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Show T i WEDNESDAY, SEPTEMBER 2, 1970 THE 1 DAILY RECORD PAGE THREE an. is which are exclusively the concern of the slate. Moreover, the decision is entirely void of any righteous basis in principle or in precedent, in law or in logic. and also into In The Supreme Court Of The State Of Utah Tbe Constitution of Utah was approved in appropriate procedures by the people of this State in their Constitutional Convention; and more importantly, by the people of the United States through their duly elected Congress in connection with the adoption of the Enabling Act admitting Utah to the Union. It included this language of unmistakable clarity that: Dorris Cypert, Plaintiff and Respondent, v. Washington County School District, et al. , Defendants and Appellants. Vie CROCKETT. Chief Justice: -2 -5, The basis of the plaintiff's attack upon the bond election, and of the s ruling, is certain recent of the rulings Supreme Court of the United States which have but recently innovated into the law an invalidation of requirements that only voters who pay property taxes can vote. The case of the City of Phoenix v. Kolodziejski deals with bonds general itmilar to our case. The United States Supreme Court inobligation a split decision, three, held the requirement that only voters who paid property taxes could vote to be invalid. Although we are in emphatic disagreement with that decision, about which we have something to say below, we proceed upon the assumption that upon the issue mentioned it is controlling in this case. Nevertheless, under the express language of that case there is a procedural reason why the particular bond issue challenged here is to be deemed valid trial court and not subject to attack: That decision said in part: ur decision in this case will apply only to authorizations for general obligation bonds which are not final as of June 23, 1970, the date of this decision. In the case of States author-izin- g challenges to bond elections within a definite period, all elections held prior to the date of this decision will not be affected by this decision unless a challenge on the grounds sustained by this decision has been or iB brought within the period specified by state law. O Sec. The "period specified by state law" in our State is contained in U. C.A. 1953, which states in part: 11-14-- 12, When the validity of any bond election is contested, the plaintiff or plaintiffs must, within forty days after the returns of the election are canvassed and the results thereof declared, file with the clerk of the district court . . . , a verified written complaint setting forth The particular grounds contest shall be maintained and set aside or held invalid unless within the period prescribed in 7-- It is understandable that where the voting in elections may in some manner directly or indirectly affect the federal government or its interests, it might conceivably become a concern of the federal courts under rights assured by the Fourteenth Amendment. But wi utterly fail to see how it can be their legitimate concern as to how the citircnry of the state of Utah, acting in conformity with the plainly expressed provisions of their duly adopted State Constitution and implementing statutes, manage their own financing programs which involve what is in effect the plating ol liens upon the property of their taxpayers.' This is so because the right to vo'e is governed by statute. The reaching out through the "equal protec lion" clause to grasp this issue into their amlut is misguided and unjus'ified because, as discussed below, there is a significant difference between the two classes of voters we are dealing with in this case, those who are property taxpaying voters, and those who are no. The majority opinion in the Phoenix case postulates some foundations for itself which are patently indefensible. It refers to the payment of sales taxes, income taxes and other indirect means such as tin payment of rent, by the voters who pay no property lax, by which they indirectly contribute to the payment of such bonds, from which it draws tins conclusion: Not only do those persons excluded from th franchise have a great interest in approving or disapproving municipal improvements, hut they will also contnlmie, as illicitly as property owners, to the servicing of the bonds by the payment of taxes to he used for this purpose. It is submitted that upon even the most cursory analysis the foregoing statement will he seen to he clearly fallacious. It completely ignores the true effect of the general obligation bond under which the propr riy in the district is subject to taxation to pay the bonds. There is tncritore a potential lien upon the property of the taxpaying property holders in the district, as a result of which their property may he foreclosed and sold. This was. honestly and forthrightly recognized and pointed out in the dissenting opinion of the Phoenix case: use its real estate taxing power for statutory obligation--t- o the purpose of repaying both interest and principal under the bond obligation. of such contest. No such no bond election shall be such a complaint is filed this section. In this case the election had been held on May 27, 1969, and the results had been canvassed and officially declared on June 3, 1969. Thus the election had been "held prior to the date of this decision" (City of Phoenix, supra, June 23, 1970); and inasmuch as the plaintiff's complaint was not filed until December 4, 1969, thus 211 days after the results had been officially declared, there was no "challenge on the grounds sustained by this decision . . . brought within the period specified by state law," Consequently, under any view that may be taken of i.e., within 40 days. above referred to, the bond election challenged herein the law and the cases incontestable is final and by the express statement of the Phoenix case and In that respect the judgment of the district valid. must be deemed to be court is reversed. Nevertheless, in view of the expressed desire of the parties, and of the importance to the public, of having this court give its answer to the with the question as to the validity of a bond election held in accordance and Secs. Utah Constitution, provisions of Section 3, Article XIV, of the recent and 5, U. C.A. 1953, in the light of the above mentioned developments in the law, we proceed to further treat that problem. 11-14- This has stood as the law and has served well its purpose for the years since our statehood. This deviative lhoenix decision now Ins the effect of squarely nullifying that provision. That this abrupt repudiation of a longstanding requirement of our Constitution and statutes is a legislative change is made completely apparent by the majority decision itself in designating the "effective date" after which it is declared to he operative. During the entire life of the bonds the privately owned real property in the city is burdened by the city's pledge--an- d specifically: (3) .. 1 Plaintiff as a qualified voter, but one who pays no property tax, (on her own behalf and allegedly for others similarly situated) sued to enjoin the iSS'a a8hington County School District, from proceeding with an issue of ?1, 000, 000 general obligation bonds, approved at a bond election held May Z7, 1969, at which only voters who had paid property tax in the District within the previous year were allowed to vote; and to declare invalid the provisions of Section 3, Article XIV, Utah Constitution, and Sections and U. C.A. 1953, insofar as they require such voters to have paid a property tax in the district within 12 months preceding the election. After tri thC diBtrict court rendered judgment in accordance with s contentions; and further declared that the provisions of the Utah Constitution and law just referred to, requiring voters in a bond election to be taxpayers, are severable from the remainder of such sections, so that the school district may validly hold bond elections if all otherwise qualified voters are allowed to vote. Defendant School District the inappeals, challenging junction and the judgment. 11-14- No debt in excess of Ihe taxes for the current year shall created by . . any school district . . . unless the proposition to create such debt, shall have been submitted to a vote of such qualified electors as shall lave paid a property tax therein, in the year preceding such election. . , . . . . -2 in the Notwithstanding our emphatic disagreement with the majority case of City of Phoenix v. Kolodziejski, we realize that it is for the present to be recognized as the law; and that as such it renders those aspects of and Section 3 of Article XIV of our State Constitution, and Sections tax5, U. C.A. 1953, inoperable insofar as they require that only property Wc further observe payers be permitted to vote in such bond elections. in whatsoever no effect nullifying or limiting any other that this should have In other law. words, it is our opinion that aspect of those provisions of the to as having been rendered the aspect of those provisions just referred of the aforesaid proviinoperable, are severable from the other aspects bond elections may be so that and statutes, sions of our State Constitution held and bonds may be issued by cities, towns, counties, school districts, or other authorized public entities at a proper election participated in by all qualified voters; and without the latter being limited to those paying prop11-14- -2 erty taxes. The foregoing conclusion is a necessary and coerced recognition of what in our judgment is the totally erroneous ruling of the majority of the v. Kolodziejski, in the cmr of Supreme Court of the United States unwarranted phoenix overreaching beyond any supra. We decry that decision as an a from as and any decent regard for departure possible area of their concern into the intrudes It legislative function: the principle of judicial restraint. Related to the above, this observation is to be made as to the fallacy of the statement that ", . . they nonpayers of property lax will also contribute, as directly as property owners, to the servicing of the bonds . . . ." In addition to having their property responsible as guaranteeing the payment of the bonds, it must be assumed that, on the average, property taxpayers make the same amount in the various indirect contributions to the school financing program. Furthermore, it should be kept in mind that whatever indirect contributions voters who pay no property tax may be making to the and fancy-fre- e at any time school financing program, they are foot-loothey choose to leave and rid themselves of any responsibility. Whereas, the opposite is true of the property taxpaying voter. He has deeper roots in the district and is not free to leave. Even if he desires to do so, he cannot take his real property with him. Nor can he liquidate and receive the full value thereof, because it is burdened with the obligation of guaranteeing payment of the bonds. se It is mystifying indeed to search for a basis upon which any individual could make statements as obviously and ineluctably unsound as the statements in the majority opinion in the Phoenix case that: "there is no basis for concluding that nonproperty owners are substantially less interested in the issuance of these securities than are property owners. " fair-mind- ed Equally without justification is the statement therein that: "The differences between the interests of property owners and the interests of nonproperty lf in Kramer v. Union Free School Dist. , 395 U. S. 621 969), the court held that a New York statute denied equal protection of the law by limiting the taxes voting franchise in school district elections to those who pay property or have children in school in the district and was therefore unconstitutional. Cioriano v. City of Houma, 395 U.S. 701 (1969), held that a Louisiana statute was unconstitutional as denying equal protection of the law by limiting the elections to approve the voting franchise to "property taxpayers" in bond U.S. v. of Phoenix Kolodziejski, issuance of revenue bonds. City and constitution of Arizona the provisions (June 1970), held unconstitutional bond in elections to franchise the property taxpayers statutes limiting voting to approve the issuance of general obligation bonds. court, Justice Ulacknnm 2. Thus, actually a majority of five on a not participating. 3. That a court will decide a moot case or determine a moot question where it appears to be in the public interest to do so, see People ex rol. Wallace v. Labrenz, 411 111. 618, 104 N. E. 2d 769, 30 A.L. R.2d 1132, cert, den, 344 U.S. 824, 97 I,. Ed. 642, 73 S. Ct. 24; Lloyd v. Rd. of Supervisors, 1 nine-justi- 1 ce 206 Md. 36, 111 A. 2d 379; Lawyers Assc. of St. Louis v. St. Louis, (Mu, App.) 294 S. W. 2d 676; 20 Am. Jur. 2d, Courts. Sec. 81, footnote 18. 4. As to severability see Smith v. Carbon County, 95 Utah 340, 81 P, 2U 1(0; Stillman v, I.yneh, 56 Utah 540, 192 P. 272, 12 A. L.R. 552; Riggins v, District Court, 89 Utah 183, 51 l.2d 645; 16 Am. Jur. 2d 409. 5. Approved, July 16, 1894 (28 Stat. 107). 6. Sec Breedlove v. Suttles, 302 U.S. 277; 25 Am. Jur. 2d 744, Elections, SUPREME COURT DECISIONS-(Continu- ed on Page 4) |