City of Phoenix v. Kolodziejski/Concurrence Black

by Hugo Black

United States Supreme Court

399 U.S. 204

CITY OF PHOENIX, ARIZONA et al., Appellants,  v.  Emily KOLODZIEJSKI.

 Argued: March 31, 1970. --- Decided: June 23, 1970

Mr. Justice BLACK concurs in the judgment and in Part I of the opinion of the Court.

Mr. Justice BLACKMUN took no part in the consideration or decision of this case.

Mr. Justice STEWART, whom The CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.

If this case really involved an 'election,' that is, a choice by popular vote of candidates for public office under a system of representative democracy, then our frame of reference would necessarily have to be Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and its progeny. For, rightly or wrongly, the Court has said that in cases where public officials with legislative or other governmental power are to be elected by the people, the Constitution requires that the electoral franchise must generally reflect a regime of political suffrage based upon 'one man, one vote.' Recent examples of that constitutional doctrine are the Court's decisions in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, involving the franchise to vote for the members of a school board; and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45, involving the apportionment of voting districts for the election of the trustees of a state junior college.

Whether or not one accepts the constitutional doctrine embodied in those decisions, they are of little relevance here. For in this case nobody has claimed that the members of the City Council of Phoenix, Arizona-the individual appellants here-were elected in any way other than on a one man, one vote basis, or that they do not fully and fairly represent the entire electorate of the municipality. And it was these councilmen who initiated the program for borrowing money so that the city might have a sewer system, parks and playgrounds, police and public safety buildings, a new library, and other municipal improvements. Having made that initial decision, the councilmen submitted the borrowing and construction program for final approval by those upon whom the burden of the municipal bonded indebtedness would legally fall-the property owners of the city. These property owners approved the entire program by a majority vote. Yet the Court today says the Equal Protection Clause prevents the city of Phoenix from borrowing the money to build the public improvements that the council and the property owners of the city have both approved. I cannot believe that the United States Constitution lays such a heavy hand upon the initiative and independence of Phoenix, Arizona, or any other city in our Nation.

In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647, the Court held unconstitutional a Louisiana law that permitted only property owners to vote on the question of approving bonds that were to be financed exclusively from the revenues of municipally operated public utilities. I agreed with that decision, because the State had created a wholly irrelevant voting classification. Id., at 707, 89 S.Ct., at 1901 (Black and Stewart, JJ., concurring in the judgment). As the Court there noted:

'The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay the rates; however the impact of the revenue bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike.' Id., at 705, 89 S.Ct. at 1900.

The case before us bears only a superficial resemblance to Cipriano, for we deal here, not with income-producing utilities that can pay for themselves, but with municipal improvements that must be paid for by the taxpayers. Under Arizona law a city's general bonded indebtedness effectively operates as a lien on all taxable real estate located within the city's borders. During the entire life of the bonds the privately owned real property in the city is burdened by the city's pledge-and statutory obligation-to use its real estate taxing power for the purpose of repaying both interest and principal under the bond obligation. ^[1] Whether under these circumstances Arizona could constitutionally confer upon its municipal governing bodies exclusive and absolute power to incur general bonded indebtedness without limit at the expense of real property owners is a question that is not before us. For the State has chosen a different policy, reflected in both its constitutional and statutory law. ^[2] It has told the governing bodies of its cities that while they are free to plan and propose capital improvements, general obligation bonds cannot be validly issued to finance them without the approval of a majority of those upon whom the weight of repaying those bonds will legally fall.

This is not the invidious discrimination that the Equal Protection Clause condemns, but an entirely rational public policy. I would reverse the judgment, because I cannot hold that the Constitution denies the City of Phoenix the public improvements that its Council and its taxpayers have endorsed. ^[3]

Notes

1. Ariz.Rev.Stat.Ann. § 35-458 provides: 'After the bonds are issued, the governing body or board * * * shall annually levy and cause to be collected a tax * * * upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and * * * to redeem the bonds when they mature.'
2. The constitutional and statutory provisions applicable to all bond authorization elections of incorporated cities and towns in the State of Arizona limit the right to vote in such elections to persons who are qualified electors and who are also real property taxpayers. Ariz.Const., Art. 7, § 13; Art. 9, § 8. Ariz.Rev.Stat.Ann. § 9-523 and § 35-455. These constitutional and statutory provisions apply to all political subdivisions within the State of Arizona, and not just to cities and towns.
3. Since the Court's contrary view today prevails, I add that upon that premise THE CHIEF JUSTICE and I agree with Part II of the Court's opinion, and that Mr. Justice HARLAN also joins in Part II of the Court's opinion, subject, however, to the views expressed in his concurring opinion in United States v. Estate of Donnelly, 397 U.S. 286, 295, 90 S.Ct. 1033, 1039, 25 L.Ed.2d 312 (1970).