Cipriano v. City of Houma, Civ. A. No. 67-1853.

• Decision Date: 15 July 1968
• Docket Number: Civ. A. No. 67-1853.
• Parties: Joseph Q. CIPRIANO, Plaintiff, v. CITY OF HOUMA, G. Leslie Broussard, Mayor, Christian L. Olivier, Charles Davidson, Peter Bourgeois, Jr., Samuel Lusco and Wilbert P. Bonvillian, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

286 F. Supp. 823

Joseph Q. CIPRIANO, Plaintiff, v. CITY OF HOUMA, G. Leslie Broussard, Mayor, Christian L. Olivier, Charles Davidson, Peter Bourgeois, Jr., Samuel Lusco and Wilbert P. Bonvillian, Defendants.

Civ. A. No. 67-1853.

United States District Court E. D. Louisiana, New Orleans Division.

July 15, 1968.

Kenneth T. Watkins, J. Louis Watkins, Jr., James C. Walker, Jr., Houma, La., for plaintiff.

Kenneth C. De Jean, Baton Rouge, La., Sp. Counsel to Atty. Gen., intervenor.

R. Gordon Kean, Jr., Baton Rouge, La., for Louisiana Municipal Assn., amicus curiæ.

E. E. Huppenbauer, Jr., New Orleans, La., Ted J. Borowski, Houma, La., for defendants.

Before WISDOM, Circuit Judge, and RUBIN and COMISKEY, District Judges.

RUBIN, District Judge:

A resident of the City of Houma, Louisiana, has brought a class action seeking an injunction to prevent the City from issuing utility revenue bonds approved by a vote of the property taxpayers at a special election. In addition, he seeks a judgment declaring that the provisions of Louisiana law under which the election was held violate the federal constitution. The plaintiff is a qualified voter, but not a property owner. He contends that he and the other members of the class of resident voters who do not own property in Houma have a proprietary interest in the municipal utility properties and that, since the Louisiana Constitution and statutes permit only qualified resident voters who are property owners to participate in the election, they have been denied due process and equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States.

The Louisiana Constitution imposes limitations on the amount of debt a municipality may incur.¹ But in Louisiana, as in other states, these limitations apply only to debt that constitutes a general obligation of the municipality; debt that is a charge only on a special fund is not subject to the limitation.² Article XIV, Section 14(m), of the Louisiana Constitution is typical of the provisions relative to such special funds: it provides that the legislature may authorize municipal corporations to issue bonds for the purpose of constructing, acquiring, extending, or improving any revenue producing public utility if the bonds are secured exclusively by a mortgage on the assets of the utility system and a pledge of its revenues, but that these bonds may not be a charge on the other public income and revenues of the municipality.³

Acting under this authority, the Louisiana legislature empowered municipal corporations to issue public utility revenue bonds for the purposes permitted by the constitutional provision.⁴ The bonds must be authorized by a resolution of the municipal governing body.⁵ As the Louisiana Constitution requires, they must be payable solely from the revenues of operating the utility system, and they may not constitute an indebtedness or pledge of the general credit of the municipality.⁶ Before the resolution authorizing the issuance of bonds may be adopted by the governing body, the question whether the bonds should be issued must be submitted to and approved by the votes of a majority in number and amount of the property taxpayers.⁷

The procedure contemplated by the Louisiana statutes was followed by the City of Houma. The Mayor and Board of Aldermen, the duly elected municipal governing body, adopted a resolution calling a special election. The election was held, and the bond issue was approved. The City applied to the State Bond and Tax Board for consent and authority to issue and sell the bonds.⁸ Before they can be sold, it will be necessary for the municipal governing body to adopt a resolution for the issuance and sale of the bonds.⁹

While the plaintiff contends he was denied due process of law, he does not seriously press the claim. His real complaint is denial of equal protection of the laws, and he relies entirely upon Harper v. Virginia State Board of Elections, 1966, 383 U.S. 663, 86 S.Ct. 1079, 16 L. Ed.2d 169. In Harper the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prevents a state from exacting a poll tax as a condition of the right to vote in state elections. Mr. Justice Douglas reasoned that, "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." Id. at 665, 86 S.Ct. at 1081. A state "violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." Id. at 666, 86 S.Ct. at 1081.

But this sweeping proposition is not decisive here. The Equal Protection Clause does not command state legislatures to make their laws conform to hydraulic principles by seeking the common —and lowest—level. "Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary." Walters v. City of St. Louis, 1954, 347 U.S. 231, 237, 74 S. Ct. 505, 509, 98 L.Ed. 660. In considering whether a classification rests on a real difference we must take into account the nature and the relative importance of the subject with respect to which equality is asserted. "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Reynolds v. Sims, 1964, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L. Ed.2d 506.

But "the Equal Protection Clause is not shackled to the political theory of a particular era,"¹⁰ not even the one in vogue at present. It does not forbid the states to fix voter qualifications; it only, as Harper puts it, prevents them "from fixing voter qualifications which invidiously discriminate."¹¹ For "there can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications than residence for the exercise of the franchise."¹²Harper holds merely that equal protection is denied when a state levies a poll tax. It does not declare that the Fourteenth Amendment abrogates the power of the states to classify voters.

Mere classification does not of itself deprive a group of equal protection.¹³ Older decisions taught us that legislation that differentiates between two classes is unconstitutional only if the discrimination is irrational, arbitrary or capricious.¹⁴ Only a few weeks ago, the Supreme Court indicated that these principles are still vital. In holding that the one man, one vote principal of Reynolds v. Sims was applicable to the selection of Texas County Commissioners it said, "The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious." Avery v. Midland County, Texas, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45.¹⁵

Unlike the poll tax rejected in Harper, the Louisiana statute attacked here does not limit suffrage in an election held to vote for political representatives or general governmental purposes. It deals solely with a vote on the issuance of municipal revenue bonds. The test to be applied is whether the distinction drawn between resident voters who are property owners and resident voters who do not own property is so arbitrary or invidious as to deny equal protection of the laws to the resident who does not own property. This can not be settled by resort to generalizations that would apply the same criteria to every ballot on every subject just because it is a ballot. Whether the distinction is invidious depends on the exact factual situation presented.

Before a utility revenue bond can be issued under the Louisiana constitutional and statutory plan, the property owners election must be authorized by an elected governmental body. The plaintiff has full suffrage in the election of this municipal governing body, as well as in the election of the Louisiana legislature. The property owners election called by the municipal governing body can only approve or disapprove the issuance of bonds. If it disapproves, its veto is decisive. But even if it approves, the municipal governing body has the final decision on whether the bonds should be issued.¹⁶

The election to approve the issuance of the bonds is not an election for general governmental purposes. It concerns the administrative functions of the municipality. This type of distinction has been considered important in determining what is required to afford equal protection to voters. See Sailors v. Board of Education of County of Kent, 1967, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650.

The question here is not whether all voters resident in a municipality are equally qualified to vote on the issuance of utility bonds, nor whether they are all equally concerned with municipal utility services, nor whether they pay utility bills just like property owners, nor whether the people of Louisiana in adopting their Constitution or the legislature of Louisiana in enacting its statutes have acted wisely in determining that only property owners can veto the issuance of revenue bonds. It is whether Louisiana's plan of governmental action is arbitrary or invidious with respect to the resident voter who owns no property. In deciding how they would authorize revenue bonds to be issued, Louisianians might have supposed, perhaps erroneously but without being irrational, that property owners by and large have...