

36

in the market prices they pay, it is also indelibly cer-

tain that the increase in taxes will have its most direct

and penetrating effect on the renderers. The burden

of increased taxes in the form of higher market prices’

will also be passed on to the purchasers of goods and

services produced within the community who live be-

yond the corporate limits. However, not even plaintiff-

appellees can logically claim that these distant buyers

have-an interest in the election although they may be

responsible for payment in the same way as non-ren-

derers in the community. Rather, it is a well recog-

nized fac that limits must be placed somewhere, and

it is only [égical and reasonable that those who render

their property for taxation and thereby assume their

proper burden of responsible citizenship, should be

within the limitations, while those who do not choose

to take such responsibility should be outside the lim-

itations and not allowed to vote.

The classification in the case at bar is the means

to a permissible legislative end. A rational person can

easily see the relationship between such classification

and its legislative ends — the requirement that one

must render property for taxation in order to vote in

a general obligation, tax-supported bond election is a

compelling inducement for rendition of property and

tends to enhance voter competence. The constitutional,

statutory and charter provisions which call for the

rendition of either personal, real or mixed property

for taxation in order to become a qualified voter in

general obligation, tax-supported bond elections are

rationally related to a permissible legislative end and

serve several purposes:

a 37

1. They serve as an appropriate means to the

legislative end of collecting property taxes.

» 2. They insure that those who will bear the di-

rect burden of paying for the bonds supported

by a lien placed on their property will have a

strong voice (undiluted by those hoping for

benefits without cost) in deciding exactly how

great a burden they are willing to assume.

3. They create an electorate composed of more

informed and knowledgeable voters. This is

not to say that property renderers are in-

herently more intelligent than non-renderers;

rather they are more likely to make them-

selves aware of the issues and to cast a more

knowledgeable ballot because they obviously

have an infinitely greater personal stake in

the outcome of the bond election.

4. They tend to keep indebtedness within con-

trollable limits.

They tend to keep ad valorem property taxa-

tion within controllable limits.

on

It is important to realize that in all elections, neces-

sary restrictions are placed on the franchise. The re-

strictions limiting the vote to those eighteen years of

age and older, to residents in the voting district, and

to those who have not been otherwise disenfranchised

undoubtedly deny the vote to one or more individua!

citizens who may be informed on the issues and may

have a great interest in them. This Court, in Kramer

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

1886, 1895, 23 L.Ed.2d 583 (1969), a case involving

the franchise to vote for the members of a school

board, said:

38

“*** Just as ‘[i]lliterate people may be intelli-

gent voters,’ nonresidents or minors might also in

some instances be interested, informed, and intelli-

gent participants in the electoral process. Persons

who commute across a state line to work may well

have a great stake in the affairs of the State in

which they are employed; some college students

under 21 may be both better informed and more

passionately interested in political affairs than

many adults. But such discrepancies are the in-

evitable concomitant of the line drawing that is

essential to law making. So long as the classifica-

tion is rationally related to a permissible legisla-

tive end, therefore — as are residence, iiteracy,

and age requirements imposed with respect to

voting — there is no denial of equal protection.”

It would be impossible to accurately distinguish those

non-renderers who are informed and genuinely inter-

ested in the outcome of the bond election from those

who are only hoping for hand-outs from the property-

rendering ad valorem taxpayers.

The Three-Judge Court has erroneously compared

the unconstitutional poll tax to the State’s rendering

requirement. The poll tax is readily distinguishable

from the rendering requirement: (1) The rendering

requirement makes rendering any kind of property a

prerequisite to voting; it does not require the payment

of the tax. (2) The rendering requirement is a pre-

requisite to voting only in special general obligation,

tax-supported bond elections, not all elections. (3) The -

rendering requirement has no relationship to an exer-

cise of the general powers of government but only con-

cerns itself with a special type of election. Willingness

39 | -

to pay the voll tax has nothing to do with voter qual-

ifications; willingness to render property for taxation

shows a willingness to back financially the bonds the

voters approve. The poll tax requirement had no rele-

vance to voter capability; whereas, the rendering re-

quirement, as has been conclusively demonstrated in

the argument herein, distinguishes those voters who

not only are more knowledgeable of the propositions

being decided because of the responsibility they will

incur through their votes, but who also are willing to

comply with the responsibilities of citizenship by vol-

untarily rendering their property for taxation, as op-

posed to those voters who shirk such obligations.

The facts in the case at bar differ markedly from

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

90 S.Ct. 1990, 1994, 26 L.Ed.2d 523 (1970). There it

was stipulated:

“ *** that more than half of the debt service

requirements will be satisfied not from real prop-

erty taxes but from revenues from other local tax-

es paid by nonproperty owners as well as those

who own real property.”

In the case at bar, the uncontroverted, stipulated

testimony of the Treasurer, Mr. Bateman, shows that

the debt service on all outstanding tax-supported bonds

is and will be paid solely from tax proceeds. (Appen-

dix, pp. 79-84)

The returns of the election show that the owners of

property rendered for taxation were perfectly willing

to support the acquisition of the bus system by a sub-

CIEL a4

40

stantial majority but saw no public necessity to issue

general obligation, special purpose bonds and increase

taxation for another central library.

CONCLUSION

In conclusion, we sincerely believe that it has been

shown herein that the rendering requirements set

forth in the Constitution and statutes of the State and

in the Charter of the City of Fort Worth are logical,

suitable and reasonable for voters in a general obli-

gation, tax-supported, special purpose bond election.

They do not restrict the franchise to the “wealthy” —

the constraints they place on voting can be met by any

otherwise qualified voter willing to assume his or her

respcensibilities of citizenship. The rendering require-

mer.t in a general obligation, special purpose, tax-sup-

ported bond election is as reasonable a limitation on

the franchise as are residence and age requirements in

all elections. Such distinguishes a group of voters who

are more knowledgeable about and have a greater in-

terest in the outcome of the bond election than those

who have no financial stake therein. Furthermore, it

is an appropriate, fair and reasonable means to the

legislative end of controlling debt and taxation, as well

as collecting the easily hidden ad valorem property

taxes which support the municipalities of Texas. The

cries of plaintiff-appellees herein that they are being

denied equal protection have no basis in law or in fact.

We respectfully submit that the decision of the

Three-Judge Court should be reversed and rendered

on behalf of appellant and the City of Fort Worth; R.

ck

41 :

M. Stovall, its Mayor; S. G. Johndroe, Jr., its City

Attorney; Roy A. Bateman, its City oe and

the Members of the City “Ten of said City. 3

2ELe J |

OHNDROE, JR.

Attorney for the Appellees,

THE CITY OF FORT WORTH, :

TEXAS, a municipal corporation; A

R. M. STOVALL, its Mayor; S. G. :

JOHNDROE, JR., its City Attorney;

ROY A. BATEMAN, its City

Secretary; and the MEMBERS OF

THE CITY COUNCIL thereof

1000 Throckmorton Street

Fort Worth, Texas 76102

42

CERTIFICATE OF SERVICE

I, S. G. Johndroe, Jr., City Attorney of the City of

Fort Worth, Texas, attorney for appellees, the City of

Fort Worth, Texas, a municipal corporation; R. M.

Stovall, its Mayor; S. G. Johndroe, Jr., its City At-

torney; Roy A. Bateman, its City Secretary; and the

Members of the City Council of said City, in the above

ee, we numbered cause, hereby certify that on

the y¥ y of dee. 1974, I served true and cor-

rect copies of this Brief of Appellees by placing the

same in the United States Mail, postage prepaid, cor-

rectly addressed to

Mr. G. Charles Kobdish

Assistant Attorney General of Texas

Capitol Station, Box 12548

Austin, Texas 78711

and

Mr. Don Gladder:

Mr. Marvin Collins

Attorneys at Law

702 Burk Burnett Building

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