Thurston v. Greco

Decision Date24 September 1970
Docket NumberNo. 41444,41444
Citation474 P.2d 881,78 Wn.2d 424
PartiesRichard THURSTON, President of Tacoma Federation of Teachers, Paul Bentley and William O'Connell, Appellants, v. Richard GRECO, Pierce County Auditor and Richard Greco, Patrick Gallagher and Ronald Hendry, Pierce County Canvassing Board, Respondents.
CourtWashington Supreme Court

Neil J. Hoff, Paul Hoffman, Jr., McCormick, Hoffman, Rees & Arnold, Tacoma, Holman, Williams, Manning & Poll, Preston, Thorgrimson, Starin, Ellis & Holman, Seattle, for appellants.

Ronald J. Hendry, Pros. Atty., Pierce County, Tacoma, Slada Gorton, Atty. Gen., Olympia, for respondents.

WEAVER, Associate Justice.

This is an action of mandamus against the Pierce County auditor and the members of the Pierce County Canvassing Board established by RCW 29.62.020. The complaint prays for judgment directing defendants to certify that

the Tacoma School District No. 10 special levy and the County-City expansion bond issue have passed by reason of the votes cast in the election of November 4, 1969 * * *

In general, the crux of plaintiffs' contention is that certain sections of the Washington State Constitution and its implementing statutes, requiring that certain propositions presented to the electorate must have the assent of three-fifths of those voting are in violation of the equal protection clause of the federal constitution.

Plaintiffs appeal from a judgment of the trial court dismissing their action with prejudice.

We affirm.

The facts are these:

November 4, 1969, Pierce County voters were asked to consider two proposals: the Tacoma School District No. 10 special levy and the County-City Building expansion project bond issue. In the school district election, 53.4 per cent of the voters favored the levy; in the county-wide County-City Building bond election, 52.3 per cent of the voters cast ballots in favor of the measure. Thus, both propositions failed to meet the 60 per cent approval required by law.

It is contended that the 60 per cent 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.' It is, of course, contended by plaintiffs-appellants that the equal protection clause of the Fourteenth Amendment of the federal constitution requires that the assent of a simple majority of those voting is sufficient to approve the levy for the school district and to authorize issuance of bonds for the County-City Building expansion project.

Although the judgment from which this appeal is prosecuted determines that two Washington constitutional provisions and four statutes 1 are not in violation of the equal-protection clause of amendment 14 of the federal constitution, it is sufficient, for the purpose of deciding the questions presented on this appeal, to discuss only one--Art. 7, § 2 (amendment 17)--the 40-mill tax.

Amendment 17 of our constitution provides that all taxes levied on real and personal property shall not exceed 40 mills on the dollar of the assessed valuation (port and public utility districts excluded); that the specific limitation imposed by law may be exceeded only by a taxing district when it is authorized to do so by a majority of at least three-fifths of the electors voting upon the excess levy. The number of persons voting must constitute not less than 40 per centum of the total number of votes cast in the taxing district at the last preceding general election. 2 For research purposes, the full text of amendment 17 is set forth as Appendix 'A' to this opinion.

Before analyzing the judicial decisions upon which plaintiffs-appellants base their argument, we deem it helpful to an understanding of this opinion to state our stand upon two issues--independent in one sense, a part of the same overall picture in another.

First: When an American citizen qualified to exercise his right of suffrage goes to the poll, he may make use of his right of franchise in one of two capacities. He may be participating in the democratic process by which we select our representatives in our republican form of government; or he may be acting in his legislative capacity by voting for or against a proposition submitted by initiative, referendum, recall, or required by the statutes and state constitution. He is taking part in the legislative-decision process of making law.

Second: Certain writers, legal commentators, and some judges, in opinions, have murmured the recently popularized phrase, 'one man, one vote' and offered it as a nostrum for all political questions. From it, as an erroneous major premise, they reach the conclusion that the equal-protection clause of the Fourteenth Amendment places its mandatory blessing upon the proposition of majoritarianism; and that every issue of American government requires that its determination be made by a vote of 50 per cent of those voting, plus one. Not only is their assumed premise wrong historically, but, carried to a logical conclusion, would open a Pandora's box of governmental ills that would grind the teeth from the gears of government.

With these distinctions in mind, we turn to the recent decisions of the United States Supreme Court, starting with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Baker the court held that a justiciable issue was presented when it was alleged that the voting rights of individuals had been debased by the malapportionment of Tennessee legislative districts; thus, a vote in one district was worth less than a vote in another district because of geographic location.

Later cases in the United States Supreme Court presented the same problem of gross inequality of voting weight, either because of geographic malapportionment, or because of invidious distinctions in the system of electing representatives.

Illustrative are: Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (involving Georgia's county-unit system of counting votes for statewide officials, United States Senators, and Congressmen); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (debasement of individual voting rights by malapportionment of state congressional districts); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (debasement of individual votes resulting from malapportionment of the legislatures of Alabama and five other states); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (a state may not exclude a member of the armed forces from the voting franchise; "(f)encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.'); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (constitutionality of Virginia poll tax); Avery v. Midland Cy., Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (voting rights debased by malapportionment of county precincts); Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (New York statute, which excluded anyone not a real property owner or a parent of a child in school from a school district election, held unconstitutional); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (unconstitutional to exclude one not paying property tax from voting on the issue of municipal revenue bonds).

Weaving its way through these decisions, we find a thread of consistency helpful to the solution of the problems before us.

In the well-considered opinion of Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (Feb. 17, 1970), the court, having discussed the opinions we have identified, summarized:

Votes cast in the process of selecting representatives in government may not be debased to the end that one person's vote is worth more than another's because of geographic location. Persons may not be denied the right to vote for their representatives in government because of distinctions which are 'invidious.' * * *

Persons may not be denied the voting right in other decision making elections when such denial results in a fencing out without a rational basis. There must be a reasonable relationship between the interest or non-interest of a group and its being granted or denied the vote. * * * Race is not a reasonable relationship upon which to base a denial; ownership of property or parenthood are not sufficient criteria of interests in school board elections having overtones of other decision making; ownership of property is not a sufficient criteria of interest in a revenue bond election when non-property owners will utilize and pay for the services, but property ownership is a sufficient criteria in an election to determine the issuance of general obligation bonds.

* * * * * *

We believe and hold that nowhere in the lines of cases is there even a hint that the constitutional and statutory provisions in the case at bar, which allegedly 'debase' the vote of plaintiffs-respondents, are offensive to the requirements of the Equal Protection Clause.

We subscribe to the summary of the Idaho Supreme Court.

Counsel have directed our attention to several decisions of lower courts in other jurisdictions treating with the problem involved. We need not discuss them.

Two decisions, however, involving the same issue we have before us have been decided by the highest appellate court of two states: West Virginia (Lance v. Board of Education, W.Va., 170 S.E.2d 783 (1969)), and Idaho (Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (Feb. 17, 1970)).

Lance holds that the West Virginia constitutional three-fifths' vote requirement necessary to validate the bonded indebtedness of political subdivisions is repugnant to the Fourteenth amendment of the federal constitution. 3 Bogert holds to the contrary.

After a through analysis, we agree with the Supreme Court of Idaho:

We do not adopt, but...

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3 cases
  • Darrin v. Gould
    • United States
    • Washington Supreme Court
    • September 25, 1975
    ... ... See Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass'n, 83 Wash.2d 523, 520 P.2d 162 (1974); Thurston v. Greco, 78 Wash.2d 424, 474 P.2d 881 (1970); State v. Persinger, 62 Wash.2d 362, 382 P.2d 497 (1963); J.S.K. Enterprises, Inc. v. Lacey, supra ... ...
  • Tiews v. Timberlane Regional School Dist.
    • United States
    • New Hampshire Supreme Court
    • January 29, 1971
    ... ... Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970); Brenner v. School District, 315 F.Supp. 627 (W.D.Mo.1970); Thurston v. Greco, Wash., 474 P.2d 881 (1970); see Clay v. Thornton, 253 S.C. 209, 169 S.E.2d 617 (1969), appeal dismissed, Turner v. Clay, 397 U.S. 39, 90 ... ...
  • Singer v. Hara
    • United States
    • Washington Court of Appeals
    • May 20, 1974
    ... ... Hanson v. Hutt, Supra; Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass'n, Supra; Thurstondiate test. Hanson v. Hutt, Supra; Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass'n, Supra; Thurston v. Greco ... ...
1 books & journal articles
  • Legislative History in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 7-03, March 1984
    • Invalid date
    ...375, 386, 618 P.2d 521, 527 (1980). In another case, the dissent noted the closeness of a vote. Thurston v. Greco, 78 Wash. 2d 424, 443, 474 P.2d 881, 892 (1970) (Rosellini, J., dissenting). There is little justification for considering any vote count. Would it be more informative or less i......

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