Bogert v. Kinzer

• Decision Date: 17 February 1970
• Docket Number: No. 10446,10446
• Citation: 93 Idaho 515,465 P.2d 639
• Parties: E. A. Dee BOGERT and Ruth Marion Rogers, as the successor in interest of John Rogers, Deceased, Petitioners and Respondents, v. HARRY KINZER, Clerk of the City of Pocatello, a municipal corporation of the State of Idaho, and Don Brennan, Earl Pond, Fred Snyder, E. Norman Vaughan, William Roskelley, Rampton Barlow and Albert Minton, as the Board of Commissioners of the City of Pocatello, a municipal corporation of Idaho, Appellants.
• Court: Idaho Supreme Court

Page 639

465 P.2d 639

93 Idaho 515

E. A. Dee BOGERT and Ruth Marion Rogers, as the successor in interest of John Rogers, Deceased, Petitioners and Respondents, v. HARRY KINZER, Clerk of the City of Pocatello, a municipal corporation of the State of Idaho, and Don Brennan, Earl Pond, Fred Snyder, E. Norman Vaughan, William Roskelley, Rampton Barlow and Albert Minton, as the Board of Commissioners of the City of Pocatello, a municipal corporation of Idaho, Appellants.

No. 10446.

Supreme Court of Idaho.

Feb. 17, 1970.

Rehearing Denied March 24, 1970.

Gerald W. Olson, Pocatello, for appellants.

Terrell, Green, Service & Gasser, Pocatello, for respondents.

J. N. Leggat, Boise, amicus curiae.

SHEPARD, Justice.

This case presents for our consideration the alleged unconstitutionality of provisions of our Constitution and statutes which authorize the issuance of general obligation bonds by subdivisions of government only upon the assent of two-thirds of the qualified electors voting at an election held for that purpose. The lower court held, and it is contended here, that such a requirement is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that the assent of a simple majority should be sufficient to authorize the issuance of such bonds. It is contended that such two-thirds majority requirement gives each negative voter greater, voting power than an affirmative voter, that it, therefore, debases the vote of an affirmative voter and is offensive to the principle of 'one man, one vote.' We hold that the two-thirds assent requirement is not offensive to the Equal Protective Clause of the Fourteenth Amendment to the United States Constitution and reverse the judgment of the district court.

Article 8, § 3, of the Idaho Constitution provides:

' § 3. Limitations on county and municipal indebtendness.-No county, city, town, township, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability, in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, no (nor) unless, before or at the time of incurring such indebtedness, provisions shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sincking fund for the payment of the principal thereof, within thirty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state and provided further that any city or village may own, purchase, construct, extend, equip, within and without the corporate limits of such city or village, water systems and sewage collection systems, and water treatment plants and sewage treatment plants, and off street parking facilities, public recreation facilities, and air navigation facilities, and, for the purpose of paying the cost thereof may, without regard to any limitation herein imposed, with the assent of two-thirds of the qualified electors voting at an election to be held for that purpose, issue revenue bonds therefor, the principal and interest of which to be paid solely from revenue derived from rates and charges for the use of, and the service rendered by, such systems, plants, and facilities as may be prescribed by law; and provided further that any port district, for the purpose of carrying into effect all or any of the powers now or hereafter granted to port districts by the laws of this state, may contract indebtedness and issue revenue bonds evidencing such indebtedness, without the necessity of the voters of the port district authorizing the same, such revenue bonds to be payable solely from all or such part of the revenues of the port district derived from any source whatsoever excepting only those revenues derived from ad valorem taxes, as the port commission thereof may determine, and such revenue bonds not to be in any manner or to any extent a general obligation of the port district issuing the same, nor a charge upon the ad valorem tax revenue of such port district.' I.C. § 50-1026 provides in pertinent part:

'If at such election, held as provided in this chapter, two thirds (2/3) of the qualified electors who pay taxes on real property within such city voting at such election, assent to the issuing of such bonds and the incurring of the indebtedness thereby created for the purpose aforesaid, such bonds shall be issued in the manner provided by the laws of the state of Idaho.'

On October 29, 1968, a special election was held in the city of Pocatello to determine if general obligation bonds should be issued to finance the construction of an airport terminal and a municipal swimming pool. The airport terminal and swimming pool bond proposals received affirmative votes of 58.83 per cent and 64.07 per cent, respectively, of the total vote. The results of the election were duly certified and the proposed bond issues were pronounced defeated for lack of the necessary two-thirds assent.

Plaintiffs are qualified electors who voted at the election and stated that they voted in favor of the bond issues. They instituted this action against the officers of the city of Pocatello seeking a writ of mandate to compel a declaration and certification of the passage of the bond issue questions. The district court entered findings of fact, conclusions of law, and judgment granting the writ of mandate. The mandate was issued commanding the officers of the city to certify passage of the bond issue questions. From that judgment and issuance of the writ of mandate, the defendant city officials appeal.

There are preliminary questions for disposition. Amicus curiae seeks to inject a completely new and foreign issue into this appeal. He contends that the action of the lower court should be affirmed for a reason not framed by the pleadings, not argued in the lower court, and not given by the lower court as a basis for its decision. That new issue is not discussed in the briefs of the parties nor is it argued on behalf of the parties. As recited herein, the plaintiffs are qualified electors and hence property owners. They voted in the election and complain only that their votes were debased, but do not and cannot complain that they were denied their right to vote. Amicus, however, suggests the requirement that electors in such elections must be property owners is offensive to the provisions of the Fourteenth Amendment to the United States Constitution. It is sufficient to say only that such issue is not before this Court in this case and amicus curiae must take a case as he finds it without attempting to inject new issues or to tailor the case to suit his needs. State v. City of Albuquerque, 31 N.M. 576, 249 P. 242 (1926); State ex rel. Board of Railroad Com'rs v. Martin, 210 Iowa 207, 230 N.W. 540 (1930). See also our decision of this Term, Muench, et al. v. Paine, et al., 93 Idaho 473, 463 P.2d 939 (January 16, 1970).

Appellants (defendants below) contend that the trial court had no jurisdiction to issue the writ of mandate in proceedings designed to test the constitutionality of our statutes and constitution, and particularly where there was no clear duty to perform 'an act which the law especially enjoins as a duty resulting from an office, trust or station.' I.C. § 7-302. There is no clear statutory or constitutional duty demanded of any officer in this case as was required by the district court's writ of mandate. In fact, the opposite is true. It is, therefore, difficult to discern any rational basis upon which a district judge could proceed to issue a mandate which has the effect of prohibiting officers from performing duties clearly enjoined on them by law. We do not, however, decide that question and our decision herein rests on other grounds.

We are informed by all parties of the great public importance of the ultimate constitutional question involved herein. We take judicial notice of the serious problems that are presently faced by all subdivisions of government in Idaho. The questions raised in this case and Muench have practically destroyed the marketability of bonds issued by local units of government in Idaho. In a case of such wide and extreme public and governmental importance, questions of technicality and methodology should, if possible, be laid aside and the decision of this Court be dispositive of the ultimate issue. Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); Thompson v. Legislative Audit Commission, 79 N.M. 693, 448 P.2d 799 (1968); State ex rel. Sullivan v. Boos, 23 Wis.2d 98, 126 N.W.2d 579 (1964); Hudson v. Kelly, 76 Ariz. 255, 263 P.2d 362 (1953).

Plaintiffs-respondents suggest that decisions of the United States Supreme Court dealing with an interpreting the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution beginning with the case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and including the late cases of Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), require the affirmance of the decision of the lower court in the case herein. Indeed, it is suggested that the era encompassed by these cases represents the logical development of judicial thinking regarding the Equal Protection Clauses as applied to the electoral process and will be characterized as 'Baker to Bogert.' We are required, therefore, to analyze the opinions and decisions of the United States Supreme Court in these cases.

Baker v. Carr, supra, held that a justiciable issue was...