Settle v. City of Muskogee

• Decision Date: 23 December 1969
• Docket Number: No. 43842,43842
• Court: Oklahoma Supreme Court
• Parties: Tom SETTLE, Plaintiff, v. The CITY OF MUSKOGEE, of the State of Oklahoma, et al., Defendants.

Page 642

462 P.2d 642

Tom SETTLE, Plaintiff, v. The CITY OF MUSKOGEE, of the State of Oklahoma, et al., Defendants.

No. 43842.

Supreme Court of Oklahoma.

Dec. 23, 1969.

As Corrected Dec. 31, 1969.

Jan Eric Cartwright, Muskogee, for plaintiff; George J. Fagin and Andrew J. Haswell, Jr., Oklahoma City, J. Scott Brown, Oklahoma City, of counsel.

Chal Wheeler, Andrew C. Wilcoxen, Jr., Muskogee, for defendants.

J. B. Marshall, Edmond, for amicus curiae Oklahoma Municipal League.

Fielding D. Haas, Norman, for amicus curiae City of Norman.

G. T. Blankenship, Atty. Gen. of Oklahoma, Tim Leonard, Asst. Atty. Gen., for amicus curiae.

Roy H. Semtner, Municipal Counselor, James R. Fuson, Asst. Municipal Counselor, for amicus curiae City of Oklahoma City.

DAVISON, Justice.

This is an original action in this court in which we are called on to determine the validity of Art. 10, § 27, of the Oklahoma Constitution. Plaintiff contends Art. 10, § 27, is unconstitutional on the ground that the limitation therein, requiring persons voting at the election therein to be 'qualified property tax paying voters,' violates the equal protection clause in the Fourteenth Amendment to the United States Constitution.

We accept original jurisdiction of the action because of the public importance of the matter and the need for an early determination of the involved question.

There is no dispute as to the following facts. Plaintiff is not a property taxpayer, but is an otherwise qualified voter in the City of Muskogee. On may 6, 1969, the City, under authority of Art. 10, § 27, of the Oklahoma Constitution, held a special election submitting to the registered qualified property tax paying voters of the City the proposition of whether the City should incur an indebtedness by issuing its bonds in the sum of $750,000, to provide funds for the purpose of acquiring a site for and constructing, furnishing and equipping a public library to be owned exclusively by the City, and to levy and collect an annual tax upon all taxable property in the City sufficient to pay the interest, and the principal of said bonds as they became serially due, within 25 years. The proposition received the required constitutional majority vote in favor thereof. Plaintiff was not allowed to vote in this election because he was not a property taxpayer.

The City commenced proceedings to sell the bonds. The Attorney General of Oklahoma, as ex-officio Bond Commissioner of the State of Oklahoma, duly approved said bonds.

Plaintiff then filed this action for himself and all others in his class against the City and its officers and council. He alleges the facts above narrated and further alleges his interest, and the interest of all members of the community, in the quality of public utilities and in the financing and construction of a public library, and his conclusion that property tax levels affect the price of goods and services in the community. He prays that the election be declared invalid and that the defendants be enjoined from issuing the bonds, on the ground that Art. 10, § 27, violates the Equal Protection Clause.

Art. 10, § 27, of the Oklahoma Constitution allows a city, by a majority of the 'qualified property tax paying voters' of such city, voting at an election held for that purpose, to become indebted In a larger amount than that specified in Section 26, for the purpose of purchasing or constructing utilities, or for repairing the same, to be owned exclusively by such city; and provides that the city shall collect an annual tax in addition to the other taxes provided for by the Constitution, sufficient to pay the interest and principal of such indebtedness within 25 years.

Art. 10, § 26, of the Constitution provides, among other things, that no city shall be allowed to become indebted to an amount exceeding, in one year, the income and revenue provided for such year, without the assent of three-fifths of the Voters thereof, voting at an election held for that purpose, 'nor in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five per centum (5%) of the valuation of the taxable property therein, * * *.'

The sole issue presented in this case is whether the classification of voters in Art. 10, § 27, violates the Fourteenth Amendment's command that no State shall deny persons the equal protection of the laws, by providing that only qualified property tax paying voters are permitted to vote for the purpose therein set forth, and thereby rendering ineligible to vote those otherwise qualified voters who do not pay taxes on real or personal property.

In Henry v. Oklahoma City, 188 Okl. 308, 108 P.2d 148, 152, involving the duties of election officials, we stated that the purpose of the above provision in Art. 10, § 27, was to render those qualified voters who do not pay taxes on real or personal property ineligible to vote at an election on the proposition of incurring indebtedness for municipally owned public utility improvements.

This court in many cases (including Bekins v. City of Tulsa, Okl., 299 P.2d 792; City of Shawnee v. Williamson, Okl., 338 P.2d 355, and City of Tulsa v. Williamson, Okl., 276 P.2d 209) has approved numerous bond issues and determined questions raised in connection therewith, all of which arose out of elections held pursuant to Art. 10, § 27. However, none of our cases involved the issue now presented to this court.

From our examination of the authorities we conclude that mere classification of persons for franchise or other purposes is not of itself invalid. The test of the validity thereof is whether, under the circumstances, the classification complies with, or violates, the stated rules of law governing such situations.

In Haas v. Holloman, Okl., 327 P.2d 655, we stated the rule that where a statute operates upon a class, the classification must not be capricious or arbitrary and must be reasonable and pertain to some peculiarity in the subject-matter calling for the legislation.

And, in Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660 (1954) the court stated:

'* * *. 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.'

The United States Supreme Court has held that States may, within limits, fix voter qualifications.

In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) the court said:

'* * *. 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. Indeed '(t)he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. ¹ Lassiter v. Northhampton County Bd. of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1076).'

We also find in Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), the following statement: 'The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems.'

Plaintiff cites and relies upon Kramer v. Union Free School District, 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). In the Kramer case a law of the State of New York establishing a classification of voters permitted to vote at a school board election was declared unconstitutional. In the Cipriano case a law of the State of Louisiana giving only 'property taxpayers' the right to vote...