Pike v. School Dist. No. 11 in El Paso County, 11

• Citation: 172 Colo. 413,474 P.2d 162
• Decision Date: 31 August 1970
• Docket Number: No. 11,No. 24657,11,24657
• Parties: Myron H. PIKE, Fred E. Fogg and L. T. Zell, Plaintiffs in Error, v. SCHOOL DISTRICT NO. 11 IN EL PASO COUNTY, Colorado, Robert Grimes, C. Lee Goodbar, Harlan Ochs, William Ruddy and John L. Wyman, Individually and in their capacity as Members of the Board of Education of School Districtin El Paso County, Colorado, Defendants in Error, and Artiemelia Davis Crawford, Intervenor in Error, and The Colorado Springs Teachers Association, the Colorado Federation of Teachers and Helen Riordian, Amici Curiae.
• Court: Supreme Court of Colorado

Page 162

474 P.2d 162

172 Colo. 413

Myron H. PIKE, Fred E. Fogg and L. T. Zell, Plaintiffs in Error, v. SCHOOL DISTRICT NO. 11 IN EL PASO COUNTY, Colorado, Robert Grimes, C. Lee Goodbar, Harlan Ochs, William Ruddy and John L. Wyman, Individually and in their capacity as Members of the Board of Education of School District No. 11 in El Paso County, Colorado, Defendants in Error and Artiemelia Davis Crawford, Intervenor in Error and The Colorado Springs Teachers Association, the Colorado Federation of Teachers and Helen Riordian, Amici Curiae.

No. 24657.

Supreme Court of Colorado, En Banc.

Aug. 31, 1970.

Rehearing Denied Sept. 21, 1970.

Gibson, Gibson, Gerdes & Campbell, Frederick H. Campbell, Colorado Springs, for plaintiffs in error.

Horn, Anderson & Johnson, Robert E. Anderson, Colorado Springs, for defendants in error.

Joe A. Cannon, David R. Barnhizer, Colorado Springs, for intervenor in error.

Haney, Howbert & Akers, Roger D. Hunt, Colorado Springs, for amici curiae.

GROVES, Justice.

This was an action to have the result of a school district election declared invalid. The trial court denied relief and dismissed the action. We affirm.

The board of the school district involved, acting under 1969 Perm.Supp., C.R.S.1963, 123--38--21, submitted to a vote of the electors of the district the question of whether it should be authorized to increase the amount that might be expended for current expenses from the general fund during the ensuing budget year from $681.67 to $811.59 per pupil with resulting increase in the property tax rate from 44.61 mills to 48.09 mills. The cited statutory section and the sections immediately preceding it, being a part of the Public School Foundation Act of 1969, require approval of an increase of this magnitude by a majority vote of 'the registered qualified taxpaying electors of the district' who shall vote. At the election held on December 9, 1969, the increase in per pupil expense and the mill levy were approved by a majority of 223 votes, 5,067 voting for and 4,844 against. Prior to the election counsel for the district board gave his opinion that the limitation of the franchise to 'taxpaying electors' is unconstitutional under two recent decisions of the United States Supreme Court. These decisions are Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647, both of which were announced on June 16, 1969. This advice was followed and non-taxpaying electors were permitted to vote. The trial court found that the number of non-property owners voting was sufficient, mathematically, to change the results of the election.

The position of the plaintiffs in this action is: (1) that the statute should have been followed and only taxpaying electors permitted to vote; and (2) that, if the statutory limitation is unconstitutional, the word 'taxpaying' is not severable from the rest of the statute and the entire statute must fall. In Kramer v. Union Free School District, Supra, there was before the court a New York statute limiting the franchise in the annual election of members of the school boards in certain districts to parents and guardians of children attending public schools in the district, to residents who owned or leased taxable real property and to spouses of such residents. The action to have the statute declared unconstitutional was brought by a bachelor who resided with his parents and neither owned nor leased taxable real property.

In the five to three majority opinion Chief Justice Warren declared that the statute unconstitutionally denied equal protection to Mr. Kramer. However, in the decision it was stated that no opinion was being expressed as to whether a state in some circumstances might limit the exercise of the elective franchise to those 'primarily interested' or 'primarily affected.'

In the companion case of Cipriano v. City of Houma, Supra, the court considered a Louisiana law which limited the franchise to 'property taxpayers' in elections held for the approval of issuance of revenue bonds by a municipal utility. The limitation was held to be unconstitutional as violative of the equal protection clause. Further as stated in Kramer, when the state limits the election franchise the courts must determine whether the exclusions are necessary 'to promote a compelling state interest.'

Until June 23, 1970, we were free to affirm or reverse in the instant matter. We could follow Stewart v. Parish School Board, D.C., 310 F.Supp. 1172 (1970) and affirm; or we could subscribe to Muench v. Paine, 93 Idaho 473, 463 P.2d 939 (1970); Settle v. City of Muskogee, 462 P.2d 642 (Okla.1969); and Settle v. Board of County Commissioners, 462 P.2d 646 (Okla.1969). Each of these four cases involved a state statute which limited the vote to taxpayers in elections concerning bonds payable through tax levies. In Stewart it was held that the statute did not meet the standards of Kramer and Cipriano and, therefore, was unconstitutional. In Muench and the two Settle cases it was concluded that Kramer and Cipriano did not control and the statutory limitations were upheld. Both the Idaho and Oklahoma courts found that the limitation promoted a Compelling state interest.

On June 23, 1970, the day after the plaintiffs in error filed their reply brief here, Mr. Justice White delivered the five to three opinion in City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523. This was cited here in a supplemental brief and discussed in oral argument. Involved was an election to authorize the issuance of general obligation bonds, as well as certain revenue bonds. While under Arizona law property taxes were to be levied to service the indebtedness, the city was privileged to use other revenues for this purpose. The majority opinion held that the exclusion of nonproperty owners from the election under the Arizona statute violated the equal protection clause of the United States Constitution. Among the reasons given for that conclusion was that revenues other than property taxes were legally available to retire the bonds.

If Kolodziejski had been grounded solely on that proposition, we would be free, if we desired, to distinguish it from the election in the instant matter. However, the decision went much further. The three-judge court which originally heard Kolodziejski perceived no significant difference between revenue bonds and general obligation bonds. It held that the exclusion of nonproperty-owning voters under general obligation bonds was unconstitutional under Kramer and Cipriano. That holding was affirmed.

Further, in Kolodziejski the court stated:

'Concededly, the case of elections to approve general obligation bonds was not decided in Cipriano v. City of Houma, Supra. But we have concluded that the principles of that case, and of Kramer v. Union Free School District, Supra, dictate a like result where a State excludes nonproperty taxpayers from voting in elections for the approval of general obligation bonds.'

Additionally, Kolodziejski holds that property owners and nonproperty owners alike have a sufficient interest in public facilities and services of the city to make unconstitutional the limitation of the elective franchise to property owners alone. Also, it found that property taxes are normally passed on to tenants and that most nonproperty owners were tenants.

Plaintiff in error in oral argument advanced the suggestion that the availability of other funds to pay the bonds was the real basis for the decision in Kolodziejski and that the other statements therein which we have said are controlling are merely dicta. We cannot agree. We do not regard as dictum the interpretation of Kramer and Cipriano. The other grounds upon which the opinion is based are just as much controlling as the ground of availability of other funds.

We are unable to find sufficient distinguishing features between the municipal election in Kolodziejski and the budget and mill levy election here considered to avoid the controlling impact of Kolodziejski. We, therefore, are obliged to hold that the limitation of the right to vote in 1969 Perm.Supp., C.R.S.1963, 123--38--21 is unconstitutional.

There is some passing significance to the following observation made by Judge Wisdom of the Fifth Circuit Court of Appeals in Stewart v. Parish School Board, Supra:

'Kramer and Cipriano, with the aid of Reynolds v. Sims, (377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506) Avery, (v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45) and Harper, (v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169) teach that laws restricting the right to vote--we say, in any election--do not carry the usual presumption of constitutionality.' ¹

Considerable authority has been cited on both sides of the question of whether the word 'taxpaying' in the statute is severable. Considerable and possibly very awkward confusion would result if we were to hold that 'taxpaying' is not severable and declare the whole limitation and election portions of the statute unconstitutional. Therefore, we are persuaded that the better rule for application here is that the word is severable. We follow the view of School District No. 1 v. School Planning Comm., 164 Colo. 541, 437 P.2d 787, that where a portion of a statute is unconstitutional, the remaining portions will be held valid if they are complete in themselves and can be given legal effect. This achieves (perhaps on a sounder foundation) the same result as arrived at in Stewart v. Parish School Board, Supra, wherein it was said:

'We hold that the general election laws of Louisiana are to be applied in general obligation bond elections; all qualified registered voters are entitled to vote in such elections, as they are now entitled to vote in Louisiana revenue bond and sales tax elections.'

We hold: that only the word ...